Exhibit 2.1
FORM OF
SEPARATION AND DISTRIBUTION AGREEMENT
by and between
U.S. BANCORP
and
XXXXX XXXXXXX COMPANIES
Dated as of ________ __, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS..............................................................................2
1.1 Definitions..............................................................................2
1.2 General.................................................................................11
1.3 References to Time......................................................................11
ARTICLE II. THE MERGER AND THE CONTRIBUTION.........................................................11
2.1 Merger..................................................................................11
2.2 Contribution............................................................................11
2.3 Conditions Precedent to Consummation of the Merger and the Contribution.................12
2.4 Ancillary Agreements....................................................................12
2.5 Non-Transferability.....................................................................13
2.6 Capital Contribution....................................................................14
ARTICLE III. THE DISTRIBUTIONS.......................................................................14
3.1 The Distributions.......................................................................14
3.2 Actions Prior to the Distribution.......................................................15
3.3 Conditions to Obligations...............................................................16
3.4 Certificate of Incorporation; By-laws; Rights Plan......................................17
ARTICLE IV. SURVIVAL AND INDEMNIFICATION............................................................17
4.1 Survival of Agreements..................................................................17
4.2 Indemnification of Xxxxx Xxxxxxx........................................................17
4.3 Indemnification by Parent...............................................................18
4.4 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.................19
4.5 Procedures for Indemnification of Third Party Claims....................................19
4.6 Additional Matters......................................................................22
4.7 Remedies Cumulative.....................................................................22
4.8 Survival of Indemnities.................................................................23
ARTICLE V. CERTAIN ADDITIONAL COVENANTS............................................................23
5.1 Notices to Third Parties................................................................23
5.2 Licenses and Permits....................................................................23
5.3 Intercompany Agreements; Intercompany Accounts..........................................23
5.4 Guarantee Obligations...................................................................24
5.5 Further Assurances......................................................................25
ARTICLE VI. ACCESS TO INFORMATION...................................................................26
6.1 Agreement for Exchange of Information...................................................26
6.2 Ownership of Information................................................................26
6.3 Compensation for Providing Information..................................................26
6.4 Record Retention........................................................................27
6.5 Limitation of Liability.................................................................27
6.6 Other Agreements Providing for Exchange of Information..................................27
6.7 Production of Witnesses; Records; Cooperation...........................................27
6.8 Confidentiality.........................................................................28
6.9 Protective Arrangements.................................................................29
ARTICLE VII. NO REPRESENTATIONS OR WARRANTIES........................................................29
7.1 No Representations or Warranties........................................................29
ARTICLE VIII. TERMINATION.............................................................................30
8.1 Termination.............................................................................30
8.2 Effect of Termination...................................................................30
ARTICLE IX. MISCELLANEOUS...........................................................................30
9.1 Complete Agreement; Representations.....................................................30
9.2 Expenses................................................................................31
9.3 Governing Law...........................................................................31
9.4 Notices.................................................................................31
9.5 Amendment, Modification or Waiver.......................................................32
9.6 Successors and Assigns; No Third Party Beneficiaries....................................32
9.7 Counterparts............................................................................32
9.8 Negotiation.............................................................................32
9.9 Specific Performance....................................................................32
9.10 Minnesota Forum.........................................................................33
9.11 Interpretation; Conflict with Ancillary Agreements......................................33
9.12 Severability............................................................................33
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Exhibits to
Separation and Distribution Agreement
Exhibit A Form of Amended and Restated Bylaws
Exhibit B Form of Amended and Restated Certificate of Incorporation
Exhibit C Form of Business Alliance Agreement
Exhibit D Form of Employee Benefits Agreement
Exhibit E Form of Insurance Matters Agreement
Exhibit F Form of Preferred Share Purchase Rights Agreement
Exhibit G Form of Sublease Agreement
Exhibit H Form of Tax Sharing Agreement
Exhibit I Form of $180,000,000 Subordinated Loan Agreement
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SEPARATION AND DISTRIBUTION AGREEMENT
This
SEPARATION AND DISTRIBUTION AGREEMENT (this "AGREEMENT"), dated
as of _______ __, 2003, by and between U.S. Bancorp, a
Delaware corporation
("PARENT"), and Xxxxx Xxxxxxx Companies, a
Delaware corporation and an indirect,
wholly owned subsidiary of Parent ("XXXXX XXXXXXX").
RECITALS
WHEREAS, the Board of Directors of Parent has determined that it is in
the best interests of Parent and its stockholders to separate Parent's
businesses into two independent public companies (the "SEPARATION"), on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, to effect the Separation, Parent intends to cause, on the
terms and subject to the conditions set forth herein, the merger (the "MERGER")
of U.S. Bancorp Investments, Inc., a
Delaware corporation and a wholly owned
subsidiary of Parent ("USBI"), with and into U.S. Bancorp Xxxxx Xxxxxxx
Companies Inc., a
Delaware corporation and a wholly owned subsidiary of Parent
("USBPJC"), pursuant to which USBPJC will be the surviving corporation in the
Merger and will be renamed "U.S. Bancorp Investments, Inc." (the "SURVIVING
CORPORATION");
WHEREAS, to effect the Separation, Parent further intends to cause the
Surviving Corporation to transfer and contribute to Xxxxx Xxxxxxx all of the
issued and outstanding capital stock of certain of its Subsidiaries (as defined
below) and certain other assets of the Surviving Corporation relating to the
Xxxxx Xxxxxxx Business, and in exchange therefor Xxxxx Xxxxxxx intends to assume
certain liabilities of Parent and its Subsidiaries related to the Xxxxx Xxxxxxx
Business and to issue shares of common stock, par value $.01 per share, of Xxxxx
Xxxxxxx ("XXXXX XXXXXXX COMMON STOCK") to the Surviving Corporation (such
transactions, collectively, the "CONTRIBUTION"), each on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS, to effect the Separation, Parent further intends to (1) cause
the Surviving Corporation to distribute to Parent all of the issued and
outstanding shares of Xxxxx Xxxxxxx Common Stock beneficially owned by the
Surviving Corporation by means of a dividend of such Xxxxx Xxxxxxx Common Stock
to Parent as its sole stockholder (the "INTERNAL DISTRIBUTION"), and (2) upon
consummation of the Internal Distribution, distribute on a pro rata basis to
holders of issued and outstanding shares of common stock, par value $.01 per
share, of Parent ("PARENT COMMON STOCK"), other than with respect to shares of
Parent Common Stock held in the treasury of Parent, all of the issued and
outstanding shares of Xxxxx Xxxxxxx Common Stock beneficially owned by Parent by
means of a dividend of such Xxxxx Xxxxxxx Common Stock to such stockholders (the
"DISTRIBUTION," and together with the Internal Distribution, the
"DISTRIBUTIONS"), each on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, it is the intention of the Parties that, for United States
federal income tax purposes, the Merger shall qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "CODE"), and the Contribution and the
Distributions shall qualify as transactions that are generally tax free under
Section 355 and/or Section 368(a)(1)(D) of the Code;
WHEREAS, the Boards of Directors of Parent and Xxxxx Xxxxxxx have each
determined that the Separation, the Merger, the Contribution, the Distributions
and the other transactions contemplated by this Agreement and the Ancillary
Agreements (as defined below) are in furtherance of and consistent with their
respective business strategies and are in the best interests of their respective
companies and stockholders or sole stockholder, as applicable, and have approved
this Agreement and each of the Ancillary Agreements; and
WHEREAS, it is appropriate and desirable to set forth the principal
corporate transactions required to effect the Separation and certain other
agreements that will govern certain matters relating to the Separation, the
Merger, the Contribution and the Distributions and the relationship of Parent
and Xxxxx Xxxxxxx and their respective Subsidiaries following the Distribution.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"$180,000,000 SUBORDINATED LOAN AGREEMENT" has the meaning assigned to
such term in Section 3.2(f) hereto.
"ACTION" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Authority or
any arbitration or mediation tribunal or authority.
"AFFILIATE" means, with respect to any 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; PROVIDED,
HOWEVER, that, for purposes of this Agreement, no member of a Group shall be
deemed to be an Affiliate of any member of the other Group. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
"AGENT" means the distribution agent to be appointed by Parent to
distribute the shares of Xxxxx Xxxxxxx Common Stock to be distributed by Parent
pursuant to the Distribution.
"AGREEMENT" has the meaning assigned to such term in the Preamble
hereto.
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"AMENDED AND RESTATED BYLAWS" means the Amended and Restated Bylaws of
Xxxxx Xxxxxxx substantially in the form of EXHIBIT A hereto, with such changes
as may be agreed to by the Parties.
"AMENDED AND RESTATED CERTIFICATE OF INCORPORATION" means the Amended
and Restated Certificate of Incorporation of Xxxxx Xxxxxxx substantially in the
form of EXHIBIT B hereto, with such changes as may be agreed to by the Parties.
"ANCILLARY AGREEMENTS" means the Benefits Agreement, the Business
Alliance Agreement, the Insurance Matters Agreement, the Sublease Agreement, the
Tax Sharing Agreement and the other agreements to be entered into in connection
with the Separation pursuant to Section 2.4.
"ASSET" means any right, property or asset, whether real, personal or
mixed, tangible or intangible, of any kind, nature and description, whether
accrued, contingent or otherwise, and wheresoever situated and whether or not
carried or reflected, or required to be carried or reflected, on the books of
any Person.
"BANK CONTRIBUTION AGREEMENT" has the meaning assigned to such term in
the definition of "Holdco Formation" below.
"BENEFITS AGREEMENT" means the Employee Benefits Agreement to be
entered into by and between Parent and Xxxxx Xxxxxxx, substantially in the form
of EXHIBIT C hereto, with such changes as may be agreed to by the Parties.
"BUSINESS" means the Xxxxx Xxxxxxx Business or the Parent Business.
"BUSINESS ALLIANCE AGREEMENT" means the Business Alliance Agreement to
be entered into by and between Parent and Xxxxx Xxxxxxx, substantially in the
form of EXHIBIT D hereto, with such changes as may be agreed to by the Parties.
"CAPITAL CONTRIBUTION" shall have the meaning assigned to such term in
Section 2.6.
