EXHIBIT 2.1
CONFORMED COPY
AMENDMENT NO. 1 dated as of April 27, 2005 (this
"Amendment"), to the Master Agreement dated as of March
18, 2004 (the "Master Agreement"), among Ashland Inc., a
Kentucky corporation ("Ashland"), ATB Holdings Inc., a
Delaware corporation ("HoldCo"), EXM LLC, a Kentucky
limited liability company and wholly owned subsidiary of
HoldCo ("New Ashland LLC"), New EXM Inc., a Kentucky
corporation and wholly owned subsidiary of HoldCo ("New
Ashland Inc."), Marathon Oil Corporation, a Delaware
corporation ("Marathon"), Marathon Oil Company, an Ohio
corporation and wholly owned subsidiary of Marathon
("Marathon Company"), Marathon Domestic LLC, a Delaware
limited liability company and wholly owned subsidiary of
Marathon ("Merger Sub") and Marathon Ashland Petroleum
LLC, a Delaware limited liability company owned by
Marathon Company and Ashland ("MAP").
WHEREAS the parties hereto are parties to the Master
Agreement, pursuant to which the parties have agreed to effect the
Transactions described therein (capitalized terms used in this Amendment
and not defined herein shall have the meanings given such terms in the
Master Agreement);
WHEREAS, simultaneously with the execution and delivery
of this Amendment, the parties hereto are entering into an Amended and
Restated Tax Matters Agreement providing for, in part, the allocation and
assignment among themselves of Taxes resulting from the application of
Section 355(e) of the Code to the Transactions; and
WHEREAS the parties hereto wish to amend the Master
Agreement as provided herein, including to provide that: (i) the New
Ashland Inc. Share Issuance shall be effected by a share issuance to HoldCo
as part of the Conversion Merger, followed by a distribution of the shares
of New Ashland Inc. Common Stock by HoldCo to the holders of HoldCo Common
Stock on the basis of one share of New Ashland Inc. Common Stock for each
outstanding share of HoldCo Common Stock, prior to the Acquisition Merger;
(ii) the aggregate value of the shares of Marathon Common Stock to be
received by the holders of HoldCo Common Stock in the Acquisition Merger as
Acquisition Merger Consideration shall be increased from $315,000,000 to
$915,000,000,(iii) the Map Partial Redemption Amount shall be increased by
$100,000,000 and (iv) the obligation of the Ashland Parties and the
Marathon Parties to effect the Transactions is subject to Ashland and
Marathon having entered into a closing agreement with the Internal Revenue
Service in effect on the Closing Date and, if applicable, having received
the private letter rulings from the Internal Revenue Service, providing all
the required agreements or rulings described in Exhibit D (as amended
hereby) to the Master Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. STRUCTURE AND CONSIDERATION AMENDMENTS TO THE
MASTER AGREEMENT. Effective as of the date of this Amendment, the Master
Agreement is hereby amended as follows:
(a) The Index of Defined Terms in the Master Agreement is
hereby amended by (i) adding the new terms "Distribution" and
"Distribution Effective Time" and their corresponding section
"1.04(a)", (ii) replacing the corresponding section "1.04(a)" with
section "1.04(b)" for the terms "Acquisition Merger", "DGCL" and
"DLLCA", (iii) replacing the corresponding section "1.04(b)" with
section "4.05" for the term "Code" and (iv) replacing the
corresponding section "5.01(a)(i)" with section "5.01(a)(ii)" for
the term "Exchange Agent".
(b) Section 1.03(a) of the Master Agreement is hereby
amended by replacing the reference therein to "Section 1.04(a)"
with "Section 1.04(b)".
(c) Section 1.04 of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex A to
this Amendment.
(d) Section 3.04 of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex B to
this Amendment.
(e) Sections 4.03(a) and (b) of the Master Agreement are
hereby amended and restated in their entirety in the form of Annex
C to this Amendment.
(f) Section 4.05 of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex D to
this Amendment.
(g) Article V of the Master Agreement is hereby amended
and restated in its entirety in the form of Annex E to this
Amendment.
(h) Section 6.03(c) of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex F to
this Amendment.
(i) Section 6.05(b)(ii)(A) of the Master Agreement is
hereby amended and restated in its entirety in the form of Annex G
to this Amendment.
(j) Section 9.07(b) of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex H to
this Amendment.
(k) Section 10.02(d) of the Master Agreement is hereby
amended by (i) replacing the reference therein to "Section
1.04(b)" with "Section 1.04(a)" and (ii) adding the following
proviso to the end thereof: "; provided, however, that each of
Ashland and HoldCo hereby covenant to cause their respective
boards of directors to convene a meeting and to make a good faith
determination with respect to the foregoing prior to the date the
Closing would otherwise occur but for the failure of this
condition to be satisfied."
(l) Sections 13.01(b)(x) and 13.02(b)(ix) of the Master
Agreement are hereby amended by replacing the references therein
to "$315,000,000" with "$815,000,000".
(m) The definition of the term "MAP Partial Redemption
Amount" set forth in Section 14.02 of the Master Agreement is
hereby amended by replacing the reference therein to
"$2,699,170,000" with "$2,799,170,000".
(n) The definition of the term "New Ashland Inc. Common
Stock" set forth in Section 14.02 of the Master Agreement is
hereby amended and restated in its entirety in the form of Annex I
to this Amendment.
(o) Clause (iii) of the third sentence of Section 14.06
of the Master Agreement is hereby amended and restated in its
entirety in the form of Annex J to this Amendment.
SECTION 2. TAX CLOSING CONDITION AMENDMENTS TO THE MASTER
AGREEMENT. Effective as of the date of this Amendment, the Master Agreement
is hereby amended as follows:
(a) The Index of Defined Terms in the Master Agreement is
hereby amended by adding the new term "Closing Agreement" and its
corresponding section "14.02".
(b) Clauses (iii) and (iv) of the sixth recital set forth
in the Master Agreement are hereby amended and restated in their
entirety in the form of Annex K to this Amendment.
