Separation Agreement

Form of Separation Agreement by and Between Huntsman Corporation and Venator Materials Plc


Exhibit 10.1

 

FORM OF

 

SEPARATION AGREEMENT

 

BY AND BETWEEN

 

HUNTSMAN CORPORATION

 

AND

 

VENATOR MATERIALS PLC

 

DATED AS OF [        ], 2017

 



 

TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

 

 

Article I Definitions

 

2

 

 

 

Article II The Separation

 

14

 

 

 

 

 

2.1

 

Transfer of Assets and Assumption of Liabilities

 

14

 

 

 

 

 

2.2

 

Venator Assets

 

18

 

 

 

 

 

2.3

 

Venator Liabilities

 

19

 

 

 

 

 

2.4

 

Approvals and Notifications

 

20

 

 

 

 

 

2.5

 

Novation of Venator Liabilities

 

24

 

 

 

 

 

2.6

 

Novation of Huntsman Liabilities

 

24

 

 

 

 

 

2.7

 

Termination of Agreements

 

25

 

 

 

 

 

2.8

 

Treatment of Shared Contracts

 

26

 

 

 

 

 

2.9

 

Bank Accounts; Cash Balances

 

27

 

 

 

 

 

2.10

 

Other Ancillary Agreements

 

28

 

 

 

 

 

2.11

 

Disclaimer of Representations and Warranties

 

28

 

 

 

 

 

2.12

 

Venator Debt Financing

 

29

 

 

 

 

 

Article III The IPO AND ACTIONS PENDING THE IPO

 

29

 

 

 

 

 

3.1

 

The IPO

 

29

 

 

 

 

 

3.2

 

Articles of Association

 

30

 

 

 

 

 

3.3

 

Equity-Based Benefits

 

30

 

 

 

 

 

Article IV Dispute Resolution

 

30

 

 

 

 

 

4.1

 

General Provisions

 

30

 

 

 

 

 

4.2

 

Consideration by Senior Executives

 

31

 

 

 

 

 

4.3

 

Mediation

 

31

 

 

 

 

 

4.4

 

Arbitration

 

31

 

 

 

 

 

4.5

 

Confidentiality

 

32

 

 

 

 

 

Article V Mutual Releases; Indemnification

 

32

 

 

 

 

 

5.1

 

Regardless of Fault

 

32

 

 

 

 

 

5.2

 

Intention of Parties

 

33

 

 

 

 

 

5.3

 

Release of Pre-Closing Claims

 

33

 

 

 

 

 

5.4

 

Indemnification by Venator

 

35

 

 

 

 

 

5.5

 

Indemnification by Huntsman

 

36

 

 

 

 

 

5.6

 

Indemnification Obligations Net of Insurance Proceeds

 

37

 

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5.7

 

Procedures for Indemnification of Third Party Claims

 

38

 

 

 

 

 

5.8

 

Additional Matters

 

40

 

 

 

 

 

5.9

 

Remedies Cumulative

 

41

 

 

 

 

 

5.10

 

Survival of Indemnities

 

42

 

 

 

 

 

5.11

 

Guarantees, Letters of Credit and other Obligations

 

42

 

 

 

 

 

5.12

 

No Impact on Third Parties

 

42

 

 

 

 

 

5.13

 

No Cross-Claims or Third-Party Claims

 

42

 

 

 

 

 

5.14

 

Severability

 

43

 

 

 

 

 

5.15

 

Change of Control

 

43

 

 

 

 

 

Article VI Insurance Matters

 

43

 

 

 

 

 

6.1

 

Insurance Matters

 

43

 

 

 

 

 

Article VII Exchange of Information; Confidentiality

 

46

 

 

 

 

 

7.1

 

Agreement for Exchange of Information

 

46

 

 

 

 

 

7.2

 

Ownership of Information

 

46

 

 

 

 

 

7.3

 

Reimbursement for Providing Information

 

46

 

 

 

 

 

7.4

 

Record Retention

 

47

 

 

 

 

 

7.5

 

Other Agreements Providing for Exchange of Information

 

47

 

 

 

 

 

7.6

 

Production of Witnesses; Records; Cooperation

 

47

 

 

 

 

 

7.7

 

Confidentiality

 

48

 

 

 

 

 

7.8

 

Protective Arrangements

 

50

 

 

 

 

 

Article VIII Further Assurances and Additional Covenants

 

50

 

 

 

 

 

8.1

 

Further Assurances

 

50

 

 

 

 

 

8.2

 

Performance

 

51

 

 

 

 

 

8.3

 

Huntsman Guarantees

 

51

 

 

 

 

 

8.4

 

Third-Party Agreements

 

52

 

 

 

 

 

8.5

 

Huntsman Names and Marks

 

52

 

 

 

 

 

8.6

 

Conflicts with and between Ancillary Agreements

 

53

 

 

 

 

 

8.7

 

No Actions Related to Certain Technical Information and Copyrightable Works

 

53

 

 

 

 

 

8.8

 

Attorney Client Privilege

 

54

 

 

 

 

 

8.9

 

No Attorney Testimony

 

54

 

 

 

 

 

Article IX Financial and Related Covenants

 

54

 

 

 

 

 

9.1

 

Disclosure and Financial Controls

 

54

 

 

 

 

 

9.2

 

Auditors and Audits; Annual Statements and Accounting

 

60

 

 

 

 

 

9.3

 

Other Covenants

 

62

 

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9.4

 

Covenants Regarding the Incurrence of Indebtedness

 

63

 

 

 

 

 

9.5

 

Applicability of Rights in the Event of an Acquisition of Venator

 

64

 

 

 

 

 

9.6

 

Transfer of Huntsman’s Rights

 

64

 

 

 

 

 

9.7

 

Huntsman Policies and Procedures

 

64

 

 

 

 

 

Article X Miscellaneous

 

65

 

 

 

 

 

10.1

 

Counterparts; Entire Agreement; Corporate Power

 

65

 

 

 

 

 

10.2

 

Governing Law; Waiver of Trial by Jury

 

66

 

 

 

 

 

10.3

 

Assignability

 

66

 

 

 

 

 

10.4

 

Third-Party Beneficiaries

 

66

 

 

 

 

 

10.5

 

Notices

 

66

 

 

 

 

 

10.6

 

Severability

 

67

 

 

 

 

 

10.7

 

Force Majeure

 

67

 

 

 

 

 

10.8

 

Publicity

 

67

 

 

 

 

 

10.9

 

Expenses

 

67

 

 

 

 

 

10.10

 

Late Payments

 

67

 

 

 

 

 

10.11

 

Headings

 

67

 

 

 

 

 

10.12

 

Survival of Covenants

 

67

 

 

 

 

 

10.13

 

Waivers of Default

 

68

 

 

 

 

 

10.14

 

Specific Performance

 

68

 

 

 

 

 

10.15

 

Termination; Amendments

 

68

 

 

 

 

 

10.16

 

Interpretation

 

68

 

 

 

 

 

10.17

 

Limitations of Liability

 

69

 

SCHEDULES

 

1.1

 

Assumed Actions

1.2(a)

 

Huntsman Contracts

1.2(b)

 

Venator Contracts

1.2(e)

 

Customer, Distribution, Supply or Vendor Contracts

1.3(b)

 

Venator Intellectual Property

1.4

 

Restructuring Steps

2.2(a)(ii)(B)

 

Equity Interests in Huntsman Affiliates and Subsidiaries Constituting Venator Assets

2.2(a)(ii)(C)

 

Equity Interests in Other Entities Constituting Venator Assets

2.2(b)(i)

 

Assets Constituting Huntsman Assets

2.8(a)

 

Treatment of Shared Contracts

5.11(a)

 

Venator Contracts with Huntsman Group Guarantor or Obligor

 

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FORM OF SEPARATION AGREEMENT

 

This SEPARATION AGREEMENT, dated              , 2017 (this “Agreement”), is by and between Huntsman Corporation, a Delaware corporation (“Huntsman”), and Venator Materials PLC, a public limited company incorporated and registered under the laws of England and Wales with company number 10747130 and a wholly owned indirect subsidiary of Huntsman (“Venator”). Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in Article I.

 

R E C I T A L S

 

The board of directors of Huntsman (the “Huntsman Board”) has determined that it is in the best interests of Huntsman and the Huntsman shareholders to separate the Venator Business from the other businesses conducted by Huntsman and its Subsidiaries.

 

In furtherance of the foregoing, Huntsman and its applicable Subsidiaries transferred the Venator Assets to Venator and certain entities that would become Subsidiaries of Venator (any such Subsidiaries, the “Venator Designees”), and Venator and the Venator Designees assumed or retained, as applicable, the Venator Liabilities in each case as more fully described in this Agreement and the Ancillary Agreements (the “Contribution”).

 

[NTD: Additional separation steps and description of financing to be included once finalized.]

 

Following the [Venator Debt Financing], Huntsman or its Subsidiary will make an offer and sale to the public of Ordinary Shares, which will take place pursuant to a registration statement on Form S-1 filed with the SEC (the “IPO”).

 

After the IPO, Huntsman may (i) affect a disposition of Ordinary Shares it owns pursuant to one or more public or private offerings or transactions (“Dispositions”), or (ii) continue to hold its interest in Ordinary Shares.

 

[This Agreement and the Ancillary Agreements are intended to be, and are hereby adopted as, a “plan of reorganization” within the meaning of Treas. Reg. § 1.368-2(g).]

 

It is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation (to the extent not previously completed prior to the date hereof), and the [Venator Debt Financing,] IPO and certain other agreements that, subject to the conflict provisions set forth in Section 8.6 of this Agreement, will govern certain matters relating to the Separation and the [Venator Debt Financing,] IPO and the relationship of Huntsman, Venator and their respective Subsidiaries, following the IPO.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, the Parties, intending to be legally bound, agree as follows:

 



 

ARTICLE I
Definitions

 

For the purpose of this Agreement, the following terms shall have the following meanings:

 

AAA” shall have the meaning set forth in Section 4.3.

 

AAA Commercial Arbitration Rules” shall have the meaning set forth in Section 4.4(a).

 

Action” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

 

Affiliate” means, when used with respect to a specified Person, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purpose of this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”), when used with respect to any specified Person, 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, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. From and after the Effective Date, (a) no member of the Venator Group shall be deemed to be an Affiliate of any member of the Huntsman Group and (b) no member of the Huntsman Group shall be deemed to be an Affiliate of any member of the Venator Group.

 

Agreement” shall have the meaning set forth in the Preamble.

 

Ancillary Agreements” means the Employee Matters Agreement, the Shareholder’s Agreement, the Transition Services Agreement, the Tax Matters Agreement and the Transfer Documents.

 

Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, the United Kingdom Bribery Act 2010, as amended, or any other applicable comparable Laws and the rules and regulations promulgated thereunder.

 

Anti-Money Laundering Laws” means the money laundering Laws, and the rules and regulations promulgated thereunder, of all applicable jurisdictions, and regulations or guidelines issued, administered or enforced by any Governmental Entity applicable to the Company.

 

Annual Financial Statements” shall have the meaning set forth in Section 9.1(e).

 

Applicable Period” shall have the meaning set forth in Section 9.2.

 

Approvals or Notifications” means any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any Third Party, including any Governmental Authority.

 

Assets” means, with respect to any Person, the assets, properties, claims and rights (including goodwill) of such Person, wherever located (including in the possession of vendors or other Third Parties or elsewhere), of every kind, character and description, 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 such Person, including the following:

 

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(a)                                 all Records;

 

(b)                                 all apparatus, IT Equipment, fixtures, machinery, equipment, furniture, office equipment, automobiles, trucks, vessels, motor vehicles and other transportation equipment, structures, materials and other tangible personal property;

 

(c)                                  all inventories of materials, parts, raw materials, components, supplies, works-in-process and finished goods and products;

 

(d)                                 all interests in real property of whatever nature, including buildings, fixtures and easements, whether as owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, lessee, sublessee or otherwise, including interests in and rights with respect to all leases, subleases, licenses, easements, rights-of-way or other similar surface interests;

 

(e)                                  (i) all interests in any capital stock or other equity interests of any Subsidiary, Affiliate or any other Person, (ii) all bonds, notes, debentures or other securities issued by any Subsidiary, Affiliate or any other Person, (iii) all loans, advances or other extensions of credit or capital contributions to any Subsidiary, Affiliate or any other Person, and (iv) all other investments in securities of any Person;

 

(f)                                   all license agreements, leases of personal property, open purchase orders for raw materials, supplies, parts or services and other contracts, agreements or commitments;

 

(g)                                  all letters of credit;

 

(h)                                 all written (including in electronic form) or oral technical information, data, specifications, research and development information, engineering drawings and specifications, operating and maintenance manuals;

 

(i)                                     all Intellectual Property;

 

(j)                                    all Software;

 

(k)                                 all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product data and literature, artwork, design, formulations and specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

 

(l)                                     all prepaid expenses, trade accounts and other accounts and notes receivable;

 

(m)                             all rights under contracts or agreements, all claims or rights against any Person arising from the ownership of any Asset described in clauses (a) through (l) and (n) through (p) hereof, including, to the extent transferrable, all rights against Third

 

3



 

Parties with respect to indemnification, and all rights in connection with any bids or offers and all claims, choses in action or similar rights, whether accrued or contingent;

 

(n)                                 all licenses, permits, approvals and authorizations which have been issued by any Governmental Authority;

 

(o)                                 all cash or cash equivalents, bank accounts, lock boxes and other deposit arrangements; and

 

(p)                                 all interest rate, currency, commodity or other swap, collar, cap or other hedging or similar agreements or arrangements.

 

Assumed Actions” means (a) those Actions which are listed in Schedule 1.1; and (b) those Actions that are primarily related to the Venator Business, regardless whether listed on Schedule 1.1, other than Actions related to or forming the basis of the Rockwood Claims.

 

Confidential Information” means all non-public, confidential or proprietary Information to the extent concerning a Party, its Group and/or its Subsidiaries or with respect to Venator, the Venator Business, any Venator Assets or any Venator Liabilities or with respect to Huntsman, the Huntsman Business, any Huntsman Assets or any Huntsman Liabilities, including any such Information that was acquired by any Party after the Effective Date pursuant to Article VII or otherwise in accordance with this Agreement, or that was provided to a Party by a third party in confidence, including (a) any and all technical information relating to the design, operation, testing, test results, development, and manufacture of any Party’s product (including product specifications and documentations; engineering, design, and manufacturing drawings, diagrams, and illustrations; formulations and material specifications; laboratory studies and benchmark tests; quality assurance policies procedures and specifications; evaluation and/validation studies; assembly code, software, firmware, programming data, databases, and all information referred to in the same); product costs, margins and pricing; as well as product marketing studies and strategies; all other know-how, methodology, procedures, techniques and trade secrets related to research, engineering, development and manufacturing; (b) information, documents and materials relating to the Party’s financial condition, management and other business conditions, prospects, plans, procedures, infrastructure, security, information technology procedures and systems, and other business or operational affairs; (c) pending unpublished patent applications and trade secrets; and (d) any other data or documentation resident, existing or otherwise provided in a database or in a storage medium, permanent or temporary, intended for confidential, proprietary and/or privileged use by a Party; except for any Information that is (i) in the public domain or known to the public through no fault of the receiving Party or its Subsidiaries, (ii) lawfully acquired after the Effective Date by such Party or its Subsidiaries from other sources not known to be subject to confidentiality obligations with respect to such Information or (iii) independently developed by the receiving Party after the Effective Date without reference to any Confidential Information.  As used herein, by example and without limitation, Confidential Information shall mean any information of a Party intended or marked as confidential, proprietary and/or privileged.

 

Contribution” shall have the meaning set forth in the Recitals.

 

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[“Contribution Agreement” means the Contribution Agreement between [Foreign Newco (NL)] and Venator dated                               , 2017.]

 

Contribution Date” means                               , 2017.

 

Corporate Action” means any Action, whether filed before, on or after the Effective Date, to the extent it asserts violations of any federal, state, local, foreign or international securities Law, securities class action or shareholder derivative claim.

 

Credit Rating” means on any date, the rating that has been most recently announced by any Rating Agency for any class of senior, unsecured, non-convertible long-term debt of a Person.

 

Disposition” shall have the meaning set forth in the Recitals.

 

Disposition Date” means the date that Huntsman and its Affiliates cease to hold in excess of 50% of the outstanding Venator Ordinary Shares.

 

Dispute” shall have the meaning set forth in Section 4.1(a).

 

Effective Date” means the settlement of the first sale of Ordinary Shares pursuant to the IPO Registration Statement.

 

Employee Matters Agreement” means the Employee Matters Agreement, dated as of the Effective Date between Huntsman and Venator.

 

Environmental Law” means all Laws relating to pollution or protection of human health or safety or the environment, including Laws relating to the exposure to, or Release, threatened Release or the presence of Hazardous Materials, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, transport or handling of Hazardous Materials and all Laws with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Materials, and all laws relating to endangered or threatened species of fish, wildlife and plants and the management or use of natural resources.

 

Environmental Liabilities” means all Liabilities, environmental response costs (including all removal, remediation or cleanup costs, investigatory costs, monitoring costs, and response costs with respect to Hazardous Materials), damages (including natural resources damages, property damages, personal injury damages), costs of compliance (including with any product take back requirements, or with any settlement, judgment or other determination of Liability and indemnity, contribution or similar obligations), court costs, attorneys’ fees, and all other Liabilities, costs, expenses, interest, fines, penalties or monetary sanctions relating to, arising out of or resulting from any order, notice of responsibility, directive, injunction, judgment or similar act (including settlements) by any Governmental Authority to the extent arising out of non-compliance with or any violation of, or obligation under, any Environmental Laws, or pursuant to any demand, action, claim, dispute, suit, countersuit, settlement, arbitration, formal inquiry, subpoena, investigation, proceeding or other legal determination of liability by a Governmental Authority or any other Person with respect to Hazardous Materials (including any

 

5



 

exposure to Hazardous Materials), Environmental Law or contract or agreement relating to environmental, health or safety matters.

 

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.

 

Financial Statements” means the Annual Financial Statements and the Quarterly Financial Statements collectively.

 

Governmental Approvals” means any notices, reports or other filings to be made, or any consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Authority.

 

Governmental Authority” means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof.

 

Group” means either the Venator Group or the Huntsman Group, as the context requires.

 

Hazardous Materials” means (a) any substances defined, listed, classified or regulated as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “pollutants,” “wastes,” “radioactive materials,” “petroleum,” “oils” or designations of similar import under any Environmental Law, or (b) any other chemical, material or substance that is regulated or for which liability can be imposed under any Environmental Law.

 

Huntsman” shall have the meaning set forth in the Preamble.

 

Huntsman Accounts” shall have the meaning set forth in Section 2.9(a).

 

Huntsman Assets” shall have the meaning set forth in Section 2.2(b).

 

Huntsman Board” shall have the meaning set forth in the Recitals.

 

Huntsman Business” means the business of Huntsman and its Subsidiaries as conducted at any point in time, other than the Venator Business.

 

Huntsman Common Stock” means the common stock, par value $0.01 per share, of Huntsman.

 

Huntsman Contracts” means any contracts, agreements and instruments to which Huntsman or any of its Affiliates is a party or by which it or any of its Affiliates or any of their respective Assets is bound, whether or not in writing, in each case immediately prior to the Effective Date that is (a) contemplated to be retained by Huntsman or any member of the

 

6



 

Huntsman Group pursuant to any provision of this Agreement or any Ancillary Agreement or (b) listed on Schedule 1.2(a).

 

Huntsman Group” means Huntsman, (a) each Subsidiary of Huntsman immediately after the Effective Date, (b) each Affiliate of Huntsman controlled by Huntsman immediately after the Effective Date and (c) each other entity that becomes a Subsidiary of Huntsman at any time following the Effective Date for so long as such entity is a Subsidiary of Huntsman; provided that, from and after the Effective Date, each member of the Venator Group will be deemed not to be a member of the Huntsman Group.

 

Huntsman Guarantees” shall have the meaning set forth in Section 8.3.

 

Huntsman Indemnitees” shall have the meaning set forth in Section 5.4.

 

Huntsman Intellectual Property” means (a) the Huntsman Names and Marks, and (b) all other Intellectual Property that, as of the Effective Date, is owned or licensed by any member of either Group, other than the Venator Intellectual Property.

 

Huntsman Liabilities” shall have the meaning set forth in Section 2.3(b).

 

Huntsman Names and Marks” means (a) the Trademarks of Huntsman or any of its Affiliates using or containing “Huntsman,” “Huntsman Corporation” or “HUN,” either alone or in combination with other words or elements, together with all variations and acronyms thereof, and all trademarks, design marks, service marks, Internet domain names, trade names, trade dress, company names and other identifiers of source or goodwill containing or incorporated with any of the foregoing, including the Huntsman corporate logo, (b) all Trademarks registered by a member of the Huntsman Group prior to the Effective Date and not used or held for use exclusively in the Venator Business as of the Effective Date, (c) all Trademarks registered by a member of the Venator Group prior to the Effective Date and not used or held for use exclusively in the Venator Business as of the Effective Date, and (d) Trademarks confusingly similar to or embodying any of the foregoing either alone or in combination with other words or elements, together with the goodwill associated with any of the foregoing.

 

Huntsman Public Filings” shall have the meaning set forth in Section 9.1(l).