"CHANGE IN CONTROL" means:
(1) the acquisition by any Person (it being understood that the use
of the term "Person" in this definition shall be deemed to include any group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
Persons) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act for the purposes of this definition) of securities of
Xxxxx Xxxxxxx where such acquisition causes such Person, directly or indirectly,
to beneficially own more than 50% of either (i) the then outstanding shares of
common stock of Xxxxx Xxxxxxx ("OUTSTANDING COMMON STOCK") or (ii) the combined
voting power of the then outstanding voting securities of Xxxxx Xxxxxxx entitled
to vote generally in the election of directors ("OUTSTANDING VOTING
SECURITIES"); PROVIDED, HOWEVER, that for purposes of this subsection (a), any
acquisition by (A) any employee benefit plan (or related trust) sponsored or
maintained by Xxxxx Xxxxxxx or any corporation controlled by Xxxxx Xxxxxxx or
(B) any corporation, limited
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liability company or other entity pursuant to a transaction which complies with
clauses (i) and (ii) of subsection (2) below, shall not be deemed to result in a
Change of Control; or
(2) the consummation of, a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of Xxxxx
Xxxxxxx (a "BUSINESS COMBINATION"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding Common
Stock and Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns Xxxxx Xxxxxxx or all or
substantially all of Xxxxx Xxxxxxx'x assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Common Stock
and Outstanding Voting Securities, as the case may be, and (ii) no Person
beneficially owns, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation.
"CODE" has the meaning assigned to such term in the Recitals hereto.
"CONSENTS" means any consents, waivers or approvals from, or
notification requirements to, any third parties.
"CONTRIBUTED SHARES" means all of the outstanding capital stock of the
Xxxxx Xxxxxxx Entities, consisting of (1) 1,450,000 ordinary shares, par value
L1 per share, of Xxxxx Xxxxxxx Capital Markets Ltd.; (2) 1,000 shares of common
stock, par value $1.00 per share, of Xxxxx Xxxxxxx Financial Products; (3) 1,000
shares of common stock, par value $1.00 per share, of Xxxxx Xxxxxxx Financial
Products II; (4) 459 shares of common stock, par value $2,500.00 per share, of
Xxxxx Xxxxxxx Inc.; and (5) 1,000 shares of common stock, par value $1.00 per
share, of Xxxxx Xxxxxxx Ventures.
"CONTRIBUTION" has the meaning assigned to such term in the Recitals
hereto.
"CONTRIBUTION EFFECTIVE TIME" has the meaning assigned to such term in
Section 2.2.
"COVERED SPECIFIED LIABILITY" has the meaning assigned to such term in
Section 4.3(d).
"DISTRIBUTION" has the meaning assigned to such term in the Recitals
to this Agreement.
"DISTRIBUTION DATE" means the date as of which the Distribution shall
be effected, to be determined by, or under the authority of, the Board of
Directors of Parent consistent with this Agreement.
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"DISTRIBUTIONS" has the meaning assigned to such term in the Recitals
to this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"EXCLUDED LIABILITY" means all Liabilities listed on SCHEDULE 1.1(a).
"GOVERNMENTAL APPROVALS" means any notices, reports or other filings
to be made, or any consents, registrations, approvals, licenses, permits or
authorizations to be obtained from, any Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau or
agency, or any other regulatory, administrative or governmental authority,
including the NYSE and the National Association of Securities Dealers.
"GROUP" means the Parent Group or the Xxxxx Xxxxxxx Group, as
applicable.
"HOLDCO FORMATION" means the contribution of (1) the capital stock of
U.S. Bank National Association, a nationally chartered banking association and a
wholly owned subsidiary of Parent, to USB Holdings, Inc., a
Delaware corporation
and a wholly owned subsidiary of Parent ("USB HOLDINGS"), pursuant to that
certain Contribution Agreement, dated as of August 1, 2003, by and between
Parent and USB Holdings (the "BANK CONTRIBUTION AGREEMENT"), (2) the capital
stock of U.S. Bank National Association ND, a nationally chartered banking
association and a wholly owned subsidiary of Parent, to USB Holdings, pursuant
to the Bank Contribution Agreement and (3) the other assets provided for in the
Bank Contribution Agreement, in each case in exchange for shares of common stock
of USB Holdings.
"HOLDCO NOTE" means the subordinated note to be issued at Parent's
election by USB Holdings to Parent in exchange for a loan by Parent to USB
Holdings on such terms and in such principal amount as determined by Parent.
"INDEMNIFYING PARTY" has the meaning assigned to such term in Section
4.4(a).
"INDEMNITEE" has the meaning assigned to such term in Section 4.4(a).
"INDEMNITY PAYMENT" has the meaning assigned to such term in Section
4.4(a).
"INFORMATION" means all 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,
communications by or to attorneys, memos and other materials prepared by
attorneys or under their direction (including attorney work product), and other
technical, financial, legal, employee or business information or data.
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"INFORMATION STATEMENT" means the information statement and any
related documentation to be distributed to holders of Parent Common Stock in
connection with the Distribution, including any amendments or supplements
thereto.
"INSURANCE MATTERS AGREEMENT" means the Insurance Matters Agreement to
be entered into by and between Parent and Xxxxx Xxxxxxx, substantially in the
form of EXHIBIT E hereto, with such changes as may be agreed by the Parties.
"INSURANCE PROCEEDS" means amounts:
(a) received by an insured from an insurance carrier;
(b) paid by an insurance carrier on behalf of the insured; or
(c) received (including by way of set-off) from any third party in
the nature of insurance, contribution or indemnification in respect of any
Liability;
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.
"INTELLECTUAL PROPERTY RIGHTS" means any domestic and foreign patents
and applications therefor, statutory, common law and registered copyrights and
registrations therefor, trademarks and registrations and applications therefor,
service marks and registrations and applications therefor, trade names and
registrations and applications therefor, service names and registrations and
applications therefor, trade styles and registrations and applications therefor,
product registrations and licenses and applications therefor, and translations,
adaptations, derivations and combinations of the foregoing; any mask works,
inventions, discoveries, trade secrets, confidential information, know-how,
data, proprietary processes and formulae (including any registrations, licenses
and similar agreements and research, analysis and supporting documentation in
respect of the foregoing); any unregistered trademarks, service marks, trade
names, service names and trade styles; any income, royalties and payments that
accrue as of the Distribution or thereafter with respect to any of the items
listed in this paragraph, including payments for past, present or future
infringements or misappropriation thereof, and the right to xxx and recover for
past infringements or misappropriation thereof; any goodwill associated with any
of the foregoing; and any rights to use the foregoing and other rights in, to
and under the foregoing.
"INTERNAL DISTRIBUTION" has the meaning assigned to such term in the
Recitals hereto.
"LIABILITIES" means any and all losses, liabilities, claims, charges,
debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, bonds, indemnities and similar
obligations, covenants, contracts, controversies, agreements, promises,
omissions, guarantees, make whole agreements and similar obligations, and other
liabilities, including all contractual obligations, whether absolute or
contingent, inchoate or otherwise, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, and
including those arising under any law, rule,
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regulation, Action, threatened or contemplated Action (including the costs and
expenses of demands, assessments, judgments, settlements and compromises
relating thereto and attorneys' fees and any and all costs and expenses
(including allocated costs of in-house counsel and other personnel) reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any Governmental
Authority or any award of any arbitrator or mediator of any kind, and those
arising under any contract, commitment or undertaking, including those arising
under this Agreement or any Ancillary Agreement, in each case, whether or not
recorded or reflected or required to be recorded or reflected on the books and
records or financial statements of any Person.
"MERGER" has the meaning assigned to such term in the Recitals hereto.
"NYSE" means the New York Stock Exchange, Inc.
"PARENT" has the meaning assigned to such term in the Preamble hereto.
"PARENT ASSETS" means all Assets of Parent and the Parent Group other
than the Xxxxx Xxxxxxx Assets.
"PARENT BUSINESS" means all businesses and operations (including
related joint ventures and alliances) of Parent and the Parent Group, other than
the Xxxxx Xxxxxxx Business.
"PARENT COMMON STOCK" has the meaning assigned to such term in the
Recitals hereto.
"PARENT GROUP" means Parent and its Subsidiaries other than Persons in
the Xxxxx Xxxxxxx Group.
"PARENT INDEMNITEES" has the meaning assigned to such term in
Section 4.2.
"PARENT LIABILITIES" means all of the Liabilities of the Parent Group
(including any Excluded Liabilities), other than (1) the Xxxxx Xxxxxxx
Liabilities and (2) all Liabilities for which a Parent Indemnitee is entitled to
indemnification pursuant to this Agreement.
"PARENT SUBSIDIARIES" means all direct and indirect Subsidiaries of
Parent other than Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Subsidiaries.
"PARTY" means Parent or Xxxxx Xxxxxxx and their respective successors
and permitted assigns.
"PERSON" means any individual, corporation, limited liability company,
trust, joint venture, association, company, partnership or other legal entity or
a government or any department or agency thereof.
"XXXXX XXXXXXX" has the meaning assigned to such term in the Preamble
hereto.
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"XXXXX XXXXXXX ASSETS" means (1) the Assets of the Surviving
Corporation set forth on SCHEDULE 1.1(b) hereto, (2) the Xxxxx Xxxxxxx
Intellectual Property Assets, (3) the Contributed Shares, and (4) the Capital
Contribution.
"XXXXX XXXXXXX BALANCE SHEET" means the audited combined statement of
financial position of Xxxxx Xxxxxxx, including the notes thereto, as of December
31, 2002.
"XXXXX XXXXXXX BUSINESS" means (1) all businesses and operations
(including related joint ventures and alliances), whether historical or current,
of the capital markets businesses of Parent and its Subsidiaries currently
operated by USBPJC or its Subsidiaries, (2) all business and operations
(including related joint ventures and alliances) of any member of the Xxxxx
Xxxxxxx Group at any time on or after the Contribution Effective Time or the
Distribution Date, and (3) all businesses and operations (including related
joint venture and alliances) of USBI and its Subsidiaries that were managed by
USBPJC or its Subsidiaries and that will not be contributed to Xxxxx Xxxxxxx in
the Contribution, but only for any and all periods such businesses and
operations were managed or operated by USBPJC or its Subsidiaries (for the
avoidance of doubt, this clause (3) shall (a) include the entire fixed income
capital markets business of USBI and its Subsidiaries that was managed by USBPJC
or its Subsidiaries prior to the transfer of a portion of that business to Xxxxx
Xxxxxxx Inc. that occurred on March 21, 2003 and (b) exclude all activities
related to the Libra Division of USBI, and all of the USBI businesses and
operations that were not managed or operated by USBPJC or its Subsidiaries at
any time prior to the Distribution); PROVIDED, HOWEVER, Xxxxx Xxxxxxx Business
shall not include the asset management businesses and operations, whether
historical or current, managed by U.S. Bancorp Asset Management or its
predecessors.
