EXHIBIT 10.3
AGREEMENT AND PLAN OF DISTRIBUTION
BY AND BETWEEN
NATIONAL SERVICE INDUSTRIES, INC.
AND
ACUITY BRANDS, INC.
DATED AS OF NOVEMBER 30, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS........................................................................................1
Section 1.1. General.........................................................................1
Section 1.2. Reference; Interpretation......................................................11
ARTICLE II DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN COVENANTS...........................................12
Section 2.1. The Distribution and Other Transactions........................................12
Section 2.2. Assumption and Satisfaction of Liabilities.....................................14
Section 2.3. Resignations...................................................................14
Section 2.4. Limited Representations or Warranties..........................................14
Section 2.5. Removal of Parent Group from Certain Guarantees; Releases of Parent
Group From Liabilities.........................................................15
Section 2.6. Removal of SpinCo from Certain Guarantees; Releases of SpinCo from
Liabilities....................................................................16
Section 2.7. Witness Services...............................................................16
Section 2.8. Conveyancing and Assumption Instruments........................................17
Section 2.9. Ancillary Agreements...........................................................17
Section 2.10. Corporate Names; Trademarks....................................................17
Section 2.11. Post-Distribution Remittances..................................................18
Section 2.12. Non-Solicitation...............................................................18
Section 2.13. Further Assurances.............................................................19
ARTICLE III INDEMNIFICATION.................................................................................20
Section 3.1. Indemnification by Parent......................................................20
Section 3.2. Indemnification by SpinCo......................................................20
Section 3.3. Procedures for Indemnification.................................................20
Section 3.4. Indemnification Payments.......................................................22
ARTICLE IV ACCESS TO INFORMATION............................................................................22
Section 4.1. Provision of Corporate Records.................................................22
Section 4.2. Access to Information..........................................................23
Section 4.3. Reimbursement; Other Matters...................................................23
Section 4.4. Confidentiality................................................................23
Section 4.5. Privileged Matters.............................................................24
Section 4.6. Ownership of Information.......................................................25
Section 4.7. Retention of Records...........................................................25
Section 4.8. Limitation of Liability; Release...............................................26
Section 4.9. Other Agreements Providing for Exchange of Information.........................26
ARTICLE V DISPUTE RESOLUTION................................................................................27
Section 5.1. Negotiation....................................................................27
Section 5.2. Mediation......................................................................27
Section 5.3. Arbitration....................................................................27
Section 5.4. Continuity of Service and Performance..........................................28
Section 5.5. Other Remedies.................................................................28
ARTICLE VI INSURANCE........................................................................................29
Section 6.1. Policies and Rights Included Within Assets.....................................29
Section 6.2. Post-Distribution Date Claims..................................................29
Section 6.3. Administration; Other Matters..................................................29
Section 6.4. Agreement for Waiver of Conflict and Shared Defense............................31
Section 6.5. Cooperation....................................................................32
ARTICLE VII MISCELLANEOUS...................................................................................32
Section 7.1. Complete Agreement; Construction...............................................32
Section 7.2. Ancillary Agreements...........................................................32
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Section 7.3. Counterparts...................................................................32
Section 7.4. Survival of Agreements.........................................................32
Section 7.5. Distribution Expenses..........................................................32
Section 7.6. Notices........................................................................32
Section 7.7. Waivers........................................................................33
Section 7.8. Amendments.....................................................................33
Section 7.9. Successors and Assigns.........................................................34
Section 7.10. Termination....................................................................34
Section 7.11. Subsidiaries...................................................................34
Section 7.12. Third Party Beneficiaries......................................................34
Section 7.13. Title and Headings.............................................................34
Section 7.14. Exhibits and Schedules.........................................................34
Section 7.15. Governing Law..................................................................34
Section 7.16. Consent to Jurisdiction........................................................34
Section 7.17. Severability...................................................................35
Section 7.18. Consolidation, Merger, Etc.....................................................35
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EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
Exhibit A Limited Warranty Deed
Exhibit B Employee Benefits Agreement
Exhibit C Lease Agreement (Parent Corporate Headquarters)
Exhibit D Tax Disaffiliation Agreement
Exhibit E Transition Services Agreement
SCHEDULES
Schedule Description of Schedule
-------- -----------------------
Schedule 1.1(p) Corporate Transactions
Schedule 1.1(pp) Parent Businesses/Discontinued Parent Businesses
Schedule 1.1(tt)(ii) Specific Parent Liabilities
Schedule 1.1(tt)(iii) Parent Business Litigation
Schedule 1.1(uu) Parent Policies
Schedule 1.1(vv) Parent Shared Policies
Schedule 1.1(ww) Parent Subsidiaries
Schedule 1.1(ggg) SpinCo Balance Sheet
Schedule 1.1(hhh) SpinCo Businesses
Schedule 1.1(lll)(ii) Specific SpinCo Liabilities
Schedule 1.1(lll)(iv)(A) Specific SpinCo Liabilities
Schedule 1.1(lll)(iv)(B) SpinCo Business Litigation
Schedule 1.1(mmm) SpinCo Policies
Schedule 1.1(ooo) SpinCo Subsidiaries
Schedule 2.1(f) Consents
Schedule 2.1(g) Registration Statement/Information Statement Liabilities (Part I and Part II)
Schedule 2.5(a) Guarantees (from which Parent Group Members are to be Released)
Schedule 2.6(a) Guarantees (from which SpinCo Group Members are to be Released)
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AGREEMENT AND PLAN OF DISTRIBUTION
This AGREEMENT AND PLAN OF DISTRIBUTION (this "Agreement"), dated as
of November 30, 2001, by and between National Service Industries, Inc., a
Delaware corporation ("Parent"), and Acuity Brands, Inc., a Delaware
corporation ("SpinCo");
WHEREAS, SpinCo originally was a wholly owned subsidiary of NSI
Enterprises, Inc., a California corporation ("Enterprises"), which is a wholly
owned subsidiary of Parent;
WHEREAS, on August 31, 2001, SpinCo became a wholly owned subsidiary
of Parent;
WHEREAS, Parent Group (as defined herein) currently conducts the
Parent Business (as defined herein), owns the Parent Assets (as defined herein)
and is subject to the Parent Liabilities (as defined herein);
WHEREAS, as of the Effective Time SpinCo Group (as defined herein)
will conduct the SpinCo Business (as defined herein), will own the SpinCo
Assets (as defined herein) and will be subject to the SpinCo Liabilities (as
defined herein);
WHEREAS, the Board of Directors of Parent has authorized the
distribution by Parent to the holders of the issued and outstanding shares of
common stock, par value $1.00 per share, of Parent (the "Parent Common Stock")
as of the record date of 100% of the issued and outstanding shares of common
stock, par value $0.01 per share, of SpinCo (the "SpinCo Common Stock"),
together with the associated preferred stock purchase rights (each share of
such stock, together with the associated preferred stock purchase right, a
"SpinCo Share"), on the basis of one (1) SpinCo Share for each share of Parent
Common Stock (the "Distribution"); and
WHEREAS, the parties hereto have determined to set forth the principal
corporate and other transactions required to effect the Distribution and to set
forth other agreements that will govern certain other matters prior to and
following the Distribution.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. GENERAL. Unless otherwise defined herein or unless
the context otherwise requires, as used in this Agreement, the following terms
shall have the following meanings:
(a) "Action" shall mean any demand, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Authority or
any arbitration or mediation tribunal.
(b) "Affiliate" shall mean, when used with respect to any
specified Person, a Person that directly or indirectly controls, is controlled
by, or is under common control with such specified
Person; provided, however, that for purposes of this Agreement, any Person who
was a member of both Groups prior to the Distribution shall be deemed to be an
Affiliate only of the Group of which such Person is a member following the
Distribution. As used herein, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
other interests, by contract or otherwise. Any contrary provision of this
Agreement notwithstanding, neither Parent nor any Parent Subsidiaries shall be
deemed to be an Affiliate of SpinCo, and neither SpinCo nor any SpinCo
Subsidiaries shall be deemed to be an Affiliate of Parent.
(c) "Agent" shall have the meaning set forth in Section 2.1(b) of
this Agreement.
(d) "Agreement" shall mean this Agreement.
(e) "Agreement Disputes" shall have the meaning set forth in
Section 5.1 of this Agreement.
(f) "Ancillary Agreements" shall mean all of the written
agreements, instruments, understandings, assignments or other arrangements
(other than this Agreement) entered into by the parties hereto or any other
member of their respective Groups in connection with the transactions
contemplated hereby, including the Conveyancing and Assumption Instruments, the
Employee Benefits Agreement, the Tax Disaffiliation Agreement, the Transition
Services Agreement, the Ancillary Workers' Compensation Agreement, Leases and
the Subleases.
(g) [Reserved]
(h) "Applicable Rate" shall mean the rate of interest per annum
announced from time to time by Wachovia Bank of Georgia, N.A., as its prime
lending rate, plus four percent (4%).
(i) "Assets" shall mean assets, properties and rights, wherever
located (including in the possession of vendors or other third parties or
elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or required to be
recorded or reflected on the books and records or financial statements of any
Person, including the following:
(i) all accounting and other books, records and files,
whether in paper, microfilm, microfiche, computer tape or disc,
magnetic tape or any other form;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment, furniture,
office equipment, automobiles, trucks, other transportation equipment,
special and general tools, test devices, prototypes and models and
other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products;
(iv) all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or holder of a
security interest in real property, lessor, sublessor, lessee,
sublessee or otherwise;
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(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other Person; all bonds, notes,
debentures or other securities issued by any Subsidiary or any other
Person; all loans, advances or other extensions of credit or capital
contributions to any Subsidiary or any other Person; and all other
investments in securities of any Person;
(vi) all customer contracts; service, maintenance,
supply, vendor, consulting, transportation and consignment agreements;
collective bargaining agreements; employment agreements; license
agreements; leases and subleases of personal property; open purchase
orders for raw materials, supplies, parts or services; unfilled orders
for the manufacture and sale of products; and other contracts,
agreements or commitments (collectively, "Contracts");
(vii) all deposits, letters of credit and performance and
surety bonds;
(viii) all written technical information, data,
specifications, research and development information, engineering
drawings, operating and maintenance manuals, and materials and
analyses prepared by consultants and other Third Parties;
(ix) all domestic and foreign patents, copyrights, trade
names, trademarks, service marks, logos and registrations and
applications for any of the foregoing, together with the goodwill of
the business symbolized by any of the foregoing; mask works, trade
secrets, inventions, data bases, and other proprietary and
confidential information; and licenses from Third Parties granting the
right to use any of the foregoing;
(x) all computer applications, programs and other
software, including operating software, network software, firmware,
middleware, design software, design tools, systems documentation and
instructions;
(xi) all cost information, sales and pricing data,
customer prospect lists, vendor records, customer and vendor lists,
customer and vendor data, correspondence and lists, product
literature, artwork, design, development and manufacturing files,
vendor and customer drawings, formulations and specifications, quality
records and reports and other books, records, studies, surveys,
reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other
accounts and notes receivable;
(xiii) all rights, claims, demands, choses in action and
similar rights relating to the foregoing, whether accrued or
contingent;
(xiv) all rights under insurance policies and all rights
in the nature of insurance, indemnification or contribution;
(xv) all licenses, permits, approvals and authorizations
which have been issued by any Governmental Authority;
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(xvi) cash or cash equivalents, bank accounts, lock boxes
and other deposit arrangements; and
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or arrangements.