 

Huntsman Software” means all Software that, as of the Effective Date, is owned by any member of either Group.

 

Huntsman Third Party Claim” shall mean any claim or commencement of any Action by any Person (including any Governmental Authority) other than a member of the Huntsman Group.

 

Huntsman Transfer Documents” shall have the meaning set forth in Section 2.1(b).

 

Huntsman Transferee” shall have the meaning set forth in Section 9.6.

 

Income Taxes” shall have the meaning set forth in the Tax Matters Agreement.

 

7



 

Indemnifying Party” shall have the meaning set forth in Section 5.6(a).

 

Indemnitee” shall have the meaning set forth in Section 5.6(a).

 

Indemnity Payment” shall have the meaning set forth in Section 5.6(a).

 

Information” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, memos, and other technical, financial, employee or business information or data.

 

Initial Notice” shall have the meaning set forth in Section 4.2.

 

Insurance Proceeds” means those monies:

 

(a)                                 received by an insured from an insurance carrier; or

 

(b)                                 paid by an insurance carrier on behalf of the insured;

 

in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof and excluding fronted insurance policies, deductibles, self-insured retentions and any similar concept that does not accomplish a real risk transfer to a third-party insurer; provided, however, with respect to a captive insurance arrangement, Insurance Proceeds shall only include net amounts received by the captive insurer in respect of any reinsurance arrangement with respect to the insurance issued by such captive insurer.

 

Intellectual Property” means any and all proprietary and intellectual property rights whether arising under the Laws of the United States or of any other foreign or multinational jurisdiction or provided by international treaties or convention, including: (a) patents, patent applications, statutory invention registrations and utility models, including reissues, divisions, continuations, continuations in part, substitutions, renewals, extensions and reexaminations of any of the foregoing, (b) trademarks, service marks, design marks, trade names, service names, trade dress, logos, Internet domain names, uniform resource locaters, and other source or business identifiers, including all goodwill associated with any of the foregoing and any and all common law rights in and to any of the foregoing, registrations and applications for registration of any of the foregoing, and all reissues, extensions and renewals of any of the foregoing (collectively, “Trademarks”), (c) copyrights, moral rights, mask work rights, database rights, other rights in works of authorship, and all registrations and applications for registration of any of the foregoing, and (d) trade secrets, know how, and rights in confidential and proprietary information, including invention disclosures, formulations, concepts, compilations of information, methods, techniques, procedures, and processes, whether or not patentable.

 

IPO” has the meaning set forth in the recitals.

 

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IPO Registration Statement” means the registration statement on Form S-1 (File No. 333-217753) filed under the Securities Act, relating to the initial public offering of Ordinary Shares.

 

IT Equipment” means all computers, servers, printers, computer hardware, wired or mobile telephones, on-site process control and automation systems, telecommunication assets, and other information technology-related equipment.

 

Law” means any national, supranational, federal, state, provincial, local or similar law (including common law), statute, code, order, ordinance, rule, regulation, treaty (including any income tax treaty), license, permit, authorization, approval, consent, decree, injunction, binding judicial or administrative interpretation or other requirement, in each case, enacted, promulgated, issued or entered by a Governmental Authority.

 

LHO” shall have the meaning set forth in Section 5.7(i).

 

Liabilities” means any and all debts, guarantees, assurances, commitments, liabilities (including Environmental Liabilities), responsibilities, Losses, remediation, deficiencies, reimbursement obligations in respect of letters of credit, damages, fines, penalties, settlements, sanctions, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, accrued or not accrued, asserted or unasserted, liquidated or unliquidated, foreseen or unforeseen, known or unknown, reserved or unreserved, or determined or determinable, including those arising under any Law, claim (including any Third-Party Claim), demand, Action, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority or arbitration tribunal, and those arising under any contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment or undertaking, or any fines, damages or equitable relief that is imposed, in each case, including all costs and expenses relating thereto.

 

Losses” means actual losses (including any diminution in value), costs, damages, penalties and expenses (including legal and accounting fees and expenses and costs of investigation and litigation), whether or not involving a Third-Party Claim.

 

Mediation Procedures” shall have the meaning set forth in Section 4.3.

 

Minimum Credit Rating” shall mean a rating of at least (a) BB- by Standard & Poor’s Financial Services LLC, (b) Ba3 by Moody’s Investors Service, Inc., or (c) BB- by Fitch, Inc.

 

NYSE” means the New York Stock Exchange.

 

Parties” means Venator and Huntsman.

 

Person” means an individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority.

 

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Pigments and Additives Business” means the pigments and additives segment of Huntsman as described in Huntsman’s Annual Report on Form 10-K for the period ended December 31, 2016.

 

Prime Rate” means the rate which JPMorgan Chase Bank (or any successor thereto or other major money center commercial bank agreed to by the Parties) announces from time to time as its prime lending rate, as in effect from time to time at its principal office in New York City.

 

Privilege” shall have the meaning set forth in Section 7.1.

 

Quarterly Financial Statements” shall have the meaning set forth in Section 9.1(d).

 

Rating Agency” means Moody’s Investors Service, Inc., Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., Fitch, Inc. or any nationally recognized statistical rating organizations registered with the Securities and Exchange Commission.

 

Records” means all corporate, operational, accounting and other books and records, files, data, correspondence, studies, surveys, reports, customer lists, supplier lists, sales materials, engineering data and reports, health, environmental and safety information and records, Third Party licenses, accounting and financial records, promotional materials, operational records, technical records, accounting files, tax records (other than income tax), and contract files (including copies of all contracts, all files regarding the contracts and related files).

 

Release” means any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, seeping, dumping, or disposing of Hazardous Materials into the environment (including ambient air, surface water, groundwater and surface or subsurface strata).

 

Representatives” means, with respect to any Person, any of such Person’s directors, officers, employees, agents, managers, consultants, advisors, accountants, attorneys or other representatives.

 

Response” shall have the meaning set forth in Section 4.2.

 

Restructuring Steps” means the restructuring steps to be taken prior to the Effective Date and the sequence thereof set forth on Schedule 1.4.

 

Retained Copyrightable Works means the unregistered works of authorship not owned by any member of the Venator Group on the Effective Date but which were in the possession of any Venator Group Employees on or before the Effective Date

 

Retained Technical Information means the Confidential Information not owned by any member of the Venator Group on the Effective Date but which were in the possession of any Venator Group Employees on or before the Effective Date.

 

Rockwood Claims” means the claims asserted by Huntsman International LLC in that certain action styled Huntsman International LLC v. Albemarle Corporation, Rockwood

 

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Specialties Group, Inc., Rockwood Holdings, Inc., Seifollah “Seifi” Ghasemi, Andrew M. Ross, Thomas J. Riordan, and Michael W. Valente filed in the Supreme Court of New York.

 

Rule 144A / Capital Markets Securities means [                        ].

 

Sanctions Laws” means the economic and financial sanctions, Laws, regulations, requirements, embargoes, or restrictive measures imposed, administered, enacted or enforced from time to time by any of the United States Government, the government of the United Kingdom, the United Nations, the European Union or other relevant sanctions Governmental Authority, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United States Department of Commerce, the United States Department of State, the United States Department of Treasury, the United States Department of State, Her Majesty’s Treasury of the United Kingdom or the United Nations Security Council.

 

SEC” means the U.S. Securities and Exchange Commission.

 

Securities Act” means the U.S. Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.

 

Security Interest” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever.

 

Shared Contract” shall mean any Schedule 2.8 Contract and any contract, agreement, arrangement, commitment or understanding that has been assigned in part to any Group pursuant to a Transfer Document.

 

Shareholder’s Agreement” means the Stockholder’s and Registration Rights Agreement, dated as of the Effective Date between Huntsman or one of its Subsidiaries and Venator.

 

Software” means any and all (a) computer programs, including the tangible media on which it is recorded (in any form), and any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, together with all translations, adaptations, modifications, derivations, combinations or derivative works thereof, (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (d) documentation, including user manuals and other training documentation, relating to any of the foregoing.

 

Subsidiary” or “subsidiary” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such Person, (ii) the total combined equity interests or (iii) the capital or profit interests, in the case of a partnership, or (b) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

 

Supplies” shall have the meaning set forth in Section 8.5(a).

 

Tax Benefit” shall have the meaning set forth in the Tax Matters Agreement.

 

Tax Matters Agreement” means the Tax Matters Agreement, dated as of the Effective Date between Huntsman and Venator.

 

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Tax Return” shall have the meaning set forth in the Tax Matters Agreement.

 

Taxes” shall have the meaning set forth in the Tax Matters Agreement.

 

Term Loan Facility means [                                                                      ].

 

Third-Party” shall mean any Person (including any Governmental Authority) other than (a) Venator, (b) each Subsidiary of Venator immediately after the Effective Date, (c) each Affiliate of Venator controlled by Venator immediately after the Effective Date, (d) Huntsman, (e) each Subsidiary of Huntsman immediately after the Effective Date, (f) each Affiliate of Huntsman controlled by Huntsman immediately after the Effective Date and (g) any successor to any such Person referenced to in clauses (a) through (f).

 

Third-Party Claim” shall mean a Venator Third Party Claim or a Huntsman Third Party Claim.

 

Trademarks” shall have the meaning set forth in the definition of Intellectual Property.

 

Transfer Documents” shall have the meaning set forth in Section 2.1(c).

 

Transferred Copyrightable Works means the unregistered works of authorship owned by any member of the Venator Group on the Effective Date but which were in the possession of any employees of the Huntsman Group on or before the Effective Date.

 

Transferred Entities” shall have the meaning set forth in Section 2.2(a)(ii).

 

Transferred Technical Information means the Confidential Information owned by any member of the Venator Group on the Effective Date but which were in the possession of any employees of the Huntsman Group on or before the Effective Date.

 

Transition Services Agreement” means the Transition Services Agreement, dated as of the Effective Date hereof, between Huntsman and Venator.

 

Unreleased Huntsman Liability” shall have the meaning set forth in Section 2.6(b).

 

Unreleased Venator Liability” shall have the meaning set forth in Section 2.5(b).

 

Venator” shall have the meaning set forth in the Preamble.

 

Venator Accounts” shall have the meaning set forth in Section 2.9(a).

 

Venator Articles of Association” shall have the meaning set forth in Section 3.2.

 

Venator Assets” shall have the meaning set forth in Section 2.2(a).

 

Venator Auditors” shall have the meaning set forth in Section 9.2(a).

 

Venator Balance Sheet” means the unaudited combined balance sheet of the Venator Group, including the notes thereto, as of [           ], 2017.

 

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Venator Business” means (a) the business and operations that comprise the Pigments and Additives Business and activities and operations directly and primarily supporting such business and operations and (b) without limiting the foregoing clause (a) and except as otherwise provided in this Agreement, any other terminated, divested or discontinued businesses, Assets or operations that were of such a nature that they would be a part of the Pigments and Additives Business had they not been terminated, divested or discontinued.

 

Venator Contracts” means the following contracts, agreements and instruments to which Huntsman or any of its Affiliates is a party or by which it or any of its Affiliates or any of their respective Assets is bound, whether or not in writing, in each case immediately prior to the Effective Date (except for any such contract or agreement that is a Huntsman Contract)):

 

(a)                                 Any lease, sublease, easement, right of way or any similar agreement granting occupancy rights, in each case relating primarily to the Venator Business including those on Schedule 1.2(b);

 

(b)                                 Any contract that relates to futures, swaps, collars, puts, calls, floors, caps, options or otherwise is intended to reduce or eliminate the fluctuations in the prices of commodities, in each case that relates primarily to the Venator Business;

 

(c)                                  Any customer, distribution, supply or vendor contract, or any joint venture or license agreement, in each case, that relates primarily to the Venator Business, including those contracts listed on Schedule 1.2(e);

 

(d)                                 Any employment, change of control, retention, consulting, indemnification, termination, severance or other similar agreement with any Venator Group Employees;

 

(e)                                  Any contract or agreement relating primarily to the acquisition or distribution of any Venator Assets; and

 

(f)                                   Any other contract that relates primarily to the Venator Business, including those listed on Schedule 1.2(f).

 

Venator Covered Group” means those individuals of Venator who were serving as directors or officers of Huntsman or any of its Subsidiaries at or prior to the Effective Date.

 

Venator Debt Financing” means the sale by Venator of the Rule 144A / Capital Markets Securities and borrowings made under the Term Loan Facility [and the Revolving Credit Facility].

 

Venator Debt Obligation” means all Indebtedness of Venator or any member of the Venator Group, including without limitation Indebtedness incurred pursuant to the Venator Debt Financing.

 

Venator Designees” shall have the meaning set forth in the Recitals.

 

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Venator Group” means Venator, each Transferred Entity, and (a) each Subsidiary of Venator immediately after the Effective Date, (b) each Affiliate of Venator controlled by Venator immediately after the Effective Date and (c) each other entity that becomes a Subsidiary of Venator at any time following the Effective Date for so long as such entity is a Subsidiary of Venator.

 

Venator Group Employee” shall have the meaning set forth in the Employee Matters Agreement.

 

Venator Indemnitees” shall have the meaning set forth in Section 5.5.

 

Venator Intellectual Property” means (a) the patents, Trademarks, registered Internet domain names, copyright registrations, and applications for the foregoing that are owned exclusively by or licensed exclusively to any member of the Venator Group at or prior to the Effective Date, excluding any such Intellectual Property that has been assigned by any member of the Venator Group to any member of the Huntsman Group prior to the Effective Date, and (b) all other Intellectual Property set forth on Schedule 1.3(b).

 

Venator Liabilities” shall have the meaning set forth in Section 2.3(a).

 

Venator Ordinary Shares” means the ordinary shares, nominal value $0.32 per share, of Venator.

 

Venator Public Documents” shall have the meaning set forth in Section 9.1(h).

 

Venator Third Party Claim” shall mean any claim or commencement of any Action by any Person (including any Governmental Authority) other than a member of the Venator Group.

 

ARTICLE II
THE SEPARATION

 

2.1                               Transfer of Assets and Assumption of Liabilities.

 

(a)                                 Subject to Section 2.1(d) and (e), pursuant to the Contribution Agreement, on the Contribution Date:

 

(i)                                     Huntsman or its applicable Subsidiaries contributed, assigned, transferred and conveyed to Venator, or the applicable Venator Designees, and Venator or such Venator Designees accepted from Huntsman and its applicable Subsidiaries, all of Huntsman’s and such Subsidiaries’ respective direct or indirect right, title and interest in and to all of the Venator Assets (it being understood that if any Venator Asset shall be held by a Transferred Entity or a wholly owned Subsidiary of a Transferred Entity, such Venator Asset will be indirectly owned by Venator as a result of the transfer of the equity interests in such Transferred Entity);

 

(ii)                                  Venator and the applicable Venator Designees accepted, assumed from Huntsman and the applicable Huntsman Subsidiaries and agreed faithfully to

 

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perform, pay, discharge and fulfill the Venator Liabilities in accordance with their respective terms, regardless of when or where such Venator Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Contribution Date, regardless of where or against whom such Venator Liabilities are asserted or determined (including any Venator Liabilities arising out of claims made by the respective directors, officers, employees, agents, stockholders, managers, Subsidiaries or Affiliates of either Group against any member of either Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud, misrepresentation or any other cause by any member of either Group, or any of their respective directors, officers, employees, agents or managers;

 

(iii)                               Huntsman caused its applicable Subsidiaries or Venator to assign, transfer and convey to certain of its other Subsidiaries, which accepted from such applicable Huntsman Subsidiaries or Venator, such applicable Subsidiaries’ respective right, title and interest in and to any Huntsman Assets specified by Huntsman to be so assigned, transferred and conveyed; and

 

(iv)                              Huntsman and certain of its Subsidiaries accepted and assumed from certain of its other Subsidiaries and agreed faithfully to perform, pay, discharge and fulfill the Huntsman Liabilities of such other Subsidiaries, regardless of when or where such Huntsman Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Contribution Date, regardless of where or against whom such Huntsman Liabilities are asserted or determined (including any such Huntsman Liabilities arising out of claims made by the respective directors, officers, employees, agents, stockholders, managers, Subsidiaries or Affiliates of either Group against any member of either Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud, misrepresentation or any other cause by any member of either Group, or any of their respective directors, officers, employees, agents or managers.

 

In exchange for the Contributions, Venator issued Venator Ordinary Shares to Huntsman or a member of the Huntsman Group.

 

Except as otherwise specifically set forth in this Agreement or any Ancillary Agreement, (A) and except for where the assignment, transfer or conveyance of any Venator Assets from Huntsman to Venator would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, to the extent that any Venator Assets have not been assigned, transferred or conveyed by Huntsman to Venator or an applicable Venator Designee in accordance with Section 2.1(a)(i) as of immediately prior to the Effective Date, then from and after the Effective Date, Huntsman hereby assigns and Venator accepts such assignment of Huntsman’s right, title and interest in such Venator Assets and (B) and except for where the assignment, transfer or conveyance of any Huntsman Assets from its Subsidiaries or Venator to Huntsman would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, to the extent

 

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that any Huntsman Assets have not been assigned, transferred or conveyed by its Subsidiaries or Venator to Huntsman or an applicable Huntsman Group member in accordance with Section 2.1(a)(iii) as of immediately prior to the Effective Date, then from and after the Effective Date, its Subsidiaries or Venator shall and hereby do assign and Huntsman shall and hereby does accept such assignment of the Subsidiaries’ or Venator’s right, title and interest in such Huntsman Assets.

 

Except as otherwise specifically set forth in this Agreement or any Ancillary Agreement, (A) and except for where the assumption by Venator of any Venator Liabilities would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, to the extent that any Venator Liabilities have not been accepted and assumed by Venator or an applicable Venator Designee in accordance with Section 2.1(a)(ii) as of immediately prior to the Effective Date, then from and after the Effective Date, Venator shall and hereby does, accept, assume and agree faithfully to perform, discharge and fulfill all such Venator Liabilities in accordance with their respective terms and (B) except for where the assumption by Huntsman of any Huntsman Liabilities would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, to the extent that any Huntsman Liabilities have not been accepted and assumed by Huntsman or an applicable Huntsman Group member in accordance with Section 2.1(a)(iv) as of immediately prior to the Effective Date, then from and after the Effective Date, Huntsman shall and hereby does, accept, assume and agree faithfully to perform, pay, discharge and fulfill all such Huntsman Liabilities in accordance with their respective terms.

 

(b)                                 In furtherance of the assignment, transfer and conveyance of the Venator Assets and the assumption of the Venator Liabilities in accordance with Sections 2.1(a)(i), 2.1(a)(ii) and 2.1(d), on, before and/or as of the date that such Venator Assets are assigned, transferred or conveyed or such Venator Liabilities are assumed, (i) Huntsman shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of Huntsman’s and its Subsidiaries’ (other than Venator and its Subsidiaries) right, title and interest in and to the Venator Assets to Venator and the Venator Designees, and (ii) Venator shall execute and deliver, and shall cause the Venator Designees to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the Venator Liabilities. All of the foregoing documents contemplated by this Section 2.1(b) (whether executed on or after the date hereof or prior to the date hereof in contemplation of the Contribution) shall be referred to collectively herein as the “Huntsman Transfer Documents.

 

(c)                                  In furtherance of the assignment, transfer and conveyance of Huntsman Assets and the assumption of Huntsman Liabilities set forth in Sections 2.1(a)(iii), 2.1(a)(iv) and 2.1(e), on, before and/or as of the date that such Venator Assets are assigned, transferred or conveyed or such Venator Liabilities are assumed: (i) Venator shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of title, assignments of contracts (including partial assignments) and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence

 

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the transfer, conveyance and assignment of all of Venator’s and its Subsidiaries’ right, title and interest in and to the Huntsman Assets to Huntsman and its Subsidiaries, and (ii) Huntsman shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the Huntsman Liabilities. All of the foregoing documents contemplated by this Section 2.1(c) (whether executed on or after the date hereof or prior to the date hereof in contemplation of the Contribution) shall be referred to collectively herein as the Venator Transfer Documents” and, together with the Huntsman Transfer Documents, the “Transfer Documents.”

 

(d)                                 To the extent any Venator Asset is not transferred, assigned or delivered to or retained by, or any Venator Liability is not assumed by or retained by, a member of the Venator Group at the Effective Date or is owned or held by a member of the Huntsman Group after the Effective Date, from and after the Effective Date, any such Venator Asset or Venator Liability shall be held by such member of the Huntsman Group for the use, benefit and/or burden of the member of the Venator Group entitled thereto (at the expense and for the account of the member of the Venator Group entitled thereto) in accordance with Section 2.4(e), and, subject to Section 2.4(b):

 

(i)                                     Huntsman shall, and shall cause its applicable Subsidiaries to, as soon as reasonably practicable, assign, transfer, convey and deliver to Venator or certain of its Subsidiaries designated by Venator, and Venator or such Subsidiaries shall accept from Huntsman and its applicable Subsidiaries, all of Huntsman’s and such Subsidiaries’ respective right, title and interest in and to such Venator Assets in accordance with the terms of this Agreement and/or the applicable Ancillary Agreement; and

 

(ii)                                  Venator and certain of its Subsidiaries designated by Venator shall, as soon as reasonably practicable, accept, assume and agree faithfully to perform, discharge and fulfill all such Venator Liabilities in accordance with their respective terms.