"XXXXX XXXXXXX CAPITAL MARKETS LTD." means U.S. Bancorp Xxxxx Xxxxxxx
Capital Markets Ltd., a company incorporated in England and Wales (registered
number 191657) whose registered office is at 00 Xxxx Xxxxxxx Xxxxxx, 0xx Xxxxx,
Phoenix House, London, England EC4 N7 US and that is a wholly owned subsidiary
of USBPJC.
"XXXXX XXXXXXX COMMON STOCK" has the meaning assigned to such term in
the Recitals hereto.
"XXXXX XXXXXXX ENTITIES" means Xxxxx Xxxxxxx Capital Markets Ltd.,
Xxxxx Xxxxxxx Financial Products, Xxxxx Xxxxxxx Financial Products II, Xxxxx
Xxxxxxx Inc., and Xxxxx Xxxxxxx Ventures.
"XXXXX XXXXXXX FINANCIAL PRODUCTS" means U.S. Bancorp Xxxxx Xxxxxxx
Financial Products Inc., a
Delaware corporation and a wholly owned subsidiary of
USBPJC.
"XXXXX XXXXXXX FINANCIAL PRODUCTS II" means U.S. Bancorp Xxxxx Xxxxxxx
Financial Products II Inc., a
Delaware corporation and a wholly owned subsidiary
of USBPJC.
"XXXXX XXXXXXX GROUP" means Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx
Subsidiaries.
"XXXXX XXXXXXX INC." means U.S. Bancorp Xxxxx Xxxxxxx Inc., a
Delaware
corporation and subsidiary owned by USBI and USBPJC.
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"XXXXX XXXXXXX INDEMNITEES" has the meaning assigned to such term in
Section 4.3.
"XXXXX XXXXXXX INTELLECTUAL PROPERTY ASSETS" means Intellectual
Property Rights owned by the Parent Group that are specifically set forth on
SCHEDULE 1.1(c) hereto.
"XXXXX XXXXXXX LIABILITIES" means (1) all Liabilities that are
contemplated by this Agreement or any Ancillary Agreement (or the Schedules
hereto or thereto) as Liabilities of, or to be assumed by, Xxxxx Xxxxxxx or any
other member of the Xxxxx Xxxxxxx Group, and all agreements, obligations and
Liabilities of any member of the Xxxxx Xxxxxxx Group under this Agreement or any
of the Ancillary Agreements; (2) all Liabilities to the extent relating to,
arising out of or resulting from any Xxxxx Xxxxxxx Asset; (3) all Liabilities to
the extent relating to, arising out of or resulting from the operation of the
Xxxxx Xxxxxxx Business or the operation of any business conducted by any member
of the Xxxxx Xxxxxxx Group, in either case as conducted at any time prior to, on
or after the Distribution Date, including any Liabilities relating to, arising
out of or resulting from the offering or provision of any services or products
of the Xxxxx Xxxxxxx Business; (4) all Liabilities to the extent relating to,
arising out of or resulting from any of the terminated, divested or discontinued
businesses and operations that were part of the Xxxxx Xxxxxxx Business prior to
such termination, divestiture or discontinuation, or otherwise; (5) all
Liabilities reflected as liabilities or obligations of the Xxxxx Xxxxxxx Group
in the Xxxxx Xxxxxxx Balance Sheet but that are not currently direct or indirect
Liabilities of any of the members of the Xxxxx Xxxxxxx Group, subject to any
discharge of such Liabilities subsequent to the date of the Xxxxx Xxxxxxx
Balance Sheet; and (6) all Liabilities relating to, arising out of or resulting
from the Actions or any Actions involving similar allegations described on
SCHEDULE 1.1(d) (the "SPECIFIED LIABILITIES"), whether arising before, on or
after the Distribution Date; PROVIDED that the Xxxxx Xxxxxxx Liabilities shall
not include any Excluded Liability.
"XXXXX XXXXXXX RIGHTS" means the preferred share purchase rights of
Xxxxx Xxxxxxx to be issued pursuant to the Xxxxx Xxxxxxx Rights Plan.
"XXXXX XXXXXXX RIGHTS PLAN" means the Preferred Share Purchase Rights
Agreement of Xxxxx Xxxxxxx, substantially in the form of EXHIBIT F hereto, with
such changes as may be agreed by the Parties.
"XXXXX XXXXXXX SHARES" has the meaning assigned to such term in
Section 2.2(a)(ii) hereto.
"XXXXX XXXXXXX SUBSIDIARIES" means all direct and indirect
Subsidiaries of Xxxxx Xxxxxxx, including the Xxxxx Xxxxxxx Entities and other
Subsidiaries to be transferred to or formed by Xxxxx Xxxxxxx in connection with
the Separation.
"XXXXX XXXXXXX VENTURES" means U.S. Bancorp Xxxxx Xxxxxxx Ventures
Inc., a
Delaware corporation and a wholly owned subsidiary of USBPJC.
"PLAN OF MERGER" means the Agreement and Plan of Merger to be entered
by and between USBI and USBPJC to effect the Merger.
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"RECORD DATE" means the close of business on the date to be determined
by the Board of Directors of Parent as the record date for determining
shareholders of Parent entitled to receive shares of Xxxxx Xxxxxxx Common Stock
in the Distribution.
"REGISTRATION STATEMENT" means the Registration Statement on Form 10
of Xxxxx Xxxxxxx relating to registration under the Exchange Act of Xxxxx
Xxxxxxx Common Stock and Xxxxx Xxxxxxx Rights, including any amendments or
supplements thereto.
"REPRESENTATIVE" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"SEPARATION" has the meaning assigned to such term in the Recitals to
this Agreement.
"SPECIFIED CLAIM" has the meaning assigned to such term in
Section 4.5(e).
"SPECIFIED LIABILITIES" has the meaning assigned to such term in the
definition of "Xxxxx Xxxxxxx Liability" above.
"SUBLEASE AGREEMENT" means the Sublease Agreement to be entered into
by and among Parent, as lessee, Xxxxx Xxxxxxx, as sublessee, and Xxxxx Operating
Partnership LP, as lessor, substantially in the form of EXHIBIT G hereto, with
such changes as may be agreed to by the parties thereto.
"SUBSIDIARY" means, with respect to any specified Person, any
corporation, limited liability company, trust, joint venture, association,
company, partnership or other legal entity of which a Person (either alone or
through or together with any other Subsidiary of such Person) owns, directly or
indirectly, a majority of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity.
"SURVIVING CORPORATION" has the meaning assigned to such term in the
Recitals hereto.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement to be entered
into by and between Parent and Xxxxx Xxxxxxx, substantially in the form of
EXHIBIT H hereto, with such changes as may be determined by the Parties.
"THIRD-PARTY CLAIM" has the meaning assigned to such term in
Section 4.5(a).
"TRANSACTION AGREEMENTS" has the meaning assigned to such term in
Section 9.1(b)(i).
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"USB HOLDINGS" has the meaning assigned to such term in the definition
of "Holdco Formation" above.
"USBI" has the meaning assigned to such term in the Recitals hereto.
"USBPJC" has the meaning assigned to such term in the Recitals hereto.
SECTION 1.2 GENERAL. References to:
(a) "DOLLARS" or "$" means United States dollars;
(b) the words "INCLUDE" and "INCLUDING" (and words of similar
import) shall be deemed to be followed by the phrase "without limitation";
(c) the terms "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
article, section, paragraph, clause or subdivision;
(d) articles, sections, paragraphs, clauses and subdivisions not
attributed to a particular document shall be references to such parts of
this Agreement; and
(e) exhibits and schedules not attributed to a particular document
shall be references to such exhibits and schedules to this Agreement.
SECTION 1.3 REFERENCES TO TIME. All references in this Agreement to
times of day shall be to New York City time.
ARTICLE II
THE MERGER AND THE CONTRIBUTION
SECTION 2.1 MERGER. On or prior to the Distribution Date and prior to
the Contribution, subject to satisfaction or waiver of the conditions set forth
in Section 2.3, Parent shall effect the Merger by causing USBI to merge within
and into USBPJC in accordance with the General Corporation Law of the State of
Delaware and the Plan of Merger.
SECTION 2.2 CONTRIBUTION. (a) On or prior to the Distribution Date
(but in any event prior to the Distribution) and subject to the provisions of
this Section 2.2 and Section 2.5 and the satisfaction or waiver of the
conditions set forth in Section 2.3, Parent shall effect the Contribution by
causing the Surviving Corporation to contribute, assign, transfer, convey and
deliver to Xxxxx Xxxxxxx all of the Surviving Corporation's rights, title and
interests in and to the Xxxxx Xxxxxxx Assets; PROVIDED, that the effective time
of the Contribution (the "CONTRIBUTION EFFECTIVE TIME") shall occur after the
effective time of the Merger. In consideration therefor, Xxxxx Xxxxxxx shall
simultaneously therewith (i) assume and agree faithfully to perform and
discharge in due course in full all of the Xxxxx Xxxxxxx Liabilities in
accordance with their respective terms and (ii) issue and deliver to the
Surviving Corporation [ ] duly and validly issued shares of Xxxxx Xxxxxxx
Common Stock (the "XXXXX XXXXXXX SHARES"), free and clear of all liens,
encumbrances and other restrictions on transfer or title, which Xxxxx Xxxxxxx
Shares,
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together with the 100 duly and validly issued shares of Xxxxx Xxxxxxx Common
Stock beneficially owned by USBPJC as of the date hereof, will constitute all of
the issued and outstanding capital stock of Xxxxx Xxxxxxx. From and after the
Contribution Effective Time, Xxxxx Xxxxxxx shall be responsible for all Xxxxx
Xxxxxxx Liabilities, regardless of when or where such Xxxxx Xxxxxxx Liabilities
arose or arise, or whether the facts on which they are based occurred prior to
or subsequent to the date hereof, regardless of where or against whom such Xxxxx
Xxxxxxx Liabilities are asserted or determined (including any Xxxxx Xxxxxxx
Liabilities arising out of claims made by Parent's or Xxxxx Xxxxxxx'x respective
directors, officers, employees, agents, Subsidiaries or Affiliates against any
member of the Parent Group or the Xxxxx Xxxxxxx 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 or
misrepresentation by any member of the Parent Group or the Xxxxx Xxxxxxx Group
or any of their respective directors, officers, employees, agents, Subsidiaries
or Affiliates.