(c) Sections 9.03(b) and 9.16 of the Master Agreement and
the definition of the term "Ashland Debt Obligation Amount" set
forth in Section 14.02 of the Master Agreement are hereby amended
by replacing the references therein to "Private Letter Rulings"
with "Closing Agreement or Private Letter Rulings".
(d) Section 10.01(f) of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex L to
this Amendment.
(e) Section 14.02 of the Master Agreement is hereby
amended by adding the following defined term at the appropriate
alphabetical location:
"Closing Agreement" means the closing agreement to
be entered into by Marathon, Ashland, New Ashland Inc.
and certain related parties and the IRS with respect to
the Transactions pursuant to Code Section 7121 and
described in Section 5.01 of the Tax Matters Agreement.
(f) Exhibit D to the Master Agreement is hereby amended
and restated in its entirety in the form of Annex M to this
Amendment.
SECTION 3. OTHER AMENDMENTS TO THE MASTER AGREEMENT.
Effective as of the date of this Amendment, the Master Agreement is hereby
amended as follows:
(a) The last sentence of Section 1.05 of the Master
Agreement is hereby deleted.
(b) The first sentence of Section 9.03(a) of the Master
Agreement is hereby amended and restated in its entirety in the
form of Annex N to this Amendment.
(c) The first sentence of Section 9.09(b) of the Master
Agreement is hereby amended and restated in its entirety in the
form of Annex O to this Amendment.
(d) The first sentence of Section 9.16 of the Master
Agreement is hereby amended and restated in its entirety in the
form of Annex P to this Amendment.
(e) Article IX of the Master Agreement is hereby amended
by adding a new Section 9.17 in the form of Annex Q to this
Amendment at the appropriate numerical location.
(f) Section 10.01(c) of the Master Agreement is hereby
amended by adding the following words immediately after the first
occurrence of the word "Transactions": "(other than the transfer
of the Ashland LOOP/LOCAP Interest)".
(g) Section 11.01(b)(i) of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex R to
this Amendment.
(h) Section 14.02 of the Master Agreement is hereby
amended by adding the following defined terms at the appropriate
alphabetical locations:
"Ashland Affected Non-Qualified Employee Stock Option or
SAR" means any Ashland Non-Qualified Employee Stock Option or
Ashland SAR granted to an employee of MAP, Marathon or any of
their subsidiaries who is actively employed with MAP, Marathon or
any of their subsidiaries immediately prior to the Closing that is
outstanding and unexercised immediately prior to the Closing and
(i) was granted in 2001 or 2002 and is unvested immediately prior
to the Closing or (ii) was granted in 2003 and is scheduled to
vest on September 18, 2005. For purposes of this definition, any
employee of MAP, Marathon or any of their subsidiaries who is not
actively at work immediately prior to the Closing due solely to a
leave of absence (including due to vacation, holiday, sick leave,
maternity or paternity leave, military leave, jury duty,
bereavement leave, injury or short-term disability) other than
long-term disability, in compliance with applicable policies of
MAP, Marathon or such subsidiary, shall be deemed to be actively
employed with MAP, Marathon or such subsidiary immediately prior
to the Closing.
"Ashland Non-Qualified Employee Stock Option" means any
Ashland Employee Stock Option granted under the terms of the
Ashland Inc. Stock Option Plan for Employees of Joint Ventures
that is not intended to qualify as an "incentive stock option"
within the meaning of Section 422 of the Code.
(i) The definition of the term "MAP Adjustment Amount"
set forth in Section 14.02 of the Master Agreement is hereby
amended and restated in its entirety in the form of Annex S to
this Amendment.
SECTION 4. EFFECT ON THE MASTER AGREEMENT. Except as
specifically amended by this Amendment, the Master Agreement shall remain
in full force and effect and the Master Agreement, as amended by this
Amendment, is hereby ratified and affirmed in all respects. On and after
the date hereof, each reference in the Master Agreement to "this
Agreement," "herein," "hereunder" or words of similar import shall mean and
be a reference to the Master Agreement as amended by this Amendment.
SECTION 5. INTERPRETATION. When a reference is made in
this Amendment to a Section or Article, such reference shall be to a
Section or Article of this Amendment unless otherwise indicated. The
headings contained in this Amendment are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Amendment. Whenever the words "include", "includes" or "including" are used
in this Amendment, they shall be deemed to be followed by the words
"without limitation".
SECTION 6. SEVERABILITY. If any term or other provision
of this Amendment is invalid, illegal or incapable of being enforced by any
rule or Law, or public policy, all other conditions and provisions of this
Amendment shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party hereto. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Amendment so as to effect the original intent of the
parties hereto as closely as possible to the end that the transactions
contemplated hereby are fulfilled to the greatest extent possible.
SECTION 7. COUNTERPARTS. This Amendment 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 counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 8. NO THIRD-PARTY BENEFICIARIES. This Amendment
is not intended to confer upon any person other than the parties hereto any
rights or remedies.
SECTION 9. EXERCISE OF RIGHTS AND REMEDIES. Except as
this Amendment otherwise provides, no delay or omission in the exercise of,
or failure to assert, any right, power or remedy accruing to any party
hereto as a result of any breach or default hereunder by any other party
hereto will impair any such right, power or remedy, nor will it be
construed, deemed or interpreted as a waiver of or acquiescence in any such
breach or default, or of any similar breach or default occurring later; nor
will any waiver of any single breach or default be construed, deemed or
interpreted as a waiver of any other breach or default hereunder occurring
before or after that waiver. The failure of any party to this Amendment to
assert any of its rights under this Amendment or otherwise shall not
constitute a waiver of such rights.