 

(e)                                  To the extent any Huntsman Asset is not transferred, assigned or delivered to or retained by, or any Huntsman Liability is not assumed by or retained by, a member of the Huntsman Group at the Effective Date or is owned or held by a member of the Venator Group after the Effective Date, from and after the Effective Date, any such Huntsman Asset or Huntsman Liability shall be held by such member of the Venator Group for the use, benefit and/or burden of the member of the Huntsman Group entitled thereto (at the expense and for the account of the member of the Huntsman Group entitled thereto) in accordance with Section 2.4(f), and, subject to Section 2.4(c):

 

(i)                                     Venator shall, and shall cause its applicable Subsidiaries to, as soon as reasonably practicable, assign, transfer, convey and deliver to Huntsman or certain of its Subsidiaries designated by Huntsman, and Huntsman or such Subsidiaries shall accept from Venator and its applicable Subsidiaries, all of Venator’s and such Subsidiaries’ respective right, title and interest in and to such Huntsman Assets in accordance with the terms of this Agreement and/or the applicable Ancillary Agreement; and

 

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(ii)                                  Huntsman and certain of its Subsidiaries designated by Huntsman shall, as soon as reasonably practicable, accept, assume and agree faithfully to perform, discharge and fulfill all such Huntsman Liabilities in accordance with their respective terms.

 

(f)                                   Venator hereby waives compliance by each and every member of the Huntsman Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Venator Assets to any member of the Venator Group.

 

(g)                                  Huntsman hereby waives compliance by each and every member of the Venator Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Huntsman Assets to any member of the Huntsman Group.

 

2.2                               Venator Assets.

 

(a)                                 For purposes of this Agreement, “Venator Assets” means (without duplication):

 

(i)                                     all Assets that are provided pursuant to the terms of this Agreement or any Ancillary Agreement as Assets to be transferred to Venator or any other member of the Venator Group;

 

(ii)                                  (A) all Venator Contracts, (B) all issued and outstanding equity interests held by Huntsman or its Subsidiaries in the wholly owned Subsidiaries and Affiliates of Huntsman that have been or shall be contributed to, or otherwise transferred, conveyed, or assigned to, the Venator Group or entities that shall be members of the Venator Group as of the Effective Date, as listed on Schedule 2.2(a)(ii)(B) (such Subsidiaries and entities, the “Transferred Entities”), and (C) the shares of capital stock or other equity interests held by Huntsman or its Subsidiaries in certain entities (other than the Transferred Entities) that have been or shall be contributed to, or otherwise transferred, conveyed, or assigned to, the Venator Group as listed on Schedule 2.2(a)(ii)(C);

 

(iii)                               all Assets reflected as assets of Venator or its Subsidiaries on the Venator Balance Sheet, subject to any dispositions of such Assets subsequent to the date of the Venator Balance Sheet;

 

(iv)                              all Venator Intellectual Property;

 

(v)                                 all permits, waivers, authorizations and similar approvals issued under or pursuant to any Environmental Laws used or held for use by Huntsman or any of its Subsidiaries exclusively in the Venator Business or listed on Schedule 2.2(a)(v);

 

(vi)                              any Shared Contracts (but only to the extent assigned to a member of the Venator Group pursuant to Section 2.8(a) or a Transfer Document);

 

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(vii)                           any and all Assets owned and used or held for use immediately prior to the Effective Date by Huntsman or any of its Subsidiaries primarily in the Venator Business, including any account or trade receivables, inventory, property, plant and equipment, prepaid expenses, whether or not reflected as assets of Venator or its Subsidiaries on the Venator Balance Sheet.

 

Notwithstanding the foregoing, the Venator Assets shall not, in any event, include the Huntsman Assets referred to in Sections 2.2(b)(i), (ii), (iii) and (iv). All rights of the Venator Group in respect of Huntsman insurance policies are set forth in Article VI and shall not be included in the Venator Assets.

 

(b)                                 For the purposes of this Agreement, “Huntsman Assets” means (without duplication):

 

(i)                                     the Assets listed on Schedule 2.2(b)(i) and any and all other Assets that are provided pursuant to the terms of this Agreement or any Ancillary Agreement as Assets to be retained by Huntsman or any other member of the Huntsman Group;

 

(ii)                                  any cash or cash equivalents withdrawn from Venator Accounts in accordance with Sections 2.9(c), (d) or (e);

 

(iii)                               all Huntsman Intellectual Property and Huntsman Software;

 

(iv)                              any Shared Contracts (other than Venator Assets to the extent assigned to a member of the Venator Group pursuant to Section 2.8(a) or a Transfer Document); and

 

(v)                                 any and all Assets of any members of the Huntsman Group that are not Venator Assets pursuant to Section 2.2(a).

 

2.3                               Venator Liabilities.

 

(a)                                 For the purposes of this Agreement, “Venator Liabilities” means (without duplication):

 

(i)                                     all Liabilities, including any Environmental Liabilities to the extent relating to:

 

(A)                               the operation or ownership of the Venator Business, as conducted at any time prior to, on or after the Effective Date (including any Liabilities related to property or operations formerly owned or operated by Huntsman or any of its Subsidiaries and related primarily to the VCM Business), including any Liability relating to, arising out of or resulting from (1) any strict liability under or violation of Environmental Law at any Venator Assets; (2) a Release of Hazardous Materials to, on or under any Venator Assets (including Releases that migrate from Venator Assets to, on or under other properties); or (3) any Liabilities related to Hazardous Materials generated, transported from or disposed of by any Venator Business, including any act or failure to act by any

 

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Person, whether or not such act or failure to act is or was within such Person’s authority; or

 

(B)                               any Venator Assets, including any Venator Contracts, Shared Contracts (to the extent related to the Venator Business) and any real property and leasehold interests;

 

in any such case, whether arising before, on or after the Effective Date;

 

(ii)                                  all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement as Liabilities to be assumed by Venator or any member of the Venator Group including the Assumed Actions, and all agreements, obligations and Liabilities of any member of the Venator Group under this Agreement or any of the Ancillary Agreements;

 

(iii)                               all Liabilities (including costs and expenses) relating to, arising out of or resulting from the Venator Debt Financing;

 

(iv)                              all Liabilities reflected as liabilities or obligations of Venator or its Subsidiaries on the Venator Balance Sheet, subject to any discharge of such Liabilities subsequent to the date of the Venator Balance Sheet; and

 

(v)                                 all Liabilities arising out of claims made by the respective directors, officers, stockholders, employees, agents, managers, Subsidiaries or Affiliates of either Group against any member of either Group relating to, arising out of or resulting from the Venator Business or the other businesses, operations, activities or Liabilities referred to in clauses (i) through (iv) above, inclusive.

 

Notwithstanding the foregoing, the Venator Liabilities shall not include (i) the Liabilities listed on Schedule 2.3(b), (ii) any and all other Liabilities that are stated in this Agreement or any Ancillary Agreement as Liabilities to be retained or assumed by Huntsman or any other member of the Huntsman Group and (iii) all agreements and obligations of any member of the Huntsman Group under this Agreement or any of the Ancillary Agreements.

 

(b)                                 For the purposes of this Agreement, “Huntsman Liabilities” means (without duplication): all Liabilities of Huntsman and its Subsidiaries as of the Effective Date other than Venator Liabilities.

 

2.4                               Approvals and Notifications.

 

(a)                                 To the extent that the transfer or assignment of any Venator Asset, the assumption of any Venator Liability, the Contribution or the IPO requires any Approvals or Notifications, the Parties will endeavor to obtain or make such Approvals or Notifications as soon as reasonably practicable; provided, however, that, except to the extent expressly provided in this Agreement (including in Section 2.4(j)) or any of the Ancillary Agreements or as otherwise agreed between Huntsman and Venator), neither Huntsman nor Venator shall be obligated to contribute capital or pay any consideration in any form (including providing any

 

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letter of credit, guaranty or other financial accommodation) to any Person in order to obtain or make such Approvals or Notifications.

 

(b)                                 To the extent that the transfer or assignment of any Huntsman Asset, the assumption of any Huntsman Liability, the Contribution or the IPO requires any Approvals or Notifications, the Parties will endeavor to obtain or make such Approvals or Notifications as soon as reasonably practicable; provided, however, that, except to the extent expressly provided in this Agreement (including in Section 2.4(j)) or any of the Ancillary Agreements or as otherwise agreed between Huntsman and Venator), neither Huntsman nor Venator shall be obligated to contribute capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Person in order to obtain or make such Approvals or Notifications.

 

(c)                                  If and to the extent that the valid, complete and perfected transfer or assignment to the Venator Group of any Venator Assets or assumption by the Venator Group of any Venator Liabilities would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, then, unless the Parties shall otherwise mutually determine, the transfer or assignment to the Venator Group of such Venator Assets or the assumption by the Venator Group of such Venator Liabilities, as the case may be, shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Approvals or Notifications have been obtained or made. Notwithstanding the foregoing, any such Venator Assets or Venator Liabilities shall continue to constitute Venator Assets and Venator Liabilities for all other purposes of this Agreement.

 

(d)                                 If and to the extent that the valid, complete and perfected transfer or assignment to the Huntsman Group of any Huntsman Assets or assumption by the Huntsman Group of any Huntsman Liabilities would be a violation of applicable Law, or require any Approvals or Notifications in connection with the Contribution or the IPO that have not been obtained or made by the Effective Date, then, unless the Parties shall otherwise mutually determine, the transfer or assignment to the Huntsman Group of such Huntsman Assets or the assumption by the Huntsman Group of such Huntsman Liabilities, as the case may be, shall be automatically deemed deferred and any such purported transfer, assignment or assumption shall be null and void until such time as all legal impediments are removed or such Approvals or Notifications have been obtained or made. Notwithstanding the foregoing, any such Huntsman Assets or Huntsman Liabilities shall continue to constitute Huntsman Assets and Huntsman Liabilities for all other purposes of this Agreement.

 

(e)                                  If any transfer or assignment of any Venator Asset or any assumption of any Venator Liability intended to be transferred, assigned or assumed hereunder, as the case may be, is not consummated on or prior to the Effective Date, whether as a result of the provisions of Section 2.4(c) or for any other reason, then, insofar as reasonably possible, the member of the Huntsman Group retaining such Venator Asset or such Venator Liability, as the case may be, shall thereafter hold such Venator Asset or Venator Liability, as the case may be, for the use, benefit and/or burden of the member of the Venator Group entitled thereto (at the expense and for the account of the member of the Venator Group entitled thereto). In addition, the member of

 

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the Huntsman Group retaining such Venator Asset or such Venator Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Venator Asset or Venator Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Venator Group to whom such Venator Asset is to be transferred or assigned, or which will assume such Venator Liability, as the case may be, in order to place such member of the Venator Group in a substantially similar position as if such Venator Asset or Venator Liability had been transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Venator Asset or Venator Liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Venator Asset or Venator Liability, as the case may be, and all costs and expenses related thereto, shall inure from and after the Effective Date to the Venator Group.

 

(f)                                   If any transfer or assignment of any Huntsman Asset or any assumption of any Huntsman Liability intended to be transferred, assigned or assumed hereunder, as the case may be, is not consummated on or prior to the Effective Date, whether as a result of the provisions of Section 2.4(d) or for any other reason, then, insofar as reasonably possible, the member of the Venator Group retaining such Huntsman Asset or such Huntsman Liability, as the case may be, shall thereafter hold such Huntsman Asset or Huntsman Liability, as the case may be, for the use, benefit and/or burden of the member of the Huntsman Group entitled thereto (at the expense and for the account of the member of the Huntsman Group entitled thereto). In addition, the member of the Venator Group retaining such Huntsman Asset or such Huntsman Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Huntsman Asset or Huntsman Liability with reasonable care in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Huntsman Group to whom such Huntsman Asset is to be transferred or assigned, or which will assume such Huntsman Liability, as the case may be, in order to place such member of the Huntsman Group in a substantially similar position as if such Huntsman Asset or Huntsman Liability had been transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Huntsman Asset or Huntsman Liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Huntsman Asset or Huntsman Liability, as the case may be, and all costs and expenses related thereto, shall inure from and after the Effective Date to the Huntsman Group.

 

(g)                                  If the transfer or assignment of any Huntsman Asset or the assumption of any Huntsman Liability not intended to be transferred, assigned or assumed hereunder, as the case may be, is consummated on or prior to the Effective Date, then, insofar as reasonably possible, the member of the Venator Group holding or owning such Huntsman Asset or such Huntsman Liability, as the case may be, shall thereafter hold such Huntsman Asset or Huntsman Liability, as the case may be, for the use, benefit and/or burden of the member of the Huntsman Group entitled thereto (at the expense of the member of the Huntsman Group entitled thereto). In addition, the member of the Venator Group retaining such Huntsman Asset or such Huntsman Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Huntsman Asset or Huntsman Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Huntsman Group to whom such Huntsman Asset is to be transferred or assigned, or which

 

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will assume such Huntsman Liability, as the case may be, in order to place such member of the Huntsman Group in a substantially similar position as if such Huntsman Asset or Huntsman Liability had not been so transferred, assigned or assumed and so that all the benefits and burdens relating to such Huntsman Asset or Huntsman Liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Huntsman Asset or Huntsman Liability, as the case may be, and all costs and expenses related thereto, shall inure from and after the Effective Date to the Huntsman Group.

 

(h)                                 If the transfer or assignment of any Venator Asset or the assumption of any Venator Liability not intended to be transferred, assigned or assumed hereunder, as the case may be, is consummated on or prior to the Effective Date, then, insofar as reasonably possible, the member of the Huntsman Group holding or owning such Venator Asset or such Venator Liability, as the case may be, shall thereafter hold such Venator Asset or Venator Liability, as the case may be, for the use, benefit and/or burden of the member of the Venator Group entitled thereto (at the expense of the member of the Venator Group entitled thereto). In addition, the member of the Huntsman Group retaining such Venator Asset or such Venator Liability shall, insofar as reasonably possible and to the extent permitted by applicable Law, treat such Venator Asset or Venator Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the member of the Venator Group to whom such Venator Asset is to be transferred or assigned, or which will assume such Venator Liability, as the case may be, in order to place such member of the Venator Group in a substantially similar position as if such Venator Asset or Venator Liability had not been so transferred, assigned or assumed and so that all the benefits and burdens relating to such Venator Asset or Venator Liability, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Venator Asset or Venator Liability, as the case may be, and all costs and expenses related thereto, shall inure from and after the Effective Date to the Venator Group.

 

(i)                                     If and when the Approvals or Notifications, the absence of which caused the deferral of transfer or assignment of any Venator Asset or the deferral of assumption of any Venator Liability pursuant to Section 2.4(c) or the deferral of transfer or assignment of any Huntsman Asset or the deferral of assumption of any Huntsman Liability pursuant to Section 2.4(d), are obtained or made, and, if and when any other legal impediments for the transfer or assignment of any Venator Asset or the assumption of any Venator Liability or for the transfer or assignment of any Huntsman Asset or the assumption of any Huntsman Liability, have been removed, the transfer or assignment of the applicable Venator Asset or the assumption of the applicable Venator Liability or the transfer or assignment of the applicable Huntsman Asset or the assumption of the applicable Huntsman Liability, as the case may be, shall be effected in accordance with the terms of this Agreement and/or the applicable Ancillary Agreement.

 

(j)                                    Except as otherwise agreed between Huntsman and Venator, (i) any member of the Huntsman Group holding, owning or retaining a Venator Asset or Venator Liability (whether as a result of the provisions of Section 2.4(c) or for any other reason), and (ii) any member of the Venator Group holding, owning or retaining an Huntsman Asset or Huntsman Liability due to a transfer or assignment to, or assumption by, such member of the Venator Group (whether as a result of the provisions of Section 2.4(d) or for any other reason),

 

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shall not be obligated, in order to effect the transfer of such Asset or Liability to the Group member entitled thereto, to expend any money unless the necessary funds are advanced (or otherwise made available) by the Group member entitled thereto, other than reasonable out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by the Group member entitled to such Asset or Liability.

 

2.5                               Novation of Venator Liabilities.

 

(a)                                 Each of Huntsman and Venator, at the request of the other, shall endeavor, if reasonably practicable, to obtain, or to cause to be obtained, if reasonably practicable, any consent, substitution, approval or amendment required to novate or assign all obligations under agreements, leases, licenses and other obligations or Liabilities of any nature whatsoever that constitute Venator Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements other than any member of the Venator Group, so that, in any such case, the members of the Venator Group will be solely responsible for the Venator Liabilities; provided, however, that neither Huntsman nor Venator shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Third Party from whom any such consent, substitution, approval, amendment or release is requested.

 

(b)                                 If Huntsman or Venator is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release and the applicable member of the Huntsman Group continues to be bound by such agreement, lease, license or other obligation or Liability (each, an “Unreleased Venator Liability”), Venator shall, to the extent not prohibited by Law, as indemnitor, guarantor, agent or subcontractor for such member of the Huntsman Group, as the case may be, (i) pay, perform and discharge fully all the obligations or other Liabilities of such member of the Huntsman Group that constitute Unreleased Venator Liabilities from and after the Effective Date and (ii) use its commercially reasonable efforts to effect such payment, performance, or discharge prior to any demand for such payment, performance, or discharge is permitted to be made by the obligee thereunder on any member of the Huntsman Group. If and when any such consent, substitution, approval, amendment or release shall be obtained or the Unreleased Venator Liabilities shall otherwise become assignable or able to be novated, Huntsman shall promptly assign, or cause to be assigned, and Venator or the applicable Venator Group member shall assume, such Unreleased Venator Liabilities without exchange of further consideration.

 

2.6                               Novation of Huntsman Liabilities.

 

(a)                                 Each of Huntsman and Venator, at the request of the other, shall endeavor, if reasonably practicable, to obtain, or to cause to be obtained, if reasonably practicable, any consent, substitution, approval or amendment required to novate or assign all obligations under agreements, leases, licenses and other obligations or Liabilities of any nature whatsoever that constitute Huntsman Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements other than any member of the Huntsman Group, so that, in any such case, the members of the Huntsman Group will be solely responsible for such Huntsman Liabilities; provided, however, that neither Huntsman nor Venator shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or

 

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other financial accommodation) to any Third Party from whom any such consent, substitution, approval, amendment or release is requested.

 

(b)                                 If Huntsman or Venator is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release and the applicable member of the Venator Group continues to be bound by such agreement, lease, license or other obligation or Liability (each, an “Unreleased Huntsman Liability”), Huntsman shall, to the extent not prohibited by Law, as indemnitor, guarantor, agent or subcontractor for such member of the Venator Group, as the case may be, (i) pay, perform and discharge fully all the obligations or other Liabilities of such member of the Venator Group that constitute Unreleased Huntsman Liabilities from and after the Effective Date and (ii) use its commercially reasonable efforts to effect such payment, performance, or discharge prior to any demand for such payment, performance, or discharge is permitted to be made by the obligee thereunder on any member of the Venator Group. If and when any such consent, substitution, approval, amendment or release shall be obtained or the Unreleased Huntsman Liabilities shall otherwise become assignable or able to be novated, Venator shall promptly assign, or cause to be assigned, and Huntsman or the applicable Huntsman Group member shall assume, such Unreleased Huntsman Liabilities without exchange of further consideration.

 

2.7                               Termination of Agreements.

 

(a)                                 Except as set forth in Section 2.7(b), in furtherance of the releases and other provisions of this Agreement, Venator and each member of the Venator Group, on the one hand, and Huntsman and each member of the Huntsman Group, on the other hand, hereby terminate any and all agreements, arrangements, commitments or understandings, whether or not in writing, between or among Venator and/or any member of the Venator Group and/or any entity that shall be a member of the Venator Group as of the Effective Date, on the one hand, and Huntsman and/or any member of the Huntsman Group (other than entities that shall be members of the Venator Group as of the Effective Date), on the other hand, effective as of the Effective Date. No such terminated agreement, arrangement, commitment or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Effective Date. Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.

 

(b)                                 The provisions of Section 2.7(a) shall not apply to any of the following agreements, arrangements, commitments or understandings (or to any of the provisions thereof): (i) this Agreement and the Ancillary Agreements (and each other agreement or instrument expressly contemplated by this Agreement or any Ancillary Agreement to be entered into by any of the Parties or any of the members of their respective Groups); (ii) any agreements, arrangements, commitments or understandings listed or described on Schedule 2.7(b)(ii); (iii) any agreements, arrangements, commitments or understandings to which any Person other than the Parties and the members of their respective Groups is a Party (it being understood that to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such agreements, arrangements, commitments or understandings constitute Venator Assets or Venator Liabilities, they shall be assigned pursuant to Section 2.1); (iv) any agreements, arrangements, commitments or understandings to which any member of the Huntsman Group or Venator Group, other than Huntsman, Venator or a wholly owned

 

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Subsidiary of Huntsman or Venator, as the case may be, is a Party (it being understood that directors’ qualifying shares or similar interests will be disregarded for purposes of determining whether a Subsidiary is wholly owned); (v) any Shared Contracts; and (vi) any other agreements, arrangements, commitments or understandings that this Agreement or any Ancillary Agreement expressly states will survive the Effective Date.