(b) INTELLECTUAL PROPERTY. Except as provided in any Ancillary
Agreement, any Intellectual Property Rights of Parent or any of its Subsidiaries
that are Xxxxx Xxxxxxx Intellectual Property Assets shall be assigned,
transferred and conveyed to the Xxxxx Xxxxxxx Group pursuant to the Contribution
and in accordance with the procedures set forth on Schedule 2.2(b). As soon as
practicable following the Distribution, the Parent Group shall expressly abandon
any and all trademark or service xxxx registrations and/or applications that
combine any Parent Group xxxx with any Xxxxx Xxxxxxx Group xxxx. Following the
Distribution, Parent and the Parent Group, and Xxxxx Xxxxxxx and the Xxxxx
Xxxxxxx Group, respectively, shall discontinue any and all use or exercise of
the Intellectual Property Rights owned by any member of the other Group, unless,
with respect to a particular Intellectual Property Right or group thereof,
otherwise agreed in writing by the owner of such Intellectual Property Right.
SECTION 2.3 CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER AND THE
CONTRIBUTION. The obligations of the Parties to consummate the Merger and the
Contribution shall be conditioned on the satisfaction, or waiver by Parent in
its sole discretion, of the following conditions:
(a) Final approval of the Merger and the Contribution shall have
been given by the Board of Directors of Parent in its sole discretion.
(b) Each of the conditions precedent to the consummation of the
Distributions set forth in Section 3.3 hereof (other than Section 3.3(h)
thereof) shall have been satisfied.
The obligation of the Parties to consummate the Contribution shall be
conditioned upon the satisfaction, or waiver by Parent in its sole discretion,
of the condition that the Merger shall have been consummated in accordance with
Section 2.1. Any determination made by Parent (including the Board of Directors
of Parent) prior to the Merger or the Contribution concerning the satisfaction
or waiver of any or all of the conditions set forth in this Section 2.3 shall be
conclusive and binding on the Parties for the purposes of this Section 2.3 only.
SECTION 2.4 ANCILLARY AGREEMENTS. On or prior to the Contribution
Effective Time, each of Parent and Xxxxx Xxxxxxx shall enter into, or cause the
appropriate members of the
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Group of which it is a member to enter into, (i) such bills of sale, stock
powers, certificates of title, assignments of contracts and other instruments of
transfer, conveyance and assignment requested by Parent that are necessary to
evidence the contribution, transfer, conveyance and assignment of all of the
Surviving Corporation's right, title and interest in and to the Xxxxx Xxxxxxx
Assets to Xxxxx Xxxxxxx pursuant to Section 2.2; (ii) such bills of sale, stock
powers, certificates of title, assumptions of contracts and other instruments of
transfer, conveyance, assignment and assumption requested by Parent that are
necessary to evidence the valid and effective issuance and delivery of the Xxxxx
Xxxxxxx Shares to the Surviving Corporation, and the assumption of the Xxxxx
Xxxxxxx Liabilities, by Xxxxx Xxxxxxx pursuant to Section 2.2; and (iii) such
other agreements, certificates and other documents as may be deemed to be
advisable by Parent in connection with the Separation.
SECTION 2.5 NON-TRANSFERABILITY. (a) Nothing herein shall be deemed to
require the contribution, assignment, transfer, conveyance or delivery of any
Xxxxx Xxxxxxx Assets or the assumption of any Xxxxx Xxxxxxx Liabilities that by
their terms or operation of law cannot be contributed, assigned, transferred,
conveyed, delivered or assumed; PROVIDED, HOWEVER, that Parent and Xxxxx Xxxxxxx
shall, and shall cause the respective members of their Groups to, use their
commercially reasonable efforts and cooperate to obtain any necessary consents,
approvals or waivers for, and to resolve any impediments to, the contribution,
assignment, transfer, conveyance or delivery of such Xxxxx Xxxxxxx Assets or
assumption of such Xxxxx Xxxxxxx Liabilities contemplated to be contributed,
assigned, transferred, conveyed, delivered or assumed pursuant to this
Article II.
(b) To the extent that any contribution, assignment, transfer,
conveyance, delivery or assumption referred to in Section 2.5(a) shall not have
been consummated as of the Contribution Effective Time, (i) Parent and Xxxxx
Xxxxxxx shall, and shall cause the respective members of their Groups to, use
reasonable best efforts and cooperate to effect such contribution, assignment,
transfer, conveyance, delivery or assumption as promptly following the
Contribution Effective Time as shall be practicable; and (ii) Parent shall
thereafter, with respect to any such Xxxxx Xxxxxxx Asset, use reasonable best
efforts, with the costs of Parent related thereto to be promptly reimbursed by
Xxxxx Xxxxxxx, to hold such Asset in trust for the use and benefit of Xxxxx
Xxxxxxx and, with respect to any such Xxxxx Xxxxxxx Liability, retain such Xxxxx
Xxxxxxx Liability for the account of Xxxxx Xxxxxxx, and to take such other
action, including as may be reasonably requested by Xxxxx Xxxxxxx, in order to
place each Party, insofar as reasonably possible, in the same position as would
have existed had such Xxxxx Xxxxxxx Asset or Xxxxx Xxxxxxx Liability been
contributed, assigned, transferred, conveyed, delivered or assumed as
contemplated hereby (it being understood that Parent shall not be required to
take any action pursuant to this sentence that would, or could reasonably be
expected to, result in a material financial obligation, or restriction on the
business or operations, of Parent). To the extent that Xxxxx Xxxxxxx is provided
the use or benefits of any Xxxxx Xxxxxxx Asset or has any Xxxxx Xxxxxxx
Liability held for its account pursuant to this Section 2.5(b), Xxxxx Xxxxxxx
shall perform at the direction of Parent and for the benefit of any third Person
the obligations of Parent thereunder or in connection therewith; PROVIDED, that
if Xxxxx Xxxxxxx shall fail to perform to the extent required herein, Xxxxx
Xxxxxxx shall hold Parent harmless and indemnify Parent therefor. As and when
any such Xxxxx Xxxxxxx Asset or Xxxxx Xxxxxxx Liability becomes contributable,
assignable, transferable, conveyable, deliverable or assumable, such
contribution, assignment, transfer, conveyance, delivery or assumption, as
applicable, shall be effected as promptly as practicable thereafter.
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(c) The Parties agree that, notwithstanding anything in this
Section 2.5 to the contrary, Xxxxx Xxxxxxx shall be deemed to have acquired all
of the Surviving Corporation's right, title and interest in and to the Xxxxx
Xxxxxxx Assets, and shall be deemed to have assumed in full in accordance with
the terms of this Agreement all of the Xxxxx Xxxxxxx Liabilities, in each case
effective as of the Contribution Effective Time.
SECTION 2.6 CAPITAL CONTRIBUTION. Prior to the Contribution Effective
Time, Parent shall determine the amount of the Capital Contribution to be made
in connection with the Contribution. For the purposes of this Section 2.6,
"Capital Contribution" means an amount of cash equal to the sum of (1)
$23,500,000, and (2) any other amounts that the Parent and Xxxxx Xxxxxxx
mutually agree to in writing prior to the Contribution. Xxxxx Xxxxxxx shall,
with respect to the amount, if any, of the Capital Contribution contributed
pursuant to clause (2) of the immediately preceding sentence, use such amount
(or such lesser amount as the Parties may agree) to pay immediately upon receipt
of the Capital Contribution the accounts payable, borrowings, notes and other
indebtedness of members of the Xxxxx Xxxxxxx Group specified by Parent.
ARTICLE III
THE DISTRIBUTIONS
SECTION 3.1 THE DISTRIBUTIONS. (a) Subject to the satisfaction or
waiver of the conditions set forth in Section 3.3, Parent shall effect the
Distributions as follows:
(i) Parent shall effect the Internal Distribution by causing the
Surviving Corporation to distribute all of the issued and outstanding
shares of Xxxxx Xxxxxxx Common Stock beneficially owned by the Surviving
Corporation to Parent by means of a dividend of such Xxxxx Xxxxxxx Common
Stock to its sole stockholder, and
(ii) Upon consummation of the Internal Distribution, Parent shall
effect the Distribution by distributing all of the issued and outstanding
shares of Xxxxx Xxxxxxx Common Stock beneficially owned by Parent to
holders of shares of Parent Common Stock, other than with respect to shares
of Parent Common Stock held in the treasury of Parent, by means of a pro
rata dividend of such Xxxxx Xxxxxxx Common Stock to such stockholders;
each on the terms and subject to the conditions set forth in this Agreement.
Subject to the satisfaction or waiver of the conditions set forth in Section
3.3, the Board of Directors of Parent shall establish the Record Date and the
Distribution Date and any appropriate procedures in connection with the
Distribution.
(b) Subject to Section 3.1(e) and to the satisfaction or waiver of
the conditions set forth in Section 3.3, each holder of Parent Common Stock on
the Record Date (or such holder's designated transferee or transferees), other
than in respect of shares of Parent Common Stock held in the treasury of Parent,
will be entitled to receive in the Distribution a number of shares of Xxxxx
Xxxxxxx Common Stock equal to the number of shares of Parent Common Stock held
by such holder on the Record Date multiplied by a fraction, the numerator of
which is the
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number of shares of Xxxxx Xxxxxxx Common Stock beneficially owned by Parent or
any other member of the Parent Group on the Record Date and the denominator of
which is the number of shares of Parent Common Stock outstanding on the Record
Date (other than shares of Parent Common Stock held in the treasury of Parent).
(c) Prior to the Distribution, Parent shall enter into an agreement
with the Agent providing for, among other things, the payment of the
Distribution to the holders of Parent Common Stock in accordance with this
Article III.
(d) Prior to the Distribution, Parent and Xxxxx Xxxxxxx shall
deliver to the Agent a share certificate representing (or authorize the related
book-entry transfer of) all of the outstanding shares of Xxxxx Xxxxxxx Common
Stock to be distributed in connection with the payment of the Distribution.
After the Distribution, upon the request of the Agent, Xxxxx Xxxxxxx shall
provide all certificates for shares (or book-entry transfer authorizations) of
Xxxxx Xxxxxxx Common Stock that the Agent shall require in order to effect the
Distribution.
(e) As soon as practicable after the Distribution Date, Parent
shall direct the Agent to determine the number of whole shares and fractional
shares of Xxxxx Xxxxxxx Common Stock allocable to each holder of record or
beneficial owner of Xxxxx Xxxxxxx Common Stock as of the Record Date entitled to
receive Xxxxx Xxxxxxx Common Stock in the Distribution, to aggregate all such
fractional shares and sell the whole shares obtained thereby, at the direction
of Parent, either to Parent, in open market transactions or otherwise, in each
case at then prevailing trading prices, and to cause to be distributed to each
such holder or for the benefit of each such beneficial owner, in lieu of any
fractional share, such holder's or owner's ratable share of the proceeds of such
sale, after making appropriate deductions of the amount required to be withheld
for federal income tax purposes and after deducting an amount equal to all
brokerage charges, commissions and transfer taxes attributed to such sale.