(j) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which commercial banking institutions located in The City of
New York are authorized or obligated by law or executive order to close.
(k) "Claims Administration" shall mean the processing of claims
made under the Parent Shared Policies, including the reporting of claims to the
insurance carriers, management and defense of claims and providing for
appropriate releases upon settlement of claims.
(l) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(m) "Commission" shall mean the Securities and Exchange
Commission.
(n) "Contracts" shall have the meaning set forth in the
definition of Assets.
(o) "Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents to be or
heretofore entered into to effect the Corporate Transactions or otherwise to
effect the transfer of Assets and the assumption of Liabilities in the manner
contemplated by this Agreement, the Ancillary Agreements and the Corporate
Transactions, including a limited warranty deed in the form attached hereto as
Exhibit A.
(p) "Corporate Transactions" shall mean, collectively, (a) each
of the mergers, transfers, conveyances, contributions, assignments, dividends,
assumptions, redemptions, purchases and other transactions described and set
forth on Schedule 1.1(p) attached hereto, and (b) such other mergers,
transfers, conveyances, contributions, assignments, dividends, assumptions,
redemptions, purchases and other transactions that may be appropriate or
required to be accomplished, effected or consummated by Parent or SpinCo or any
of their respective Subsidiaries and Affiliates so that: (i) the SpinCo Assets,
SpinCo Liabilities and SpinCo Business shall be owned, directly or indirectly,
by SpinCo after giving effect to the Distribution; and (ii) the Parent Assets,
Parent Liabilities and Parent Business shall be owned, directly or indirectly,
by Parent after giving effect to the Distribution.
(q) "Distribution" shall have the meaning set forth in the
recitals to this Agreement.
(r) "Distribution Date" shall mean such date as may be determined
by the Board of Directors of Parent, or such committee of such Board of
Directors as shall be designated by the Board of Directors of Parent, as the
date as of which the Distribution shall be effected.
(s) "Distribution Record Date" shall mean such date as may be
determined by the Board of Directors of Parent, or such committee of such Board
of Directors as shall be designated by the Board of Directors of Parent, as the
record date for the Distribution.
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(t) "Effective Time" shall mean 11:59 p.m., New York City time,
on the Distribution Date.
(u) "Employee Benefits Agreement" shall mean the Employee
Benefits Agreement by and between Parent and SpinCo, which agreement shall be
entered into prior to or on the Distribution Date in the form attached hereto
as Exhibit B.
(v) "Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, principles of
common law, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions (including
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601, et seq.), whether now or hereafter in existence, relating to the
environment, natural resources, human health or safety, endangered or
threatened species of fish, wildlife and plants, or to emissions, discharges or
releases of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment (including indoor or outdoor air, surface water, groundwater and
surface or subsurface soils), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes or the
investigation, cleanup or other remediation thereof.
(w) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, together with the rules and regulations promulgated
thereunder.
(x) "Governmental Authority" shall mean any federal, state,
local, foreign or international court, government, department, commission,
board, bureau, agency, official, the NYSE or other regulatory, administrative
or governmental authority.
(y) "Group" shall mean with respect to Parent, the Parent Group
and, with respect to SpinCo, the SpinCo Group.
(z) "Indemnifiable Losses" shall mean any and all Losses suffered
by an Indemnitee.
(aa) "Indemnifying Party" shall have the meaning set forth in
Section 3.3 of this Agreement.
(bb) "Indemnitee" shall have the meaning set forth in Section 3.3
of this Agreement.
(cc) "Information Statement" shall mean the Information Statement
filed with the Commission as part of the Registration Statement and mailed to
the holders of shares of Parent Common Stock in connection with the
Distribution, including any amendments or supplements thereto.
(dd) "Insurance Administration" shall mean, with respect to each
Parent Shared Policy, (i) the accounting for premiums, retrospectively rated
premiums, defense costs, indemnity payments, deductibles and retentions, as
appropriate, under the terms and conditions of each of the Parent Shared
Policies; (ii) the reporting to excess insurance carriers of any losses or
claims which may cause the applicable limits of any Parent Shared Policy to be
exceeded; (iii) the
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distribution of Insurance Proceeds as contemplated by this Agreement; and (iv)
any and all other actions reasonably necessary for the administration of the
Parent Shared Policies.
(ee) "Insurance Proceeds" shall mean those monies (i) received by
an insured from an insurance carrier or (ii) paid by an insurance carrier on
behalf of an insured.
(ff) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and conditions
of any of the Parent Shared Policies, whether or not subject to deductibles,
self-insured retentions, co-insurance, uncollectibility or retrospectively
rated premium adjustments.
(gg) "IRS" shall mean the Internal Revenue Service.
(hh) "Law" shall mean all laws, statutes and ordinances and all
regulations, rules and other pronouncements of Governmental Authorities having
the effect of law of the United States, any foreign country, or any domestic or
foreign state, province, commonwealth, city, country, municipality, territory,
protectorate, possession or similar instrumentality, or any Governmental
Authority thereof.
(ii) "Leases" shall mean the leases by and between members of the
Parent Group and members of the SpinCo Group, which leases shall be entered
into prior to or on the Distribution Date in such form as is agreed to by
Parent and SpinCo, including the lease agreement, in the form attached hereto
as Exhibit C, pursuant to which Parent will lease to SpinCo a portion of
Parent's corporate headquarters.
(jj) "Liabilities" shall mean any and all debts, liabilities,
obligations, responsibilities, response actions, losses, damages (whether
compensatory, punitive or treble), fines, penalties and sanctions, absolute or
contingent, matured or unmatured, liquidated or unliquidated, foreseen or
unforeseen, joint, several or individual, asserted or unasserted, accrued or
unaccrued, known or unknown, whenever arising, including those arising under or
in connection with any Law (including any Environmental Law), Action,
threatened Action, order or consent decree of any Governmental Authority, or
any award of any arbitration tribunal, and those arising under any contract,
guarantee, commitment or undertaking, whether sought to be imposed by a
Governmental Authority, private party, or party to this Agreement, whether
based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute, or otherwise, and including any costs, expenses,
interest, attorneys' fees, disbursements and expenses of counsel, expert and
consulting fees and costs related thereto or to the investigation or defense
thereof.
(kk) "Losses" shall mean all losses, liabilities, damages, claims,
demands, judgments or settlements of any nature or kind, known or unknown,
fixed, accrued, absolute or contingent, liquidated or unliquidated, including
all reasonable costs and expenses (legal, accounting or otherwise as such costs
are incurred) relating thereto.
(ll) "Notices" shall have the meaning set forth in Section 7.6 of
this Agreement.
(mm) "NYSE" shall mean the New York Stock Exchange, Inc.
(nn) "Parent" shall have the meaning set forth in the preamble to
this Agreement.
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(oo) "Parent Assets" shall mean, collectively, all the Assets
owned or held by Parent or any Parent Subsidiary immediately after giving
effect to the Corporate Transactions, except the SpinCo Assets.
(pp) "Parent Business" shall mean each and every business
conducted at any time by Parent Group (including those businesses set forth on
Schedule 1.1(pp)), including each and every business conducted in the past and
each and every business which has been discontinued, sold or transferred
(including those businesses set forth on Schedule 1.1(pp)), but excluding the
SpinCo Business.
(qq) "Parent Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
(rr) "Parent Group" shall mean Parent and each Person (other than
any member of the SpinCo Group) that is a Parent Subsidiary.
(ss) "Parent Indemnitee" shall mean:
(i) Parent and each Affiliate thereof after giving
effect to the Corporate Transactions and the Distribution; and
(ii) each of the respective past, present and future
Representatives of any of the entities described in the immediately
preceding clause (i) and each of the heirs, executors, successors and
assigns of any of such Representatives, except in the case of clauses
(i) and (ii), the SpinCo Indemnitees.
(tt) "Parent Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Liabilities to be retained or assumed
by Parent or any member of the Parent Group, and all agreements,
obligations and Liabilities of any member of the Parent Group under
this Agreement or any of the Ancillary Agreements;
(ii) all Liabilities set forth on Schedule 1.1(tt)(ii);
and
(iii) all Liabilities (other than Taxes and any
employee-related Liabilities which are specifically covered by the Tax
Disaffiliation Agreement and the Employee Benefits Agreement,
respectively) primarily relating to, arising out of or resulting from:
(A) the operation of the Parent Business, as
conducted at any time prior to, on or after the Distribution
Date (including any Liability relating to, arising out of or
resulting from any act or failure to act by any
Representative (whether or not such act or failure to act is
or was within such Person's authority));
(B) the operation of any business conducted by
Parent or any Parent Subsidiary at any time after the
Distribution Date (including any Liability relating to,
arising out of or resulting from any act or failure to act by
any Representative
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(whether or not such act or failure to act is or was within
such Person's authority)); or
(C) any Parent Assets, whether arising before,
on or after the Distribution Date.
Notwithstanding the foregoing, the Parent Liabilities shall not
include: (y) any Liabilities that are expressly contemplated by this Agreement
or any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities
to be retained or assumed by SpinCo or any member of the SpinCo Group; or (z)
all agreements and obligations of any member of the SpinCo Group under this
Agreement or any of the Ancillary Agreements. Any contrary provision of this
Agreement notwithstanding, any Liabilities or Losses in respect of any Action
relating to the Parent Business, including the matters set forth on Schedule
1.1(tt)(iii), shall constitute Parent Liabilities.
(uu) "Parent Policies" shall mean all Policies, current or past,
that are owned or maintained by or on behalf of Parent or any Parent Subsidiary
that do not provide coverage to or with respect to the SpinCo Assets or the
SpinCo Business, or any part thereof, including those Policies set forth on
Schedule 1.1(uu).
(vv) "Parent Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of Parent or any Parent
Subsidiary which provide coverage to or with respect to the SpinCo Group, the
SpinCo Assets or the SpinCo Business, or any part thereof, other than SpinCo
Policies, including those Policies set forth on Schedule 1.1(vv).
(ww) "Parent Subsidiaries" shall mean all of the Subsidiaries of
Parent other than SpinCo and the SpinCo Subsidiaries. The Parent Subsidiaries
shall include the entities set forth on Schedule 1.1(ww).
(xx) "Person" shall mean any natural person, corporation, business
trust, limited liability company, joint venture, association, company,
partnership or government, or any agency or political subdivision thereof.
(yy) "Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or contracts),
including primary, excess and umbrella policies, master comprehensive general
liability policies, director and officer liability, fiduciary liability,
automobile, aircraft, property and casualty, workers' compensation and employee
dishonesty insurance policies, bonds and self-insurance and captive insurance
company arrangements, together with the rights, benefits and privileges
thereunder.
(zz) "Records" shall have the meaning set forth in Section 4.1 of
this Agreement.
(aaa) "Registration Statement" shall mean the registration
statement on Form 10 to effect the registration of the SpinCo Common Stock
pursuant to the Exchange Act.
(bbb) "Representative" shall mean, with respect to any Person, any
of such Person's directors, officers, members, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
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(ccc) "Rules" shall have the meaning set forth in Section 5.3 of
this Agreement.
(ddd) "Securities Act" shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated thereunder.
(eee) "SpinCo" shall have the meaning set forth in the preamble to
this Agreement.