 

2.8                               Treatment of Shared Contracts.

 

(a)                                 Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable party pursuant to an Ancillary Agreement, any contract, agreement, arrangement, commitment or understanding that is listed on Schedule 2.8(a) shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Date, so that each Party or the members of its respective Group shall, as of the Effective Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.8(a) (each, a “Schedule 2.8 Contract”); provided, however, that, (i) in no event shall any member of any Group be required to assign (or amend) any Schedule 2.8 Contract in its entirety or to assign a portion of any Schedule 2.8 Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Schedule 2.8 Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Schedule 2.8 Contract, then the Parties shall, and shall cause each of their respective Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Schedule 2.8 Contract so as to allow such other Party the ability to exercise any applicable rights under such Schedule 2.8 Contract) to cause a member of the Venator Group or the Huntsman Group, as the case may be, to receive the rights and benefits of that portion of each Schedule 2.8 Contract that relates to the Venator Business or the businesses retained by Huntsman, as the case may be (in each case, to the extent so related), as if such Schedule 2.8 Contract had been assigned to (or amended to allow) a member of the applicable Group pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.

 

(b)                                 Each of Huntsman and Venator shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as Assets owned by, and/or Liabilities of, as applicable, such Party, or its Subsidiaries, as applicable, not later than the Effective Date; and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).

 

(c)                                  Nothing in this Section 2.8 shall require any member of any Group to make any material payment (except to the extent advanced, assumed or agreed in advance to be

 

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reimbursed by any member of the other Group), incur any material obligation or grant any material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.

 

2.9                               Bank Accounts; Cash Balances.

 

(a)                                 Huntsman and Venator each agrees to take, or cause the respective members of their respective Groups to take, at the Effective Date (or such earlier time as Huntsman and Venator may agree), all actions necessary to amend all contracts or agreements governing each bank and brokerage account owned by Venator or any other member of the Venator Group (collectively, the “Venator Accounts”) so that such Venator Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to, hereinafter “linked”) to any bank or brokerage account owned by Huntsman or any other member of the Huntsman Group (collectively, the “Huntsman Accounts”), are de-linked from the Huntsman Accounts.

 

(b)                                 Huntsman and Venator each agrees to take, or cause the respective members of their respective Groups to take, at the Effective Date (or such earlier time as Huntsman and Venator may agree), all actions necessary to amend all agreements governing the Huntsman Accounts so that such Huntsman Accounts, if currently linked to a Venator Account, are de-linked from the Venator Accounts.

 

(c)                                  It is intended that, following consummation of the actions contemplated by Sections 2.9(a) and 2.9(b), there will be in place a centralized cash management process pursuant to which the Venator Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by Venator or its designee; provided that, on [•], 2017, the accumulated funds in such centralized Venator Accounts will be transferred to one or more centralized accounts managed by Huntsman, at the discretion of Huntsman.

 

(d)                                 With respect to any outstanding payments initiated by Huntsman, Venator, or any of their respective Subsidiaries prior to the Effective Date, such outstanding payments shall be honored following the Separation by the Person or Group owning the account from which the payment was initiated.

 

(e)                                  As between Huntsman and Venator (and the members of their respective Groups) all payments made and reimbursements received after the Contribution by either Party (or member of its Group) that relate to a business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto). Each Party shall maintain an accounting of any such payments and reimbursements, and the Parties shall have a monthly reconciliation, whereby all such payments made and reimbursements received by each Party are calculated and the net amount owed to Huntsman or Venator shall be paid over with right of set-off. If at any time the net amount owed to either Party exceeds $10,000,000, an interim payment of such net amount owed shall be made to the Party entitled thereto within five (5) business days of such amount exceeding $10,000,000. Notwithstanding the foregoing, neither Huntsman nor Venator shall act as collection agent for the other Party, nor shall either Party act as surety or endorser

 

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with respect to non-sufficient funds checks, or funds to be returned in a bankruptcy or fraudulent conveyance action.

 

2.10                        Other Ancillary Agreements. Effective as of the date hereof, each of Huntsman and Venator will execute and deliver all Ancillary Agreements to which it is a party (other than the Transfer Documents, which will be executed on or prior to the Effective Date to the extent not previously executed prior to the date hereof).

 

2.11                        Disclaimer of Representations and Warranties. EACH OF HUNTSMAN (ON BEHALF OF ITSELF AND EACH MEMBER OF THE HUNTSMAN GROUP) AND VENATOR (ON BEHALF OF ITSELF AND EACH MEMBER OF THE VENATOR GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED, ASSUMED OR RETAINED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR APPROVALS REQUIRED IN CONNECTION THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SET-OFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY CLAIM OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF, AND IN ENTERING INTO THIS AGREEMENT, EACH OF HUNTSMAN (ON BEHALF OF ITSELF AND EACH MEMBER OF THE HUNTSMAN GROUP) AND VENATOR (ON BEHALF OF ITSELF AND EACH MEMBER OF THE VENATOR GROUP) ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY SUCH REPRESENTATION OR WARRANTY. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, EXCEPT AS OTHERWISE AGREED BY HUNTSMAN, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE WILL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY APPROVALS OR NOTIFICATIONS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS, INCLUDING ENVIRONMENTAL LAWS, OR JUDGMENTS ARE NOT COMPLIED WITH. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HUNTSMAN MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY MATTER OR CIRCUMSTANCE RELATING TO ENVIRONMENTAL LAWS, THE RELEASE OF HAZARDOUS MATERIALS INTO THE ENVIRONMENT OR THE PROTECTION OF HUMAN HEALTH, SAFETY, NATURAL RESOURCES OR THE ENVIRONMENT, OR ANY OTHER ENVIRONMENTAL CONDITION OF THE VENATOR ASSETS.

 

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2.12                        Venator Debt Financing. Prior to the Effective Date (to the extent not previously effected prior to the date hereof), Venator shall enter into the Venator Debt Financing, on such terms and conditions as agreed by Huntsman (including the amount that shall be borrowed pursuant to the Venator Debt Financing and the interest rates for such borrowings). Huntsman and Venator shall participate in the preparation of all materials and presentations as may be reasonably necessary to secure funding pursuant to the Venator Debt Financing, including rating agency presentations necessary to obtain the requisite ratings needed to secure the financing under any of the Venator Debt Financing.  The Parties agree that Venator, and not Huntsman, shall be responsible for all costs and expenses incurred by, and for reimbursement of, such costs and expenses to, any member of the Huntsman Group associated with the Venator Debt Financing.  Venator shall use borrowings under the Credit Facility to fund the Debt Repayment.  For the avoidance of doubt, Venator shall not be permitted to use cash flows from its operations to fund the amount referenced in above.

 

ARTICLE III
THE IPO AND ACTIONS PENDING THE IPO

 

3.1                               The IPO. Venator shall cooperate with, and take all actions reasonably requested by, Huntsman in connection with the IPO.  In furtherance thereof, to the extent not undertaken and completed prior to the execution of this Agreement:

 

(a)                                 Venator shall file the IPO Registration Statement, and such amendments or supplements thereto, as may be necessary in order to cause the same to become and remain effective as required by the Equity Underwriting Agreement, the SEC and applicable Law, including federal, state or foreign securities Laws.  Venator shall also cooperate in preparing, filing with the SEC and causing to become effective a registration statement registering the Ordinary Shares under the Exchange Act, and any registration statements or amendments thereof that are required to reflect the establishment of, or amendments to, any employee benefit and other plans necessary or appropriate in connection with the IPO or the other transactions contemplated by this Agreement and the Ancillary Agreements.

 

(b)                                 Venator shall enter into the Equity Underwriting Agreement, in form and substance reasonably satisfactory to Huntsman and shall comply with their respective obligations thereunder.

 

(c)                                  Venator shall use its commercially reasonably efforts to take all such action as may be necessary or appropriate under state securities and blue sky laws of the United States (and any comparable Laws under any foreign jurisdictions) in connection with the IPO.

 

(d)                                 Venator shall participate in the preparation of materials and presentations as Huntsman and the Equity Underwriters shall deem necessary or desirable in connection with the IPO.

 

(e)                                  Venator will cooperate in all respects with Huntsman and the Equity Underwriters in connection with the pricing of the Ordinary Shares to be sold in the IPO and the timing of the IPO and will, at such party’s request, promptly take any and all actions necessary

 

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or desirable to consummate the IPO as contemplated by the IPO Registration Statement and the Equity Underwriting Agreement.

 

(f)                                   Venator shall prepare, file and use its commercially reasonable efforts to seek to make effective an application for listing of the Ordinary Shares sold in the IPO on the New York Stock Exchange.

 

3.2                               Articles of Association. Prior to the effectiveness of the IPO Registration Statement, Huntsman and Venator shall take all necessary action that may be required to provide for the adoption by Venator of the Amended and Restated Articles of Association of Venator (the “Venator Articles of Association”) in such form as may be reasonably determined by Huntsman and Venator, and Venator will file the Venator Articles of Association as required by applicable Law.

 

3.3                               Equity-Based Benefits. Prior to the effectiveness of the IPO Registration Statement, Huntsman and Venator shall take all actions as may be necessary to approve the stock-based employee benefit plans of Venator (and the grants of adjusted awards over Huntsman stock by Huntsman and of awards over Venator stock by Venator) in order to satisfy the requirement of Rule 16b-3 under the Exchange Act and the applicable rules and regulations of the NYSE.

 

ARTICLE IV
DISPUTE RESOLUTION

 

4.1                               General Provisions.

 

(a)                                 Any dispute, controversy or claim arising out of or relating to this Agreement or the Ancillary Agreements (except as otherwise set forth in any such Ancillary Agreements), including the validity, interpretation, breach or termination thereof, or the transactions contemplated hereby or thereby (including all actions take in furtherance of the transactions contemplated hereby on or prior to the Effective Date), or the commercial or economic relationship of the Parties hereto (a “Dispute”), shall be resolved in accordance with the procedures set forth in this Article IV, which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified in the applicable Ancillary Agreement or in this Article IV.

 

(b)                                 Commencing with a request contemplated by Section 4.2, all communications between the Parties or their representatives to attempt to resolve any Dispute shall be deemed to have been delivered in furtherance of a Dispute settlement and shall be exempt from disclosure and production, and shall not be introduced into evidence for any reason (whether as an admission or otherwise) before any arbitral tribunal.

 

(c)                                  The specific procedures set forth in this Article IV, including the time limits referenced herein, may be modified by agreement of both of the Parties in writing.

 

(d)                                 All applicable statutes of limitations and defenses based upon the passage of time shall be tolled while the procedures specified in this Article IV are pending. The Parties will take any necessary or appropriate action required to effectuate such tolling.

 

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4.2                               Consideration by Senior Executives. If a Dispute is not resolved in the normal course of business at the operational level, the Parties shall attempt in good faith to resolve the Dispute by negotiation between executives. Either Party may initiate the executive negotiation process by providing a written notice to the other (the “Initial Notice”). Within fifteen (15) days after delivery of the Initial Notice, the receiving Party shall submit to the other a written response (the “Response”). The Initial Notice and the Response shall include (a) a statement of the Dispute and of each Party’s respective position and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. The Parties agree that such executives shall have full and complete authority to resolve any Disputes submitted pursuant to this Section 4.2. Such executives will meet in person or by teleconference or video conference within thirty (30) days of the date of the Initial Notice to seek a resolution of the Dispute. If the executives are unable to agree to a format for such meeting, the meeting shall be convened by teleconference.

 

4.3                               Mediation. If a Dispute is not resolved by negotiation or if a meeting between executives is not held as provided in Section 4.2 in either case within forty-five (45) days from the delivery of the Initial Notice, resolution of such Dispute shall be attempted by mediation administered by the American Arbitration Association (the “AAA”) under its Commercial Mediation Procedures (the “Mediation Procedures”) as then in effect. Unless otherwise agreed by Huntsman and Venator, the Parties shall (a) conduct the mediation in Houston, Texas, and (b) select a mutually agreeable mediator. If the Parties are unable to agree upon a mediator within ten (10) days of the request for mediation, a mediator shall be appointed as set out in the Mediation Procedures. The Parties shall agree to a mutually convenient date and time to conduct the mediation; provided that the mediation must occur within thirty (30) days of the appointment of the mediator unless a later date is agreed to by the Parties in writing. Each Party shall bear its own fees, costs and expenses and an equal share of the expenses of the mediation. Each Party shall designate an executive to have full and complete authority to resolve the Dispute and to represent its interests in the mediation, and each Party may, in its sole and absolute discretion, include any number of other Representatives in the mediation process. At the commencement of the mediation, either Party may request to submit a written mediation statement to the mediator.

 

4.4                               Arbitration.

 

(a)                                 Any Dispute that is not resolved prior to the date of termination of mediation under the Mediation Procedures shall be submitted to arbitration administered in accordance with the AAA’s Commercial Arbitration Rules then in effect (the “AAA Commercial Arbitration Rules”) except as modified by this Section 4.4.

 

(b)                                 Without waiving its rights to any remedy under this Agreement and without first complying with the provisions of Sections 4.2 and 4.3, either Party may seek any emergency measures of protection or interim relief (i) before any [Texas] federal or state court, (ii) before an emergency arbitrator, as provided for under the AAA Commercial Arbitration Rules, or (iii) before the arbitral tribunal established hereunder.

 

(c)                                  Unless otherwise agreed by Huntsman and Venator, any Dispute to be decided in arbitration hereunder shall be decided by a tribunal of three (3) arbitrators appointed pursuant to the AAA Commercial Arbitration Rules.

 

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(d)                                 The place of arbitration shall be held, and the award shall be rendered in, Houston, Texas. The final hearing(s) in such arbitration shall take place within fourteen (14) months of the date of appointment of the arbitral tribunal, unless the Parties agree otherwise in writing.

 

(e)                                  The arbitral tribunal will have the right to award, on an interim basis, or include in the final award, any relief which it deems proper in the circumstances, including money damages (with interest on unpaid amounts from the due date), injunctive relief (including specific performance) and attorneys’ fees and costs; provided that the arbitral tribunal will not award any relief not specifically requested by the Parties and, in any event, will not award special damages. Upon constitution of the arbitral tribunal following any grant of interim relief by a special arbitrator or court pursuant to Section 4.4, the tribunal may affirm or disaffirm that relief, and the Parties will take such measures that are necessary to execute the tribunal’s decision.

 

(f)                                   So long as either Party has a timely claim to assert, the agreement to arbitrate Disputes set forth in this Section 4.4 will continue in full force and effect subsequent to, and notwithstanding the completion, expiration or termination of, this Agreement.

 

(g)                                  Any award of the arbitrators shall state reasons and shall be conclusive and binding upon the Parties. Judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

 

(h)                                 Each Party shall bear its own fees, costs and expenses and shall bear an equal share of the costs and expenses of the arbitration, including the fees, costs and expenses of the arbitral tribunal, provided, that the arbitral tribunal may award the prevailing Party its reasonable fees and expenses (including attorneys’ fees), including such reasonable fees and expenses for any Disputes relating to the Parties’ rights and obligations for indemnification under this Agreement.

 

4.5                               Confidentiality. Except as may be required by law or to enforce an award, neither a Party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Parties.

 

ARTICLE V
MUTUAL RELEASES; INDEMNIFICATION

 

5.1                               Regardless of Fault. IN THIS ARTICLE V, THE PHRASE “REGARDLESS OF FAULT” MEANS WITH RESPECT TO ANY INDEMNITY OR RELEASE PROVISION THAT THE INDEMNITY OR RELEASE IS BEING GIVEN WITHOUT REGARD TO THE FAULT OF THE PARTY BEING INDEMNIFIED OR RELEASED AND THAT THE INDEMNITY OR RELEASE WILL BE ENFORCEABLE EVEN IF THE LIABILITY BEING INDEMNIFIED OR RELEASED AGAINST WAS CAUSED BY THE NEGLIGENCE (OF ANY DEGREE OR CHARACTER), STRICT LIABILITY, BREACH OF DUTY OR ANY OTHER FAULT ON THE PART OF THE PARTY OR PERSON BEING INDEMNIFIED OR RELEASED.

 

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5.2                               Intention of Parties. IT IS THE INTENTION OF THE PARTIES THAT THE INDEMNITIES AND RELEASES IN THIS ARTICLE V COMPLY WITH BOTH THE EXPRESS NEGLIGENCE DOCTRINE AND THE CLEAR AND CONSPICUOUS RULE AND THAT WHEREVER “REGARDLESS OF FAULT” APPEARS IN THIS ARTICLE V, THE DEFINITION SET OUT IN SECTION 5.1 IS INCORPORATED AS THOUGH FULLY SET OUT THEREIN.

 

5.3                               Release of Pre-Closing Claims.

 

(a)                                 Except as provided in Section 5.3(c), effective as of the Effective Date, Venator does hereby, for itself and each other member of the Venator Group, their respective Affiliates (other than any member of the Huntsman Group), successors and assigns, and to the extent permitted by Law all Persons who at any time prior to the Effective Date have been directors, officers, agents, managers, or employees of any member of the Venator Group (in each case, in their respective capacities as such), remise, release and forever discharge REGARDLESS OF FAULT Huntsman and the members of the Huntsman Group, their respective controlled Affiliates (other than any member of the Venator Group), successors and assigns, and all Persons who at any time prior to the Effective Date have been stockholders, directors, officers, agents, managers or employees of any member of the Huntsman Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, including from fraud, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Date, including in connection with the transactions and all other activities to implement the Separation and the IPO and any other transactions contemplated under this Agreement or any Ancillary Agreement; provided, however, with respect to stockholders, directors, officers, agents, managers, or employees of any member of the Huntsman Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, such remise, release and discharge shall not apply to the extent any such person or party is grossly negligent or has acted in bad faith or has engaged in willful misconduct.

 

(b)                                 Except as provided in Section 5.3(c), effective as of the Effective Date, Huntsman does hereby, for itself and each other member of the Huntsman Group, their respective Affiliates (other than any member of the Venator Group), successors and assigns, and to the extent permitted by Law all Persons who at any time prior to the Effective Date have been directors, officers, agents, managers, or employees of any member of the Huntsman Group (in each case, in their respective capacities as such), remise, release and forever discharge REGARDLESS OF FAULT Venator, and the members of the Venator Group, their respective controlled Affiliates (other than any member of the Huntsman Group), successors and assigns, and all Persons who at any time prior to the Effective Date have been stockholders, directors, officers, agents, managers, or employees of any member of the Venator Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, including from fraud, existing or arising from any acts or events

 

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occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Date, including in connection with the transactions and all other activities to implement the Separation and the IPO and any other transactions contemplated under this Agreement or under any Ancillary Agreement; provided, however, with respect to stockholders, directors, officers, agents, managers, or employees of any member of the Venator Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, such remise, release and discharge shall not apply to the extent any such person or party is grossly negligent or has acted in bad faith or has engaged in willful misconduct.

 

(c)                                  Nothing contained in Section 5.3(a) or (b) shall impair any right of any Person to enforce this Agreement, any Ancillary Agreement or any agreements specified in Section 2.7(b) of this Agreement or the applicable Schedule thereto. Nothing contained in Section 5.3(a) or (b) shall release any Person from:

 

(i)                                     any Liability provided in or resulting from any agreement among any members of the Huntsman Group or the Venator Group that is specified in Section 2.7(b) of this Agreement or the applicable Schedules thereto as not to terminate as of the Effective Date, or any other Liability specified in such Section 2.7(b) as not to terminate as of the Effective Date;

 

(ii)                                  any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of any Group under, this Agreement or any Ancillary Agreement;

 

(iii)                               any Liability for the agreed upon purchase price or fee due arising out of the sale, lease, construction or receipt of goods, property or services purchased, obtained or used in the ordinary course of business by a member of one Group from a member of the other Group prior to the Effective Date;

 

(iv)                              any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement for claims brought against the Parties by Third Parties, which Liability shall be governed by the provisions of this Article V and Article VI and, if applicable, the other appropriate provisions of this Agreement and the other Ancillary Agreements; or

 

(v)                                 any Liability the release of which would result in the release of any Person other than a Person released pursuant to this Section 5.3; provided, however, that the Parties agree not to bring or allow their respective Subsidiaries to bring suit or other Action against the other Party or any of their respective past, present or future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing, with respect to any such Liability.

 

In addition, nothing contained in Section 5.3(a) shall release Huntsman from honoring its obligations in effect immediately prior to the Effective Date to indemnify any director, officer or employee of a member of the Venator Group who was a director, officer or employee of a

 

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member of the Huntsman Group on or prior to the Effective Date, to the extent such director, officer or employee is or becomes a named defendant in any Action covered by such indemnity obligations; it being understood that, if the underlying obligation giving rise to such Action is a Venator Liability, Venator shall indemnify Huntsman for such Liability (including Huntsman’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article V.

 

(d)                                 Venator will not make, and will not permit any member of the Venator Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Huntsman or any member of the Huntsman Group, or any other Person released pursuant to Section 5.3(a), with respect to any Liabilities released pursuant to Section 5.3(a). Huntsman will not make, and will not permit any member of the Huntsman Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Venator or any member of the Venator Group, or any other Person released pursuant to Section 5.3(b), with respect to any Liabilities released pursuant to Section 5.3(b).

 

(e)                                  It is the intent of each of Huntsman and Venator, by virtue of the provisions of this Section 5.3, to provide for a full and complete release and discharge REGARDLESS OF FAULT of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Effective Date, between or among Venator or any member of the Venator Group, on the one hand, and Huntsman or any member of the Huntsman Group, on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Effective Date, including any representations or warranties or indemnities made or alleged to have been made on or before the Effective Date, by any member of the Venator Group or the Huntsman Group), except as expressly set forth in Section 5.3(c). At any time, at the request of the other Party, each Party shall cause each member of its respective Group to execute and deliver releases reflecting the provisions hereof.