SECTION 10. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 11. ASSIGNMENT. Neither this Amendment nor any of
the rights, interests or obligations under this Amendment shall be
assigned, in whole or in part, by any of the parties without the prior
written consent of the other parties, except that the rights, interests and
obligations of any party under this Amendment may be assigned by operation
of law pursuant to a merger, consolidation or other business combination
involving such party that would not reasonably expected to prevent or
materially delay the consummation of the Transactions; provided, however,
that any assignment pursuant to the exception set forth in this sentence
shall not operate to release any party from its obligations under this
Amendment. Subject to the preceding sentences, this Amendment will be
binding upon, inure to the benefit of, and be enforceable by, the parties
and their respective successors and assigns.
SECTION 12. ENFORCEMENT. The parties agree that
irreparable damage would occur in the event that any of the provisions of
the Transaction Agreements were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that,
subject to Sections 13.01(c) and 13.02(c) of the Master Agreement, the
parties shall be entitled to an injunction or injunctions to prevent
breaches of this Amendment and to enforce specifically the terms and
provisions of this Amendment in any New York state court or any Federal
court located in the Borough of Manhattan, The City of New York in the
State of New York, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any New York
state court or any Federal court located in the Borough of Manhattan, The
City of New York in the State of New York in the event any dispute arises
out of this Amendment, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from
any such court, (c) agrees that it will not bring any action relating to
this Amendment in any court other than any New York state court or any
Federal court sitting in the Borough of Manhattan, The City of New York in
the State of New York (provided, however, that this clause (c) shall not
limit the ability of any party hereto to (i) file a proof of claim or bring
any action in any court in which a bankruptcy or reorganization proceeding
involving another party hereto is pending, (ii) file a counter-claim or
cross-claim against another party hereto in any court in which a proceeding
involving both such parties is pending or (iii) implead another party
hereto in respect of a Third Party Claim in any court in which a proceeding
relating to such Third Party Claim is then pending) and (d) waives any
right to trial by jury with respect to any action related to or arising out
of this Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment, all as of the date first written above.
ASHLAND INC.,
by /s/ Xxxxx X. X'Xxxxx
------------------------
Name: Xxxxx X. X'Xxxxx
Title: Chief Executive Officer
ATB HOLDINGS INC.,
by /s/ Xxxxx X. X'Xxxxx
------------------------
Name: Xxxxx X. X'Xxxxx
Title: President
EXM LLC,
by
ATB HOLDINGS INC.,
by /s/ Xxxxx X. X'Xxxxx
------------------------
Name: Xxxxx X. X'Xxxxx
Title: President
NEW EXM INC.,
by /s/ Xxxxx X. X'Xxxxx
------------------------
Name: Xxxxx X. X'Xxxxx
Title: President
MARATHON OIL CORPORATION,
by /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
MARATHON OIL COMPANY,
by /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
MARATHON DOMESTIC LLC,
by
MARATHON OIL CORPORATION,
by /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
MARATHON ASHLAND PETROLEUM LLC,
by /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ANNEX A
SECTION 1.04. Distribution; Acquisition Merger. (a)
Promptly following the Conversion Merger Effective Time, HoldCo shall
distribute to the holders of HoldCo Common Stock (as defined in Section
2.04(a)(i)) shares of New Ashland Inc. Common Stock on the basis of one
share of New Ashland Inc. Common Stock for each outstanding share of HoldCo
Common Stock (the "Distribution"). On or prior to the Closing Date, the
Board of Directors of HoldCo shall formally declare the Distribution and
shall authorize and direct HoldCo to pay it promptly following the
Conversion Merger Effective Time by delivery of certificates representing
shares of New Ashland Inc. Common Stock to the Exchange Agent (as defined
in Section 5.01(a)(ii)) for delivery to the holders of HoldCo Common Stock
entitled thereto. The Distribution shall be deemed effective upon written
notification by HoldCo to the Exchange Agent that the Distribution has been
declared and that the Exchange Agent is authorized to proceed with the
distribution of New Ashland Inc. Common Stock (the "Distribution Effective
Time").
(b) Promptly following the Distribution Effective Time,
pursuant to Article IV and in accordance with the Delaware General
Corporation Law (the "DGCL") and the Delaware Limited Liability Company Act
(the "DLLCA"), HoldCo shall be merged with and into Merger Sub (the
"Acquisition Merger") at the Acquisition Merger Effective Time.
ANNEX B
SECTION 3.04. Conversion of New Ashland Securities. At
the Conversion Merger Effective Time, by virtue of the Conversion Merger
and without any action on the part of HoldCo:
(a) each New Ashland LLC Interest issued and outstanding
immediately prior to the Conversion Merger Effective Time shall be
converted into and thereafter represent a number of duly issued, fully paid
and nonassessable shares of New Ashland Inc. Common Stock equal to the
quotient of (x) the number of shares of HoldCo Common Stock issued and
outstanding immediately prior to the Conversion Merger Effective Time
divided by (y) the number of New Ashland LLC Interests issued and
outstanding immediately prior to the Conversion Merger Effective Time; and
(b) each share of New Ashland Inc. Common Stock held by
HoldCo immediately prior to the Conversion Merger Effective Time shall
automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered or deliverable in exchange therefor.
ANNEX C
SECTION 4.03. Effect on Capital Stock. (a) At the
Acquisition Merger Effective Time, by virtue of the Acquisition Merger and
without any action on the part of the holder of any shares of HoldCo Common
Stock or any membership interests in Merger Sub:
(i) subject to Section 5.01(e), each issued and
outstanding share of HoldCo Common Stock shall be
converted into the right to receive a number of duly
issued, fully paid and nonassessable shares of Marathon
Common Stock equal to the Exchange Ratio (as defined in
Section 4.03(b)); and
(ii) all of the limited liability company
interests in Merger Sub issued and outstanding
immediately prior to the Acquisition Merger Effective
Time shall remain outstanding without change.