(fff) "SpinCo Assets" shall mean collectively, all the Assets that
are owned by SpinCo or any SpinCo Subsidiaries as of the Effective Time and
after giving effect to the Corporate Transactions, including:
(i) the capital stock of the SpinCo Subsidiaries;
(ii) all of the Assets reflected on the SpinCo Balance
Sheet or the accounting records supporting such balance sheet;
(iii) all of the Assets expressly allocated to SpinCo or
any of the SpinCo Subsidiaries under this Agreement or any of the
Ancillary Agreements; and
(iv) any other Asset acquired by Parent or any of the
Parent Subsidiaries from the date of the SpinCo Balance Sheet to the
Effective Time that is owned by Parent, any of the Parent
Subsidiaries, SpinCo or any of the SpinCo Subsidiaries as of the
Effective Time and that is of a nature or type that would have
resulted in such Asset being included as an Asset on the SpinCo
Balance Sheet had it been acquired on or prior to the date of the
SpinCo Balance Sheet, determined on a basis consistent with the
determination of the Assets included on the SpinCo Balance Sheet.
(ggg) "SpinCo Balance Sheet" shall mean the combined balance sheet
of the SpinCo Group, including the notes thereto, as of August 31, 2001 set
forth on Schedule 1.1(ggg).
(hhh) "SpinCo Business" shall mean each and every business
conducted from and after the Effective Time by SpinCo Group (including those
businesses set forth on Schedule 1.1(hhh)), and each and every business
conducted prior to the Effective Time by Parent Group that is of a nature or
type that was or would have been included in Parent's lighting equipment or
chemicals segments for financial reporting purposes that has been discontinued,
sold or transferred by Parent Group (including those businesses set forth on
Schedule 1.1(hhh)).
(iii) "SpinCo Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
(jjj) "SpinCo Group" shall mean SpinCo, the SpinCo Subsidiaries and
the corporations, partnerships and other entities which are contemplated to
remain or become a Subsidiary of SpinCo in connection with the Corporate
Transactions and the Distribution.
(kkk) "SpinCo Indemnitees" shall mean:
(i) SpinCo and each Affiliate thereof after giving
effect to the Corporate Transactions and the Distribution; and
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(ii) each of the respective past, present and future
Representatives of any of the entities described in the immediately
preceding clause (i) and each of the heirs, executors, successors and
assigns of any of such Representatives.
(lll) "SpinCo Liabilities" shall mean
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary
Agreement (or the Schedules hereto or thereto) as Liabilities to be
retained or assumed by SpinCo or any member of the SpinCo Group, and
all agreements, obligations and Liabilities of any member of the
SpinCo Group under this Agreement or any of the Ancillary Agreements;
(ii) all Liabilities set forth on Schedule 1.1(lll)(ii);
(iii) all Liabilities (other than Taxes and any
employee-related Liabilities which are specifically covered by the Tax
Disaffiliation Agreement and the Employee Benefits Agreement,
respectively), primarily relating to, arising out of or resulting
from:
(A) the operation of the SpinCo Business, as
conducted at any time prior to, on or after the Distribution
Date (including any Liability relating to, arising out of or
resulting from any act or failure to act by any
Representative with respect to the SpinCo Business (whether
or not such act or failure to act is or was within such
Person's authority));
(B) the operation of any business conducted by
SpinCo or any SpinCo Subsidiary at any time after the
Distribution Date (including any Liability relating to,
arising out of or resulting from any act or failure to act by
any Representative (whether or not such act or failure to act
is or was within such Person's authority)); or
(C) any SpinCo Assets, whether arising before,
on or after the Distribution Date; and
(iv) all Liabilities reflected as liabilities or
obligations on the SpinCo Balance Sheet or the accounting records
supporting such balance sheet, and all Liabilities arising or assumed
after the date of such balance sheet which, had they arisen or been
assumed on or before such date and been retained as of such date,
would have been reflected on such balance sheet, determined on a basis
consistent with the determination of the Liabilities included on the
SpinCo Balance Sheet, subject to any discharge of such Liabilities
subsequent to the date of the SpinCo Balance Sheet, including those
liabilities set forth on Schedule 1.1(lll)(iv)(A).
Notwithstanding the foregoing, the SpinCo Liabilities shall not
include: (y) any Liabilities that are expressly contemplated by this Agreement
or any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities
to be retained or assumed by Parent or any member of the Parent Group; or (z)
all agreements and obligations of any member of the Parent Group under this
Agreement or any of the Ancillary Agreements. Any contrary provision of this
Agreement notwithstanding, any Liabilities or Losses in respect of any Action
relating to the SpinCo
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Business, including the matters set forth on Schedule 1.1(lll)(iv)(B), shall
constitute SpinCo Liabilities.
(mmm) "SpinCo Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of Parent or any Parent
Subsidiary, which relate specifically to the SpinCo Assets or the SpinCo
Business but do not relate to the Parent Business or the Parent Assets, and
which Policies are either maintained by SpinCo or a member of the SpinCo Group
or assignable to SpinCo or a member of the SpinCo Group, including those
Policies set forth on Schedule 1.1(mmm).
(nnn) "SpinCo Share" shall have the meaning set forth in the
recitals to this Agreement.
(ooo) "SpinCo Subsidiaries" shall mean all of the Subsidiaries
listed on Schedule 1.1(ooo).
(ppp) "Subleases" shall mean the subleases, if any, by and between
members of the Parent Group and members of the SpinCo Group, which subleases
shall be entered into prior to or on the Distribution Date in such form as is
agreed to by Parent and SpinCo.
(qqq) "Subsidiary" shall mean with respect to any specified Person,
any corporation or other legal entity of which such Person or any of its
Subsidiaries controls or owns, directly or indirectly, more than 50% of the
stock or other equity interest entitled to vote on the election of members to
the board of directors or similar governing body.
(rrr) "Tax" shall have the meaning set forth in the Tax
Disaffiliation Agreement.
(sss) "Tax Disaffiliation Agreement" shall mean the Tax
Disaffiliation Agreement by and between Parent and SpinCo, which agreement
shall be entered into prior to or on the Distribution Date in the form attached
hereto as Exhibit D.
(ttt) "Third Party" shall mean a Person who is not a party hereto
or a Subsidiary thereof.
(uuu) "Third-Party Claim" shall have the meaning set forth in
Section 3.3 of this Agreement.
(vvv) "Transition Services Agreement" shall mean the Transition
Services Agreement by and between Parent and SpinCo, which agreement shall be
entered into prior to or on the Distribution Date in the form attached hereto
as Exhibit E.
SECTION 1.2. REFERENCE; INTERPRETATION. References in this
Agreement to any gender include references to all genders, and references to
the singular include references to the plural and vice versa. The words
"include", "includes" and "including" when used in this Agreement shall be
deemed to be followed by the phrase "without limitation." Unless the context
otherwise requires, references in this Agreement to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement. Unless the context otherwise
requires, the words "hereof", "hereby" and "herein" and words of similar
meaning when used in this Agreement refer to this Agreement in its entirety and
not to any particular
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Article, Section or provision of this Agreement. Neither this Agreement nor any
Ancillary Agreement shall be construed against either party as the principal
draftsperson hereof or thereof.
ARTICLE II
DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN COVENANTS
SECTION 2.1. THE DISTRIBUTION AND OTHER TRANSACTIONS.
(a) Certain Transactions. On or prior to the Distribution Date:
(i) Pursuant to the Corporate Transactions, Parent Group
owns the Parent Assets and is subject to the Parent Liabilities.
(ii) Pursuant to the Corporate Transactions, SpinCo Group
owns the SpinCo Assets and is subject to the SpinCo Liabilities.
(b) Distribution to Parent.
(i) On or prior to the Distribution Date, Parent shall
deliver to Parent's stock transfer agent (the "Agent") a certificate
or certificates representing the SpinCo Shares which are to be
distributed to Parent's stockholders in the Distribution, endorsed by
Parent in blank, for the benefit of the holders of Parent Common
Stock, and Parent shall authorize the Agent to distribute, on or as
soon as practicable following the Distribution Date, such SpinCo
Shares to holders of record of shares of Parent Common Stock on the
Distribution Record Date as further contemplated by the Information
Statement and hereby. SpinCo shall provide any share certificates that
the Agent shall require in order to effect the Distribution.
(ii) The SpinCo Shares distributed in the Distribution
will be distributed only pursuant to a book entry system. Parent shall
authorize the Agent to deliver the SpinCo Shares previously delivered
to the Agent to a depositary and to mail to each holder of record of
Parent Common Stock on the Distribution Record Date, a statement of
the whole and fractional SpinCo Shares credited to such holder's
account. If following the Distribution a holder of SpinCo Common Stock
requests physical certificates instead of participating in the book
entry system, the Agent will issue certificates for such shares, but
only for whole numbers of SpinCo Shares.
(c) Charter; Bylaws; Rights Plan. On or prior to the Distribution
Date, SpinCo and Enterprises or Parent, as the case may be, shall have taken
all necessary actions to provide for the adoption of the form of Certificate of
Incorporation and Bylaws and the execution and delivery of a Stockholder
Protection Rights Agreement, between SpinCo and Xxxxx Fargo Bank of Minnesota,
N.A., as Rights Agent, in substantially the form filed by SpinCo with the
Commission as Exhibits to the Registration Statement.
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(d) Directors. On or prior to the Distribution Date, SpinCo and
Enterprises or Parent, as the case may be, shall have taken all necessary
action to cause the Board of Directors of SpinCo to consist of the individuals
identified in the Information Statement as directors of SpinCo.
(e) Certain Licenses and Permits. On or prior to the Distribution
Date or as soon as reasonably practicable thereafter:
(i) Parent shall use its commercially reasonable efforts
to transfer or cause to be transferred all transferable licenses,
permits and authorizations issued by any Governmental Authority which
relate solely to the SpinCo Business but which are held in the name of
any member of the Parent Group, or in the name of any Representative
of any such member on behalf of a member of the SpinCo Group, to the
appropriate member of the SpinCo Group; and
(ii) SpinCo shall use its commercially reasonable efforts
to transfer or cause to be transferred all transferable licenses,
permits and authorizations issued by Governmental Authorities which
relate solely to the Parent Business but which are held in the name of
any member of the SpinCo Group, or in the name of any Representative
of any such member on behalf of a member of the Parent Group, to the
appropriate member of the Parent Group.
(f) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain those types of required consents and approvals to
transfer and/or assign licenses, permits and authorizations of Governmental
Authorities and those types of consents and approvals to transfer and/or assign
Contracts from Third Parties set forth in Schedule 2.1(f); provided, however,
that no party shall be obligated to pay any consideration therefor (except for
filing fees or other similar charges) to any Third Party from whom such consent
or approval is requested. Whether or not such consent or approval is obtained,
nothing in this Section 2.1(f) shall in any way limit the obligations of the
parties under Article III.
(g) Certain Liabilities. For purposes of this Agreement,
including Article III hereof, Parent and SpinCo agree that (i) any and all
Liabilities arising from or based upon misstatements in or omissions from the
Registration Statement or the Information Statement under the captions set
forth on Part 1 of Schedule 2.1(g) to this Agreement (insofar as such
information relates to Parent or the terms of the Distribution) shall be deemed
to be Parent Liabilities and not SpinCo Liabilities, (ii) fifty percent (50%)
of any and all Liabilities arising from or based upon misstatements in or
omissions from the Registration Statement or the Information Statement under
the captions set forth on Part 2 of Schedule 2.1(g) to this Agreement shall be
deemed to be Parent Liabilities and fifty percent (50%) of such Liabilities
shall be deemed to be SpinCo Liabilities, and (iii) any and all Liabilities
arising from or based upon misstatements in or omissions from the Registration
Statement or the Information Statement other than those specified in Sections
2.1(g)(i) and (ii) shall be deemed to be SpinCo Liabilities and not Parent
Liabilities.