 

(f)                                   Any breach of the provisions of this Section 5.3 by either Huntsman or Venator shall entitle the other Party to recover reasonable fees and expenses of counsel in connection with such breach or any action resulting from such breach.

 

5.4                               Indemnification by Venator. Subject to Section 5.6, Venator shall REGARDLESS OF FAULT indemnify, defend and hold harmless Huntsman, each member of the Huntsman Group and each of their respective past, present and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Huntsman Indemnitees”), from and against any and all Liabilities of the Huntsman Indemnitees arising out of or resulting from:

 

(a)                                 any Huntsman Third Party Claim to the extent arising out of or resulting from any of the following items:

 

(i)                                     the failure of Venator or any other member of the Venator Group or any other Person to pay, perform or otherwise promptly discharge any Venator

 

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Liabilities or Venator Contracts in accordance with its respective terms, whether prior to or after the Effective Date;

 

(ii)                                  the Venator Business, any Venator Liabilities or any Venator Contracts;

 

(iii)                               any representation or warranty (including any warranty of title) from or made by the Huntsman Group contained in any deed, agreement or other document constituting or relating to the Venator Assets or the Venator Business, including any conveyancing instrument whereby any of the Venator assets were conveyed, assigned or transferred to a member of the Venator Group (whether in connection with the Separation or a transaction not related to the Separation);

 

(iv)                              the Assumed Actions;

 

(v)                                 any Corporate Action or Action relating to the Venator Business from which Venator is unable to cause an Huntsman Group party to be removed pursuant to Section 5.8(d), but only to the extent relating to the Venator Business;

 

(vi)                              any use by any member of the Venator Group or Person that becomes an Affiliate of a member of the Venator Group after the Effective Date of the Huntsman Names and Marks;

 

(vii)                           any guarantee, indemnification obligation, letter of credit reimbursement obligations, surety, bond or other credit support agreement, arrangement, commitment or understanding for the benefit of Venator or its Subsidiaries by Huntsman or any of its Subsidiaries (other than Venator or its Subsidiaries) that survives following the Effective Date; and

 

(viii)                        any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the IPO Registration Statement or any Disclosure Document with respect to the IPO or any offering memorandum or other marketing materials prepared in connection with the Venator Debt Financing or otherwise, other than any such statement or omission therein based on information furnished by Huntsman solely in respect of the Huntsman Group (it being understood that, with respect to the IPO Registration Statement or Disclosure Documents, the only such information furnished by Huntsman is the information set forth in the section titled “                                  ”); and

 

(b)                                 any breach by Venator or any member of the Venator Group of this Agreement or any of the Ancillary Agreements.

 

5.5                               Indemnification by Huntsman. Subject to Section 5.6, Huntsman shall REGARDLESS OF FAULT indemnify, defend and hold harmless Venator, each member of the Venator Group and each of their respective past, present and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing

 

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(collectively, the “Venator Indemnitees”), from and against any and all Liabilities of the Venator Indemnitees arising out of or resulting from:

 

(a)                                 any Venator Third Party Claim to the extent arising out of or resulting from any of the following items:

 

(i)                                     the failure of Huntsman or any other member of the Huntsman Group or any other Person to pay, perform or otherwise promptly discharge any Huntsman Liabilities, whether prior to or after the Effective Date;

 

(ii)                                  the Huntsman Business, any Huntsman Liabilities or any Huntsman Contracts;

 

(iii)                               any representation or warranty (including any warranty of title) from or made by the Venator Group contained in any deed, agreement or other document constituting or relating to the Huntsman Assets or the Huntsman Business, including any conveyancing instrument whereby any of the Huntsman assets were conveyed, assigned or transferred to a member of the Huntsman Group (whether in connection with the Separation or a transaction not related to the Separation);

 

(iv)                              any Corporate Action or Action relating to the Huntsman Business from which Huntsman is unable to cause a Venator Group party to be removed pursuant to Section 5.8(d) (but only to the extent relating to the Huntsman Business);

 

(v)                                 any Actions listed on Schedule 5.5(a)(v); and

 

(b)                                 any breach by Huntsman or any member of the Huntsman Group of this Agreement or any of the Ancillary Agreements.

 

5.6                               Indemnification Obligations Net of Insurance Proceeds.

 

(a)                                 The Parties intend that any Liability subject to indemnification or reimbursement pursuant to this Article V or Article VI will be net of Insurance Proceeds that actually reduce the amount of the Liability. Accordingly, the amount which any Party (an “Indemnifying Party”) has paid to or on behalf of any person or entity entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Liability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received and any costs or expenses incurred by the Indemnitee in recovering such payment over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds had been received, realized or recovered before the Indemnity Payment was made.

 

(i)                                     Notwithstanding anything in Section 5.6(a), the initial obligation of the Indemnifying Party shall be to indemnify fully the Indemnitee, without regard to whether there may or may not be available Insurance Proceeds.

 

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(ii)                                  Once the Indemnifying Party has indemnified the Indemnitee, or agreed to the reasonable satisfaction of the Indemnitee to indemnify the Indemnitee without reservation or exception, for a liability as to which the Indemnitee may have insurance coverage, then upon the request of the Indemnifying party, the Indemnitee shall pursue recovery of Insurance Proceeds under the Indemnitee’s insurance policies, including making claims and filing suits if necessary. Such insurance recovery efforts shall be at the sole cost and expense of the Indemnifying Party, but shall be under the final control of the Indemnitee. Specifically, the Indemnitee shall retain and direct counsel, control litigation, and make final decisions on all matters, including settlement or any other form of claim resolution relating to such insurance recovery effort. In all such matters, the Indemnitee shall consult with the Indemnifying Party if requested, but the Indemnitee shall retain final authority.

 

(b)                                 An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility therefor, or have any subrogation rights with respect thereto, as a consequence of the indemnification rights under this Agreement.

 

(c)                                  The Parties intend that any indemnification or reimbursement payment in respect of a Liability pursuant to this Article V or Article VI shall be (i) reduced to take into account the amount of any Tax Benefit actually realized by the indemnified or reimbursed Person in respect of such Liability by the end of the taxable year in which the indemnification or reimbursement payment is made and (ii) increased as necessary to ensure that, after all required Taxes on the indemnification or reimbursement payment are paid (including Taxes applicable to any increases in the indemnity payment under this Section 5.6(c)), the indemnified or reimbursed Person receives the amount it would have received if the indemnity payment was not taxable. For purposes of this Section 5.6(c), the amount of any Tax Benefit and any Income Taxes shall be calculated on the basis that the indemnified or reimbursed Person is subject to the highest federal marginal regular statutory income Tax rate, has sufficient taxable income to permit the realization or receipt of any relevant Tax Benefit at the earliest possible time and is not subject to the alternative minimum tax.

 

(d)                                 For all claims as to which indemnification is provided under Section 5.4 or 5.5 other than Third-Party Claims (as to which Section 5.7 shall apply), the reasonable fees and expenses of counsel to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

 

5.7                               Procedures for Indemnification of Third Party Claims.

 

(a)                                 If an Indemnitee shall receive written notice of a Third Party Claim with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnitee pursuant to Section 5.4 or 5.5, or any other Section of this Agreement or any other Ancillary Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof within fourteen (14) days of such written notice. Any such notice shall describe the Third-Party Claim in reasonable detail and include copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim. Notwithstanding the foregoing, the failure of an Indemnitee to provide notice in accordance with this Section 5.7(a) shall not relieve an Indemnifying Party of its indemnification obligations under this Agreement,

 

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except to the extent to which the Indemnifying Party shall demonstrate that it was materially prejudiced by the Indemnitee’s failure to provide notice in accordance with this Section 5.7(a).

 

(b)                                 An Indemnifying Party may elect to defend (and, unless the Indemnifying Party has specified any reservations or exceptions, to seek to settle or compromise), at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any Third-Party Claim; provided, however, that an Indemnifying Party shall not be entitled to elect to defend any Third Party Claim that potentially includes Liabilities for which the Indemnitee will not be indemnified hereunder unless either the Indemnitee consents to the Indemnifying Party assuming such defense or the Indemnifying Party agrees to assume such defense and indemnify without reservation or exception. Within thirty (30) days after the receipt of notice from an Indemnitee in accordance with Section 5.7(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election whether the Indemnifying Party will assume responsibility for defending such Third-Party Claim, which election shall specify any reservations or exceptions if the Indemnitee has consented to the Indemnifying Party assuming the defense notwithstanding such reservations or exceptions. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee except as set forth in the next sentence.

 

(c)                                  If the Indemnifying Party has elected (and is permitted hereunder) to assume the defense of the Third-Party Claim but has specified, and continues to assert, any reservations or exceptions in such notice, then, in any such case, the reasonable fees and expenses of one separate counsel for all Indemnitees shall be the expense of such Indemnitees, but shall be promptly reimbursed by the Indemnifying Party. If the Indemnifying Party has elected to assume the defense of the Third Party Claim but has specified, and continues to assert, any reservations or exceptions in such notice, then the Indemnifying Party must obtain the consent of the Indemnitee prior to any settlement or compromise.

 

(d)                                 Notwithstanding an election by an Indemnifying Party to defend a Third-Party Claim pursuant to Section 5.7(b), the Indemnitee may, upon notice to the Indemnifying Party, elect to take over the defense of such Third-Party Claim if (i) in its exercise of reasonable business judgment, the Indemnitee determines that the Indemnifying Party is not defending such Third-Party Claim in good faith, (ii) the Credit Rating of the Indemnifying Party is or falls below the Minimum Credit Rating as determined by at least two Rating Agencies, (iii) the Indemnitee determines in its exercise of reasonable business judgment that there exists a compelling business reason for such Indemnitee to defend such Third-Party Claim (other than as contemplated by the foregoing clause (i)), (iv) the Indemnifying Party makes a general assignment for the benefit of creditors, has filed against it or files a petition in bankruptcy or insolvency or is declared bankrupt or insolvent or declares that it is bankrupt or insolvent, or (v) when Huntsman is the Indemnitee, there has occurred a change of control of Venator since the Effective Date.

 

(e)                                  If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, or fails to notify an Indemnitee of its election as provided in Section 5.7(b),

 

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or if an Indemnitee takes over the defense of a Third-Party Claim as provided in Section 5.7(d), the Indemnifying Party shall bear, and reimburse promptly, all of the Indemnitee’s reasonable costs and expenses incurred in defending such Third-Party Claim.

 

(f)                                   If, pursuant to Section 5.7(d) or for any other reason, the Indemnifying Party is not defending a Third-Party Claim for which indemnification is provided under this Agreement, the Indemnifying Party shall have the right, at its own expense, to monitor reasonably the defense of such Third-Party Claim; provided, that such monitoring activity shall not interfere in any material respect with the conduct of such defense.

 

(g)                                  If an Indemnifying Party has failed to assume the defense of the Third-Party Claim in accordance with the terms of this Agreement or an Indemnitee takes over the defense of a Third-Party Claim as provided in Section 5.7(d)(i), an Indemnitee may settle or compromise the Third-Party Claim without the consent of the Indemnifying Party. If an Indemnitee takes over the defense of a Third-Party Claim as provided in Section 5.7(d)(ii)-(v), such Indemnitee may not settle or compromise any Third-Party Claim without the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed.

 

(h)                                 In the case of a Third-Party Claim, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement of the Third-Party Claim without the consent of the Indemnitee if the effect thereof is to permit any injunction, declaratory judgment, regulatory penalty or other non-monetary relief to be entered, directly or indirectly against any Indemnitee.

 

(i)                                     Venator or Huntsman, as applicable, shall prepare and circulate a legal hold order (“LHO”) covering relevant categories of documents as promptly as practical following receipt of any notice pursuant to Section 5.7(a) and shall promptly notify the other Party after such LHO has been circulated. Huntsman or Venator, as applicable, shall prepare and circulate a LHO covering documents in the possession, custody or control of the members of its Group with respect to any Action so notified to the other Party.

 

(j)                                    The provisions of this Section 5.7 (other than this Section 5.7(j)) and the provisions of Section 5.8 shall not apply to Taxes (Taxes being governed by the Tax Matters Agreement).

 

(k)                                 All Assumed Actions have been tendered by Huntsman to Venator and are deemed to be formally accepted by Venator upon the execution of this Agreement without reservation or exception and Venator has elected to defend all such actions subject to the other provisions of this Section 5.7.

 

(l)                                     An Indemnifying Party shall provide the Indemnitee with a monthly written report identifying any Third Party Claims which such Indemnifying Party has elected to defend pursuant to this Section 5.7.

 

5.8                               Additional Matters.

 

(a)                                 Indemnification payments in respect of any Liabilities for which an Indemnitee is entitled to indemnification under this Article V shall be paid by the Indemnifying

 

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Party to the Indemnitee as such Liabilities are incurred upon demand by the Indemnitee, including reasonably satisfactory documentation setting forth the basis for the amount of such indemnification payment, including documentation with respect to calculations made and consideration of any Insurance Proceeds that actually reduce the amount of such Liabilities; provided, however, that if requested by the Indemnitee, in the case of any Third Party Claims for which the Indemnifying Party is liable under the terms of this Agreement, the Indemnifying Party will pay the amounts due to such Third Party as a result of any settlement of such Third Party Claim in accordance with Section 5.7 directly to the Third Party as opposed to reimbursing the Indemnitee for the amounts paid in any such settlement. THE INDEMNITY AGREEMENTS CONTAINED IN THIS ARTICLE V SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT, REGARDLESS OF (I) ANY INVESTIGATION MADE BY OR ON BEHALF OF ANY INDEMNITEE AND (II) THE KNOWLEDGE BY THE INDEMNITEE OF LIABILITIES FOR WHICH IT MIGHT BE ENTITLED TO INDEMNIFICATION HEREUNDER.

 

(b)                                 Any claim on account of a Liability that does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnitee to the related Indemnifying Party. Such Indemnifying Party shall have a period of thirty (30) days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such thirty (30)-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such thirty (30)-day period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such Party as contemplated by this Agreement and the other Ancillary Agreements.

 

(c)                                  In the event of payment by or on behalf of any 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, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. 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, defense or claim.

 

(d)                                 In the event of an Action for which indemnification is sought pursuant to Section 5.4 or 5.5 and in which the Indemnifying Party is not a named defendant, if either the Indemnitee or Indemnifying Party shall so request, the Parties shall use commercially reasonable efforts to substitute the Indemnifying Party for the named defendant.

 

5.9                               Remedies Cumulative. The remedies provided in this Article V 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 expressly provided in this Agreement or any Ancillary Agreement; provided, however, if a Party has recovered any Losses from the other Party pursuant to any provision of this Agreement or any Ancillary Agreement or otherwise, it shall not be entitled to recover the same Losses pursuant to any other provision of this Agreement or any Ancillary Agreement.

 

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5.10                        Survival of Indemnities. The rights and obligations of each of Huntsman and Venator and their respective Indemnitees under this Article V shall survive the sale or other transfer by any Party of any Assets or businesses or the assignment by it of any Liabilities.

 

5.11                        Guarantees, Letters of Credit and other Obligations. In furtherance of, and not in limitation of, the obligations set forth in Sections 2.6 and 8.3 hereof:

 

(a)                                 On or prior to the Effective Date or as soon as practicable thereafter, Venator shall (with the reasonable cooperation of the applicable member(s) of the Huntsman Group) use its commercially reasonable efforts to have any member(s) of the Huntsman Group removed as guarantor of or obligor for any Venator Liability, including in respect of those guarantees, letters of credit and other obligations set forth on Schedule 5.11(a).

 

(b)                                 On or prior to the Effective Date, to the extent required to obtain a release from a guarantee, letter of credit or other obligation of any member of the Huntsman Group, Venator shall execute a substitute document substantially in the form of any such existing guarantee or letter of credit, as applicable, or such other form as is agreed to by the relevant parties to such guarantee agreement, letter of credit or other obligation, provided that Venator shall not be required to make or agree to any representations, covenants or other terms or provisions in an existing guarantee, letter of credit or other obligation to the extent (i) Venator would not be reasonably able to comply therewith or (ii) Venator would reasonably be expected to be in breach thereof.

 

(c)                                  If the Parties are unable to obtain, or to cause to be obtained, any such required removal as set forth in clauses (a) and (b) of this Section 5.11, (i) Venator shall REGARDLESS OF FAULT indemnify, defend and hold harmless each of the Huntsman Indemnitees for any Liability arising from or relating to such guarantee, letter of credit or other obligation, as applicable, and shall, as agent or subcontractor for the applicable Huntsman Group guarantor or obligor, pay, perform and discharge fully all of the obligations or other Liabilities of such guarantor or obligor thereunder, and (ii) Venator shall not, and shall cause the other members of the Venator Group not to, agree to renew or extend the term of, increase any obligations under, or transfer to a Third Party, any loan, guarantee, letter of credit, lease, contract or other obligation for which a member of the Huntsman Group is or may be liable unless all obligations of the members of the Huntsman Group with respect thereto are thereupon terminated by documentation satisfactory in form and substance to Huntsman in its sole and absolute discretion.

 

5.12                        No Impact on Third Parties. For the avoidance of doubt, except as expressly set forth in this Agreement, the indemnifications provided for in this Article V are made only for purposes of allocating responsibility for Liabilities between the Huntsman Group, on the one hand, and the Venator Group, on the other hand, and are not intended to, and shall not, affect any obligations to, or give rise to any rights of, any Third Parties.

 

5.13                        No Cross-Claims or Third-Party Claims. Each of Venator and Huntsman agrees that it shall not, and shall not permit any of its respective Subsidiaries or controlled Affiliates to, in connection with any Third-Party Claim, assert as a counterclaim or third-party claim against any member of the Huntsman Group or Venator Group, respectively, any claim (whether

 

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sounding in contract, tort or otherwise) that arises out of or relates to this Agreement, any breach or alleged breach hereof, the transactions contemplated hereby (including all actions taken in furtherance of the transactions contemplated hereby on or prior to the date hereof), or the construction, interpretation, enforceability or validity hereof, which in each such case shall be asserted only as contemplated by Article V.

 

5.14                        Severability. If any indemnification provided for in this Article V is determined by any arbitrator or arbitral tribunal with authority to make such determination under Article V or by a Texas federal or state court to be invalid, void or unenforceable, the Liability shall be apportioned between the Indemnitee and the Indemnifying Party as determined in a separate proceeding in accordance with Article V.

 

5.15                        Change of Control. If any Third Party or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) acquires beneficial ownership, including by way of merger, consolidation or other business combination, of fifty percent (50%) or more of the assets or voting equity of Venator, Venator shall take all necessary action so that such Third Party or group shall become a guarantor of the obligations of Venator under this Agreement and the Ancillary Agreements.

 

ARTICLE VI
INSURANCE MATTERS

 

6.1                               Insurance Matters.

 

(a)                                 Huntsman and Venator agree to cooperate in good faith to arrange insurance coverage for Venator to be effective no later than the Effective Date. In no event shall Huntsman, any other member of the Huntsman Group or any Huntsman Indemnitee have Liability or obligation whatsoever to any member of the Venator Group if any insurance policy or other contract or policy of insurance shall be terminated or otherwise cease to be in effect for any reason, shall be unavailable or inadequate to cover any Liability of any member of the Venator Group for any reason whatsoever or shall not be renewed or extended beyond the current expiration date.  From and after the Effective Date, other than as provided in Sections 6.1(c) and 6.1(d), neither Venator nor any member of the Venator Group shall have any rights to or under any of Huntsman’s or its Affiliates’ insurance policies.

 

(b)                                 At the Effective Date, Venator shall have in effect all insurance programs required to comply with Venator’s contractual obligations and such other insurance policies as reasonably necessary, and, following the Effective Date, Venator shall maintain such insurance programs and policies with insurers which comply with the minimum financial credit rating standards set by the major global insurance brokers.

 

(c)                                  From the Effective Date through the fifth (5th) anniversary of the Effective Date, Huntsman shall continue to provide to the Venator Covered Group, as commercially and reasonably available, the same directors, officers and fiduciary coverage as Huntsman provides to Huntsman’s directors and officers; and, to the extent that Huntsman’s current directors, officers, and fiduciary policies provide coverage to former subsidiaries, shall continue to provide such coverage, as commercially and reasonably available, with respect to Venator and Venator’s

 

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subsidiaries, if any, that existed at any time prior to the Effective Date. Such coverage, if obtained, will not extend to any acts that occur, actually or allegedly, on or after the Effective Date.