(b) The shares of Marathon Common Stock to be issued upon
the conversion of shares of HoldCo Common Stock pursuant to Section
4.03(a)(i) and cash in lieu of fractional shares of Marathon Common Stock
as contemplated by Section 5.01(e) are referred to collectively as
"Acquisition Merger Consideration". As of the Acquisition Merger Effective
Time, all such shares of HoldCo Common Stock shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist,
and each holder of a certificate formerly representing the right to receive
any such shares of HoldCo Common Stock pursuant to Section 2.04(b) shall
cease to have any rights with respect thereto, except the right to receive,
upon surrender of such certificate in accordance with Section 5.01, the
Acquisition Merger Consideration, without interest. "Exchange Ratio" means
$915,000,000 divided by the product of (x) the Fair Market Value and (y)
the total number of shares of Ashland Common Stock issued and outstanding
immediately prior to the Reorganization Merger Effective Time. "Fair Market
Value" means an amount equal to the average of the closing sale prices per
share for the Marathon Common Stock on the New York Stock Exchange (the
"NYSE"), as reported in The Wall Street Journal, Northeastern edition, for
each of the twenty consecutive trading days ending with the third complete
trading day prior to the Closing Date (not counting the Closing Date) (the
"Averaging Period"). Notwithstanding the foregoing, if the Board of
Directors of Marathon (the "Marathon Board") declares a dividend on the
outstanding shares of Marathon Common Stock having a record date before the
Closing Date but an ex-dividend date (based on "regular way" trading on the
NYSE of shares of Marathon Common Stock) (the "Ex-Date") that occurs after
the first trading day of the Averaging Period, then for purposes of
computing the Fair Market Value, the closing price on any trading day
before the Ex-Date will be adjusted by subtracting therefrom the amount of
such dividend. For purposes of the immediately preceding sentence, the
amount of any noncash dividend will be the fair market value thereof on the
payment date for such dividend as determined in good faith by mutual
agreement of Ashland and Marathon.
ANNEX D
SECTION 4.05. Tax Treatment. The parties intend that (a)
the Reorganization Merger will qualify as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and the rules and regulations promulgated thereunder and
Ashland and HoldCo will each be a "party" to such reorganization within the
meaning of Section 368(b) of the Code, (b) the Conversion Merger followed
by the Distribution will qualify as a "reorganization" within the meaning
of Section 368(a) of the Code and a transaction described in Section 355 of
the Code and HoldCo and New Ashland Inc. will each be a "party" to such
reorganization within the meaning of Section 368(b) of the Code, (c) the
Acquisition Merger will qualify as a "reorganization" within the meaning of
Section 368(a) of the Code and HoldCo and Marathon will each be a "party"
to such reorganization within the meaning of Section 368(b) of the Code and
(d) this Agreement will constitute a "plan of reorganization" for U.S.
Federal income Tax purposes.
ANNEX E
ARTICLE V
Exchange of HoldCo Certificates
SECTION 5.01. Exchange of Certificates. (a) Exchange
Agent. (i) [Intentionally Omitted.]
(ii) Promptly following the Acquisition Merger
Effective Time, Marathon shall issue and deposit with an exchange
agent designated by Ashland and reasonably acceptable to Marathon
(the "Exchange Agent"), for the benefit of the holders of shares
of HoldCo Common Stock, for exchange in accordance with this
Article V, through the Exchange Agent, certificates representing a
number of shares of Marathon Common Stock equal to the product of
(x) the total number of shares of Ashland Common Stock issued and
outstanding immediately prior to the Reorganization Merger
Effective Time and (y) the Exchange Ratio, rounded up to the
nearest whole share. Marathon shall provide to the Exchange Agent
(or, following the termination of the Exchange Fund pursuant to
Section 5.01(f), to New Ashland Inc. so long as it is the record
holder on the applicable record date of shares of Marathon Common
Stock delivered to New Ashland Inc. upon such termination)
following the Acquisition Merger Effective Time all the cash
necessary to pay any dividends or other distributions in
accordance with Section 5.01(c)(ii) (the shares of Marathon Common
Stock, together with the cash provided to pay any dividends or
distributions with respect thereto, deposited with the Exchange
Agent being hereinafter referred to as the "Exchange Fund"). For
the purposes of such deposit, Marathon shall assume that there
will not be any fractional shares of Marathon Common Stock.
(iii) The Exchange Agent shall, pursuant to
irrevocable instructions delivered by New Ashland Inc. and
Marathon, deliver the Marathon Common Stock contemplated to be
issued pursuant to Section 4.03 and this Article V out of the
Exchange Fund. The Exchange Fund shall not be used for any other
purpose.
(b) Exchange Procedures. As promptly as reasonably
practicable after the Acquisition Merger Effective Time, the Exchange Agent
shall mail to each holder of record of a certificate or certificates (each,
a "Certificate") that immediately prior to the Reorganization Merger
Effective Time represented outstanding shares of Ashland Common Stock
(other than holders of Dissenters' Shares), (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and
title to the Certificate or Certificates shall pass, only upon delivery of
the Certificate or Certificates to the Exchange Agent and shall be in such
form and have such other provisions as New Ashland Inc. and Marathon may
reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificate or Certificates in exchange for Acquisition
Merger Consideration. Upon surrender of a Certificate or Certificates for
cancelation to the Exchange Agent or, following termination of the Exchange
Fund pursuant to Section 5.01(f), New Ashland Inc., together with such
letter of transmittal, duly executed and completed in accordance with the
instructions thereto, and such other documents as may reasonably be
required by the Exchange Agent or New Ashland Inc., as applicable, the
holder of such Certificate or Certificates shall be entitled to receive in
exchange therefor (i) a certificate or certificates representing that
number of whole shares of Marathon Common Stock that such holder has the
right to receive pursuant to the provisions of Section 4.03 and this
Article V, (ii) cash in lieu of fractional shares of Marathon Common Stock
that such holder has the right to receive pursuant to Section 5.01(e) and
(iii) any dividends or other distributions such holder has the right to
receive pursuant to Section 5.01(c), and the Certificate or Certificates so
surrendered shall forthwith be canceled. In the event of a transfer of
ownership of Ashland Common Stock or HoldCo Common Stock that is not
registered in the transfer records of Ashland or HoldCo, a certificate or
certificates representing the appropriate number of shares of Marathon
Common Stock, together with a check for cash to be paid in lieu of
fractional shares, may be issued and paid to a person other than the person
in whose name the Certificate or Certificates so surrendered is registered,
if such Certificate or Certificates shall be properly endorsed or otherwise
be in proper form for transfer and the person requesting such issuance and
payment shall pay any transfer or other Taxes required by reason of the
issuance of shares of Marathon Common Stock to a person other than the
registered holder of such Certificate or Certificates or establish to the
satisfaction of New Ashland Inc. that such Tax has been paid or is not
applicable. Until surrendered as contemplated by this Section 5.01, each
Certificate shall be deemed at any time after the Acquisition Merger
Effective Time to represent only the right to receive upon such surrender
Acquisition Merger Consideration as contemplated by this Section 5.01. No
interest shall be paid or accrue on any cash in lieu of fractional shares
or accrued and unpaid dividends or distributions, if any, payable upon
surrender of any Certificate.