(h) Election of Officers. On or prior to the Distribution Date,
SpinCo shall take all actions necessary and desirable so that as of the
Distribution Date the executive officers of SpinCo will be as set forth in the
Information Statement.
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(i) State Securities Laws. Prior to the Distribution Date, Parent
and SpinCo shall take all such action as may be necessary or appropriate under
the securities or blue sky laws of states or other political subdivisions of
the United States in order to effect the Distribution.
(j) Listing Application; Notice to NYSE.
(i) Prior to the Distribution Date, Parent and SpinCo
shall prepare and file with the NYSE a listing application and related
documents and shall take all such other actions with respect thereto
as shall be necessary or desirable in order to cause the NYSE to list
on or prior to the Distribution Date, subject to official notice of
issuance, the SpinCo Shares.
(ii) Prior to the Distribution, Parent shall, to the
extent possible, give the NYSE not less than ten (10) days advance
notice of the Distribution Record Date in compliance with Rule 10b-17
under the Exchange Act.
(k) Other Transactions. On or prior to the Distribution Date, the
parties hereto shall have consummated those other transactions in connection
with the Corporate Transactions and the Distribution that are contemplated by
the Information Statement and not specifically referred to in this Section 2.1.
SECTION 2.2. ASSUMPTION AND SATISFACTION OF LIABILITIES. Except
as otherwise specifically set forth in any Ancillary Agreement, from and after
the Effective Time, (i) Parent shall, or shall cause the applicable member of
the Parent Group to, assume, pay, perform and discharge all Parent Liabilities
in the ordinary course of business, consistent with past practice, and (ii)
SpinCo shall, or shall cause the applicable member of the SpinCo Group to,
assume, pay, perform and discharge all SpinCo Liabilities in the ordinary
course of business, consistent with past practice. To the extent reasonably
requested to do so by another party hereto, each party hereto agrees to execute
and deliver such documents, in a form reasonably satisfactory to such party, as
may be reasonably necessary to evidence the assumption of any Liabilities
hereunder.
SECTION 2.3. RESIGNATIONS. Parent shall cause all its employees
to resign, effective as of the Effective Time, from all positions as officers
or directors of any member of the SpinCo Group in which they serve, and SpinCo
shall cause all its employees to resign, effective as of the Effective Time,
from all positions as officers or directors of any members of the Parent Group
in which they serve.
SECTION 2.4. LIMITED REPRESENTATIONS OR WARRANTIES. Each of the
parties hereto agrees that no party hereto is, in this Agreement or in any
other agreement or document contemplated by this Agreement or otherwise, making
any representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that all Assets either transferred to or
retained by the parties, as the case may be, shall be "as is, where is" and
that (subject to Section 2.13) the party to which such Assets are to be
transferred hereunder shall bear the economic and legal risk that such party's
or any of the Subsidiaries' title to any such Assets shall be other than good
and marketable and free from encumbrances. Similarly, each party hereto agrees
that no party hereto
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is representing or warranting in any way that the obtaining of any consents or
approvals, the execution and delivery of any agreements and the making of any
filings or applications contemplated by this Agreement will satisfy the
provisions of any or all applicable Contracts or other agreements or the
requirements of any or all applicable Laws or judgments, it being agreed that
the party to which any Assets are transferred shall bear the economic and legal
risk that any necessary consents or approvals are not obtained or that any
requirements of Laws or judgments are not complied with. Notwithstanding the
foregoing, however, except as otherwise provided in Section 2.5 or Section 2.6
hereof, from and after the Effective Time, the Parent Group shall continue to
be solely responsible for Parent Liabilities, and the SpinCo Group shall
continue to be solely responsible for SpinCo Liabilities.
SECTION 2.5. REMOVAL OF PARENT GROUP FROM CERTAIN GUARANTEES;
RELEASES OF PARENT GROUP FROM LIABILITIES.
(a) Except as otherwise specified in any Ancillary Agreement,
SpinCo shall use its commercially reasonable efforts to have, on or prior to
the Distribution Date, or as soon as practicable thereafter, any member of the
Parent Group removed as guarantor of or obligor for any SpinCo Liability,
including in respect of those guarantees set forth on Schedule 2.5(a) of this
Agreement.
(b) If SpinCo is unable to obtain, or to cause to be obtained,
any such required removal as set forth in clause (a) of this Section 2.5, the
applicable guarantor or obligor shall continue to be bound as such and, unless
not permitted by law or the terms thereof, the relevant beneficiary shall or
shall cause one of its Subsidiaries, as agent or subcontractor for such
guarantor or obligor to pay, perform and discharge fully all the obligations or
other liabilities of such guarantor or obligor thereunder from and after the
date hereof.
(c) If (i) SpinCo is unable to obtain, or to cause to be
obtained, any such required removal as set forth in clause (a) of this Section
2.5, or (ii) SpinCo Liabilities arise from and after the Effective Time but
before a member of the Parent Group which is a guarantor or obligor with
reference to any such SpinCo Liability is removed pursuant to Section 2.5(a),
then such guarantor or obligor shall be indemnified by SpinCo for all
Liabilities incurred by it in its capacity as guarantor or obligor in
accordance with Article III hereof. Without limiting the foregoing, SpinCo
shall, or shall cause a member of the SpinCo Group to, reimburse any such
member of the Parent Group which is a guarantor or obligor as soon as
practicable (but in no event later than thirty (30) days) following delivery by
Parent to SpinCo of notice of a payment made pursuant to this Section 2.5 in
respect of SpinCo Liabilities.
(d) In the event that, at any time before or after the
Distribution Date, Parent identifies any letters of credit, interest rate or
foreign exchange contracts, surety bonds or other Contracts (excluding
guarantees) that relate primarily to the SpinCo Business but for which a member
of the Parent Group has contingent, secondary, joint, several or other
Liability of any nature whatsoever, SpinCo shall, at its expense, take such
actions and enter into such agreements and arrangements as Parent may
reasonably request to effect Parent's (or a member of the Parent Group's)
release or substitution.
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SECTION 2.6. REMOVAL OF SPINCO FROM CERTAIN GUARANTEES; RELEASES
OF SPINCO FROM LIABILITIES.
(a) Except as otherwise specified in any Ancillary Agreement,
Parent shall use its commercially reasonable efforts to have, on or prior to
the Distribution Date, or as soon as practicable thereafter, any member of the
SpinCo Group removed as guarantor of or obligor for any Parent Liability,
including in respect of those guarantees set forth on Schedule 2.6(a) of this
Agreement.
(b) If Parent is unable to obtain, or to cause to be obtained,
any such required removal as set forth in clause (a) of this Section 2.6, the
applicable guarantor or obligor shall continue to be bound as such and, unless
not permitted by law or the terms thereof, the relevant beneficiary shall or
shall cause one of its Subsidiaries, as agent or subcontractor for such
guarantor or obligor to pay, perform and discharge fully all the obligations or
other liabilities of such guarantor or obligor thereunder from and after the
date hereof.
(c) If (i) Parent is unable to obtain, or to cause to be
obtained, any such required removal as set forth in clause (a) of this Section
2.6, or (ii) Parent Liabilities arise from and after the Effective Time but
before a member of the SpinCo Group which is a guarantor or obligor with
reference to any such Parent Liability is removed pursuant to Section 2.6(a),
then such guarantor or obligor shall be indemnified by Parent for all
Liabilities incurred by it in its capacity as guarantor or obligor in
accordance with Article III hereof. Without limiting the foregoing, Parent
shall, or shall cause a member of the Parent Group to, reimburse any such
member of the SpinCo Group which is a guarantor or obligor as soon as
practicable (but in no event later than thirty (30) days) following delivery by
SpinCo to Parent of notice of a payment made pursuant to this Section 2.6 in
respect of Parent Liabilities.
(d) In the event that, at any time before or after the
Distribution Date, SpinCo identifies any letters of credit, interest rate or
foreign exchange contracts, surety bonds or other Contracts (excluding
guarantees) that relate primarily to the Parent Business but for which a member
of the SpinCo Group has contingent, secondary, joint, several or other
Liability of any nature whatsoever, Parent shall, at its expense, take such
actions and enter into such agreements and arrangements as SpinCo may
reasonably request to effect SpinCo's (or a member of the SpinCo Group's )
release or substitution.
SECTION 2.7. WITNESS SERVICES. At all times from and after the
Distribution Date, each of Parent and SpinCo shall use their commercially
reasonable efforts to make available to the other, upon reasonable request, its
and its Subsidiaries' Representatives as witnesses to the extent that (i) such
Persons may reasonably be required in connection with the prosecution or
defense of any Action in which the requesting party from time to time be
involved and (ii) there is no conflict in the Action between the requesting
party and Parent and SpinCo, as applicable. A party providing witness services
to the other party under this Section shall be entitled to receive from the
recipient of such services, upon the presentation of invoices therefor,
reimbursement for payments made for any out-of-pocket expenses (which shall
exclude the costs of salaries and benefits of employees who are witnesses) as
may be reasonably incurred in providing such witness services. Witness services
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in connection with indemnification claims under Article III shall be handled as
provided in Article III.
SECTION 2.8. CONVEYANCING AND ASSUMPTION INSTRUMENTS. In
connection with the transfers of Assets and the assumptions of Liabilities
contemplated by this Agreement, on or prior to the Distribution Date, the
parties shall execute or cause to be executed by the appropriate entities the
Conveyancing and Assumption Instruments contemplated hereby for transfers to be
effected pursuant to Delaware law or the Laws of one of the other states of the
United States or, if not appropriate for a given transfer, and for transfers to
be effected pursuant to non-U.S. Laws, in such other form as the parties shall
reasonably agree. The transfer of capital stock shall be effected by means of
delivery of stock certificates and executed stock powers and notation on the
stock record books of the corporation or other legal entities involved, or by
such other means as may be required in any non-U.S. jurisdiction to transfer
title to stock and, to the extent required by applicable Law, by notation on
public registries.
SECTION 2.9. ANCILLARY AGREEMENTS. Prior to the Distribution
Date, each of Parent and SpinCo shall enter into, and/or (where applicable)
shall cause members of their respective Groups to enter into, the Ancillary
Agreements and any other agreements in respect of the Distribution reasonably
necessary or appropriate in connection with the transactions contemplated
hereby and thereby.
SECTION 2.10. CORPORATE NAMES; TRADEMARKS.