SECTION 3.2 ACTIONS PRIOR TO THE DISTRIBUTION. (a) Parent and Xxxxx
Xxxxxxx shall use reasonable best efforts to (i) cause the Registration
Statement to become effective under the Exchange Act and to keep the
Registration Statement effective as long as is necessary to consummate the
Distribution, and (ii) mail, promptly after effectiveness of the Registration
Statement and the Record Date and in any event prior to the Distribution Date,
to the holders of Parent Common Stock as of the Record Date, the Information
Statement.
(b) Parent and Xxxxx Xxxxxxx shall take all such action as Parent
may determine necessary or appropriate under federal or state securities or blue
sky laws of the United States (and any comparable laws under any foreign
jurisdiction) in connection with the Distribution.
(c) Prior to the Distribution, each of Parent and Xxxxx Xxxxxxx
shall enter into, or cause the appropriate members of the Group of which it is a
member to enter into, each of the Benefits Agreement, the Business Alliance
Agreement, the Insurance Matters Agreement, the Sublease Agreement and the Tax
Sharing Agreement.
(d) Prior to the Distribution, Parent shall execute, or cause the
appropriate members of the Parent Group to execute, and Xxxxx Xxxxxxx shall
execute, or cause the appropriate members of the Xxxxx Xxxxxxx Group to execute,
assignment documents that Parent
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and Xxxxx Xxxxxxx agree to be necessary or appropriate to effect the transfer of
the Xxxxx Xxxxxxx Intellectual Property Assets to the Xxxxx Xxxxxxx Group
pursuant to the Contribution and in accordance with the procedures set forth on
Schedule 2.2(b).
(e) Parent shall use its reasonable best efforts to cause the
Holdco Formation to be effected prior to the effective time of the Distribution.
(f) Prior to the Distribution, each of Parent and Xxxxx Xxxxxxx
shall cause the appropriate members of the Group of which it is a member to
enter into the $180,000,000 Subordinated Loan Agreement by and between USB
Holdings, Inc. and Xxxxx Xxxxxxx Inc., (the "$180,000,000 SUBORDINATED LOAN
AGREEMENT"), subject to approval by the NYSE of inclusion of amounts outstanding
under the $180,000,000 Subordinated Loan Agreement as net capital of Xxxxx
Xxxxxxx & Co. for the purposes of Rule 15c3-1 of the Exchange Act, which
$180,000,000 Subordinated Loan Agreement will replace the $215,000,000
subordinated debt facility currently in place between Parent and Xxxxx Xxxxxxx
Inc. and (2) such other financial arrangements, if any, that Parent and Xxxxx
Xxxxxxx agree to enter into prior to the Distribution. The $180,000,000
Subordinated Loan Agreement will be substantially in the form of EXHIBIT I
hereto, with such changes as may be agreed to by the parties thereto.
(g) In the event that Parent determines to cause USB Holdings to
issue the Holdco Note, Parent shall use its reasonable best efforts to cause USB
Holdings to issue the Holdco Note prior to the effective time of the
Distribution.
SECTION 3.3 CONDITIONS TO OBLIGATIONS. The obligations of the Parties
to consummate the Distributions are subject to the satisfaction, or waiver by
Parent in its sole discretion, of each of the following conditions:
(a) Final approval of the Distributions shall have been given by
the Board of Directors of Parent in its sole discretion.
(b) The Registration Statement shall have been filed and declared
effective by the SEC, and there shall be no stop-order in effect with
respect thereto.
(c) The actions and filings necessary or appropriate under federal
and state securities laws and state blue sky laws of the United States (and
any comparable laws under any foreign jurisdictions) in connection with the
Distributions (including, if applicable, any actions and filings relating
to the Registration Statement) shall have been taken and, where applicable,
have become effective or been accepted.
(d) The Xxxxx Xxxxxxx Common Stock to be issued in the Distribution
shall have been accepted for listing on the NYSE, subject to official
notice of issuance.
(e) No order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition preventing
the consummation of the Separation, the Merger, the Contribution or the
Distributions or any of the other transactions contemplated by this
Agreement or any Ancillary Agreement shall be in effect.
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(f) Parent shall have received an opinion of Wachtell, Lipton,
Xxxxx & Xxxx, in form and substance satisfactory to Parent, to the effect
that the Contribution and the Internal Distribution and the Distribution
will qualify as transactions that are generally tax-free under Section 355
and/or Section 368(a)(1)(D) of the Code.
(g) All Consents and Governmental Approvals required in connection
with the transactions contemplated hereby shall have been received.
(h) Each of the Merger, the Contribution and the Holdco Formation
shall have been consummated in accordance with this Agreement.
(i) In the event that Parent determines to cause USB Holdings to
issue the Holdco Note, USB Holdings shall have issued the Holdco Note in
accordance with this Agreement.
(j) This Agreement shall not have been terminated.
Any determination made by Parent (including the Board of Directors of Parent)
prior to the Distribution concerning the satisfaction or waiver of any or all of
the conditions set forth in this Section 3.3 shall be conclusive and binding on
the Parties.
SECTION 3.4 CERTIFICATE OF INCORPORATION; BYLAWS; RIGHTS PLAN. Parent
and Xxxxx Xxxxxxx shall take all action necessary so that the Amended and
Restated Certificate of Incorporation, the Amended and Restated Bylaws and the
Xxxxx Xxxxxxx Rights Plan shall be in effect prior to the closing of the
Distributions.
ARTICLE IV
SURVIVAL AND INDEMNIFICATION
SECTION 4.1 SURVIVAL OF AGREEMENTS. All covenants and agreements of
the Parties contained in this Agreement shall survive each of the Separation,
the Merger, the Contribution and the Distributions.
SECTION 4.2 INDEMNIFICATION BY XXXXX XXXXXXX. Xxxxx Xxxxxxx shall
indemnify, defend and hold harmless Parent, each member of the Parent Group and
each of their respective directors, officers and employees, and each of the
heirs, executors, successors and assigns of any of the foregoing (collectively,
the "PARENT INDEMNITEES"), from and against any and all Liabilities of the
Parent Indemnitees relating to, arising out of or resulting from any of the
following items regardless of whether arising from or alleged to arise from
negligence, recklessness, violation of law, fraud or misrepresentation (without
duplication):
(a) the failure of Xxxxx Xxxxxxx or any other member of the Xxxxx
Xxxxxxx Group or any other Person to pay, perform or otherwise promptly
discharge any Xxxxx Xxxxxxx Liabilities or any contract, agreement or
arrangement included in the Xxxxx Xxxxxxx Assets in accordance with their
respective terms, whether prior to or after the Distribution Date or the
date hereof;
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(b) the Xxxxx Xxxxxxx Group, any Xxxxx Xxxxxxx Liability (except to
the extent expressly provided in Section 4.3(d) below with respect to
Covered Specified Liabilities) or any Xxxxx Xxxxxxx Asset;
(c) any breach by Xxxxx Xxxxxxx or any member of the Xxxxx Xxxxxxx
Group of this Agreement or any of the Ancillary Agreements; and
(d) except to the extent set forth in Section 4.3(e), 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, contained in the
Registration Statement or the Information Statement or in any registration
statement on Form S-8 filed by Xxxxx Xxxxxxx in connection with the
Separation (or related prospectus).
SECTION 4.3 INDEMNIFICATION BY PARENT. Parent shall indemnify, defend
and hold harmless Xxxxx Xxxxxxx, each member of the Xxxxx Xxxxxxx Group and each
of their respective directors, officers and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
"XXXXX XXXXXXX INDEMNITEES"), from and against any and all Liabilities of the
Xxxxx Xxxxxxx Indemnitees relating to, arising out of or resulting from any of
the following items regardless of whether arising from or alleged to arise from
negligence, recklessness, violation of law, fraud or misrepresentation (without
duplication):
(a) the failure of Parent or any other member of the Parent Group
or any other Person to pay, perform or otherwise promptly discharge any
Parent Liabilities other than the Xxxxx Xxxxxxx Liabilities, whether prior
to or after the Distribution Date or the date hereof;
(b) any Parent Liability other than the Xxxxx Xxxxxxx Liabilities;
(c) any breach by Parent or any member of the Parent Group of this
Agreement or any of the Ancillary Agreements;
(d) any Specified Liability up to, but not exceeding, an aggregate
amount (when aggregated with all other such Specified Liabilities,
including those previously paid pursuant to this Section 4.3(d)) equal to
$17,500,000 (the "COVERED SPECIFIED LIABILITIES"); and
(e) 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, in each case to the extent relating to the Parent Group
(excluding for this purpose the Xxxxx Xxxxxxx Business and USBPJC and USBI
to the extent related to the Xxxxx Xxxxxxx Business), contained in the
Registration Statement or the Information Statement.
Notwithstanding anything to the contrary set forth herein, Parent may, in its
sole discretion, elect to terminate the indemnity obligation of Parent under
clause (d) above in full in the event of a Change in Control. Any election by
Parent to terminate such indemnity obligation shall be deemed to be effective
immediately upon the occurrence of the applicable Change in Control,
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regardless of whether such notice is given on, prior to or after such Change in
Control, and all pending claims for indemnification under clause (d) above shall
terminate in full as of the occurrence of such Change in Control; PROVIDED,
HOWEVER, that any pending obligation of Parent to indemnify Xxxxx Xxxxxxx in
accordance with such clause (d) for a Covered Specified Liability that has been
finally determined prior to the occurrence of such Change in Control, including
(without limitation) by settlement, compromise or entry of a judgment or order
and including related legal fees incurred through the date of such occurrence,
shall not be terminated pursuant to this paragraph. In the event that a Change
of Control is reasonably likely to occur or has occurred, Xxxxx Xxxxxxx shall
promptly give Parent written notice of such Change in Control, specifying in
reasonable detail the nature, parties and material terms of such Change in
Control.
SECTION 4.4 INDEMNIFICATION OBLIGATIONS NET OF INSURANCE PROCEEDS AND
OTHER AMOUNTS. (a) The Parties intend that any Liability subject to
indemnification or reimbursement pursuant to this Article IV will be net of
Insurance Proceeds actually recovered by or on behalf of the Indemnitee in
reduction of the related Liability, except as otherwise expressly provided in
Article VI of the Insurance Matters Agreement. Accordingly, except as otherwise
expressly provided in Article VI of the Insurance Matters Agreement, (i) the
amount that any Party (an "INDEMNIFYING PARTY") is required to pay to any Person
entitled to indemnification hereunder (an "INDEMNITEE") will be reduced by any
Insurance Proceeds theretofore actually recovered by or on behalf of the
Indemnitee in reduction of the related Liability; and (ii) 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 promptly pay to the Indemnifying
Party an amount equal to the excess of the Indemnity Payment received 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.