(c) Distributions with Respect to Unexchanged Shares. (i)
[Intentionally Omitted.]
(ii) No dividends or other distributions with
respect to shares of Marathon Common Stock with a record date on
or after the Closing Date shall be paid to the holder of any
Certificate with respect to the shares of Marathon Common Stock
issuable upon surrender thereof, and no cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to
Section 5.01(e), until the surrender of such Certificate in
accordance with this Article V. Subject to applicable Law,
following surrender of any such Certificate, there shall be paid
to the holder of the certificate representing whole shares of
Marathon Common Stock issued in exchange therefor, without
interest, (A) at the time of such surrender, the amount of any
cash payable in lieu of a fractional share of Marathon Common
Stock to which such holder is entitled pursuant to Section 5.01(e)
and the amount of dividends or other distributions with a record
date on or after the Closing Date theretofore paid with respect to
such whole shares of Marathon Common Stock and (B) at the
appropriate payment date, the amount of dividends or other
distributions with a record date on or after the Closing Date but
prior to such surrender and a payment date subsequent to such
surrender payable with respect to such whole shares of Marathon
Common Stock.
(d) No Further Ownership Rights in HoldCo Common Stock.
The Acquisition Merger Consideration issued (and paid) upon conversion of
any shares of HoldCo Common Stock in accordance with the terms of this
Article V shall be deemed to have been issued (and paid) in full
satisfaction of all rights pertaining to such shares of HoldCo Common
Stock, and after the Acquisition Merger Effective Time there shall be no
further registration of transfers on the stock transfer books of the
business entity surviving the Acquisition Merger, Merger Sub, of shares of
HoldCo Common Stock that were outstanding immediately prior to the
Acquisition Merger Effective Time. If, after the Acquisition Merger
Effective Time, any Certificates are presented to New Ashland Inc. or the
Exchange Agent for any reason, they shall be canceled and exchanged as
provided in this Article V except as otherwise provided by applicable Law.
Unless Marathon otherwise consents, the Acquisition Merger Consideration
shall not be issued to any person who is an "affiliate" of Ashland for
purposes of Rule 145 under the Securities Act of 1933, as amended (the
"Securities Act"), on the date of the Ashland Shareholders Meeting, as
determined from representations contained in the letters of transmittal to
be delivered by former holders of shares of Ashland Common Stock pursuant
to the provisions of Section 5.01(b) (a "Rule 145 Affiliate"), until
Marathon has received a written agreement from such Rule 145 Affiliate
substantially in the form attached hereto as Exhibit C; provided, however,
that Marathon shall be solely responsible for any Losses (as defined in
Section 13.01(a)) of any of the Ashland Parties and their respective
affiliates and Representatives (in each case other than such Rule 145
Affiliate) to the extent resulting from, arising out of, or relating to,
directly or indirectly, any refusal by Marathon to consent to the issuance
of Acquisition Merger Consideration to any such Rule 145 Affiliate pursuant
to this sentence.
(e) No Fractional Shares. (i) No certificates or scrip
representing fractional shares of Marathon Common Stock shall be issued
upon the conversion of HoldCo Common Stock pursuant to Section 4.03, and
such fractional share interests shall not entitle the owner thereof to vote
or to any rights of a holder of Marathon Common Stock. For purposes of this
Section 5.01(e), all fractional shares to which a single record holder
would be entitled shall be aggregated and calculations shall be rounded to
three decimal places. Notwithstanding any other provision of this
Agreement, each holder of Certificates who otherwise would be entitled to
receive a fraction of a share of Marathon Common Stock (determined after
taking into account all Certificates delivered by such holder) shall
receive, in lieu thereof, cash (without interest) in an amount equal to the
product of such fractional part of a share of Marathon Common Stock
multiplied by the Fair Market Value.
(ii) As promptly as practicable following the
Acquisition Merger Effective Time, the Exchange Agent shall
determine the excess of (A) the number of shares of Marathon
Common Stock delivered to the Exchange Agent by Marathon pursuant
to Section 5.01(a) over (B) the aggregate number of whole shares
of Marathon Common Stock to be issued to holders of HoldCo Common
Stock pursuant to Section 5.01(b) (such excess being herein called
the "Excess Shares"). As promptly as practicable after such
determination, Marathon shall deposit an amount into the Exchange
Fund equal to the product of the number of Excess Shares
multiplied by the Fair Market Value, and the Exchange Agent shall
return certificates representing such Excess Shares to Marathon.
(f) Termination of Exchange Fund. Any portion of the
Exchange Fund that remains undistributed to the holders of Certificates for
six months after the Acquisition Merger Effective Time shall be delivered
to or in accordance with the instructions of New Ashland Inc., upon demand,
and any holder of a Certificate who has not theretofore complied with this
Article V shall thereafter look only to New Ashland Inc. for payment of its
claim for Acquisition Merger Consideration and any dividends or
distributions with respect to Marathon Common Stock as contemplated by
Section 5.01(c).