 

(d)                                 Following the Effective Date, except with respect to the insurance matters identified on Schedule 6.1(d), whose treatment shall be as set forth on such Schedule, with respect to any losses, damages and liabilities incurred by any member of the Venator Group prior to or in respect of the period prior to the Effective Date, Huntsman will provide Venator with access to, and Venator may, upon 10 days’ prior written notice to Huntsman, make claims under Huntsman’s insurance policies in place at the Effective Date and Huntsman’s historical policies of insurance, but solely to the extent that such policies provided coverage for any of the members of the Venator Group prior to the IPO.  Huntsman will reasonably cooperate with Venator, any member of the Venator Group, and/or any of their present or former employees, officers, or directors in order to afford access for such parties to any insurance policies issued to Huntsman under which any such parties are insureds. The foregoing shall not apply to fronted policies to the extent not reinsured and/or to any other policies to the extent that they do not accomplish an actual risk transfer. It is understood that the coverage available to Venator, any member of the Venator Group, and/or any of their present or former employees, officers, or directors shall be subject to the terms and conditions of such insurance policies, including any limits on coverage or scope, any deductibles and other fees and expenses, and shall be subject to the following additional conditions:

 

(i)                                     Venator shall provide Huntsman with a written report sixty (60) days prior to any such third-party insurance policy’s renewal date, as advised by Huntsman, identifying any claims made by Venator for which notice has previously been provided to insurers of Huntsman;

 

(ii)                                  Venator and its Affiliates shall indemnify, hold harmless and reimburse Huntsman and its Affiliates for any deductibles, self-insured retention, fees and expenses incurred by Huntsman or its Affiliates to the extent resulting from any such access to, or any claims made by Venator or any of its Affiliates under, any insurance provided pursuant to this Section 6.1(d), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are made by Venator, its employees or Third Parties; and

 

(iii)                               Venator shall exclusively bear (and neither Huntsman nor its Affiliates shall have any obligation to repay or reimburse Venator or its Affiliates for) and shall be liable for all uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by Venator or any of its Affiliates under the policies as provided for in this Section 6.1(d).

 

If an insurance policy aggregate is exhausted, or believed likely to be exhausted, due to noticed claims, the Venator Group, on the one hand, and the Huntsman Group, on the other hand, shall be responsible for their pro rata portion of the reinstatement premium, based upon the losses of such Group submitted to Huntsman’s insurance carrier(s) (including any submissions prior to the Effective Date). To the extent that the Huntsman Group or the Venator Group is allocated more than its pro rata portion of such premium due to the timing of losses submitted to

 

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Huntsman’s insurance carrier(s), the other Party shall promptly pay the first Party an amount so that each Group has been properly allocated its pro rata portion of the reinstatement premium. Huntsman can decide not to reinstate the policy aggregate and each Group then will bear all of its own future costs.

 

If any member of the Huntsman Group incurs any losses, damages or Liability prior to the Effective Date under Venator’s third-party insurance policies and captive insurance policies (to the extent such captive insurance policies have been reinsured), the same process pursuant to this Section 6.1(d) shall apply, substituting “Huntsman” for “Venator” and “Venator” for “Huntsman.”

 

(e)                                  All payments and reimbursements by Venator pursuant to this Section 6.1 will be made within forty-five (45) days after Venator’s receipt of an invoice therefor from Huntsman. If Huntsman incurs costs to enforce Venator’s obligations herein, Venator agrees to indemnify Huntsman for such enforcement costs, including attorneys’ fees.

 

(f)                                   All payments and reimbursements by Huntsman pursuant to this Section 6.1 will be made within forty-five (45) days after Huntsman’s receipt of an invoice therefor from Venator. If Venator incurs costs to enforce Huntsman’s obligations herein, Huntsman agrees to indemnify Venator for such enforcement costs, including attorneys’ fees.

 

(g)                                  Except to the extent that Venator, any member of the Venator Group, and/or any of their present or former employees, officers or directors is an insured thereunder, Huntsman shall retain the exclusive right to control its insurance policies and programs. With the sole exception of the rights of Venator, members of the Venator Group, and/or any of their present or former employees, officers, or directors to settle claims as to which they are insureds, for monetary amounts payable to them or on their behalf, Huntsman shall have the exclusive right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and programs and to amend, modify or waive any rights under any such insurance policies and programs, notwithstanding whether any such policies or programs apply to any Venator Liabilities and/or claims Venator has made or could make in the future, and no member of the Venator Group shall, without the prior written consent of Huntsman, erode, exhaust, settle, release, commute, buy-back or otherwise resolve disputes with Huntsman’s insurers with respect to any of Huntsman’s insurance policies and programs, or amend, modify or waive any rights under any such insurance policies and programs. Venator shall cooperate with Huntsman and share such information at Venator’s cost as is reasonably necessary in order to permit Huntsman to manage and conduct its insurance matters as it deems appropriate. Neither Huntsman nor any of its Affiliates shall have any obligation to secure extended reporting for any claims under any of Huntsman’s or its Affiliates’ liability policies for any acts or omissions by any member of the Venator Group incurred prior to the Effective Date.

 

(h)                                 This Agreement shall not be considered as an attempted assignment of any policy of insurance or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Huntsman Group in respect of any insurance policy or any other contract or policy of insurance.

 

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(i)                                     Venator does hereby, for itself and each other member of the Venator Group, agree that no member of the Huntsman Group shall have any Liability whatsoever as a result of the insurance policies and practices of Huntsman and its Affiliates as in effect at any time, including as a result of the level or scope of any such insurance, the creditworthiness of any insurance carrier, the terms and conditions of any policy, or the adequacy or timeliness of any notice to any insurance carrier with respect to any claim or potential claim or otherwise.

 

(j)                                    The Parties acknowledge that to the extent there are losses or premium adjustments under the Parties’ tripartite insurance agreements, such losses or adjustments will be governed by such tripartite insurance agreements.

 

ARTICLE VII
EXCHANGE OF INFORMATION; CONFIDENTIALITY

 

7.1                               Agreement for Exchange of Information. Subject to Section 7.7 and any other applicable confidentiality obligations, each of Huntsman and Venator, on behalf of its respective Group, agrees to provide, or cause to be provided, to the other Group, at any time before or after the Effective Date, as soon as reasonably practicable after written request therefor, access to any Information in the possession or under the control of such respective Group which the requesting Party reasonably needs (a) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities or tax Laws) by a Governmental Authority having jurisdiction over the requesting Party, (b) for use in any other judicial, regulatory, administrative, tax or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, tax or other similar requirements, in each case other than claims or allegations that one Party has against the other, or (c) subject to the foregoing clause (b), to comply with its obligations under this Agreement or any other Ancillary Agreement; provided, however, that, in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any Law or agreement, or waive any privilege otherwise available under applicable Law, including the attorney-client privilege, work product, joint defense, common interest or other applicable privilege (each, a “Privilege”) the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence, and shall only provide that portion of the Information that is mandatorily required by the requesting agency.

 

7.2                               Ownership of Information. Any Information owned by one Group that is provided to a requesting Party pursuant to Section 7.1 or 7.6 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 any right, title or interest whether by license or otherwise in any such Information.

 

7.3                               Reimbursement for Providing Information. Except as otherwise contemplated by any Ancillary Agreement, the Party requesting Information agrees to reimburse the other Party for the reasonable costs, if any, of creating, gathering and copying such Information. Except as may be otherwise specifically provided elsewhere in this Agreement or in any other agreement between the Parties, such costs shall be computed in accordance with the providing Party’s standard methodology and procedures.

 

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7.4                               Record Retention. Except as otherwise provided in any Ancillary Agreement, with regard to any Information, each Party shall use its commercially reasonable efforts, at such parties sole cost and expense, to retain, until the latest of, as applicable, (i) the date on which such Information is no longer required to be retained pursuant to Huntsman’s applicable record retention policy as in effect immediately prior to the IPO, including, without limitation, pursuant to any “Litigation Hold” issued by Huntsman or any of its Subsidiaries prior to the IPO (ii) the concluding date of any period as may be required by any applicable Law, (iii) the concluding date of any period during which such information relates to a pending or threatened Action which is known to the members of the Huntsman Group or Venator Group, as applicable, in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire, and (iv) the concluding date of any period during which the destruction of such Information could interfere with a pending or threatened investigation by a Governmental Entity which is known to the members of the Huntsman Group or Venator Group, as applicable, in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire; provided that with respect to any pending or threatened Action arising after the IPO, clause (iii) of this sentence applies only to the extent that whichever member of the Huntsman Group or Venator Group, as applicable, is in possession of such Information has been notified in writing pursuant to a “Litigation Hold” by the other Party of the relevant pending or threatened Action.  The parties hereto agree that upon written request from the other that certain Information relating to the Venator Business, the Huntsman Business or the transactions contemplated hereby be retained in connection with an Action, the parties use reasonable efforts to preserve and not to destroy or dispose of such Information without the consent of the requesting party. Notwithstanding the foregoing, Section 6.7(c) of the Tax Matters Agreement shall govern the retention of Tax Records (as defined in the Tax Matters Agreement).

 

7.5                               Other Agreements Providing for Exchange of Information. The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in this Agreement or any Ancillary Agreement.

 

7.6                               Production of Witnesses; Records; Cooperation.

 

(a)                                 After the Effective Date, except in the case of an adversarial Action by one Party against another Party, each Party shall use its commercially reasonable efforts to make available to the other Party, upon written request, the former, current and future directors, officers, employees, managers, other personnel and agents of the members of its respective Group as witnesses and any Records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, employees, managers, other personnel and agents) or Records or other documents may reasonably be required in connection with any Action in which the requesting Party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought hereunder. The requesting Party shall bear all costs and expenses in connection therewith.

 

(b)                                 If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third-Party Claim, the other Party shall make available to such Indemnifying Party, upon written request, the former, current and future directors, officers, employees, managers,

 

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other personnel and agents of the members of its respective Group as witnesses and any Records (unless the provision of any Record would result in the waiver of any applicable Privilege) or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, employees, managers, other personnel and agents) or Records or other documents may reasonably be required in connection with such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be.

 

(c)                                  Without limiting the foregoing, the Parties shall cooperate and consult to the extent reasonably necessary with respect to any Third Party Actions.

 

(d)                                 Without limiting any provision of this Section 7.6, each of the Parties agrees to cooperate, and to cause each member of its respective Group to cooperate, with each other in the defense of any infringement or similar claim with respect any Intellectual Property and shall not claim to acknowledge, or permit any member of its respective Group to claim to acknowledge, the validity or infringing use of any Intellectual Property of a Third Party in a manner that would hamper or undermine the defense of such infringement or similar claim.

 

(e)                                  The obligation of the Parties to provide witnesses pursuant to this Section 7.6 is intended to be interpreted in a manner so as to facilitate cooperation and shall include the obligation to provide as witnesses inventors and other officers without regard to whether the witness or the employer of the witness could assert a possible business conflict (subject to the exception set forth in the first sentence of Section 7.6(a)).

 

(f)                                   In connection with any matter contemplated by this Section 7.6, the Parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent practicable any applicable Privilege of any member of any Group.

 

7.7                               Confidentiality.

 

(a)                                 Notwithstanding any termination of this Agreement, and except as otherwise provided in the Ancillary Agreements, each of Huntsman and Venator shall hold, and shall cause their respective officers, employees, agents, consultants and advisors to hold, in strict confidence and not to disclose or release or, except as otherwise permitted by this Agreement or any Ancillary Agreement, use, without the prior written consent of the Party to whom the Confidential Information relates (which may be withheld in such Party’s sole and absolute discretion, except where disclosure is required by applicable Law), any and all Confidential Information concerning or belonging to the other Party or its Affiliates; provided that each Party may disclose, or may permit disclosure of, Confidential Information (i) to its respective auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such Information or auditing and other non-commercial purposes and are informed of the obligation to hold such Information confidential and in respect of whose failure to comply with such obligations, the applicable Party will be responsible, (ii) if any Party or any of its respective Subsidiaries is required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule or is

 

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advised by outside counsel in connection with a proceeding brought by a Governmental Entity that it is advisable to do so, (iii) as required in connection with any legal or other proceeding by one Party against any other Party or in respect of claims by one Party against the other Party brought in a proceeding, (iv) as necessary in order to permit a Party to prepare and disclose its financial statements in connection with any regulatory filings or Tax Returns, (v) as necessary for a Party to enforce its rights or perform its obligations under this Agreement or an Ancillary Agreement, (vi) to Governmental Entities in accordance with applicable procurement regulations and contract requirements and (vii) to other Persons in connection with their evaluation of, and negotiating and consummating, a potential transaction, to the extent reasonably necessary in connection therewith, provided an appropriate and customary confidentiality agreement has been entered into with such other Persons receiving such Confidential Information.  Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a Third Party pursuant to clause (ii), (iii), (v) or (vi) above, each Party, as applicable, shall promptly notify (to the extent permissible by Law) the Party to whom the Confidential Information relates of the existence of such request, demand or disclosure requirement and shall provide such affected Party a reasonable opportunity to seek an appropriate protective order or other remedy, which such Party will cooperate in obtaining to the extent reasonably practicable.  In the event that such appropriate protective order or other remedy is not obtained, the Party which faces the disclosure requirement shall furnish only that portion of the Confidential Information that is required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is a accorded such Confidential Information.

 

(b)                                 Each Party acknowledges that it and the other members of its Group may have in its or their possession Confidential Information of third parties that was received under confidentiality or non-disclosure agreements with such third party while such Party and/or members of its Group were part of the Huntsman Group.  Each Party shall comply, and shall cause the other members of its Group to comply, and shall cause its and their respective officers, employees, agents, consultants and advisors (or potential buyers) to comply, with all terms and conditions of any such third-party agreements entered into prior to the Effective Date, with respect to any Confidential Information of third parties to which it or any other member of its Group has had access.

 

(c)                                  Notwithstanding anything to the contrary set forth herein, (i) the Parties shall be deemed to have satisfied their obligations hereunder with respect to Confidential Information if they exercise at least the same degree of care that applies to Huntsman’s confidential and proprietary information pursuant to policies in effect as of the Effective Date and (ii) confidentiality obligations provided for in any Contract between each Party or its Subsidiaries and their respective employees shall remain in full force and effect.  Notwithstanding anything to the contrary set forth herein, Confidential Information of any Party in the possession of and used by any other Party as of the Effective Time may continue to be used by such Party in possession of the Confidential Information in and only in the operation of the Venator Business (in the case of the Venator Group) or the Huntsman Business (in the case of the Huntsman Group).

 

(d)                                 The parties agree that irreparable damage may occur in the event that the provisions of this Section 7.7 were not performed in accordance with their specific terms.  Accordingly, it is hereby agreed that the Parties shall be entitled to seek an injunction or

 

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injunctions to enforce specifically the terms and provisions hereof in any court having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.

 

(e)                                  For the avoidance of doubt and notwithstanding any other provision of this Section 7.7, (i) the disclosure and sharing of Privileged Information shall be governed solely by Section 7.9, and (ii) Information that is subject to any confidentiality provision or other disclosure restriction in any Ancillary Agreement shall be governed by the terms of such Ancillary Agreement.

 

7.8                               Protective Arrangements.

 

(a)                                 If Venator or any member of its Group either determines on the advice of its counsel that it is required to disclose any Information pursuant to applicable Law or receives any demand under lawful process or from any Governmental Authority to disclose or provide Information of Huntsman (or any member of the Huntsman Group) that is subject to the confidentiality provisions hereof, Venator shall use commercially reasonable efforts to notify Huntsman prior to disclosing or providing such Information and shall cooperate at the expense of Huntsman in seeking any reasonable protective arrangements requested by Huntsman. Subject to the foregoing, the Person that received such request may thereafter disclose or provide Information to the extent required by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.

 

(b)                                 If Huntsman or any member of its Group either determines on the advice of its counsel that it is required to disclose any Information pursuant to applicable Law or receives any demand under lawful process or from any Governmental Authority to disclose or provide Information of Venator  (or any member of the Venator Group) that is subject to the confidentiality provisions hereof, Huntsman shall use commercially reasonable efforts to notify Venator prior to disclosing or providing such Information and shall cooperate at the expense of Venator in seeking any reasonable protective arrangements requested by Venator. Subject to the foregoing, the Person that received such request may thereafter disclose or provide Information to the extent required by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.

 

ARTICLE VIII
FURTHER ASSURANCES AND ADDITIONAL COVENANTS

 

8.1                               Further Assurances.

 

(a)                                 In addition to the actions specifically provided for elsewhere in this Agreement, each of the Parties shall use its commercially reasonable efforts, prior to, on and after the Effective Date, 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 and the Ancillary Agreements.

 

(b)                                 Without limiting the foregoing, prior to, on and after the Effective Date, each Party hereto shall cooperate with the other Party, and without any further consideration, but

 

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at the expense of the requesting Party, to execute and deliver, or use its 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 (including any Third Party consents or Governmental Approvals), and to take all such other actions as such Party may reasonably be requested to take by any other Party hereto from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the transfers of the Venator Assets and the assignment and assumption of the Venator Liabilities and the other transactions contemplated hereby and thereby.

 

(c)                                  On or prior to the Effective Date, Huntsman and Venator in their respective capacities as direct and indirect stockholders of their respective Subsidiaries, shall each ratify any actions which are reasonably necessary or desirable to be taken by any Subsidiary of Huntsman or Venator, as the case may be, to effectuate the transactions contemplated by this Agreement and the Ancillary Agreements.

 

(d)                                 Huntsman and Venator, and each of the members of their respective Groups, waive (and agree not to assert against any of the others) any claim or demand that any of them may have against any of the others for any Liabilities or other claims relating to or arising out of: (i) the failure of Venator or any member of the Venator Group, on the one hand, or of Huntsman or any member of the Huntsman Group, on the other hand, to provide any notification or disclosure required under any state Environmental Law in connection with the Separation or the other transactions contemplated by this Agreement or the Ancillary Agreements, including the transfer by any member of any Group to any member of the other Group of ownership or operational control of any Assets not previously owned or operated by such transferee; or (ii) any inadequate, incorrect or incomplete notification or disclosure under any such state Environmental Law by the applicable transferor. To the extent any Liability to any Governmental Authority or any Third Party arises out of any action or inaction described in clause (i) or (ii) above, the transferee of the applicable Asset hereby assumes and agrees to pay any such Liability.

 

8.2                               Performance. Huntsman will cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement or in any Ancillary Agreement to be performed by any member of the Huntsman Group. Venator will cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth in this Agreement or in any Ancillary Agreement to be performed by any member of the Venator Group. Each Party (including its permitted successors and assigns) further agrees that it will (a) give timely notice of the terms, conditions and continuing obligations contained in this Section 8.2 to all of the other members of its Group, and (b) cause all of the other members of its Group not to take any action or fail to take any such action inconsistent with such Party’s obligations under this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby.

 

8.3                               Huntsman Guarantees. Venator acknowledges that in the course of conduct of the Venator Business, Huntsman and members of the Huntsman Group may have entered into various arrangements in which guarantees, bonds, letters of credit or similar arrangements were

 

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issued or arranged by Huntsman or members of the Huntsman Group to support or facilitate the Venator Business. Any such arrangements entered into by Huntsman and its Affiliates are, to the extent related to the Venator Business, hereinafter referred to as the “Huntsman Guarantees.” Except as otherwise agreed by Huntsman and Venator, Venator agrees that it will use its commercially reasonable efforts to obtain or provide replacement guarantees, bonds, letters of credit or similar arrangements, which will be in effect at the Effective Date, and obtain the release of Huntsman and members of the Huntsman Group from any Huntsman Guarantees in accordance with Section 5.11. On a quarterly basis and upon any specific request by Huntsman, Venator shall provide Huntsman a listing of outstanding Huntsman Guarantees and the then current status with respect to the replacement or cancellation of such Huntsman Guarantees and other relevant information with respect thereto that Huntsman reasonably requests.

 

8.4                               Third-Party Agreements. Venator agrees that it will use its commercially reasonable efforts to obtain or provide replacement agreements with Third Parties for agreements between such Third Parties and Huntsman or any member of the Huntsman Group that are Venator Contracts and cannot be assigned to Venator.

 

8.5                               Huntsman Names and Marks.

 

(a)                                 Venator agrees that, after the Effective Date, no member of the Venator Group nor any Person that becomes an Affiliate of a member of the Venator Group after the Effective Date, shall have any rights in and to the Huntsman Names and Marks, and (except as expressly set forth in this Section 8.5) will not, at any time after the Effective Date, market, promote, advertise or offer for sale any products, goods or services utilizing any of the Huntsman Names and Marks [or otherwise hold itself out as having any affiliation with the Huntsman Group]. Venator agrees that (i) if the Venator Assets include any signage or facility bearing the Huntsman Names and Marks in a manner that is visible to consumers or the general public, Venator shall remove and replace the Huntsman Names and Marks on such signage or facility within one hundred eighty (180) days after the Effective Date, (ii) if the Venator Assets include any vehicles that bear any of the Huntsman Names and Marks and are visible to consumers or the general public, Venator shall remove and replace such Huntsman Names and Marks within two hundred seventy (270) days after the Effective Date, and (iii) if any of the other Venator Assets, including any promotional materials or printed forms, bear any of the Huntsman Names and Marks, Venator shall, prior to distributing, selling or otherwise making use of such Venator Assets for consumers or the general public, remove, delete or render illegible the Huntsman Names and Marks as they may appear on such Venator Assets. Notwithstanding the foregoing, for a period of one hundred eighty (180) days after the Effective Date, Venator may distribute and display marketing, promotional and advertising materials including business cards, stationery, packaging materials, displays, signs, promotional materials and other similar materials that include one or more of the Huntsman Names and Marks (collectively, “Supplies”), provided such Supplies are used solely in connection with the promotion, marketing, advertising and sale of the Venator Business’ products of the type sold, and in a manner consistent with that used, prior to the Effective Date

 

(b)                                 Venator agrees to cause each member of the Venator Group whose name includes any of the Huntsman Names and Marks, promptly following the Effective Date, and in

 

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any event within two hundred seventy (270) days after the Effective Date, change its name such that its name does not include any of the Huntsman Names and Marks.