(b) An insurer who would otherwise be obligated to pay any claim
shall not be relieved of the responsibility with respect thereto or, solely by
virtue of the indemnification provisions hereof, have any subrogation rights
with respect thereto, it being expressly understood and agreed that no insurer
or any other third party shall be entitled to a "windfall" (i.e., a benefit it
would not be entitled to receive in the absence of the indemnification
provisions) by virtue of the indemnification provisions hereof.
(c) The existence of a claim by an Indemnitee for monies from an
insurer or against a third party in respect of an indemnifiable loss shall not,
however, delay any Indemnity Payment pursuant to the indemnification provisions
contained herein and otherwise determined to be due and owning by an
Indemnifying Party.
SECTION 4.5 PROCEDURES FOR INDEMNIFICATION OF THIRD-PARTY CLAIMS. (a)
If an Indemnitee shall receive notice or otherwise learn of the assertion by a
Person (including any Governmental Authority) who is not a member of the Parent
Group or the Xxxxx Xxxxxxx Group of any claim, or of the commencement by any
such Person of any Action, with respect to which an Indemnifying Party may be
obligated to provide indemnification to such Indemnitee pursuant to Section 4.2
or 4.3, or any other Section of this Agreement or any Ancillary Agreement
(collectively, a "THIRD-PARTY CLAIM"), such Indemnitee shall give such
Indemnifying Party and, if Parent is not the Indemnifying Party, Parent written
notice thereof within 30 days after receiving
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notice of such Third-Party Claim. If any Indemnitee shall receive notice of or
otherwise learn of the assertion of a Third-Party Claim which may reasonably be
determined to be in whole or in part a Covered Specified Liability, Parent or
Xxxxx Xxxxxxx, as appropriate depending on which Group such Indemnitee is a
member of or otherwise affiliated with, shall give the other Party written
notice thereof within 30 days after such Indemnitee receives notice or otherwise
learns of the assertion of such Third-Party Claim. Any such notice shall
describe the Third-Party Claim in reasonable detail, including, if known, the
amount of the Liability for which indemnification may be available.
Notwithstanding the foregoing, the failure of any Indemnitee or other Person to
give notice as provided in this Section 4.5(a) shall not relieve the related
Indemnifying Party of its obligations under this Article IV, except to the
extent that such Indemnifying Party is actually prejudiced by such failure to
give notice.
(b) An Indemnifying Party may elect (but is not required) to assume
the defense of and defend, at such Indemnifying Party's own expense and by such
Indemnifying Party's own counsel, any Third-Party Claim. Within 30 days after
the receipt of notice from an Indemnitee in accordance with Section 4.5(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. 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.
(c) 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 4.5(b), such Indemnitee may defend such
Third-Party Claim at the cost and expense of the Indemnifying Party; PROVIDED,
that in the event of any such failure to notify, the Indemnifying Party may
thereafter assume the defense of such Third-Party Claim upon notice to the
Indemnitee (but the cost and expense of such Indemnitee in defending such
Third-Party Claim incurred from the last day of the notice period under Section
4.5(c) until such date as the Indemnifying Party shall assume the defense of
such Third-Party Claim shall be paid by the Indemnifying Party).
(d) Unless the Indemnifying Party has failed to assume the defense
of the Third-Party Claim in accordance with the terms of this Agreement, no
Indemnitee may settle or compromise any Third-Party Claim without the consent of
the Indemnifying Party.
(e) Notwithstanding anything to the contrary in this Section 4.5,
Sections 4.5(b) - 4.5(d) shall not apply to any Third-Party Claim that is or may
be a Covered Specified Liability (a "SPECIFIED CLAIM"), which Specified Claim
shall be governed by this Section 4.5(e).
(i) Parent shall be entitled to participate in the defense,
compromise and settlement, at Parent's own expense and with Parent's own
counsel, of any Specified Claim; PROVIDED that in the event that each of
the Indemnitees who may be entitled to seek any indemnity from Parent under
Section 4.3 in respect of such Specified Claim shall elect not to seek any
such indemnity from Parent, each such Indemnitee shall provide an executed
written notice to Parent to such effect together with the written
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notice required under Section 4.5(a) above, and upon receipt of all such
notices Parent's rights under this Section 4.5(e), and obligation to
indemnify such Indemnitees in respect of such Specified Claim under Section
4.3, shall terminate in full. Within 30 days after the receipt of notice
from an Indemnitee in accordance with Section 4.5(a), Parent shall notify
the Indemnitee of its election to participate in the defense, compromise
and settlement of such Specified Claim. If Parent elects not to participate
in the defense, compromise and settlement of such Specified Claim, or fails
to notify an Indemnitee of its election as provided in the immediately
preceding sentence, such Indemnitee may proceed with the defense,
compromise and settlement of such Specified Claim otherwise in accordance
with this Section 4.5(e); PROVIDED, HOWEVER, Parent shall have the right at
any time to elect to participate in the defense, compromise and settlement,
at Parent's own expense and with Parent's own counsel, of such Specified
Claim upon notice to Indemnitee. Except as otherwise provided in the
Insurance Matters Agreement, all fees and expenses related to Parent's
participation in the defense, settlement and compromise of any Specified
Claim in accordance with this Section 4.5(e) shall be borne by Parent.
(ii) In addition to, and not in limitation of, Parent's right to
participate in the defense, compromise or settlement of any Specified Claim
pursuant to Section 4.5(e)(i), Xxxxx Xxxxxxx and such Indemnitee shall, and
shall cause their respective affiliates to, (1) cooperate with Parent,
including in connection with any investigation or other inquiry, in respect
of any Specified Claim, and (2) if requested by Parent, promptly notify
Parent of any material developments regarding, or material communications
to Xxxxx Xxxxxxx or such Indemnitee from any Governmental Authority or
third party with respect to, any Specified Claim.
(iii) Notwithstanding anything herein to the contrary, neither Xxxxx
Xxxxxxx nor any Indemnitee may settle or compromise any Specified Claim in
any respect without the express prior written consent of Parent, which
consent may not be unreasonably withheld. For purposes of this Section
4.5(e)(iii), the parties recognize that Parent's liability with respect to
Specified Claims is limited to $17.5 million whereas Xxxxx Xxxxxxx'x
liability with respect to Specified Claims is potentially unlimited beyond
$17.5 million. Accordingly, the withholding of Parent's consent as to any
particular Specified Claim shall not be deemed reasonable if Parent does
not give due consideration to the total possible financial exposure arising
out of such Specified Claim, regardless of whether such exposure would be
borne by Parent on the one hand, or Xxxxx Xxxxxxx or any Indemnitee on the
other hand. For example, Parent must give due consideration to the total
possible financial exposure arising out of a Specified Claim even though in
the event of an adverse outcome substantially all of the liability would be
borne by Xxxxx Xxxxxxx as opposed to Parent as a result of Parent's
liability for Specified Claims being limited to $17.5 million.
(f) The Indemnifying Party shall have the right to compromise or
settle a Third-Party Claim the defense of which it shall have assumed pursuant
to Section 4.5(b) or Section 4.5(c) and any such settlement or compromise made
or caused to be made of a Third-Party Claim in accordance with this Article IV
shall be binding on the Indemnitee, in the same manner as if a final judgment or
decree had been entered by a court of competent jurisdiction in the amount of
such settlement or compromise. Notwithstanding the foregoing sentence, the
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Indemnifying Party shall not have the right to admit Liability on behalf of the
Indemnitee and shall not compromise or settle a Third-Party Claim unless the
compromise or settlement includes, as a part thereof, an unconditional release
of the Indemnitee from liability with respect to such Third-Party Claim and does
not require the Indemnitee to make any payment that is not fully indemnified
under this Agreement or to be subject to any non-monetary remedy, in each case
without the express prior consent of the Indemnitee (not to be unreasonably
withheld or delayed).
(g) The provisions of Sections 4.2 through 4.6 shall not apply to
Spin-Off Tax Liabilities, Income Tax Liabilities, Other Tax Liabilities and
Tax-Related Losses (as such terms are defined in the Tax Sharing Agreement),
which are governed exclusively by the Tax Sharing Agreement.
SECTION 4.6 ADDITIONAL MATTERS. (a) 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 30 days after the receipt of such
notice within which to respond thereto. If such Indemnifying Party does not
respond within such 30-day period, such Indemnifying Party shall be deemed to
have agreed to accept responsibility to make payment. If such Indemnifying Party
does not respond within such 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 Ancillary Agreements.
(b) 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.
(c) In the event of an Action in which the Indemnifying Party is
not a named defendant, if either the Indemnified Party or Indemnifying Party
shall so request, the Parties shall endeavor to substitute the Indemnifying
Party for the named defendant, if at all practicable. If such substitution or
addition cannot be achieved for any reason or is not requested, the named
defendant shall allow the Indemnifying Party to manage the Action as set forth
in this Section.
(d) Xxxxx Xxxxxxx shall, and shall cause its other Indemnitees to,
and Parent shall, and shall cause its other Indemnitees to, make available to
each other, their counsel and other representatives, all information and
documents reasonably available to them that relate to any Third-Party Claim, and
otherwise cooperate as may reasonably be required in connection with the
investigation, defense and settlement thereof, subject to the terms and
conditions of a mutually acceptable joint defense agreement.
SECTION 4.7 REMEDIES CUMULATIVE. The remedies provided in this
Article IV shall be cumulative and shall not preclude assertion by any
Indemnitee of any other rights or the
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seeking of any and all other remedies against any Indemnifying Party; PROVIDED,
that the procedures set forth in Section 4.5 shall be the exclusive procedures
governing any indemnity action brought under this Agreement, except as otherwise
specifically provided in any of the Ancillary Agreements.
SECTION 4.8 SURVIVAL OF INDEMNITIES. The rights and obligations of
each of Parent and Xxxxx Xxxxxxx and their respective Indemnitees under this
Article IV shall survive the sale or other transfer by any Party of any Assets
or businesses or the assignment by it of any Liabilities.
ARTICLE V
CERTAIN ADDITIONAL COVENANTS
SECTION 5.1 NOTICES TO THIRD PARTIES. In addition to the actions
described in Section 5.2, the members of the Parent Group and the members of the
Xxxxx Xxxxxxx Group shall cooperate to make all other filings and to give notice
to and obtain any Consent or Governmental Approval that is required or advisable
to consummate the transactions contemplated by this Agreement and the Ancillary
Agreements.