(g) Lost Certificates. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed and,
if required by New Ashland Inc., the execution of an indemnity reasonably
satisfactory to New Ashland Inc. (and, if required by New Ashland Inc., the
posting by such person of a bond in such reasonable amount as New Ashland
Inc. may direct, as indemnity) against any claim that may be made against
it with respect to such Certificate, the Exchange Agent will deliver in
exchange for such lost, stolen or destroyed Certificate the applicable
Acquisition Merger Consideration with respect to the shares of HoldCo
Common Stock formerly represented thereby, and any dividends or other
distributions such holder has the right to receive in respect thereof,
pursuant to this Agreement.
(h) Withholding Rights. Marathon shall be entitled to
deduct and withhold from the consideration otherwise payable pursuant to
this Agreement to any holder of Certificates and any holder of Dissenters'
Shares such amounts as may be required to be deducted and withheld by
Marathon with respect to the making of such payment under the Code or under
any provision of state, local or foreign Tax Law. To the extent that
amounts are so withheld and paid over to the appropriate Tax Authority (as
defined in Section 14.02), Marathon will be treated as though it withheld
an appropriate amount of the type of consideration otherwise payable
pursuant to this Agreement to any holder of Certificates or Dissenters'
Shares, sold such consideration for an amount of cash equal to the fair
market value of such consideration at the time of such deemed sale and paid
such cash proceeds to the appropriate Tax Authority. Such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to
the holder of the shares represented by the Certificates or Dissenters'
Shares, as the case may be, in respect of which such deduction and
withholding was made.
(i) No Liability. None of the Ashland Parties, the
Marathon Parties or the Exchange Agent shall be liable to any person in
respect of any shares of Marathon Common Stock (or dividends or
distributions with respect thereto) or cash from the Exchange Fund
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar Law. If any Certificate has not been
surrendered prior to five years after the Acquisition Merger Effective Time
(or immediately prior to such earlier date on which Acquisition Merger
Consideration or any dividends or distributions with respect to Marathon
Common Stock as contemplated by Section 5.01(c) in respect of such
Certificate would otherwise escheat to or become the property of any
Governmental Entity (as defined in Section 6.05(b))), any such shares,
cash, dividends or distributions in respect of such Certificate shall, to
the extent permitted by applicable Law, become the property of New Ashland
Inc., free and clear of all claims or interest of any person previously
entitled thereto.
(j) Investment of Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by New Ashland
Inc., on a daily basis. Any interest and other income resulting from such
investments shall be paid to New Ashland Inc.
ANNEX F
(c) As of the date of this Agreement, the authorized capital stock of New
Ashland Inc. consists of 1,000 shares of Common Stock, of which 100 shares
of Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and are owned by HoldCo free and clear of any Lien.
Immediately prior to the Conversion Merger Effective Time, the authorized
capital stock of New Ashland Inc. will consist of 200,000,000 shares of
Common Stock and 30,000,000 shares of preferred stock, of which 100 shares
of Common Stock will have been duly authorized and validly issued, fully
paid and nonassessable and owned by HoldCo free and clear of any Lien,
other than any Lien (i) pursuant to the HoldCo Borrowing arrangements or
(ii) in favor of any Marathon Party or any of their respective subsidiaries
or affiliates.
ANNEX G
(ii) the filing with the Securities and Exchange Commission (the "SEC") of
(A) a joint registration --- statement on Form S-4 (the "Ashland Form S-4")
in connection with the issuance by HoldCo of HoldCo Common Stock in
connection with the Reorganization Merger (the "HoldCo Share Issuance") and
the issuance by New Ashland Inc. of New Ashland Inc. Common Stock in the
Conversion Merger, followed by the distribution thereof to holders of
HoldCo Common Stock in the Distribution (the "New Ashland Inc. Share
Issuance"),
ANNEX H
(b) Ashland and New Ashland Inc. shall prepare and submit to the NYSE or
The Nasdaq Stock Market ("NASDAQ") an application (or amendment thereto)
for listing on the NYSE or NASDAQ of the New Ashland Inc. Common Stock to
be issued to holders of Ashland Common Stock in the Distribution, and shall
use their reasonable best efforts to obtain, prior to the Ashland
Shareholders Meeting, approval for the listing of such shares, subject to
official notice of issuance.
ANNEX I
"New Ashland Inc. Common Stock" means New Ashland Inc. common stock, par
value $0.01 per share, and, with respect to such shares issued at and after
the Conversion Merger Effective Time, includes the associated Ashland
Rights.
ANNEX J
(iii) after the Closing, the holders entitled to receive HoldCo Common
Stock in the Reorganization Merger shall have the rights and remedies
specified in Section 1.04(a) and Article V only.
ANNEX K
(iii) a Tax Matters Agreement (as amended and restated as of April 27, 2005
the "Tax Matters Agreement"); and
(iv) Amendment No. 2 to the MAP LLC Agreement (as defined in Section 14.02)
(the "MAP LLC Agreement Amendment" and, together with this Agreement, the
Maleic Agreement, the VIOC Agreement, the Tax Matters Agreement and
Amendment No. 3 dated as of April 27, 2005, to the MAP LLC Agreement, the
"Transaction Agreements");
ANNEX L
(f) Closing Agreement; Private Letter Rulings; Tax Opinions. Ashland and
Marathon shall have entered into the Closing Agreement with the IRS (which
Closing Agreement shall be in effect on the Closing Date) and, if
applicable, received the private letter rulings from the IRS referred to in
Exhibit D (the "Private Letter Rulings"),providing all the required
agreements or rulings described in Exhibit D and in form and substance
reasonably satisfactory to each of the Ashland Board and the Marathon
Board. Ashland and Marathon shall have received the respective Tax
Opinions, dated as of the Closing Date, described in Exhibit D (to the
extent such Tax Opinions are required under Exhibit D).