(a) Except as otherwise specifically provided in any Ancillary
Agreement:
(i) as soon as reasonably practicable after the
Distribution Date but in any event within twelve (12) months
thereafter, SpinCo will, and will cause the SpinCo Subsidiaries to,
each at its own expense, remove (or, if necessary, on an interim
basis, cover up) any and all exterior signs and other identifiers
located on any of its real property or premises or on the real
property or premises used by SpinCo or the SpinCo Subsidiaries which
refer or pertain to Parent or which include the Parent or any Parent
Subsidiary name, logo or other trademark or service xxxx or any
similar xxxx or any derivative thereof or other intellectual property
included in the Parent Assets;
(ii) as soon as is reasonably practicable after the
Distribution Date but in any event within twelve (12) months
thereafter, SpinCo will, and will cause the SpinCo Subsidiaries to,
remove from all letterhead, envelopes, invoices, products, product
labels, product literature, brochures and other communications media
of any kind, all references to Parent, including the "National Service
Industries, Inc." name, logo and any other trademark or service xxxx
or other intellectual property included in the Parent Assets (except
that SpinCo shall not be required to take any such action with respect
to materials in the possession of Third Parties);
(iii) as soon as reasonably practicable after the
Distribution Date but in any event within twelve (12) months
thereafter, Parent will, and will cause the Parent
- 17 -
Subsidiaries to, each at its own expense, remove (or, if necessary, on
an interim basis, cover up) any and all exterior signs and other
identifiers located on any of its real property or premises or on the
real property or premises used by Parent or the Parent Subsidiaries
which refer or pertain to SpinCo or which include the SpinCo or any
SpinCo Subsidiary name, logo or other trademark or any similar xxxx or
any derivative thereof or other intellectual property included in the
SpinCo Assets; and
(iv) as soon as is reasonably practicable after the
Distribution Date but in any event within twelve (12) months
thereafter, Parent will, and will cause the Parent Subsidiaries to,
remove from all letterhead, envelopes, invoices, products, product
labels, product literature, brochures and other communications media
of any kind, all references to SpinCo and its Subsidiaries including
the "Acuity Brands, Inc." name, logo and any other trademark or
service xxxx or other intellectual property included in the SpinCo
Assets (except that Parent shall not be required to take any such
action with respect to materials in the possession of Third Parties).
(b) Prior to January 1, 2008, Parent shall not change its
corporate name from "National Service Industries, Inc.," nor shall Parent
engage in any transaction that causes Parent's corporate name to change from
"National Service Industries, Inc." SpinCo hereby acknowledges and agrees that
the SpinCo Group shall have no right to use the name "National Service
Industries, Inc." or any derivative thereof.
SECTION 2.11. POST-DISTRIBUTION REMITTANCES.
(a) Following the Distribution Date, Parent will promptly remit
to SpinCo, or reimburse SpinCo for, all amounts, and endorse or remit to SpinCo
the proceeds of all checks, drafts, notes or other documents, received by
Parent or a Parent Subsidiary, that should have otherwise been paid to SpinCo
or a SpinCo Subsidiary.
(b) Following the Distribution Date, SpinCo will promptly remit
to Parent, or reimburse Parent for, all amounts, and endorse or remit to Parent
the proceeds of all checks, drafts, notes or other documents, received by
Parent or a Parent Subsidiary, that should have otherwise been paid to SpinCo.
SECTION 2.12. NON-SOLICITATION.
(a) For the period beginning on the Distribution Date and ending
on the second anniversary of the Distribution Date, SpinCo will not and will
not permit any member of the SpinCo Group to, directly or indirectly, solicit
or recruit for its employment any employee of the Parent Group as of the
Distribution without the prior written consent of Parent; provided, however,
that nothing in this Section 2.12(a) shall (i) prohibit the hiring of any
natural person who applied for employment with the SpinCo Group solely in
response to any public medium advertising, (ii) prohibit the hiring of any
natural person referred by any Person whose principal business is the
recruiting of prospective employees, or (iii) prohibit the hiring of any
natural person whose employment with a member of the Parent Group terminated at
least three (3)
- 18 -
months prior to the date of such solicitation or recruitment for a bona fide
reason not designed or intended to circumvent the provisions of this Section
2.12(a) and so long as such natural person was not solicited or recruited by
SpinCo or any member of the SpinCo Group prior to the expiration of such three
(3) month period.
(b) For the period beginning on the Distribution Date and ending
on the second anniversary of the Distribution Date, Parent will not and will
not permit any member of the Parent Group to, directly or indirectly, solicit
or recruit for its employment any employee of the SpinCo Group as of the
Distribution without the prior written consent of SpinCo; provided, however,
that nothing in this Section 2.12(b) shall (i) prohibit the hiring of any
natural person who applied for employment with the Parent Group solely in
response to any public medium advertising, (ii) prohibit the hiring of any
natural person referred by any Person whose principal business is the
recruiting of prospective employees, or (iii) prohibit the hiring of any
natural person whose employment with a member of the SpinCo Group terminated at
least three (3) months prior to the date of such solicitation or recruitment
for a bona fide reason not designed or intended to circumvent the provisions of
this Section 2.12(b) and so long as such natural person was not solicited or
recruited by Parent or any member of the Parent Group prior to the expiration
of such three (3) month period.
SECTION 2.13. FURTHER ASSURANCES.
(a) In addition to the actions specifically provided for
elsewhere in this Agreement, each of the parties hereto shall use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things reasonably necessary, proper or advisable under
applicable laws, regulations and agreements to consummate and make effective
the transactions contemplated by this Agreement. Without limiting the
foregoing, each party hereto shall cooperate with the other party, and execute
and deliver, or use commercially reasonable efforts to cause to be executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals
or authorizations of, any Governmental Authority or any other Person under any
permit, license, agreement, indenture or other instrument, and take all such
other actions as such party may reasonably be requested to take by the other
party hereto from time to time, consistent with the terms of this Agreement,
the Corporate Transactions, and the Ancillary Agreements, in order to
effectuate the provisions and purposes of this Agreement and the transfers of
Assets and assumptions of Liabilities and the other transactions contemplated
hereby.
(b) If any such transfer of Assets or Liabilities is not
consummated prior to or at the Effective Time, then the party hereto retaining
such Asset or Liability shall continue to take the actions required by Section
2.13(a) to consummate and make effective such transfer as soon as practicable
after the Distribution Date and, in the case of Assets, shall use its
commercially reasonable efforts to preserve the value of such Assets until the
time of transfer. If and when any such Asset or Liability becomes transferable,
such transfer shall be effected forthwith. The parties hereto agree that, no
later than the Distribution Date, each party hereto shall be deemed to have
acquired complete and sole beneficial ownership to all of the Assets, together
with all rights, powers and privileges incident thereto, and shall be deemed to
have assumed in accordance with the terms of this Agreement and the Ancillary
Agreements all of the Liabilities,
- 19 -
and all duties, obligations and responsibilities incident thereto, that such
party is entitled or required to hold or assume pursuant to this Agreement.
(c) Any disagreement regarding whether any Asset or Liability was
or should have been transferred to, retained by or assumed by the Parent Group
or the SpinCo Group shall be resolved in accordance with the provisions of
Article V.
ARTICLE III
INDEMNIFICATION
SECTION 3.1. INDEMNIFICATION BY PARENT. Parent shall, and shall
cause each member of the Parent Group to, indemnify, defend and hold harmless
the SpinCo Indemnitees from and against any and all Indemnifiable Losses of the
SpinCo Indemnitees arising out of, by reason of or otherwise in connection with
the Parent Liabilities or alleged Parent Liabilities, including any breach by
Parent of any provision of this Section 3.1. Parent and each member of the
Parent Group shall be jointly and severally liable for the indemnification
obligations imposed by this Section 3.1. Subject to the last sentence of
Section 7.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements.
SECTION 3.2. INDEMNIFICATION BY SPINCO. SpinCo shall, and shall
cause each member of the SpinCo Group to, indemnify, defend and hold harmless
the Parent Indemnitees from and against any and all Indemnifiable Losses of the
Parent Indemnitees arising out of, by reason of or otherwise in connection with
the SpinCo Liabilities or alleged SpinCo Liabilities, including any breach by
SpinCo of any provision of this Section 3.2. Spinco and each member of the
SpinCo Group shall be jointly and severally liable for the indemnification
obligations imposed by this Section 3.2. Subject to the last sentence of
Section 7.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements.
SECTION 3.3. PROCEDURES FOR INDEMNIFICATION.
(a) Third-Party Claims. If a claim or demand is made against a
SpinCo Indemnitee or an Parent Indemnitee (each, an "Indemnitee") by any Third
Party (a "Third-Party Claim") as to which such Indemnitee is entitled to
indemnification pursuant to this Agreement, such Indemnitee shall notify the
party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof
to make such indemnification (the "Indemnifying Party") in writing, and in
reasonable detail, of the Third-Party Claim promptly (and in any event within
fifteen (15) Business Days) after receipt by such Indemnitee of written notice
of the Third-Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except to
the extent the Indemnifying Party shall have been actually prejudiced as a
result of such failure. Thereafter, the Indemnitee shall deliver to the
Indemnifying Party, promptly (and in any event within ten (10) Business Days)
after the
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Indemnitee's receipt thereof, copies of all notices and documents (including
court papers) received by the Indemnitee relating to the Third-Party Claim.
If a Third-Party Claim is made against an Indemnitee, the Indemnifying
Party shall be entitled to participate in the defense thereof and, if it so
elects in accordance with this Section 3.3(a), to assume the defense thereof
with counsel selected by the Indemnifying Party; provided, however, that such
counsel is not reasonably objected to by the Indemnitee. Should the
Indemnifying Party so elect to assume the defense of a Third-Party Claim, the
Indemnifying Party shall, within thirty (30) days (or sooner if the nature of
the Third-Party Claim so requires), notify the Indemnitee in writing of its
intent to do so, and the Indemnifying Party shall thereafter not be liable to
the Indemnitee for legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, however, that such
Indemnitee shall have the right to employ counsel to represent such Indemnitee
if, in such Indemnitee's reasonable judgment, a conflict of interest between
such Indemnitee and such Indemnifying Party exists in respect of such claim
that would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party elects to
assume such defense, the Indemnitee shall have the right to participate in the
defense thereof and to employ counsel, subject to the proviso of the preceding
sentence, at its own expense, separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying Party shall
control such defense. The Indemnifying Party shall be liable for the fees and
expenses of counsel employed by the Indemnitee for any period during which the
Indemnifying Party has failed to assume the defense thereof (other than during
the period prior to the time the Indemnitee shall have given notice of the
Third-Party Claim as provided above). If the Indemnifying Party so elects to
assume the defense of any Third-Party Claim, all of the Indemnitees shall
cooperate with the Indemnifying Party in the defense or prosecution thereof,
including by providing or causing to be provided, Records and witnesses as soon
as reasonably practicable after receiving any request therefor from or on
behalf of the Indemnifying Party.
If an Indemnifying Party elects to assume the defense of a Third-Party
Claim as provided above, in no event will the Indemnitee admit any liability
with respect to, or settle, compromise or discharge, any Third-Party Claim
without the Indemnifying Party's prior written consent; provided, however, that
the Indemnitee shall have the right to settle, compromise or discharge such
Third-Party Claim without the consent of the Indemnifying Party if the
Indemnitee releases the Indemnifying Party from its indemnification obligation
hereunder with respect to such Third-Party Claim and such settlement,
compromise or discharge would not otherwise adversely affect the Indemnifying
Party. If an Indemnifying Party elects to assume the defense of a Third-Party
Claim as provided above, the Indemnitee will agree to any settlement,
compromise or discharge of a Third-Party Claim that the Indemnifying Party may
recommend and that by its terms obligates the Indemnifying Party to pay the
full amount of the liability in connection with such Third-Party Claim and
releases the Indemnitee completely in connection with such Third-Party Claim;
provided, however, that, notwithstanding the foregoing, the Indemnitee shall
not be required hereunder to agree to any such settlement, compromise or
discharge involving the stipulation of facts or the adjudication of any
question that the Indemnitee determines in its discretion would have an adverse
effect on the Indemnitee in any other proceeding or otherwise would affect
adversely the Indemnitee. If an Indemnifying Party elects not to assume the
defense of a Third-Party Claim, or fails to notify an Indemnitee of its
election to do so as
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provided herein, such Indemnitee may compromise, settle or defend such
Third-Party Claim, and such Indemnitee may recover the Indemnifiable Losses in
connection with such compromise, settlement or defense from the Indemnifying
Party.
Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defense of any Third-Party Claim (and shall be liable
for the fees and expenses of counsel incurred by the Indemnitee in defending
such Third-Party Claim) if the Third-Party Claim seeks an order, injunction or
other equitable relief or relief for other than money damages against the
Indemnitee which the Indemnitee reasonably determines, after conferring with
its counsel, cannot be separated from any related claim for money damages. If
such equitable relief or other relief portion of the Third-Party Claim can be
so separated from that for money damages, the Indemnifying Party shall be
entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third-Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to
any events or circumstances in respect of which such Indemnitee may have any
right or claim relating to such Third-Party Claim against any claimant or
plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate
with such Indemnifying Party in a reasonable manner, and at the cost and
expense of such Indemnifying Party, in prosecuting any subrogated right or
claim.
(c) The remedies provided in this Article III shall be cumulative
and shall not preclude assertion by any Indemnitee of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
SECTION 3.4. INDEMNIFICATION PAYMENTS. Unless otherwise agreed to
in writing, indemnification required by this Article III shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnifiable Losses are
incurred. If the Indemnifying Party fails to make an indemnification payment
required by this Article III within thirty (30) days after receipt of a xxxx
therefor or notice that an Indemnifiable Loss has been incurred, the
Indemnifying Party shall also be required to pay interest on the amount of such
indemnification payment, from the date of receipt of the xxxx or notice of the
Indemnifiable Loss to, but not including the date of payment, at the Applicable
Rate.
ARTICLE IV
ACCESS TO INFORMATION
SECTION 4.1. PROVISION OF CORPORATE RECORDS.
(a) Except as otherwise provided in Article III, after the
Distribution Date, upon the prior written request by SpinCo for specific and
identified agreements, documents, books, records or files (collectively,
"Records") which relate to (x) SpinCo, the conduct of the SpinCo Business up to
the Effective Time or the ownership of the SpinCo Assets up to the Effective
Time, or (y) any
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Ancillary Agreement (other than the Tax Disaffiliation Agreement), Parent shall
arrange, as soon as reasonably practicable following the receipt of such
request, to provide such Records (or appropriate copies thereof if Parent has a
reasonable need to retain the originals) in the possession or control of Parent
or any of the Parent Subsidiaries, but only to the extent such items are not
already in the possession or control of SpinCo.
(b) Except as otherwise provided in Article III, after the
Distribution Date, upon the prior written request by Parent for specific and
identified Records which relate to (x) Parent, the conduct of the Parent
Business up to the Effective Time or the ownership of the Parent Assets up to
the Effective Time, or (y) any Ancillary Agreement (other than the Tax
Disaffiliation Agreement), SpinCo shall arrange, as soon as reasonably
practicable following the receipt of such request, to provide such Records (or
appropriate copies thereof if SpinCo has a reasonable need to retain the
originals) in the possession or control of SpinCo or any of the SpinCo
Subsidiaries, but only to the extent such items are not already in the
possession or control of Parent.
SECTION 4.2. ACCESS TO INFORMATION. Except as otherwise provided
in Article III, from and after the Distribution Date, each of Parent and SpinCo
shall afford to the other and its authorized Representatives reasonable access
during normal business hours, subject to appropriate restrictions for
classified, privileged or confidential information, to the personnel,
properties, and Records of such party and its Subsidiaries insofar as such
access is reasonably required by the other party and relates to (x) such other
party or the conduct of its business or ownership of its Assets prior to the
Effective Time or (y) any Ancillary Agreement.
SECTION 4.3. REIMBURSEMENT; OTHER MATTERS. Except to the extent
otherwise contemplated by any Ancillary Agreement, a party providing Records or
access to information to the other party under this Article IV shall be
entitled to receive from the recipient, upon the presentation of invoices
therefor, reimbursement for payments made for supplies, disbursements and other
out-of-pocket expenses (including attorneys' fees and disbursements), as may be
reasonably incurred in providing such Records or access to information.
SECTION 4.4. CONFIDENTIALITY. Neither (i) Parent nor the Parent
Subsidiaries nor (ii) SpinCo nor the SpinCo Subsidiaries shall use or permit
the use of (without the prior written consent of the other) and each such
entity shall keep, and shall cause its Representatives to keep, confidential
all information concerning the other party in its possession, its custody or
under its control (except to the extent that (A) such information has been in
the public domain through no fault of such party or (B) such information has
been later lawfully acquired from other sources by such party or (C) this
Agreement or any other Ancillary Agreement or any other agreement entered into
pursuant hereto permits the use or disclosure of such information) to the
extent such information, (w) relates to or was acquired during the period up to
the Effective Time, (x) relates to any Ancillary Agreement, (y) is obtained in
the course of performing services for the other party pursuant to any Ancillary
Agreement, or (z) is based upon or is derived from information described in the
preceding clauses (w), (x) or (y), and each party shall not (without the prior
written consent of the other) otherwise release or disclose such information to
any other Person, except such party's
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Representatives, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by Law and such
party has provided the other party with prompt notice of such requirement in
order to afford the other party the opportunity to seek an appropriate
protective order or other remedy.
SECTION 4.5. PRIVILEGED MATTERS. The parties hereto recognize
that legal and other professional services that have been and will be provided
prior to the Distribution Date have been and will be rendered for the benefit
of each of the members of the Parent Group, and each of the members of the
SpinCo Group, and that each of the members of the Parent Group, and each of the
members of the SpinCo Group should be deemed to be the client for the purposes
of asserting all privileges which may be asserted under applicable Law. Except
as otherwise specifically provided in the Tax Disaffiliation Agreement with
respect to tax matters, to allocate the interests of each party in the
information as to which any party is entitled to assert a privilege, the
parties agree as follows:
(a) Parent shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Parent Business, whether or not the privileged
information is in the possession of or under the control of Parent or SpinCo.
Parent shall also be entitled, in perpetuity, to control the assertion or
waiver of all privileges in connection with privileged information that relates
solely to the subject matter of any claims constituting Parent Liabilities, now
pending or which may be asserted in the future, in any Action initiated against
or by Parent, whether or not the privileged information is in the possession of
or under the control of Parent or SpinCo.
(b) SpinCo shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the SpinCo Business, whether or not the privileged
information is in the possession of or under the control of Parent or SpinCo.
SpinCo shall also be entitled, in perpetuity, to control the assertion or
waiver of all privileges in connection with privileged information which
relates solely to the subject matter of any claims constituting SpinCo
Liabilities, now pending or which may be asserted in the future, in any Action
initiated against or by SpinCo, whether or not the privileged information is in
the possession of SpinCo or under the control of Parent or SpinCo.
(c) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a) and (b). All privileges relating to any Action,
disputes or other matters which involve Parent and SpinCo in respect of which
such parties retain any responsibility or liability under this Agreement, shall
be subject to a shared privilege among them.
(d) No party hereto may waive any privilege which could be
asserted under any applicable Law, and in which any other party hereto has a
shared privilege, without the consent of the other party, which consent shall
not be unreasonably withheld or delayed, except to the extent reasonably
required in connection with any Action with Third Parties or as provided in
subsection (e) below. Consent shall be in writing, or shall be deemed to be
granted unless written objection is made within twenty (20) days after notice
upon the other party requesting such consent.
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(e) In the event of any Action or dispute between any of the
parties hereto, any party and a Subsidiary of another party hereto, or a
Subsidiary of one party hereto and a Subsidiary of another party hereto, either
such party, to the extent necessary in connection with such Action or dispute,
may waive a privilege in which the other party has a shared privilege, without
obtaining the consent of the other party, provided that such waiver of a shared
privilege shall be effective only as to the use of information with respect to
such Action or dispute between the relevant parties and/or their Subsidiaries,
and shall not operate as a waiver of the shared privilege with respect to Third
Parties.
(f) If a dispute arises between or among the parties hereto or
their respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any
request for waiver by another party. Each party hereto specifically agrees that
it will not withhold consent to waiver for any purpose except to protect its
own legitimate interests.
(g) Upon receipt by any party hereto or by any Subsidiary thereof
of any subpoena, discovery or other request which arguably calls for the
production or disclosure of information subject to a shared privilege or as to
which another party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its Subsidiaries' current
or former Representatives has received any subpoena, discovery or other
requests which arguably calls for the production or disclosure of such
privileged information, such party shall promptly notify the other party of the
existence of the request and shall provide the other party a reasonable
opportunity to review the information (to the extent such information is
available to such party) and to assert any rights it or they may have under
this Section 4.5 or otherwise to prevent the production or disclosure of such
privileged information.
(h) The transfer of all Records and other information pursuant to
this Agreement is made in reliance on the agreement of Parent and SpinCo, as
set forth in Sections 4.4 and 4.5, to maintain the confidentiality of
privileged information and to assert and maintain all applicable privileges.
The access to information being granted pursuant to Sections 4.1 and 4.2
hereof, the agreement to provide witnesses and individuals pursuant to Sections
2.7 and 3.3 hereof, the furnishing of notices and documents and other
cooperative efforts contemplated by Section 3.3 hereof, and the transfer of
privileged information between and among the parties and their respective
Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any
privilege that has been or may be asserted under this Agreement or otherwise.
SECTION 4.6. OWNERSHIP OF INFORMATION. Any information owned by
one party or any of its Subsidiaries that is provided to a requesting party
pursuant to Article III or this Article IV shall be deemed to remain the
property of the providing party. Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any such information.
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SECTION 4.7. RETENTION OF RECORDS.
(a) Parent shall deliver to SpinCo upon SpinCo's request all
Records that are specifically identified by SpinCo and known by Parent, after
reasonable inquiry, to be in its control or possession relating to SpinCo
Assets, SpinCo Liabilities or the SpinCo Business. Except (a) as provided in
the Tax Disaffiliation Agreement or (b) when a longer retention period is
otherwise required by Law or agreed to in writing, the Parent Group and the
SpinCo Group shall retain in a reasonably retrievable format, for a period of
at least six (6) years, all Records relating to the SpinCo Business as of the
Effective Time. Notwithstanding the foregoing, in lieu of retaining any
specific Records, Parent may offer in writing to deliver such Records to SpinCo
and, if such offer is not accepted within ninety (90) days, the offered Records
may be destroyed or otherwise disposed of at any time. If SpinCo shall request
in writing prior to the expiration of such 90-day period that any of Records
proposed to be destroyed or disposed of be delivered to SpinCo, Parent shall
promptly arrange for delivery of such requested Records (at SpinCo's cost).
(b) SpinCo shall deliver to Parent upon Parent's request all
Records that are specifically identified by Parent and known by SpinCo, after
reasonable inquiry, to be in its control or possession relating to Parent
Assets, Parent Liabilities or the Parent Business. Except (a) as provided in
the Tax Disaffiliation Agreement or (b) when a longer retention period is
otherwise required by Law or agreed to in writing, the Parent Group and the
SpinCo Group shall retain in a reasonably retrievable format, for a period of
at least six (6) years, all Records relating to the Parent Business as of the
Effective Time. Notwithstanding the foregoing, in lieu of retaining any
specific Records, SpinCo may offer in writing to deliver such Records to Parent
and, if such offer is not accepted within ninety (90) days, the offered Records
may be destroyed or otherwise disposed of at any time. If Parent shall request
in writing prior to the expiration of such 90-day period that any of Records
proposed to be destroyed or disposed of be delivered to Parent, SpinCo shall
promptly arrange for delivery of such requested Records (at Parent's cost).