SECTION 5.2 LICENSES AND PERMITS. Each Party shall cause the
appropriate members of its Group to prepare and file with the appropriate
Governmental Authorities applications for the transfer or issuance, as may be
necessary or advisable in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements, to its Group of all material
Governmental Approvals required for the members of its Group to operate its
Business after the Distribution Date. The members of the Xxxxx Xxxxxxx Group and
the members of the Parent Group shall cooperate and use all reasonable efforts
to secure the transfer or issuance of the Governmental Approvals.
SECTION 5.3 INTERCOMPANY AGREEMENTS; INTERCOMPANY ACCOUNTS. (a) All
contracts, licenses, agreements, commitments or other arrangements, formal or
informal, between any member of the Parent Group, on the one hand, and any
member of the Xxxxx Xxxxxxx Group, on the other hand, in existence as of the
Distribution Date, shall terminate effective as of the Distribution Date, except
(i) as specifically provided herein, for this Agreement or any Ancillary
Agreement (including 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) for any
contracts, licenses, agreements, commitments or other arrangements to which any
Person other than the Parties or their respective wholly owned Subsidiaries is a
party, or (iii) as otherwise agreed by the Parties in writing on or after the
date hereof and prior to the Distribution Date. From and after the Distribution
Date, no member of either Group shall have any rights under any such contract,
license, agreement, commitment or arrangement with any member of the other
Group, except as specifically provided herein or in the Ancillary Agreements.
(b) Notwithstanding anything to the contrary in Section 5.3(a),
after the Distribution Date, the Parties shall be obligated to pay only those
intercompany accounts between members of the Xxxxx Xxxxxxx Group and members of
the Parent Group outstanding as of
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the Distribution Date that arose in connection with transfers of goods and
services in the ordinary course of business, consistent with past practices
(which the Parties shall use reasonable efforts to settle prior to the
Distribution Date) and any intercompany accounts payable or accounts receivable
accrued as of the Distribution Date that are reflected in the books and records
of the Parties or otherwise documented in writing in accordance with past
practices, and all other intercompany accounts outstanding as of the
Distribution Date shall be deemed to be settled as of the Distribution Date,
except as otherwise contemplated by this Agreement.
SECTION 5.4 GUARANTEE OBLIGATIONS. (a) Parent and Xxxxx Xxxxxxx shall
cooperate, and shall cause their respective Groups to cooperate, to terminate,
or to cause a member of the Parent Group to be substituted in all respects for
any member of the Xxxxx Xxxxxxx Group in respect of, all obligations of any
member of the Xxxxx Xxxxxxx Group under any Parent Liabilities for which such
member of the Xxxxx Xxxxxxx Group may be liable, as guarantor, original tenant,
primary obligor or otherwise. If such a termination or substitution is not
effected by the Distribution Date, (i) Parent shall indemnify and hold harmless
the Xxxxx Xxxxxxx Indemnitees for any Indemnifiable Loss arising from or
relating thereto, and (ii) without the prior written consent of the Chief
Financial Officer, Treasurer or any Assistant Treasurer of Xxxxx Xxxxxxx, from
and after the Distribution Date, Parent shall not, and shall not permit any
member of the Parent Group or any of its Affiliates to, renew or extend the term
of, increase its obligations under, or transfer to a third party, any loan,
lease, contract or other obligation for which any member of the Xxxxx Xxxxxxx
Group is or may be liable unless all obligations of the Xxxxx Xxxxxxx Group with
respect thereto are thereupon terminated by documentation reasonably
satisfactory in form and substance to the Chief Financial Officer, Treasurer or
any Assistant Treasurer of Xxxxx Xxxxxxx; PROVIDED, that the limitations in
clause (ii) shall not apply in the event that a member of the Parent Group
obtains a letter of credit from a financial institution reasonably acceptable to
Xxxxx Xxxxxxx and for the benefit of Xxxxx Xxxxxxx with respect to such
obligation of the Xxxxx Xxxxxxx Group.
(b) Parent and Xxxxx Xxxxxxx shall cooperate, and shall cause their
respective Groups to cooperate, to terminate, or to cause a member of the Xxxxx
Xxxxxxx Group to be substituted in all respects for any member of the Parent
Group in respect of, all obligations of any member of the Parent Group under any
Xxxxx Xxxxxxx Liabilities for which such member of the Parent Group may be
liable, as guarantor, original tenant, primary obligor or otherwise. If such a
termination or substitution is not effected by the Distribution Date, (i) Xxxxx
Xxxxxxx shall indemnify and hold harmless the Parent Indemnitees for any
Liabilities arising from or relating thereto, and (ii) without the prior written
consent of the Chief Financial Officer, Treasurer or any Assistant Treasurer of
Parent, from and after the Distribution Date, Xxxxx Xxxxxxx shall not, and shall
not permit any member of the Xxxxx Xxxxxxx Group to, renew or extend the term
of, increase its obligations under, or transfer to a third party, any loan,
lease, contract or other obligation for which any member of the Parent Group is
or may be liable unless all obligations of the Parent Group with respect thereto
are thereupon terminated by documentation reasonably satisfactory in form and
substance to the Chief Financial Officer, Treasurer or any Assistant Treasurer
of Parent; PROVIDED, that the limitations in clause (ii) shall not apply in the
event that a member of the Xxxxx Xxxxxxx Group obtains a letter of credit from a
financial institution reasonably acceptable to Xxxxx Xxxxxxx and for the benefit
of Parent with respect to such obligation of the Parent Group.
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SECTION 5.5 FURTHER ASSURANCES. (a) In addition to the actions
specifically provided for elsewhere in this Agreement and except as otherwise
provided in Section 2.5 with respect to commercially reasonable efforts, each of
the Parties shall use its reasonable best efforts, prior to, on and after the
Distribution 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. Each
Party has appointed the individual(s) identified on SCHEDULE 5.5(a) opposite
such Party's name to act as its agent and attorney-in-fact with full right and
power to execute any instruments necessary to transfer any Asset and Liabilities
allocated to any other Person.
(b) Without limiting the foregoing, prior to, on and after the
Distribution Date, each Party shall cooperate with the other Party, and without
any further consideration, but at the expense of the requesting Party, 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 Consents or Governmental Approvals), and to take all such other
actions as such Party may reasonably be requested to take by any other Party
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 Xxxxx Xxxxxxx Assets and
the assignment and assumption of the Xxxxx Xxxxxxx Liabilities and the other
transactions contemplated hereby and thereby.
(c) On or prior to the Distribution Date, Parent and Xxxxx Xxxxxxx,
in their respective capacities as direct and indirect stockholders of their
respective Subsidiaries, shall each properly ratify any actions that are
reasonably necessary or desirable to be taken by Parent and Xxxxx Xxxxxxx, or
any of their respective Subsidiaries, as the case may be, to effectuate the
transactions contemplated by this Agreement. On or prior to the Distribution
Date, Parent and Xxxxx Xxxxxxx shall take all actions as may be necessary to
approve the stock-based employee benefit plans of Xxxxx Xxxxxxx in order to
satisfy any applicable requirement, including Rule 16b-3 under the Exchange Act,
Section 162(m) of the Code and the rules and regulations of the NYSE to the
extent practicable prior to the Distribution.
(d) Each of the Parties shall, and shall cause the members of their
respective Groups to, at the request of the other, use its reasonable best
efforts to obtain, or cause to be obtained, any consent, substitution, approval
or amendment required to novate (including with respect to any federal
government contract) or assign all obligations under agreements, leases,
licenses and other obligations or Liabilities of any nature whatsoever that
constitute Xxxxx Xxxxxxx Liabilities, or to obtain in writing the unconditional
release of all parties to such arrangements other than any member of the Xxxxx
Xxxxxxx Group, so that, in any such case, Xxxxx Xxxxxxx and its Group will be
solely responsible for such Liabilities.
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ARTICLE VI
ACCESS TO INFORMATION
SECTION 6.1 AGREEMENT FOR EXCHANGE OF INFORMATION. (a) Each of Parent
and Xxxxx Xxxxxxx, on behalf of its respective Group, agrees to provide, or
cause to be provided, to the other Party, at any time before, on or after the
Distribution Date, as soon as reasonably practicable after written request
therefor from such other Party, any Information in the possession or under the
control of such respective Group that the requesting Party reasonably needs (i)
to comply with reporting, disclosure, filing or other requirements imposed on
the requesting Party (including under applicable securities laws) by a
Governmental Authority having jurisdiction over the requesting Party, (ii) for
use in any other judicial, regulatory, administrative or other proceeding or in
order to satisfy audit, accounting, claims, regulatory, litigation or other
similar requirements, or (iii) to comply with its obligations under this
Agreement or any Ancillary Agreement; PROVIDED, HOWEVER, that in the event that
any Party reasonably determines that any such provision of Information could be
commercially detrimental to such Party or any member of its Group, violate any
law or agreement to which such Party or member of its Group is a party, or waive
any attorney-client privilege applicable to such Party or member of its Group,
the Parties shall take all reasonable measures to permit the compliance with the
obligations pursuant to this Section 6.1(a) in a manner that avoids any such
harm or consequence. Parent and Xxxxx Xxxxxxx intend that any transfer of
Information that would otherwise be within the attorney-client privilege shall
not operate as a waiver of any potentially applicable privilege.
(b) Each Party shall make its employees and facilities available
and accessible during normal business hours and on reasonable prior notice to
provide an explanation of any Information provided hereunder.
(c) Notwithstanding anything to the contrary in Section 6.1(a),
after the Distribution Date, Xxxxx Xxxxxxx shall provide, or cause to be
provided, to Parent in such form as Parent shall request, at no charge to
Parent, all financial and other data and Information as Parent determines
necessary or advisable in order to prepare Parent's financial statements and
reports or filings with any Governmental Authority.
SECTION 6.2 OWNERSHIP OF INFORMATION. Any Information owned by one
Group that is provided to a requesting Party pursuant to Section 6.1 shall be
deemed to remain the property of the providing Party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as granting
or conferring rights of license or otherwise in any such Information.
SECTION 6.3 COMPENSATION FOR PROVIDING INFORMATION. The Party
requesting such Information agrees to reimburse the other Party for the
reasonable out-of-pocket costs, if any, of creating, gathering and copying such
Information, to the extent that such costs are incurred for the benefit of the
requesting Party by or on behalf of such other Party's Group. Except as may be
otherwise specifically provided elsewhere in this Agreement or in any other
Ancillary Agreement, such costs shall be computed in accordance with the
providing Party's standard methodology and procedures.
