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EXHIBIT 99.1
POST SPIN-OFF AGREEMENT
THIS POST SPIN-OFF AGREEMENT (this "Agreement") is made this 24th day of
September, 1995 between First Mississippi Corporation, a Mississippi
corporation ("FMC"), and FirstMiss Gold Inc., a Nevada corporation ("Gold");
WHEREAS, Gold has been a subsidiary of FMC;
WHEREAS, FMC wishes to spin off to the shareholders of FMC the stock of
Gold owned by FMC (the "Spin-Off"); and
WHEREAS, FMC and Gold wish to enter into certain agreements with respect
to the period following the Spin-Off;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. TAX AGREEMENTS. FMC and Gold hereby amend the Tax Sharing
Agreement dated as of October 1, 1987 between FMC and Gold so that, as amended,
it is in the form of Exhibit A attached hereto (the "Amended Tax Sharing
Agreement"). Contemporaneously with the execution and delivery of this
Agreement, FMC and Gold shall execute and deliver to each other copies of the
Amended Tax Sharing Agreement, which shall also be executed and delivered by
FMG Inc., a subsidiary of Gold, and a Tax Ruling Agreement in the form of
Exhibit B attached hereto (the "Tax Ruling Agreement").
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2. EMPLOYEE BENEFITS. Contemporaneously with the execution and
delivery of this Agreement, FMC and Gold shall execute and deliver to each
other copies of an agreement relating to employee benefits and compensation in
the form of Exhibit C attached hereto (the "Employee Benefits Agreement").
3. LOAN AGREEMENT AND NOTE. Contemporaneously with the execution and
delivery of this Agreement, FMC and Gold shall execute and deliver to each
other copies of a Loan Agreement in the form of Exhibit D attached hereto (the
"Loan Agreement"), and on the date of the Spin-Off Gold shall execute and
deliver to FMC a promissory note in the form of Exhibit A to the Loan
Agreement, dated the date of the Spin-Off (the "Note"), with a principal
balance equal to the indebtedness of Gold to FMC for advances as of the date of
the Spin-Off, whereupon all prior promissory notes evidencing such indebtedness
shall be cancelled and FMC shall deliver the prior promissory notes to Gold,
marked "cancelled".
4. NAME. Effective as of the date of the Spin-Off, FMC hereby grants
to Gold a world-wide, fully-paid, non- transferable, non-exclusive right and
license for five years from the date of the Spin-Off to use the name
"FirstMiss" as part of its corporate name, and this license will remain in
effect from year to year thereafter unless terminated by either party on twelve
months' notice to the other. Prior to the termination of this license, Gold
shall change its corporate name to a name not including the word "FirstMiss" or
any similar word or words, at which time this license shall terminate. As a
condition to maintaining this license in effect, Gold agrees to maintain a
quality of products under the name "FirstMiss" commensurate with the business
position of the parties involved, with FMC setting reasonable standards for the
quality of the
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products sold under the name, reserving the right to inspect the quality of the
products sold under the name, and reserving the right to inspect the facilities
and processes used to produce said products in order to insure that FMC
standards of quality are observed. As promptly as practicable after the date
hereof, Gold will cease use of FMC's fanciful "f" trademark.
5. AUTHORITY AND ENFORCEABILITY. This Agreement, the Amended Tax
Sharing Agreement, the Tax Ruling Agreement, the Employee Benefits Agreement,
the Loan Agreement and the Note (collectively the "Spin-Off Documents"), have
been duly authorized by all requisite corporate action of the parties thereto
and constitute the valid and binding obligations of the parties thereto,
enforceable in accordance with their terms.
6. ADMINISTRATIVE SUPPORT. From time to time following the Spin-Off,
FMC will provide to Gold at no charge a reasonable amount of assistance from
FMC's administrative, tax and legal staffs to answer questions concerning Gold,
including without limitation, historical matters and the location of documents
and information. The existing Administrative Services Agreement dated as of
October 28, 1987 between FMC and Gold, as amended by the parties by letter
dated August 29, 1995, effective July 1, 1995, shall remain in effect for 180
days following the Spin-Off, unless extended by mutual agreement of the
parties.
7. DEGUSSA GUARANTY. Gold agrees that within two years from the date
of the Spin-Off, it will cause FMC to be removed from its guaranty to Degussa
Corporation ("Degussa") under the FirstMiss Gold Inc. Agreement dated November
3, 1993, among Gold, FMC and Degussa, and Gold acknowledges and agrees that in
the event FMC makes any payment to Degussa pursuant to such guaranty, Gold will
make immediate
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repayment thereof to FMC on demand of FMC, and FMC shall have all rights
available to a guarantor under applicable law, including, without limitation,
rights of reimbursement and subrogation.
8. RECLAMATION BOND. Gold agrees that within two years from the date
of the Spin-Off, it will cause the Irrevocable Letter of Credit dated October
11, 1993 issued by The Chase Manhattan Bank, N.A. ("Chase"), in favor of the
United States Department of the Interior, Bureau of Land Management, for the
benefit of Gold (the "Letter of Credit"), to be terminated, and Gold will pay
on demand all fees and costs payable by FMC after the Spin-Off to maintain the
Letter of Credit in effect. Gold acknowledges and agrees that in the event
that FMC is required to make any payment to Chase with respect to any draw upon
the Letter of Credit, Gold will make immediate repayment thereof to FMC on
demand of FMC, and FMC shall have all rights available to it under applicable
law, including, without limitation, rights of reimbursement and subrogation.