ANNEX M
EXHIBIT D
CLOSING AGREEMENT/PRIVATE LETTER RULING/TAX OPINION CLOSING CONDITIONS
STRUCTURE
1. The Closing Agreement provides that the Maleic/VIOC
Contribution described in Section 1.02(a), the MAP/LOOP/LOCAP Contribution
described in Section 1.02(b) and the Reorganization Merger described in
Section 1.02(c), taken together, qualify as a reorganization under Section
368(a)(1)(F) of the Code.
2. The Closing Agreement provides that the Capital Contribution
described in Section 1.03(b) and the Conversion Merger described in Section
1.03(c), taken together with the Distribution described in Section 1.04(a)
qualify as a reorganization under Section 368(a)(1)(D) of the Code.
3. The Closing Agreement provides that the Distribution described
in Section 1.04(a) qualifies as a distribution described in Section 355(a)
of the Code and, accordingly, no gain or loss will be recognized by (and no
amount will otherwise be included in the income of) the shareholders of
HoldCo upon the receipt of New Ashland Inc. Common Stock pursuant to the
Distribution.
4. Either:
(a) The Closing Agreement provides that the Acquisition
Merger described in Section 1.04(b) will qualify as a reorganization under
Section 368(a)(1)(A) of the Code; or
(b) If the Closing Agreement does not provide the agreement
described in paragraph 4(a) above, Cravath, Swaine & Xxxxx LLP delivers a
written opinion to Ashland, in form and substance reasonably satisfactory
to the Ashland Board, concluding that the Acquisition Merger described in
Section 1.04(b) will qualify as a reorganization under Section 368(a)(1)(A)
of the Code; and Xxxxxx & Xxxxxxxxx Chartered delivers a written opinion to
Marathon, in form and substance reasonably satisfactory to the Marathon
Board, that such Acquisition Merger qualifies as a reorganization under
Section 368(a)(1)(A) of the Code.
5. The Closing Agreement provides that the shares of New Ashland
Inc. Common Stock distributed to shareholders of HoldCo in the Distribution
described in Section 1.04(a) will not be treated as "other property",
within the meaning of Section 356(a) of the Code, received in exchange for
HoldCo stock in the Acquisition Merger.
SECTION 357
6. The Closing Agreement provides that the assumption by Marathon
and/or Merger Sub of liabilities of HoldCo in the Acquisition Merger will
not be treated as money or other property under Section 357 of the Code.
CONTINGENT LIABILITIES
7. The Closing Agreement provides that:
(a) HoldCo's basis in its shares of New Ashland Inc. Common
Stock will be reduced under Code Section 358(d)(1) as a result of the
deemed assumption by New Ashland Inc. of the Ashland Asbestos Liabilities
(as defined in the Tax Matters Agreement) and the Ashland Environmental
Liabilities (as defined in the Tax Matters Agreement) pursuant to the
Conversion Merger either (i) by a specified amount determined as of the
Closing that will not exceed $94,000,000 or such greater amount as may be
acceptable to Marathon in its sole discretion or (ii) by the estimated
present value (computed using a discount rate of no less than seven
percent, or such lower rate as is acceptable to Marathon in its sole
discretion) of such liabilities, determined as of the Closing.
(b) HoldCo's basis in its shares of New Ashland Inc. Common
Stock will be reduced under Code Section 358(d)(1) as a result of the
Conversion Merger by the estimated present value (computed using a discount
rate of no less than seven percent, or such lower rate as is acceptable to
Marathon in its sole discretion) of the Ashland Residual Operations
Liabilities (as defined in the Tax Matters Agreement) other than the
Ashland Asbestos Liabilities and the Ashland Environmental Liabilities,
determined as of the Closing.
(c) The Ashland Residual Operations Liabilities will not
include potential future defense costs of New Ashland Inc. related to the
Ashland Residual Operations Liabilities (e.g. attorneys' fees or litigation
expenses).
(d) The Ashland Residual Operations Liabilities will not
include any portion that is reimbursed or reasonably expected to be
reimbursed by insurance.
(e) The amount of Ashland Asbestos Liabilities and Ashland
Environmental Liabilities will be determined (net of the estimated present
value of any related insurance recoveries or defense costs) as of the
Closing and will not be subsequently redetermined.
8. The Closing Agreement provides that:
(a) HoldCo and Marathon or an affiliate of Marathon that is
the "acquiring corporation" of HoldCo in the Acquisition Merger within the
meaning of Code Section 381(a) (such affiliate the "HoldCo Successor") will
be entitled to deduct the Specified Liability Deductions under Code Section
162(a) at the time such liabilities have accrued and economic performance
of such liabilities has occurred without regard to whether such deductions
exceed the amount of Ashland Residual Operations Liabilities determined for
purposes of paragraphs (7)(a) and (b). Such deductions shall be net of
amounts reimbursed by insurance or reasonably expected to be reimbursed by
insurance.
(b) Neither HoldCo, Marathon, nor any member of the Marathon
Group (as defined in the Tax Matters Agreement) will have income or gain as
a result of New Ashland Inc.'s receipt of insurance recoveries with respect
to the Ashland Residual Operations Liabilities to the extent such
recoveries are taken into account in determining the amount of the
deduction under paragraph (8)(a) above.
(c) Neither New Ashland Inc. nor any member of the New
Ashland Inc. Group (as defined in the Tax Matters Agreement) will have
income or gain as a result of New Ashland Inc.'s receipt of insurance
recoveries with respect to the Ashland Residual Operations Liabilities to
the extent such recoveries are taken into account in determining the amount
of the deduction under paragraph (8)(a) above.
(d) Specified Liability Deductions will not be limited under
Code Section 382 or 384 or Treas. Reg. ss. 1.1502-15.
(e) New Ashland Inc. will be entitled to deduct the defense
costs related to the Ashland Residual Operations Liabilities to the extent
such defense costs are incurred after Closing and are otherwise deductible.
(f) Neither HoldCo, Marathon nor any member of the Marathon
Group will realize income or gain as a result of the accrual or payment of
the Ashland Residual Operations Liabilities by New Ashland Inc. or by New
Ashland Inc.'s payment of the defense costs related to the Ashland Residual
Operations Liabilities.