 

(c)                                  Notwithstanding anything to the contrary provided in this Section 8.5, Venator may use the Huntsman Names and Marks (i) on internal office supplies or signage not visible to consumers or the general public, provided that such supplies or signage are replaced promptly in the ordinary course of business, (ii) in a neutral, non-trademark manner to describe the historical relationship of the Venator Group and the Huntsman Group, or (iii) to the extent required by Law in legal or business documents already in existence on the Effective Date.

 

8.6                               Conflicts with and between Ancillary Agreements. Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement:

 

(a)                                 in the case of any conflict between this Agreement or any Ancillary Agreement (other than the Tax Matters Agreement) and the Tax Matters Agreement in relation to any matters addressed by the Tax Matters Agreement, the Tax Matters Agreement shall prevail;

 

(b)                                 except as set forth in Section 8.6(a) or 8.6(b), in the case of any conflict between this Agreement or any Ancillary Agreement (other than the Employee Matters Agreement) and the Employee Matters Agreement in relation to any matters addressed by the Employee Matters Agreement, the Employee Matters Agreement shall prevail;

 

(c)                                  except as set forth in Section 8.6(a), 8.6(b) or 8.6(c) in the case of any conflict between this Agreement or any Ancillary Agreement (other than the Shareholder’s Agreement) and the Shareholder’s Agreement in relation to any matters addressed by the Shareholder’s Agreement, the Shareholder’s Agreement shall prevail; and

 

(d)                                 except as set forth in Section 8.6(a), 8.6(b) or 8.6(c), or 8.6(d),  in the case of any conflict between this Agreement or any Ancillary Agreement in relation to any matters addressed by this Agreement, this Agreement shall prevail.

 

8.7                               No Actions Related to Certain Technical Information and Copyrightable Works.

 

(a)                                 Huntsman, on behalf of itself and its Affiliates and its and their respective successors and assigns, hereby covenants: (i) not to sue or proceed in any manner, whether legal, equitable, administrative, or otherwise against; (ii) not to solicit others to institute any such actions or proceedings; and (iii) not to consent to be a complainant in any criminal action or proceeding against, Venator or its Affiliates relating to or arising out of the use and exploitation by Venator and its Affiliates of any Retained Technical Information or Retained Copyrightable Works in the field of the Venator Business, including the disclosure of such Retained Technical Information in the ordinary course of business and including reproducing, distributing, preparing derivative works of, and publicly performing, displaying and digitally transmitting Retained Copyrightable Works.

 

(b)                                 Venator, on behalf of itself and its Affiliates and its and their respective successors and assigns, hereby covenants: (i) not to sue or proceed in any manner, whether legal, equitable, administrative, or otherwise against; (ii) not to solicit others to institute any such actions or proceedings; and (iii) not to consent to be a complainant in any criminal action or

 

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proceeding against, Huntsman or its Affiliates relating to or arising out of the use and exploitation by Huntsman and its Affiliates of any Transferred Technical Information or Transferred Copyrightable Works in any field other than the Venator Business, including the disclosure of such Transferred Technical Information in the ordinary course of business and including reproducing, distributing, preparing derivative works of, and publicly performing, displaying and digitally transmitting Transferred Copyrightable Works.

 

8.8                               Attorney Client Privilege. Venator agrees that, in the event of any Dispute or other litigation, dispute, controversy or claim between Huntsman or a member of the Huntsman Group, on the one hand, and Venator or a member of the Venator Group, on the other hand, Venator will not, and will cause the members of its Group not to, seek any waiver of any applicable Privilege with respect to any oral or written communications relating to advice given prior to the Effective Date by counsel to Huntsman or any Person that was a Subsidiary of Huntsman prior to the Effective Date, regardless of any argument that such advice may have affected the interests of both Parties. Moreover, Venator will, and will cause the members of its Group to, honor any such applicable Privilege between Huntsman and the members of its Group and its or their counsel, and will not assert that Huntsman or a member of its Group has waived, relinquished or otherwise lost such Privilege. For the avoidance of doubt, in the event of any litigation, dispute, controversy or claim between Huntsman or a member of its Group, on the one hand, and a Third Party other than a member of the Venator Group, on the other hand, Huntsman shall retain the right to assert any applicable Privilege with respect to any communications relating to advice given prior to the Effective Date by counsel to Huntsman or any Person that was a Subsidiary of Huntsman prior to the Effective Date (it being understood, for the avoidance of doubt, that nothing in this Section 8.8 shall prevent Venator from asserting any applicable Privilege with respect to the matters discussed herein in the event such Privilege is not waived by Huntsman).

 

8.9                               No Attorney Testimony. No in-house attorney or outside attorney may be called to testify about or present evidence covering the interpretation or meaning of this Agreement or any of the Ancillary Agreements in any Dispute between the Parties.

 

ARTICLE IX
FINANCIAL AND RELATED COVENANTS

 

9.1                               Disclosure and Financial Controls.  Venator agrees that, for so long as Huntsman is required to consolidate the results of operations and financial position of Venator and any other members of the Venator Group or to account for its investment in Venator under the equity method of accounting (determined in accordance with GAAP and consistent with SEC reporting requirements):

 

(a)                                 Disclosure of Financial Controls. Venator will, and will cause each other member of Venator Group to, maintain, as of and after the Effective Date, disclosure controls and procedures and internal control over financial reporting as defined in Exchange Act Rule 13a-15; Venator will cause each of its principal executive and principal financial officers to sign and deliver certifications to Venator’s periodic reports and will include the certifications in Venator’s periodic reports, as and when required pursuant to Exchange Act Rule 13a-14 and Item 601 of Regulation S-K; Venator will cause its management to evaluate Venator’s disclosure

 

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controls and procedures and internal control over financial reporting (including any change in internal control over financial reporting) as and when required pursuant to Exchange Act Rule 13a-15; Venator will disclose in its periodic reports filed with the SEC information concerning Venator management’s responsibilities for and evaluation of Venator’s disclosure controls and procedures and internal control over financial reporting (including, without limitation, the annual management report and attestation report of Venator’s independent auditors relating to internal control over financial reporting) as and when required under Items 307 and 308 of Regulation S-K and other applicable SEC rules; and, without limiting the general application of the foregoing, Venator will, and will cause each other member of the Venator Group to, maintain as of and after the Effective Date internal systems and procedures that will provide reasonable assurance that (A) the Financial Statements are reliable and timely prepared in accordance with GAAP and applicable Law, (B) all transactions of members of the Venator Group are recorded as necessary to permit the preparation of the Financial Statements, (C) the receipts and expenditures of members of the Venator Group are authorized at the appropriate level within Venator, and (D) unauthorized use or disposition of the assets of any member of the Venator Group that could have a material effect on the Financial Statements is prevented or detected in a timely manner.

 

(b)                                 Fiscal Year. Venator will, and will cause each member of the Venator Group organized in the U.S. to maintain a fiscal year that commences and ends on the same calendar days as Huntsman’s fiscal year commences and ends, and to maintain monthly accounting periods that commence and end on the same calendar days as Huntsman’s monthly accounting periods commence and end. Venator will, and will cause each member of the Venator Group organized outside the U.S. to maintain a fiscal year that commences and ends on the same calendar days as the fiscal year of the members of the corresponding Huntsman Group organized outside the U.S. commences and ends, and to maintain monthly accounting periods that commence and end on the same calendar days as the monthly accounting periods of members of the corresponding Huntsman Group organized outside the U.S. commence and end.

 

(c)                                  Monthly and Quarterly Financial Information. Venator and each of its Subsidiaries and Affiliates will deliver to Huntsman an income statement and balance sheet on a monthly basis for Venator for such period in such format and detail as Huntsman in accordance with Schedule 9.1(c). Venator and each of its Subsidiaries and Affiliates will deliver to Huntsman an income statement and balance sheet and supplemental data related to cash flows and other necessary disclosures on a quarterly basis in accordance with Schedule 9.1(c) in such format and detail as Huntsman may request. Venator will be responsible for reviewing its results and data and for informing Huntsman immediately of any post-closing adjustments that come to its attention. Venator must provide final sign-off of its results, using Huntsman materiality, no later than seven (7) Business Days after the quarterly close period end for the income statement and no later than fourteen (14) Business Days after the quarterly close period end for the balance sheet and supplemental data. A certification will be provided by the Controller and Chief Financial Officer and President of Venator pertaining to the quarter financials and internal controls no later than five (5) Business Days prior to Huntsman’s filing of its quarterly financial statements with the SEC.

 

(d)                                 Quarterly Financial Statements. As soon as practicable, in accordance with Schedule 9.1(d), Venator will deliver to Huntsman drafts of (A) the consolidated financial

 

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statements of the Venator Group (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Venator the consolidated figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year and all in reasonable detail and prepared in accordance with Article 10 of Regulation S-X and GAAP, and (B) a discussion and analysis by management of the Venator Group’s financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material period-to-period change and any off-balance sheet transactions, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K; provided, however, that Venator will deliver such information at such earlier time upon Huntsman’s written request with thirty (30) days’ notice resulting from Huntsman’s determination to accelerate the timing of the filing of its financial statements with the SEC. The information set forth in (A) and (B) above is referred to in this Agreement as the “Quarterly Financial Statements.” No later than five (5) Business Days prior to the date Venator publicly files the Quarterly Financial Statements with the SEC or otherwise makes such Quarterly Financial Statements publicly available, Venator will deliver to Huntsman the final form of the Venator Quarterly Financial Statements and certifications thereof by the principal executive and financial officers of Venator in substantially the forms required under SEC rules for periodic reports and in form and substance satisfactory to Huntsman; provided, however, that Venator may continue to revise such Quarterly Financial Statements prior to the filing thereof in order to make corrections and non-substantive changes which corrections and changes will be delivered by Venator to Huntsman as soon as practicable, and in any event within eight (8) hours of making any such corrections or changes; provided, further, that Huntsman’s and Venator’s financial representatives will actively consult with each other regarding any changes (whether or not substantive) which Venator may consider making to its Quarterly Financial Statements and related disclosures during the five (5) Business Days immediately prior to any anticipated filing with the SEC, with particular focus on any changes which would have an effect upon Huntsman’s financial statements or related disclosures. In addition to the foregoing, no Quarterly Financial Statement or any other document which refers, or contains information not previously publicly disclosed with respect to the ownership of Venator by Huntsman or the [Transactions,] will be filed with the SEC or otherwise made public by any Venator Group member without the prior written consent of Huntsman, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary in this Section 9.1(d), Venator will not file its Quarterly Financial Statements with the SEC prior to the time that Huntsman files the Huntsman quarterly financial statements with the SEC unless otherwise required by applicable Law.

 

(e)                                  Annual Financial Statements. On an annual basis, in accordance with Schedule 9.1(e), Venator will deliver to Huntsman an income statement and balance sheet and supplemental data related to cash flows and other necessary disclosures for such period in such format and detail as Huntsman may request. Venator will be responsible for reviewing its results and data and for informing Huntsman immediately of any post-closing adjustments in excess of [$10 million] pre-tax that come to its attention and of any adjustments below [$10 million] within eight (8) hours of its awareness. Venator must provide final sign-off of its results, using Huntsman materiality, no later than seven (7) Business Days after the annual close period end for the income statement and no later than fourteen (14) Business Days after the annual close period end for the balance sheet and supplemental data. A certification will be provided by the Controller and Chief Financial Officer and President of Venator pertaining to the financials and

 

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internal controls no later than seven (7) Business Days prior to Huntsman’s filing of its audited annual financial statements (the “Huntsman Annual Statements”) with the SEC. As soon as practicable, and in any event no later than fifteen (15) Business Days prior to the date on which Huntsman has notified Venator that Huntsman intends to file its annual report on Form 10-K or other document containing annual financial statements with the SEC, Venator will deliver to Huntsman (A) any financial and other information and data with respect to the Venator Group and its business, properties, financial position, results of operations and prospects as is reasonably requested by Huntsman in connection with the preparation of Huntsman’s financial statements and annual report on Form 10-K. As soon as practicable, and in any event no later than five (5) Business Days prior to the date on which Venator is required to file an annual report on Form 10-K or other document containing its Annual Financial Statements (as defined below) with the SEC, Venator will deliver to Huntsman (A) drafts of the consolidated financial statements of the Venator Group (and notes thereto) for such year, setting forth in each case in comparative form the consolidated figures (and notes thereto) for the previous fiscal years and all in reasonable detail and prepared in accordance with Regulation S-X and GAAP and (B) a discussion and analysis by management of the Venator Group’s financial condition and results of operations for such year, including, without limitation, an explanation of any material period-to-period change and any off-balance sheet transactions, all in reasonable detail and prepared in accordance with Items 303(a) and 305 of Regulation S-K. The information set forth in (A) and (B) above is referred to in this Agreement as the “Annual Financial Statements.” Venator will deliver to Huntsman all revisions to such drafts as soon as any such revisions are prepared or made. No later than five (5) Business Days prior to the date Venator publicly files the Annual Financial Statements with the SEC or otherwise makes such Annual Financial Statements publicly available, Venator will deliver to Huntsman the final form of its annual report on Form 10-K and certifications thereof by the principal executive and financial officers of Venator in substantially the forms required under SEC rules for periodic reports and in form and substance satisfactory to Huntsman; provided, however, that Venator may continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections and non-substantive changes which corrections and changes will be delivered by Venator to Huntsman as soon as practicable, and in any event within eight (8) hours of making any such corrections or changes; provided, further, that Huntsman and Venator financial representatives will actively consult with each other regarding any changes (whether or not substantive) which Venator may consider making to its Annual Financial Statements and related disclosures during the three (3) Business Days immediately prior to any anticipated filing with the SEC. In addition to the foregoing, no Annual Financial Statement or any other document which refers, or contains information not previously publicly disclosed with respect to the ownership of Venator by Huntsman or the Transactions will be filed with the SEC or otherwise made public by any Venator Group member without the prior written consent of Huntsman. Beginning with the 2017 fiscal year, Venator will use its reasonable best efforts to deliver to Huntsman, no later than three (3) Business Days prior to the date on which Huntsman has notified Venator that Huntsman intends to file the Huntsman Annual Statements with the SEC, the final form of the Annual Financial Statements accompanied by an opinion thereon by Venator’s independent certified public accountants. Notwithstanding anything to the contrary in this Section 9.1(e), Venator will not file its Annual Financial Statements with the SEC prior to the time that Huntsman files the Huntsman Annual Statements with the SEC unless otherwise required by applicable Law.

 

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(f)                                   Affiliate Financial Statements. Venator will deliver to Huntsman all quarterly financial statements and annual financial statements of each Venator Affiliate which is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available, with such financial statements to be provided in the same manner and detail and on the same time schedule as Quarterly Financial Statements and Annual Financial Statements required to be delivered to Huntsman pursuant to this Section 9.1.

 

(g)                                  Conformance with Huntsman Financial Presentation. All information provided by any Venator Group member to Huntsman or filed with the SEC pursuant to Section 9.1(c) through (f) inclusive will be consistent in terms of format and detail and otherwise with Huntsman’s policies with respect to the application of GAAP and practices in effect on the Effective Date with respect to the provision of such financial information by such Venator Group member to Huntsman (and, where appropriate, as presently presented in financial reports to the Huntsman Board), with such changes therein as may be requested by Huntsman from time to time consistent with changes in such accounting principles and practices.

 

(h)                                 Venator Reports Generally. Venator shall, and shall cause each Venator Group member that files information with the SEC, to deliver to Huntsman: (A) substantially final drafts, as soon as the same are prepared, of (x) all reports, notices and proxy and information statements to be sent or made available by such Venator Group member to its respective security holders, (y) all regular, periodic and other reports to be filed or furnished under Sections 13, 14 and 15 of the Exchange Act (including reports on Forms 10-K, 10-Q and 8-K and annual reports to shareholders), and (z) all registration statements and prospectuses to be filed by such Venator Group member with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such exchange (collectively, the documents identified in clauses (x), (y) and (z) are referred to in this Agreement as “Venator Public Documents”), and (B) as soon as practicable, but in no event later than five (5) Business Days (other than with respect to Form 8-Ks) prior to the earliest of the dates the same are printed, sent or filed, current drafts of all such Venator Public Documents and, with respect to Form 8-Ks, as soon as practicable, but in no event later than three (3) Business Days prior to the earliest of the dates the same are printed, sent or filed in the case of planned Form 8-Ks and as soon as practicable, but in no event less than 2 hours in the case of unplanned Form 8-Ks; provided, however, that Venator may continue to revise such Venator Public Documents prior to the filing thereof in order to make corrections and non-substantive changes which corrections and changes will be delivered by Venator to Huntsman as soon as practicable, and in any event within eight (8) hours of making any such corrections or changes; provided, further, that Huntsman and Venator financial representatives will actively consult with each other regarding any changes (whether or not substantive) which Venator may consider making to any of its Venator Public Documents and related disclosures prior to any anticipated filing with the SEC, with particular focus on any changes which would have an effect upon Huntsman’s financial statements or related disclosures. In addition to the foregoing, no Venator Public Document or any other document which refers, or contains information not previously publicly disclosed with respect to the ownership of Venator by Huntsman or the [Transactions] will be filed with the SEC or otherwise made public by any Venator Group member without the prior written consent of Huntsman.

 

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(i)                                     Budgets and Financial Projections. Venator will, as promptly as practicable, deliver to Huntsman copies of all annual budgets and financial projections (consistent in terms of format and detail mutually agreed upon by the parties) relating to Venator on a consolidated basis and will provide Huntsman an opportunity to meet with management of Venator to discuss such budgets and projections.

 

(j)                                    Other Information. With reasonable promptness, Venator will deliver to Huntsman such additional financial and other information and data with respect to the Venator Group and their business, properties, financial positions, results of operations and prospects as from time to time may be reasonably requested by Huntsman.

 

(k)                                 Press Releases and Similar Information. Venator and Huntsman will consult with each other as to the timing of their annual and quarterly earnings releases and any interim financial guidance for a current or future period and will give each other the opportunity to review the information therein relating to the Venator Group and to comment thereon. Huntsman and Venator will make reasonable efforts to issue their respective annual and quarterly earnings releases at approximately the same time on the same date. Huntsman and Venator shall coordinate the timing of their respective earnings release conference calls such that Venator shall be permitted to hold such calls prior to those of Huntsman. No later than eight (8) hours prior to the time and date that a party intends to publish its regular annual or quarterly earnings release or any financial guidance for a current or future period, such party will deliver to the other party copies of substantially final drafts of all related press releases and other statements to be made available by any member of that party’s Group to employees of any member of that party’s Group or to the public concerning any matters that could be reasonably likely to have a material financial impact on the earnings, results of operations, financial condition or prospects of any Venator Group member. In addition, prior to the issuance of any such press release or public statement that meets the criteria set forth in the preceding two sentences, the issuing party will consult with the other party regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts. Immediately following the issuance thereof, the issuing party will deliver to the other party copies of final drafts of all press releases and other public statements. Prior to the Effective Date, Venator shall consult with Huntsman prior to issuing any press releases or otherwise making public statements with respect to the [Transactions] or any of the other transactions contemplated hereby and prior to making any filings with any Governmental Authority with respect thereto.

 

(l)                                     Cooperation on Huntsman Filings. Venator will cooperate fully, and cause Venator Auditors to cooperate fully, with Huntsman to the extent requested by Huntsman in the preparation of Huntsman’s public earnings or other press releases, quarterly reports on Form 10-Q, annual reports to shareholders, annual reports on Form 10-K, any current reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by Huntsman with the SEC, any national securities exchange or otherwise made publicly available (collectively, the “Huntsman Public Filings”). Venator agrees to provide to Huntsman all information that Huntsman reasonably requests in connection with any Huntsman Public Filings or that, in the judgment of Huntsman’s Legal Division, is required to be disclosed or incorporated by reference therein under any Law, rule or regulation. Venator will provide such information in a timely manner on the dates requested by Huntsman (which may be earlier than the dates on which Venator otherwise would be required hereunder to

 

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have such information available) to enable Huntsman to prepare, print and release all Huntsman Public Filings on such dates as Huntsman will determine but in no event later than as required by applicable Law. Venator will use its commercially reasonable efforts to cause Venator Auditors to consent to any reference to them as experts in any Huntsman Public Filings required under any Law, rule or regulation. If and to the extent requested by Huntsman, Venator will diligently and promptly review all drafts of such Huntsman Public Filings and prepare in a diligent and timely fashion any portion of such Huntsman Public Filing pertaining to Venator. Prior to any printing or public release of any Huntsman Public Filing, an appropriate executive officer of Venator will, if requested by Huntsman, certify that the information relating to any Venator Group member or the Venator Business in such Huntsman Public Filing is accurate, true, complete and correct in all material respects. Unless required by Law, rule or regulation, Venator will not publicly release any financial or other information which conflicts with the information with respect to any Venator Group member or the Venator Business that is included in any Huntsman Public Filing without Huntsman’s prior written consent. Prior to the release or filing thereof, Huntsman will provide Venator with a draft of any portion of a Huntsman Public Filing containing information relating to the Venator Group and will give Venator an opportunity to review such information and comment thereon; provided that Huntsman will determine in its sole and absolute discretion the final form and content of all Huntsman Public Filings.