9. RECORD RETENTION AND ASSISTANCE. From time to time after the date
of the Spin-Off, FMC and Gold each shall provide to the other party information
reasonably requested by such party which is necessary to prepare any financial,
accounting or other reports or tax returns with respect to periods up to and
including the date of the Spin-Off. Each party shall preserve all of its
records and information necessary to meet the foregoing obligation until the
latest of (a) December 31, 2002, (b) any period as may be required by any
governmental agency or pending litigation, or (c) in the case of records or
information relating to taxes, until the expiration of the applicable statute
of limitations, including extensions. If either party wishes to destroy any
such records or information after such period, it shall first give 30 days'
prior notice to the other party,
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which shall have the right at its option to object to such destruction, in
which case the party seeking to destroy such records or information shall at
its option either continue to retain possession of such records or information
or will deliver such records or information to the other party.
10. CONFIDENTIALITY. FMC and Gold each will not disclose any trade
secrets or confidential information of the other party for so long as they
remain trade secrets in the case of trade secrets and for five years following
the date of the Spin-Off in the case of confidential information. For purposes
of this Agreement, a trade secret is anything which is a trade secret under
applicable law and confidential information is any information which is
competitively sensitive and not generally available to the public.
11. COOPERATION AND FURTHER ASSURANCES. From time to time following
the date of this Agreement, each of FMC and Gold will cooperate with the other
to effectuate the purposes of the Spin-Off and the Spin-Off Documents and each
will execute and deliver such additional documents and take such further
actions as shall be reasonably requested by the other.
12. EXPENSES. Except as otherwise specifically provided in the
Spin-Off Documents or other written agreements between FMC and Gold, all costs
and expenses relating to the Spin-Off shall be paid by the party incurring
them.
13. MEDIATION AND ARBITRATION. If a dispute arises between FMC and
Gold with respect to this Agreement or the breach thereof, and if such dispute
cannot be settled through negotiations, the parties shall first attempt in good
faith to settle the dispute by mediation under the Commercial Mediation Rules
of the American Arbitration Association. If such dispute cannot be settled by
mediation, it shall be settled
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by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgment upon the award rendered by the
arbitrator or arbitrators may be entered in any court having jurisdiction
thereof. Regardless of any other choice of law provisions in this Agreement,
any arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. Sections 1-16, as amended from time to time.
14. GOVERNING LAW. This Agreement shall in all respects be construed
in accordance with and governed by the substantive laws of the State of
Delaware.
15. SEVERABILITY. In the event that any court of competent
jurisdiction shall determine that any provision of this Agreement is invalid,
such determination shall not affect the validity of any other provision of this
Agreement, which shall remain in full force and effect and which shall be
construed as to be valid under applicable law.
16. NOTICES. Any and all notices and other communications permitted or
required to be given under this Agreement shall be in writing, signed by or on
behalf of the party giving the same, and shall be deemed to have been properly
given and shall be effective upon the earliest of (a) in the case of personal
delivery, upon receipt, (b) in the case of mailed notice, three days after
deposit in the United States mail, postage prepaid, certified with return
receipt requested, (c) in the case of facsimile or other telecommunications
transmission, upon receipt, or (d) in the case of notice by Federal Express or
other reputable overnight courier service, one business day after delivery to
such courier service, in each case sent to the other party at its address set
forth below or at such other address within the continental United States as it
may designate by notice specifically designated as a notice of change of
address and given in accordance herewith:
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If to FMC: First Mississippi Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
If to Gold: FirstMiss Gold Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: President
17. ASSIGNMENT; SUCCESSORS AND INTEREST. No assignment or transfer by
either party of any or all of its rights and obligations under this Agreement
shall be made except with the prior written consent of the other party, which
consent shall not be unreasonably withheld. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted successors and assigns, and any reference to a party hereto shall
also be a reference to a permitted successor or assign.
18. INTEGRATION; AMENDMENT; WAIVER. This Agreement and the other
agreements contemplated hereby supersede all prior negotiations, agreements and
understandings between the parties with respect to the subject matter hereof,
constitute the entire agreement between the parties with respect to the subject
matter hereof and may not be altered or amended except in writing signed by the
parties. The failure of either party hereto at any time or times to require
performance of any provisions of this Agreement shall in no manner affect the
right to enforce the same. No waiver by either
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party hereto of any condition, or of the breach of any provision of this
Agreement or the other agreements contemplated hereby, whether by conduct or
otherwise, in any one or more instances, shall be deemed or construed as a
further or continuing waiver of any such condition or breach or a waiver of any
other condition or of the breach of any other provision herein or therein
contained.
Signed, sealed and delivered on the date first above written.
(CORPORATE SEAL) FMC:
FIRST MISSISSIPPI CORPORATION
ATTEST: By: /s/ X. X. XXXXXXXXXX
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Vice President
/s/ XXXXX X. XXXXXXXX
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Secretary
(CORPORATE SEAL) GOLD:
FIRSTMISS GOLD INC.
ATTEST: By: /s/ X. X. XXXXXXXX
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President
/s/ XXXXX X. XXXXXXXX
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Secretary
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