SECTION 4.8. LIMITATION OF LIABILITY; RELEASE.
(a) No party shall have any liability to any other party in the
event that any information exchanged or provided pursuant to this Agreement
which is an estimate or forecast, or which is based on an estimate or forecast,
is found to be inaccurate.
(b) Effective upon the Distribution and except as otherwise
specifically set forth in this Agreement, each of Parent and SpinCo releases
and forever discharges the other and its Representatives and Subsidiaries, of
and from all Liabilities against such other party, its Representatives and
Subsidiaries or any of its successors or assigns, which the releasing party has
or ever had, which arise out of or relate to events, circumstances or actions
taken by such other party prior to the Distribution; provided, however, that
the foregoing general release shall not apply to this Agreement, the Ancillary
Agreements or the transactions contemplated hereby or thereby and shall not
affect either party's right to enforce this Agreement or any of the Ancillary
Agreements in accordance with their terms.
SECTION 4.9. OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF
INFORMATION. The rights and obligations granted under this Article IV are
subject to any specific limitations, qualifications or additional provisions on
the sharing, exchange or confidential treatment of information set forth in any
Ancillary Agreement.
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ARTICLE V
DISPUTE RESOLUTION
SECTION 5.1. NEGOTIATION. In the event of a controversy, dispute
or claim arising out of, in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including any claim based on contract,
tort, statute or constitution (but excluding any controversy, dispute or claim
arising out of any agreement relating to the use or lease of real property if
any Third Party is a party to such controversy, dispute or claim)
(collectively, "Agreement Disputes"), the management of the parties shall
negotiate in good faith for a reasonable period of time to settle such
Agreement Dispute; provided, however, such reasonable period shall not, unless
otherwise agreed by the parties in writing, exceed sixty (60) days from the
time the parties began such negotiations; and provided further, however, that
in the event of any mediation or arbitration in accordance with Sections 5.2
and 5.3 hereof, (i) the parties shall not assert the defenses of statute of
limitations and laches arising for the period beginning after the date the
parties began negotiations hereunder, and (ii) any statute of limitations or
any contractual time period or deadline under this Agreement or any Ancillary
Agreement shall not be deemed to have passed with respect to such Agreement
Dispute until such Agreement Dispute has been resolved.
SECTION 5.2. MEDIATION. If after such reasonable period such
management are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the parties, after ninety (90) days have
elapsed from the time the parties began such negotiations) and the Agreement
Dispute involves a controversy, dispute or claim of less than $500,000, such
Agreement Dispute shall be determined, at the request of any party, by
mediation conducted in Wilmington, Delaware or at another location which the
parties mutually select, before a retired judge sitting on the panel of
Judicial Arbitration & Mediation Services, Inc. The mediation process shall
continue as the exclusive method of resolving the Agreement Dispute (other than
negotiation between the parties) until the earlier of the Agreement Dispute
being resolved or the mediator finding in good faith that all settlement
possibilities have been exhausted and that the matter is not resolvable through
mediation. If the mediator makes such a finding, at the request of any party,
the Agreement Dispute shall then be determined by binding arbitration in
accordance with Section 5.3 hereof.
SECTION 5.3. ARBITRATION. If after such reasonable period such
management are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the parties, after ninety (90) days have
elapsed from the time the parties began such negotiations) and the Agreement
Dispute involves a controversy, dispute or claim of $500,000 or more, or a
mediator makes a finding under Section 5.2 hereof that all settlement
possibilities have been exhausted and that a matter is not resolvable through
mediation, such Agreement Dispute shall be determined, at the demand of any
party, by binding arbitration conducted in Wilmington, Delaware or at another
location which the parties mutually select, before and in accordance with the
then-existing Commercial Arbitration Rules of the
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American Arbitration Association (the "Rules"). In any Agreement Dispute
between the parties hereto, the numbers of arbitrators shall be three (3) (one
selected by Parent, one selected by SpinCo, and one jointly selected by the two
arbitrators so selected). Any judgment or award rendered by the arbitrator
shall be final, binding and nonappealable (except upon grounds specified in 9
U.S.C. Section 10(a) as in effect on the date hereof). If the parties are
unable to agree on the arbitrators, the arbitrators shall be selected in
accordance with the Rules. Except as otherwise provided herein, any controversy
concerning whether an Agreement Dispute is an arbitrable Agreement Dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation of enforceability of this
Article V shall be determined by the arbitrators. In resolving any Agreement
Dispute, the parties intend that the arbitrators apply the terms and conditions
of this Agreement and the substantive laws of the State of Delaware, without
regard to the choice of law principles thereof. The parties intend that the
provisions to arbitrate set forth herein be valid, enforceable and irrevocable.
The parties agree to comply with any award made in any such arbitration
proceedings that has become final in accordance with the Rules and agree to
enforcement of or entry of judgment upon such award, by any court of competent
jurisdiction, including (a) the state courts of the State of Delaware, located
in Wilmington, or (b) the United States District Court for the District of
Delaware, in accordance with Section 7.16 hereof. The arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including
monetary damages, specific performance and all other forms of legal and
equitable relief; provided, however, the arbitrators shall not be entitled to
award punitive damages. Without limiting the provisions of the Rules, unless
otherwise agreed in writing by or among the parties or permitted by this
Agreement, the parties shall keep confidential all matters relating to the
arbitration or the award, provided such matters may be disclosed (i) to the
extent reasonably necessary in any proceeding brought to enforce the award or
for entry of a judgment upon the award and (ii) to the extent otherwise
required by Law. Nothing contained herein is intended to or shall be construed
to prevent any party, in accordance with Article 21(3) of the Rules or
otherwise, from applying to any court of competent jurisdiction for interim
measures or other provisional relief in connection with the subject matter of
any Agreement Disputes.
SECTION 5.4. CONTINUITY OF SERVICE AND PERFORMANCE. Unless
otherwise agreed in writing, the parties will continue to provide service and
honor all other commitments under this Agreement and each Ancillary Agreement
during the course of dispute resolution pursuant to the provisions of this
Article V with respect to all matters not subject to such dispute, controversy
or claim.
SECTION 5.5. OTHER REMEDIES. Nothing in this Article V shall
limit the right that any party may otherwise have to seek to obtain from any
court to which the parties consent to jurisdiction under Section 7.16 (a)
preliminary injunctive relief in order to preserve the status quo pending the
resolution of a dispute or (b) temporary or permanent injunctive relief from
any breach of any provisions of this Agreement. By seeking such relief, a party
in no way waives its arbitration rights under this Agreement.
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ARTICLE VI
INSURANCE
SECTION 6.1. POLICIES AND RIGHTS INCLUDED WITHIN ASSETS. The
SpinCo Assets shall include (a) any and all rights of an insured party under
each of the Parent Shared Policies, subject to the terms of such Parent Shared
Policies and any limitations or obligations of SpinCo contemplated by this
Article VI, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer, with respect to all claims,
suits, actions, proceedings, injuries, losses, liabilities, damages and
expenses incurred or claimed to have been incurred prior to the Effective Time
by any party in or in connection with the conduct of the SpinCo Business or the
ownership of the SpinCo Assets or, to the extent any claim is made against
SpinCo or any of the SpinCo Subsidiaries, the conduct of the Parent Business or
the ownership of the Parent Assets, and which claims, suits, actions,
proceedings, injuries, losses, liabilities, damages and expenses may arise out
of an insured or insurable occurrence under one or more of such Parent Shared
Policies, and (b) the SpinCo Policies.
SECTION 6.2. POST-DISTRIBUTION DATE CLAIMS. If, subsequent to the
Distribution Date, any Person shall assert a claim against SpinCo or any of the
SpinCo Subsidiaries (including where SpinCo or the SpinCo Subsidiaries are
joint defendants with other Persons) with respect to any claim, suit, action,
proceeding, injury, loss, liability, damage or expense incurred or claimed to
have been incurred prior to the Effective Time in or in connection with the
conduct of the SpinCo Business or the ownership of the SpinCo Assets or, to the
extent any claim is made against SpinCo or any of the SpinCo Subsidiaries
(including where SpinCo or the SpinCo Subsidiaries are joint defendants with
other Persons), the conduct of the Parent Business or the ownership of the
Parent Assets, and which claim, suit, action, proceeding, injury, loss,
liability, damage or expense may arise out of an insured or insurable
occurrence under one or more of the Parent Shared Policies, Parent shall assert
and collect any related Insurance Proceeds under such Parent Shared Policy on
behalf of SpinCo and remit promptly to SpinCo any Insurance Proceeds so
collected, and Parent shall further on behalf of SpinCo assert any and all
rights of an insured party under such Parent Shared Policy with respect to such
asserted claim, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer and the right to any applicable
Insurance Proceeds thereunder. The parties hereby acknowledge and agree that
nothing herein shall limit SpinCo's right to assert directly and collect any
related Insurance Proceeds under any Parent Shared Policy and that, should
SpinCo become liable for any Parent Liabilities covered by any Parent Shared
Policy or any Parent Policy, SpinCo shall have the right to assert directly and
collect any related Insurance Proceeds under any such Parent Shared Policy or
Parent Policy.
SECTION 6.3. ADMINISTRATION; OTHER MATTERS.
(a) Administration. Subject to Section 6.3(c) and Section 6.3(d),
from and after the Distribution Date, (i) Parent shall be responsible for (A)
Insurance Administration of the Parent Shared Policies with respect to all
Liabilities except SpinCo Liabilities and (B) Claims Administration (except as
provided below) under such Parent Shared Policies with respect to all
Liabilities except SpinCo Liabilities, and (ii) SpinCo shall be responsible for
(A) Insurance
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Administration of the Parent Shared Policies with respect to all SpinCo
Liabilities and (B) Claims Administration (except as provided below) under such
Parent Shared Policies with respect to all SpinCo Liabilities; provided,
however, that the retention of such responsibilities by Parent or SpinCo, as
the case may be, is in no way intended to limit, inhibit or preclude (i) any
right to insurance coverage for any Insured Claim of a named insured under such
Policies as contemplated by the terms of this Agreement or (ii) the sharing
between Parent and SpinCo of information relating to the matters addressed in
this Article VI; and provided further that Parent's retention or SpinCo's
retention, as the case may be, of the administrative responsibilities for the
Parent Shared Policies shall not relieve the party submitting any Insured Claim
of the primary responsibility for reporting such Insured Claim accurately,
completely and in a timely manner or of such party's authority to settle any
such Insured Claim within any period permitted or required by the relevant
Policy. Parent or SpinCo, as the case may be, may discharge its administrative
responsibilities under this Section 6.3 by contracting for the provision of
services by independent parties. Each of the parties hereto shall administer
and pay any costs relating to defending its respective Insured Claims under
Parent Shared Policies to the extent such defense costs are not covered under
such Policies and shall be responsible for obtaining or reviewing the
appropriateness of releases upon settlement of its respective Insured Claims
under Parent Shared Policies. SpinCo shall reimburse Parent promptly for all
disbursements, out-of-pocket expenses and direct and indirect costs of
employees or agents of Parent relating to Claims Administration and Insurance
Administration contemplated by this Section 6.3(a) on behalf of SpinCo.