 

9.2                               Auditors and Audits; Annual Statements and Accounting. Venator agrees that for so long as Huntsman is required to consolidate the results of operations and financial position of Venator and any other members of the Venator Group or to account for its investment in Venator under the equity method of accounting (determined in accordance with GAAP and consistent with SEC reporting requirements) (an “Applicable Period”); provided that Venator’s obligations pursuant to Section 9.1(e) and (f) shall continue beyond an Applicable Period to the extent any amendments to, or restatements or modifications of, Huntsman Public Filings are necessary with respect to any such Applicable Period:

 

(a)                                 Selection of Venator Auditors. Unless required by Law, Venator will not select a different accounting firm than Deloitte (or its affiliate accounting firms) (unless so directed by Huntsman in accordance with a change by Huntsman in its accounting firm) to serve as its (and Venator Affiliates’) independent certified public accountants (“Venator Auditors”) without Huntsman’s prior written consent (which will not be unreasonably withheld); provided, however, that, to the extent any such Venator Affiliates are currently using a different accounting firm to serve as their independent certified public accountants, such Venator Affiliates may continue to use such accounting firm provided such accounting firm is reasonably satisfactory to Huntsman.

 

(b)                                 Audit Timing. Beginning with the 2017 fiscal year, Venator will use its reasonable best efforts to enable Venator Auditors to complete their audit such that they will date their opinion on the Annual Financial Statements on the same date that Huntsman’s independent certified public accountants (“Huntsman Auditors”) date their opinion on the Huntsman Annual Statements, and to enable Huntsman to meet its timetable for the printing, filing and public dissemination of the Huntsman Annual Statements, all in accordance with Section 9.1(a) hereof and as required by applicable Law.

 

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(c)                                  Quarterly Review. Beginning with the 2017 fiscal year, Venator shall use its reasonable best efforts to enable Huntsman Auditors to complete their quarterly review procedures on the Quarterly Financial Statements on the same date that Huntsman Auditors complete their quarterly review procedures on Huntsman’s quarterly financial statements.

 

(d)                                 Information Needed by Huntsman. Venator will provide to Huntsman on a timely basis all information that Huntsman reasonably requires to meet its schedule for the preparation, printing, filing, and public dissemination of the Huntsman Annual Statements in accordance with Section 9.1(a) hereof and as required by applicable Law. Without limiting the generality of the foregoing, Venator will provide all required financial information with respect to the Venator Group to Venator Auditors in a sufficient and reasonable time and in sufficient detail to permit Venator Auditors to take all steps and perform all reviews necessary to provide sufficient assistance to Huntsman Auditors with respect to information to be included or contained in the Huntsman Annual Statements.

 

(e)                                  Access to Venator Auditors. Venator will authorize Venator Auditors to make available to Huntsman Auditors both the personnel who performed, or are performing, the annual audit and quarterly reviews of Venator and work papers related to the annual audit and quarterly reviews of Venator, in all cases within a reasonable time prior to Venator Auditors’ opinion date, so that Huntsman Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Venator Auditors as it relates to Huntsman Auditors’ report on Huntsman’s statements, all within sufficient time to enable Huntsman to meet its timetable for the printing, filing and public dissemination of the Huntsman Annual Statements.

 

(f)                                   Access to Records. If Huntsman determines in good faith that there may be some inaccuracy in a Venator Group member’s financial statements or deficiency or inadequacy in a Venator Group member’s internal accounting controls or operations that could materially impact Huntsman’s financial statements or a breach of Section 9.3(c) at Huntsman’s request, Venator will provide Huntsman’s internal auditors with access to the Venator Group’s books and records so that Huntsman may conduct reasonable audits relating to the financial statements provided by Venator under this Agreement as well as to the internal accounting controls and operations of the Venator Group.

 

(g)                                  Notice of Changes. Subject to Section 9.1(g), Venator will give Huntsman as much prior notice as reasonably practicable of any proposed determination of, or any significant changes in, Venator’s accounting estimates or accounting principles from those in effect on the Effective Date. Venator will consult with Huntsman and, if requested by Huntsman, Venator will consult with Huntsman Auditors with respect thereto. Venator will not make any such determination or changes without Huntsman’s prior written consent if such a determination or a change would be sufficiently material to be required to be disclosed in Venator’s or Huntsman’s financial statements as filed with the SEC or otherwise publicly disclosed therein.

 

(h)                                 Accounting Changes Requested by Huntsman. Notwithstanding clause (g) above, Venator will make any changes in its accounting estimates or accounting principles that are requested by Huntsman in order for Venator’s accounting practices and principles to be consistent with those of Huntsman.

 

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(i)                                     Special Reports of Deficiencies or Violations. Venator will report in reasonable detail to Huntsman the following events or circumstances promptly after any executive officer of Venator or any member of the Venator Board becomes aware of such matter: (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Venator’s ability to record, process, summarize and report financial information; (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Venator’s internal control over financial reporting; (C) any illegal act within the meaning of Section 10A(b) and (f) of the Exchange Act; and (D) any report of a material violation of Law that an attorney representing any Venator Group member has formally made to any officers or directors of Venator pursuant to the SEC’s attorney conduct rules (17 C.F.R. Part 205).

 

9.3                               Other Covenants. In addition to the other covenants contained in this Agreement and the Ancillary Agreements, Venator hereby covenants and agrees that, for so long as Huntsman beneficially owns at least a majority of the total voting power of all classes of then outstanding Venator Voting Stock:

 

(a)                                 Venator will not, without the prior written consent of Huntsman (which Huntsman may withhold in its sole and absolute discretion), take, or cause to be taken, directly or indirectly, any action, including making or failing to make any election under the Law of any state, which has the effect, directly or indirectly, of restricting or limiting the ability of Huntsman to freely sell, transfer, assign, pledge or otherwise dispose of Ordinary Shares or would restrict or limit the rights of any transferee of Huntsman as a holder of Ordinary Shares. Without limiting the generality of the foregoing, Venator will not, without the prior written consent of Huntsman (which Huntsman may withhold in its sole and absolute discretion), (i) adopt or thereafter amend, supplement, restate, modify or alter any stockholder rights plan in any manner that would result in (A) an increase in the ownership of Ordinary Shares by Huntsman causing the rights thereunder to detach or become exercisable and/or (B) Huntsman and its transferees not being entitled to the same rights thereunder as other holders of Ordinary Shares or (ii) take any action, or take any action to recommend to its stockholders any action, which would among other things, limit the legal rights of, or deny any benefit to, Huntsman as a Venator stockholder either (A) solely as a result of the amount of Ordinary Shares owned by Huntsman or (B) in a manner not applicable to the Venator stockholders generally.

 

(b)                                 To the extent that Huntsman is a party to any Contracts that provide that certain actions or inactions of Huntsman Affiliates (which for purposes of such Contract include any member of the Venator Group) may result in Huntsman being in breach of or in default under such Contracts and Huntsman has advised Venator of the existence, and has furnished Venator with copies, of such Contracts (or the relevant portions thereof), Venator will not take or fail to take, as applicable, and Venator will cause the other members of the Venator Group not to take or fail to take, as applicable, any actions that reasonably could result in Huntsman being in breach of or in default under any such Contract. The parties acknowledge and agree that from time to time Huntsman may in good faith (and not solely with the intention of imposing restrictions on Venator pursuant to this covenant) enter into additional Contracts or amendments to existing Contracts that provide that certain actions or inactions of Huntsman Subsidiaries or Affiliates (including, for purposes of this Section 9.3(b), members of the Venator Group) may result in Huntsman being in breach of or in default under such Contracts. In such event, provided

 

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Huntsman has notified Venator of such additional Contracts or amendments to existing Contracts, Venator will not thereafter take or fail to take, as applicable, and Venator will cause the other members of the Venator Group not to take or fail to take, as applicable, any actions that reasonably could result in Huntsman being in breach of or in default under any such additional Contracts or amendments to existing Contracts. Huntsman acknowledges and agrees that Venator will not be deemed in breach of this Section 9.3(b) to the extent that, prior to being notified by Huntsman of an additional Contract or an amendment to an existing Contract pursuant to this Section 9.3(b), a Venator Group member already has taken or failed to take one or more actions that would otherwise constitute a breach of this Section 9.3(b) had such action(s) or inaction(s) occurred after such notification; provided that Venator does not, after notification by Huntsman, take any further action or fail to take any action that contributes further to such breach or default. Venator agrees that any Information provided to it pursuant to this Section 9.3(b) will constitute Information that is subject to Venator’s obligations under Article VII.

 

(c)                                  For so long as the Huntsman Group beneficially owns Ordinary Shares representing a majority of the total voting power with respect to the election of directors of all of the outstanding shares of the Venator Voting Stock and, for the duration of the Transitional Services Agreement (but only to the extent that the Services provided by Huntsman under the Transitional Services Agreement relate to making payments on Venator’s behalf, maintenance of books and records, or otherwise present, in Huntsman’s reasonable judgment, a potential risk to Huntsman under any applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanction Laws):

 

(i)                                     Venator will, and will cause each other member of the Venator Group to, not take any action directly or indirectly to offer or pay, or authorize the offer or payment of, any money or anything of value in order to improperly or corruptly seek to influence any Government Official or any other person in order to gain an improper advantage, and has not accepted, and will not accept in the future such payment;

 

(ii)                                  Venator will, and will cause each other member of the Venator Group to, implement, maintain and enforce a compliance and ethics program in substance and form and effectiveness reasonably equivalent to Huntsman’s compliance and ethics program, designed to prevent and detect violations of applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanction Laws throughout its operations (including Subsidiaries) and the operations of its contractors and sub-contractors; and

 

(iii)                               Venator will, and will cause each other member of the Venator Group to, implement, maintain and enforce, a system of adequate internal accounting controls designed to ensure the making and keeping of fair and accurate books, records and accounts in compliance with financial recordkeeping and reporting requirements under applicable Laws, including Anti-Money Laundering Laws.

 

9.4                               Covenants Regarding the Incurrence of Indebtedness.

 

(a)                                 Venator covenants and agrees that after the consummation of the IPO and through the Disposition Date, Venator will not, and Venator will not permit any other member of the Venator Group to, without Huntsman’s prior written consent (such consent not to be unreasonably withheld), directly or indirectly, incur any Venator Debt Obligations other than

 

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pursuant to Venator Debt Financing and such other unsecured and uncommitted lines of credit made available to members of the Venator Group as of the Effective Date.

 

(b)                                 In order to implement this Section 9.4, Venator will notify Huntsman in writing as promptly as practicable following the time it or any other member of the Venator Group determines it wishes to incur Venator Debt Obligations for which Huntsman’s consent is required.

 

9.5                               Applicability of Rights in the Event of an Acquisition of Venator. In the event Venator merges into, consolidates, sells substantially all of its assets to or otherwise becomes an Affiliate of a Person (other than Huntsman), pursuant to a transaction or series of related transactions in which Huntsman or any member of the Huntsman Group receives equity securities of such Person (or of any Affiliate of such Person) in exchange for Venator Ordinary Shares held by Huntsman or any member of the Huntsman Group, all of the rights of Huntsman set forth in this Article IX shall continue in full force and effect and shall apply to the Person the equity securities of which are received by Huntsman pursuant to such transaction or series of related transactions (it being understood that all other provisions of this Agreement will apply to Venator notwithstanding this Section 9.5). Venator agrees that, without the consent of Huntsman, it will not enter into any Contract which will have the effect set forth in the first clause of the preceding sentence, unless such Person agrees to be bound by the foregoing provision.

 

9.6                               Transfer of Huntsman’s Rights. Huntsman may transfer all or any portion of its rights under this Article IX to a transferee of any Venator Ordinary Shares from any member of the Huntsman Group (a “Huntsman Transferee”) holding at least [10%] of the voting power of all of the outstanding shares of Venator Ordinary Shares. Huntsman shall give written notice to Venator of its transfer of rights under this Section 9.6 no later than thirty (30) days after Huntsman enters into a binding agreement for such transfer of rights. Such notice shall state the name and address of the Huntsman Transferee and identify the amount of Venator Ordinary Shares transferred and the scope of rights being transferred under this Section 9.6.  In connection with any such transfer, the term “Huntsman” as used in this Article IX shall, where appropriate to give effect to the assignment of rights and obligations hereunder to such Huntsman Transferee, be deemed to refer to such Huntsman Transferee. Huntsman and any Huntsman Transferee may exercise the rights under this Article IX in such priority, as among themselves, as they shall agree upon among themselves, and Venator shall observe any such agreement of which it shall have notice as provided above.

 

9.7                               Huntsman Policies and Procedures. For so long as the Huntsman Group beneficially owns Ordinary Shares representing a majority of the total voting power of all of the outstanding Venator Ordinary Shares and, as applicable, for the duration of the Transitional Services Agreement,] Venator will consistently implement and maintain Huntsman’s business practices and standards in accordance with the Huntsman policies and procedures listed on Schedule 9.7, each of which Huntsman may amend or supplement from time to time in its sole discretion. Notwithstanding the foregoing, Venator may apply materiality thresholds that are lower than those contained in any such Huntsman policy and procedure.

 

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ARTICLE X
MISCELLANEOUS

 

10.1                        Counterparts; Entire Agreement; Corporate Power.

 

(a)                                 This Agreement and each Ancillary 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 counterparts have been signed by each of the Parties and delivered to the other Party.

 

(b)                                 This Agreement and the Ancillary Agreements contain the entire agreement between the Parties with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein.

 

(c)                                  Huntsman represents on behalf of itself and each other member of the Huntsman Group, and Venator represents on behalf of itself and each other member of the Venator Group, as follows:

 

(i)                                     each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform each of this Agreement and each Ancillary Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby; and

 

(ii)                                  this Agreement and each Ancillary Agreement to which it is a party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.

 

(d)                                 Each Party acknowledges that it and each other Party may execute certain of the Ancillary Agreements by facsimile, stamp or mechanical signature. Each Party expressly adopts and confirms each such facsimile, stamp or mechanical signature made in its respective name as if it were a manual signature, agrees that it will not assert that any such signature is not adequate to bind such Party to the same extent as if it were signed manually and agrees that at the reasonable request of any other Party hereto at any time it will as promptly as reasonably practicable cause each such Ancillary Agreement to be manually executed (any such execution to be as of the date of the initial date thereof).

 

(e)                                  Notwithstanding any provision of this Agreement or any Ancillary Agreement, neither Huntsman nor Venator shall be required to take or omit to take any act that would violate its fiduciary duties to any minority stockholders of any non-wholly owned Subsidiary of Huntsman or Venator, as the case may be (it being understood that directors’ qualifying shares or similar interests will be disregarded for purposes of determining whether a Subsidiary is wholly owned).

 

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10.2                        Governing Law; Waiver of Trial by Jury.

 

(a)                                 This Agreement and, unless expressly provided therein, each Ancillary Agreement (and any claims or disputes arising out of or related hereto or thereto or to the transactions contemplated hereby and thereby or to the inducement of any party to enter herein and therein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall be governed by and construed and interpreted in accordance with the Laws of the State of New York, irrespective of the choice of laws principles of the State of New York as of the date of this Agreement, including all matters of validity, construction, effect, enforceability, performance and remedies.

 

(b)                                 THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.

 

10.3                        Assignability. Except as set forth in any Ancillary Agreement, this Agreement and each Ancillary Agreement shall be binding upon and inure to the benefit of the parties hereto and thereto, respectively, and their respective successors and permitted assigns; provided, however, that no party hereto or thereto may assign its respective rights or delegate its respective obligations under this Agreement or any Ancillary Agreement without the express prior written consent of the other parties hereto or thereto.

 

10.4                        Third-Party Beneficiaries. Except for the indemnification rights under this Agreement or any Ancillary Agreement of any Huntsman Indemnitee or Venator Indemnitee in their respective capacities as such, (a) the provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the Parties and are not intended to confer upon any Person except the Parties any rights or remedies hereunder or thereunder, and (b) there are no third-party beneficiaries of this Agreement or any Ancillary Agreement and neither this Agreement nor any Ancillary Agreement shall provide any Third Party with any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement or any Ancillary Agreement.

 

10.5                        Notices. All notices, requests, claims, demands or other communications under this Agreement and, to the extent, applicable and unless otherwise provided therein, under each of the Ancillary Agreements shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, or by facsimile or electronic transmission with receipt confirmed (followed by delivery of an original via overnight courier service), to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.5):

 

If to Huntsman, to:

Huntsman Corporation

 

10003 Woodloch Forest Drive

 

The Woodlands, Texas 77380

 

Attention: General Counsel

 

 

If to Venator, to:

Venator Materials Plc

 

10001 Woodloch Forest Drive

 

The Woodlands, Texas  77380

 

Attention: General Counsel

 

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Any Party may, by notice to the other Party, change the address and contact person to which any such notices are to be given.

 

10.6                        Severability. If any provision of this Agreement or any Ancillary Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the Parties.

 

10.7                        Force Majeure. No Party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations under this Agreement or any Ancillary Agreement, other than a delay or failure to make a payment, results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts, or, in the case of computer systems, any failure in electrical or air conditioning equipment. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay.

 

10.8                        Publicity. Prior to the IPO, Venator shall not, without the consent of Huntsman, issue any press releases or otherwise make public statements with respect to the Separation, the IPO or any of the other transactions contemplated hereby.

 

10.9                        Expenses. Except as expressly set forth in this Agreement (including Sections 2.12 and 8.1(b) [and Schedule 10.9]) or in any Ancillary Agreement, all fees, costs and expenses incurred in connection with the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, and with the consummation of the transactions contemplated hereby and thereby, the IPO, the Contribution and the Disposition will be the responsibility of the Party paying or incurring such fees, costs or expenses.

 

10.10                 Late Payments. Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement or any Ancillary Agreement (and any amounts billed or otherwise invoiced or demanded and properly payable that are not paid within thirty (30) days of such bill, invoice or other demand) shall accrue interest at a rate per annum equal to the Prime Rate plus 2% but in no event higher than the highest rate permitted by applicable Law.

 

10.11                 Headings. The article, section and paragraph headings contained in this Agreement and in the Ancillary Agreements are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any Ancillary Agreement.

 

10.12                 Survival of Covenants. Except as expressly set forth in any Ancillary Agreement, the covenants, representations and warranties contained in this Agreement and each Ancillary

 

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Agreement, and liability for the breach of any obligations contained herein or therein, shall survive the Separation and shall remain in full force and effect.

 

10.13                 Waivers of Default. Waiver by any Party of any default by the other Party of any provision of this Agreement or any Ancillary Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of such Party. No failure or delay by any party in exercising any right, power or privilege under this Agreement or any Ancillary Agreement shall operate as a waiver thereof nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege.

 

10.14                 Specific Performance. Subject to the provisions of Article IV, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any Ancillary Agreement, the Party or Parties who are, or are to be, thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief in respect of its or their rights under this Agreement or such Ancillary Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at law for any breach or threatened breach, including monetary damages, are inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the Parties.

 

10.15                 Termination; Amendments.

 

(a)                                 This Agreement may be terminated at any time after consummation of the IPO by mutual consent of Huntsman and Venator.  In the event of any termination of this Agreement, no party to this Agreement (or any of its officers, directors, members or managers, shall have any Liability or further obligation to any other Party under this Agreement.

 

(b)                                 No provisions of this Agreement or any Ancillary Agreement shall be deemed waived, amended, supplemented or modified by any Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom it is sought to enforce such waiver, amendment, supplement or modification.

 

10.16                 Interpretation. In this Agreement and any Ancillary Agreement, (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other genders as the context requires; (b) the terms “hereof,” “herein,” “herewith” and words of similar import, and the terms “Agreement” and “Ancillary Agreement” shall, unless otherwise stated, be construed to refer to this Agreement or the applicable Ancillary Agreement as a whole (including all of the Schedules, Exhibits and Appendices hereto and thereto) and not to any particular provision of this Agreement or such Ancillary Agreement; (c) Article, Section, Exhibit, Schedule and Appendix references are to the Articles, Sections, Exhibits, Schedules and Appendices to this Agreement (or the applicable Ancillary Agreement) unless otherwise specified; (d) the word “including” and words of similar import when used in this Agreement (or the applicable Ancillary Agreement) means “including, without limitation”;

 

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(e) the word “or” shall not be exclusive; and (e) unless expressly stated to the contrary in this Agreement or in any Ancillary Agreement, all references to “the date hereof,” “the date of this Agreement,” “hereby” and “hereupon” and words of similar import shall all be references to the date first stated in the preamble to this Agreement, regardless of any amendment or restatement hereof. Nothing contained herein shall be interpreted or construed against the drafter(s) of these agreements. Both Parties had full and fair opportunity to contribute to the drafting of this Agreement.

 

10.17                 Limitations of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OTHER THAN THE FOLLOWING PROVISO, NEITHER VENATOR OR ITS AFFILIATES, ON THE ONE HAND, NOR HUNTSMAN OR ITS AFFILIATES, ON THE OTHER HAND, SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, REMOTE, SPECULATIVE, LOSS OF PROFIT OR SIMILAR DAMAGES OF THE OTHER ARISING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, THE AFORESAID LIMITATION ON DAMAGES SHALL NOT APPLY TO ANY SUCH DAMAGES THAT ARE OWED PURSUANT TO A THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED UNDER ARTICLE V OR ARTICLE VI.

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.

 

 

HUNTSMAN CORPORATION

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

VENATOR MATERIALS PLC

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

Signature Page to Separation Agreement