PARTNERSHIP
9. Either:
(a) The Closing Agreement or a private letter ruling issued
by the IRS provides that the MAP Partial Redemption does not constitute a
disguised sale of a partnership interest under Section 707(a)(2)(B) of the
Code; or
(b) If the Closing Agreement or a private letter ruling
issued by the IRS does not provide the agreement described in paragraph
9(a) above, Cravath, Swaine & Xxxxx LLP delivers a written opinion to
Ashland, in form and substance reasonably satisfactory to the Ashland
Board, concluding that the MAP Partial Redemption will not constitute a
disguised sale of a partnership interest under Section 707(a)(2)(B) of the
Code; and Xxxxxx & Xxxxxxxxx Chartered delivers a written opinion to
Marathon, in form and substance reasonably satisfactory to the Marathon
Board, concluding that the MAP Partial Redemption does not constitute a
disguised sale of a partnership interest under Section 707(a)(2)(B) of the
Code.
10. Either:
(a) The Closing Agreement or a private letter ruling issued
by the IRS provides that the MAP Partial Redemption will not be treated as
a sale or exchange of property between Ashland and MAP under Section 751(b)
of the Code; or
(b) If the Closing Agreement or a private letter ruling
issued by the IRS does not provide the agreement described in paragraph
10(a) above, Cravath, Swaine & Xxxxx LLP delivers a written opinion to
Ashland, in form and substance reasonably satisfactory to the Ashland
Board, concluding that the MAP Partial Redemption will not constitute a
sale or exchange of property between Ashland and MAP under Section 751(b)
of the Code; and Xxxxxx & Xxxxxxxxx Chartered delivers a written opinion to
Marathon, in form and substance reasonably satisfactory to the Marathon
Board, concluding that the MAP Partial Redemption does not constitute a
sale or exchange of property between Ashland and MAP under Section 751(b)
of the Code.
ANNEX N
Upon the terms and subject to the conditions set forth in this Agreement,
each of the parties shall use its reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to cause the Closing to occur on June 30, 2005 or as promptly as
practicable thereafter (in accordance with the other terms of this
Agreement, including Section 1.05 of this Agreement, which provides that
the Closing shall occur on the last business day of a calendar month unless
otherwise mutually agreed by Ashland and Marathon), including (i) the
obtaining of all necessary actions or nonactions, waivers, consents,
orders, authorizations and approvals from Governmental Entities and the
making of all necessary registrations, declarations and filings (including
filings with Governmental Entities, if any) and the taking of all
reasonable steps as may be necessary to obtain an approval or waiver from,
or to avoid an action or proceeding by, any Governmental Entity, (ii) the
obtaining of all necessary consents, approvals or waivers from third
parties, (iii) the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or any other
Transaction Agreement or the consummation of the Transactions, including
seeking to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed and (iv) the
execution and delivery of any additional instruments necessary to
consummate the Transactions and to fully carry out the purposes of the
Transaction Agreements.
ANNEX O
Ashland or New Ashland Inc. shall bear the cost of the St. Xxxx Park QQQ
Project incurred after January 1, 2003 not to exceed $9,350,000 (the "St.
Xxxx Park QQQ Project Payment Amount").
ANNEX P
No later than May 15, 2005, Ashland shall provide to Marathon a schedule
setting forth estimates, prepared in good faith by Ashland in light of any
communications with the Internal Revenue Service (the "IRS"), written or
otherwise, of the Ashland Debt Obligation Amounts based on assumed Closing
Dates occurring on the last day of each month from June of 2005 through
September of 2005.
ANNEX Q
SECTION 9.17. Treatment of Ashland Affected Non-Qualified
Employee Stock Options or SARs. The Ashland Parties shall take or cause to
be taken such actions as are necessary to provide that (i) each Ashland
Affected Non-Qualified Employee Stock Option or SAR shall become fully
vested as of the Closing and (ii) each Ashland Affected Non-Qualified
Employee Stock Option or SAR and each Ashland Non-Qualified Employee Stock
Option or Ashland SAR granted to an employee of MAP or any of its
subsidiaries that is outstanding and has vested and is exercisable but
remains unexercised immediately prior to the Closing shall remain
exercisable until the expiration of the 90-day period immediately following
the Closing Date, in each case with the same reduction in the exercise
price therefor as shall be applicable to Ashland Non-Qualified Employee
Stock Options or Ashland SARs granted to employees of Ashland, as a result
of the consummation of the Transactions. The parties hereto intend that the
foregoing shall be accomplished in a manner consistent with good faith
compliance with the requirements of Section 409A of the Code.
ANNEX R
(b) by either Ashland or Marathon:
(i) if the Transactions are not consummated during the
period ending on September 30, 2005 (the "Outside Date"), unless
the failure to consummate the Transactions is the result of a
material breach of the Transaction Agreements by the party seeking
to terminate this Agreement;
ANNEX S
"MAP Adjustment Amount" means 38% of the Distributable Cash of MAP (as such
term is defined in the MAP LLC Agreement) as of the close of business on
the Closing Date plus 38% of the amount of any Qualified Expenditure (as
such term is defined in Amendment No. 1 dated as of March 17, 2004 to the
MAP LLC Agreement) actually paid by MAP on or prior to the Closing Date,
for which MAP has not received payment from Marathon under the Project Loan
Agreement Detroit Refinery Expansion Project dated as of March 17, 2004;
provided, however, that for purposes of this Agreement, the existing lease
with Air Products and Chemicals, Inc. dated January 20, 2003, as amended,
relating to the supply of hydrogen to the Catlettsburg refinery and the
existing leases acquired from Ultramar Diamond Shamrock Corporation ("UDS")
in connection with the 1999 acquisition of certain marketing and logistics
assets of UDS located in the State of Michigan shall not be treated as
Ordinary Course Debt (as such term is defined in the MAP LLC Agreement).