Likewise, Parent shall reimburse SpinCo promptly for all disbursements,
out-of-pocket expenses and direct and indirect costs of employees or agents of
SpinCo relating to Claims Administration and Insurance Administration
contemplated by this Section 6.3(a) on behalf of Parent.
(b) Claims. Where a Parent Shared Policy specifically covers
SpinCo Liabilities for periods prior to the Distribution Date or covers claims
made after the Distribution Date with respect to an occurrence prior to the
Distribution Date, then from and after the Distribution Date SpinCo may,
subject to Section 6.3(c) and Section 6.3(d), claim coverage for Insured Claims
under such Parent Shared Policy as and to the extent that such insurance is
available up to the full extent of the applicable limits of liability of such
Parent Shared Policy (and may receive any Insurance Proceeds with respect
thereto as contemplated by Section 6.2 or Section 6.3(c) hereof), subject to
the terms of this Section 6.3.
(c) Allocation of Insurance Proceeds. Insurance Proceeds received
with respect to claims, costs and expenses under the Parent Shared Policies
shall be paid directly to the appropriate Person or to Parent, which shall
thereafter administer the Parent Shared Policies by paying the Insurance
Proceeds, as appropriate, to Parent with respect to Parent Liabilities and to
SpinCo with respect to the SpinCo Liabilities. Payment of the allocable
portions of indemnity costs of Insurance Proceeds resulting from such Policies
will be made by Parent to the appropriate Person upon receipt from the
insurance carrier. In the event that the applicable limits on any particular
Parent Shared Policy are exceeded by the amount of outstanding Insured Claims
by the relevant parties hereto, such parties agree to allocate the Insurance
Proceeds received thereunder based upon their respective percentage of the
total of their bona fide claims (measured as of the date costs related to such
bona fide claims were incurred, such incurrence to be measured, (i) in the case
of fees and expenses incurred for services performed that are attributable to
the defense or disposition of Insured Claims, as of the date such fees and
expenses are billed to an insurance carrier, and (ii) in the case of sums
payable in settlement or satisfaction
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of a judgment attributable to Insured Claims, as of the date of any such
judgment) which were covered under such Parent Shared Policy (their "allocable
portion of Insurance Proceeds"), and any party who has received Insurance
Proceeds in excess of such party's allocable portion of Insurance Proceeds
shall pay to the other party the appropriate amount so that each party will
have received its allocable portion of Insurance Proceeds pursuant hereto. Each
of the parties agrees to use commercially reasonable efforts to maximize
available coverage under those Parent Shared Policies applicable to it, and to
take all commercially reasonable steps to recover from all other responsible
parties in respect of an Insured Claim to the extent coverage limits under a
particular Parent Shared Policy have been exceeded or would be exceeded as a
result of such Insured Claim.
(d) Allocation of Deductibles, Etc. In the event that the parties
have bona fide claims under any Parent Shared Policy for which a deductible or
a retrospectively rated premium adjustment is payable or for which a
self-insurance retention amount has been applied, the parties agree that the
aggregate amount of the deductible or retrospectively rated premium adjustment
paid or retention amount applied shall be borne by the parties in the same
proportion which the Insurance Proceeds received by each such party bears to
the total Insurance Proceeds received under the applicable Parent Shared Policy
(their "allocable share of the deductible, premium adjustment or retention
amount"), and any party who has paid more than its allocable share of the
deductible, premium adjustment or retention amount shall be entitled to receive
from the other party an appropriate amount so that each party has borne its
allocable share of the deductible, premium adjustment or retention amount
pursuant hereto. Further, if a party receives no Insurance Proceeds under that
applicable Parent Shared Policy, that party shall have no allocable share of
the deductible, premium adjustment or retention amount under that applicable
Parent Shared Policy, and the other party shall bear all of the allocable share
of the deductible, premium adjustment or retention amount under that applicable
Parent Shared Policy.
(e) Workers Compensation. With respect to any workers
compensation claims for the period prior to the Effective Time, the terms of
the Ancillary Workers Compensation Agreement shall govern.
(f) Continued Responsibility. Notwithstanding anything in this
Article VI to the contrary, the Parent Group shall remain liable to the SpinCo
Indemnitees for the indemnification obligations contemplated by Section 3.1,
and the SpinCo Group shall remain liable to the Parent Indemnitees for the
indemnification obligations contemplated by Section 3.2, in each case, to the
extent any Loss or Liability is not fully paid to or on behalf of the
applicable party by Insurance Proceeds.
SECTION 6.4. AGREEMENT FOR WAIVER OF CONFLICT AND SHARED DEFENSE.
In the event that Insured Claims of more than one of the parties hereto exist
relating to the same occurrence, the parties shall jointly defend and waive any
conflict of interest necessary to the conduct of the joint defense. Nothing in
this Article VI shall be construed to limit or otherwise alter in any way the
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of Law or otherwise.
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SECTION 6.5. COOPERATION. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. COMPLETE AGREEMENT; CONSTRUCTION. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.4, Section 4.5 and Article V, which shall prevail over any
inconsistent or conflicting provisions in any Ancillary Agreement,
notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be a conflict between the provisions
of this Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 7.2. ANCILLARY AGREEMENTS. Subject to the last sentence
of Section 7.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements.
SECTION 7.3. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 7.4. SURVIVAL OF AGREEMENTS. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 7.5. DISTRIBUTION EXPENSES. Except as otherwise set forth
in this Agreement or any Ancillary Agreement, all costs and expenses incurred
on or prior to the Distribution Date and which are outstanding as of the
Distribution Date or arise after the Distribution Date in connection with the
preparation, execution, delivery, printing and implementation of this Agreement
and any Ancillary Agreement, the Information Statement (including the
Registration Statement) and the Distribution and the consummation of the
transactions contemplated thereby (including (i) costs and expenses incurred
pursuant to Sections 2.1(e), 2.1(i), and 2.10 and (ii) any transfer taxes
imposed on the transfer of real or personal property in the Corporate
Transactions) shall be charged to and paid by SpinCo, and such costs and
expenses shall be deemed to be SpinCo Liabilities. Further, except as otherwise
set forth in this Agreement or any Ancillary Agreement (including the retention
and assumption by the Parent Group of the Parent Liabilities and the retention
and assumption by the SpinCo Group of the SpinCo Liabilities in accordance with
Section 2.2 hereof), all other Liabilities (to the extent not otherwise
satisfied prior to the
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Effective Time) directly resulting from actions taken prior to the Effective
Time in connection with the preparation, execution, delivery, printing and
implementation of this Agreement and any Ancillary Agreement, the Information
Statement (including the Registration Statement) and the Distribution and the
consummation of the transactions contemplated thereby shall be deemed to be
SpinCo Liabilities. Except as otherwise set forth in this Agreement or any
Ancillary Agreement, each party shall bear its own costs and expenses incurred
after the Distribution Date, and any amount or expense to be paid or reimbursed
by any party hereto to any other party hereto shall be so paid or reimbursed
promptly after the existence and amount of such obligation is determined and
written demand therefor is made.
SECTION 7.6. NOTICES. All notices and other communications
hereunder shall be in writing, shall reference this Agreement and shall be hand
delivered or mailed by registered or certified mail (return receipt requested)
or sent by any means of electronic message transmission with delivery confirmed
(by voice or otherwise) to the parties at the following addresses (or at such
other addresses for a party as shall be specified by like notice) and will be
deemed given on the date on which such notice is received ("Notices"):
To Parent:
National Service Industries, Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To SpinCo:
Acuity Brands, Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 7.7. WAIVERS. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not
waive or diminish that party's right to demand strict performance thereafter of
that or any other provision hereof.
SECTION 7.8. AMENDMENTS. Subject to the terms of Section 7.10
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
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SECTION 7.9. SUCCESSORS AND ASSIGNS. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
SECTION 7.10. TERMINATION. This Agreement (including Article III
hereof) may be terminated and the Distribution may be amended, modified or
abandoned at any time prior to the Distribution by and in the sole discretion
of Parent without the approval of SpinCo or the stockholders of Parent. In the
event of such termination, no party shall have any liability of any kind to any
other party or any other Person. After the Distribution, this Agreement may not
be terminated except by an agreement in writing signed by the parties;
provided, however, that Article III shall not be terminated or amended after
the Distribution in respect of any Indemnitees not a party to this Agreement
without the consent of such Persons.
SECTION 7.11. SUBSIDIARIES. Each of the parties hereto shall cause
to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary
of such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
SECTION 7.12. THIRD-PARTY BENEFICIARIES. Except for the right of
Indemnitees to enforce the provisions of Article III hereof, this Agreement is
solely for the benefit of the parties hereto and their respective Subsidiaries
and Affiliates and should not be deemed to confer upon Third Parties any
remedy, claim, liability, reimbursement, cause of action or other right in
excess of those existing without reference to this Agreement.
SECTION 7.13. TITLE AND HEADINGS. Titles and headings to Sections
herein are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
SECTION 7.14. EXHIBITS AND SCHEDULES. The Exhibits and Schedules
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth verbatim herein.
SECTION 7.15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF DELAWARE.
SECTION 7.16. CONSENT TO JURISDICTION. Without limiting the
provisions of Article V hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the state courts of the State of Delaware,
located in the City of Wilmington, and (b) the United States District Court for
the District of Delaware, for the purposes of any suit, action or other
proceeding arising out of this Agreement, the Ancillary Agreements or any
transaction contemplated hereby or thereby. Each of the parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States
- 00 -
Xxxxxxxx Xxxxx for the District of Delaware or if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the
state courts of the State of Delaware, located in the City of Wilmington. Each
of the parties irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this
Agreement, the Ancillary Agreements or the transactions contemplated hereby or
thereby in (i) the state courts of the State of Delaware, located in the City
of Wilmington, or (ii) the United States District Court for the District of
Delaware, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 7.17. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic or operational effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.18. CONSOLIDATION, MERGER, ETC.
(a) Involving SpinCo. SpinCo shall not consolidate with or merge
into any other Person or convey, transfer or lease all or any substantial
portion of its properties and assets to any Person, and SpinCo shall not permit
any Person to consolidate with or merge into SpinCo or convey, transfer or
lease all or any substantial portion of its properties and assets to SpinCo,
unless, in each case such Person is a corporation, partnership, limited
liability company or trust and expressly assumes, by a written agreement,
executed and delivered to Parent, in form reasonably satisfactory to Parent,
all of the liabilities, obligations and expenses to be assumed by SpinCo under
this Agreement and the due and punctual performance or observance of every
agreement and covenant of this Agreement and the Ancillary Agreements on the
part of SpinCo to be performed or observed.
(b) Involving Parent. Parent shall not consolidate with or merge
into any other Person or convey, transfer or lease all or any substantial
portion of its properties and assets to any Person, and Parent shall not permit
any Person to consolidate with or merge into Parent or convey, transfer or
lease all or any substantial portion of its properties and assets to Parent,
unless, in each case such Person is a corporation, partnership, limited
liability company or trust and expressly assumes, by a written agreement,
executed and delivered to SpinCo, in form reasonably satisfactory to SpinCo,
all of the liabilities, obligations and expenses to be assumed by Parent under
this Agreement and the due and punctual performance or observance of every
agreement and covenant of this Agreement and the Ancillary Agreements on the
part of Parent to be performed or observed.
[SIGNATURES FOLLOW ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
NATIONAL SERVICE INDUSTRIES, INC.
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Witness:
/s/ Xxxxx Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxx Xxxxxx
ACUITY BRANDS, INC.
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Witness:
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