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SECTION 6.4 RECORD RETENTION. To facilitate the possible exchange of
Information pursuant to this Article VI and other provisions of this Agreement
after the Distribution Date, the Parties agree to use their reasonable best
efforts to retain all Information in their respective possession or control on
the Distribution Date in accordance with the policies of Parent as in effect on
the Distribution Date. No Party will destroy, or permit any of the members of
the Group to destroy, any Information that the other Party may have the right to
obtain pursuant to this Agreement prior to the seventh anniversary of the date
hereof without first using its reasonable best efforts to notify the other Party
of such proposed destruction and giving the other Party the opportunity to take
possession of such Information prior to such destruction; PROVIDED, HOWEVER,
that in the case of any Information relating to Liabilities relating to, arising
out or resulting from any environmental law, such period shall be extended to
the expiration of the applicable statute of limitations (giving effect to any
extensions thereof).
SECTION 6.5 LIMITATION OF LIABILITY. No Party shall have any liability
to the other Party in the event that any Information exchanged or provided
pursuant to this Agreement that is an estimate or forecast, or which is based on
an estimate or forecast, is found to be inaccurate, in the absence of willful
misconduct or fraud by the Party providing such Information. No Party shall have
any liability to the other Party if any Information is destroyed after using its
reasonable best efforts in accordance with the provisions of Section 6.4.
SECTION 6.6 OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION.
The rights and obligations granted under this Article VI are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of Information set forth in any Ancillary
Agreement. The provisions of Section 6.1 through 6.5 shall not apply to any
exchange of Information relating to Income Taxes or Other Taxes (as such terms
are defined in the Tax Sharing Agreement), which is governed exclusively by the
Tax Sharing Agreement.
SECTION 6.7 PRODUCTION OF WITNESSES; RECORDS; COOPERATION. (a) After
the Distribution Date, except in the case of an adversarial Action by one Party
against another Party (which shall be governed by such discovery rules as may be
applicable thereto), each Party shall use its reasonable best efforts to make
available to the other Party, upon written request, the former, current and
future directors, officers, employees, other personnel and agents of the members
of its respective Group as witnesses and any books, 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, other personnel and agents) or books,
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
out-of-pocket costs and expenses (including allocated costs of in-house counsel
and other personnel) in connection therewith.
(b) If an Indemnifying Party or Parent chooses to defend or to seek
to compromise or settle any Third-Party Claim, Parent or Xxxxx Xxxxxxx, as the
case may be, shall use its reasonable best efforts to make available to the
other Party, upon written request, the former, current and future directors,
officers, employees, other personnel and agents of the members of its respective
Group as witnesses and any books, records or other documents within
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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, other personnel and agents) or books, 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, and to cause each member of its respective Group to cooperate and
consult, to the extent reasonably necessary with respect to any Actions.
(d) Without limiting any provision of this Section 6.7, 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 to 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 Person 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 6.7 is intended to be interpreted in a manner so as to facilitate
cooperation and shall include the obligation to provide as witnesses, directors,
officers, employees, other personnel and agents without regard to whether any
such individual could assert a possible business conflict (subject to the
exception set forth in the first sentence of Section 6.7(a)).
(f) In connection with any matter contemplated by this Section 6.7,
the Parties will enter into a mutually acceptable joint defense agreement so as
to maintain to the extent practicable any applicable attorney-client privilege
or work product immunity of any member of any Group.
SECTION 6.8 CONFIDENTIALITY. (a) Subject to Section 6.9, each of
Parent and Xxxxx Xxxxxxx, on behalf of itself and each member of its respective
Group, agrees to hold, and to cause its respective directors, officers,
employees, agents, accountants, counsel and other advisors and representatives
to hold, in strict confidence, with at least the same degree of care that
applies to Parent's confidential and proprietary information pursuant to
policies in effect as of the Distribution Date, all Information concerning each
such other Group that is either in its possession (including Information in its
possession prior to any of the date hereof, the Contribution Effective Time or
the Distribution Date) or furnished by any such other Group or its respective
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives at any time pursuant to this Agreement, any Ancillary
Agreement or otherwise, and shall not use any such Information other than for
such purposes as shall be expressly permitted hereunder or thereunder, except,
in each case, to the extent that such Information has been (i) publicly
disclosed through no fault of such Party or any member of such Group or any of
their respective directors, officers, employees, agents, accountants, counsel
and other advisors and representatives, or (ii) later lawfully acquired from
other sources by such Party (or any member of such Party's Group) on a
non-public basis which sources are not themselves bound by a confidentiality
obligation.
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(b) Each Party agrees not to release or disclose, or permit to be
released or disclosed, any such Information to any other Person, except its
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives who need to know such Information (who shall be advised of
their obligations hereunder with respect to such Information), except in
compliance with Section 6.9. Without limiting the foregoing, when any
Information is no longer needed for the purposes contemplated by this Agreement
or any Ancillary Agreement, each Party will promptly after request of the other
Party either return to the other Party all Information in a tangible form
(including all copies thereof and all notes, extracts or summaries based
thereon) or certify to the other Party that it has destroyed such Information
(and such copies thereof and such notes, extracts or summaries based thereon).
(c) Notwithstanding anything in this Agreement or any of the
Ancillary Agreements to the contrary, Parent and Xxxxx Xxxxxxx agree that each
Party (and each employee, representative or other agent of such Party) may
disclose to any and all persons, without limitation of any kind, the "tax
treatment" and "tax structure" (as those terms are defined in Treasury
Regulation Section 1.6011-4) of the transactions contemplated by this Agreement
or any of the Ancillary Agreements and all materials of any kind (including
opinions or other tax analyses) that are provided to such Person relating to
such tax treatment and tax structure. This authorization does not extend to
disclosure of any other information, including (without limitation) (i) the
identity of any Party (or any representative thereof), (ii) the existence and
status of any negotiations, or (iii) financial, business, legal or personal
information of or regarding a Party (or any of its representatives) to the
extent not related to the tax treatment or tax structure of such transactions.
SECTION 6.9 PROTECTIVE ARRANGEMENTS. In the event that any Party 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 the other Party (or any member of the other Party's
Group) that is subject to the confidentiality provisions hereof, such Party
shall notify the other Party prior to disclosing or providing such Information
and shall cooperate at the expense of the requesting Party in seeking any
reasonable protective arrangements requested by such other Party. Subject to the
foregoing, the Person that received such request may thereafter disclose or
provide Information if and to the extent required by such law (as so advised by
counsel) or by lawful process or such Governmental Authority; PROVIDED, that the
Person shall only disclose such portion of the Information so required to be
disclosed or provided.
ARTICLE VII
NO REPRESENTATIONS OR WARRANTIES
SECTION 7.1 NO REPRESENTATIONS OR WARRANTIES. Xxxxx Xxxxxxx, on behalf
of itself and all members of the Xxxxx Xxxxxxx Group, understands and agrees
that, except as expressly set forth herein or in any other Ancillary Agreement,
(a) no member of the Parent Group or any other Person is, in this Agreement or
in any other agreement or document, making any representation or warranty of any
kind whatsoever, express or implied, to Xxxxx Xxxxxxx or any member of the Xxxxx
Xxxxxxx Group in any way with respect to any of the transactions
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contemplated hereby or the business, assets, condition or prospects (financial
or otherwise) of, or any other matter involving, the Assets, Liabilities or
businesses of Parent, any member of the Parent Group, Xxxxx Xxxxxxx or any
member of the Xxxxx Xxxxxxx Group, any Xxxxx Xxxxxxx Assets, any Xxxxx Xxxxxxx
Liabilities or the Xxxxx Xxxxxxx Business, (b) Xxxxx Xxxxxxx and each member of
the Xxxxx Xxxxxxx Group shall take all of the Xxxxx Xxxxxxx Assets, the Xxxxx
Xxxxxxx Business and Xxxxx Xxxxxxx Liabilities on an "as is, where is" basis,
and all implied warranties of merchantability, fitness for a specific purpose or
otherwise are hereby expressly disclaimed, and (c) none of Parent or any members
of the Parent Group or any other Person makes any representation or warranty
with respect to the Separation, the Merger, the Contribution, the Distributions
or the entering into of this Agreement or the Ancillary Agreements or the
transactions contemplated hereby and thereby. Except as expressly set forth
herein or in any other Ancillary Agreement, Xxxxx Xxxxxxx and each member of the
Xxxxx Xxxxxxx Group shall bear the economic and legal risk that the Xxxxx
Xxxxxxx Assets shall prove to be insufficient or that the title of any member of
the Xxxxx Xxxxxxx Group to any Xxxxx Xxxxxxx Assets shall be other than good and
marketable and free from encumbrances.
ARTICLE VIII
TERMINATION
SECTION 8.1 TERMINATION. This Agreement may be terminated by Parent in
its sole discretion at any time prior to the consummation of the Distribution.
SECTION 8.2 EFFECT OF TERMINATION. In the event of any termination of
this Agreement prior to consummation of the Distribution, no Party (or any
member of its Group or any of its or its Group's directors or officers) shall
have any Liability or further obligation to the other Party.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 COMPLETE AGREEMENT; REPRESENTATIONS. (a) This Agreement,
the Exhibits and Schedules hereto and the Ancillary Agreements shall constitute
the entire agreement between the Parties with respect to the subject matter
hereof and shall supersede all previous negotiations, commitments and writings
with respect to such subject matter.
(b) Parent represents on behalf of itself and each other member of
the Parent Group and Xxxxx Xxxxxxx represents on behalf of itself and each other
member of the Xxxxx Xxxxxxx 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 other
Ancillary Agreement (collectively, the "TRANSACTION AGREEMENTS") to which
it is a party and to consummate the transactions contemplated by the
Transaction Agreements to which it is a party; and
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(ii) this Agreement has been duly executed and delivered by such
Person (if such Person is a Party) and constitutes a valid and binding
agreement of it enforceable in accordance with the terms thereof (assuming
the due execution and delivery thereof by the other Party), and each of the
other Transaction Agreements to which it will be a party will be duly
executed and delivered by it and will constitute a valid and binding
agreement of it enforceable in accordance with the terms thereof (assuming
the due execution and delivery thereof by the other party or parties to
such Transaction Agreement).
SECTION 9.2 EXPENSES. Except as expressly set forth in this Agreement
or in any Ancillary Agreement, and regardless whether or not the Separation or
the Distribution is consummated, all third-party fees, costs and expenses paid
or incurred in connection with the transactions contemplated by this Agreement
and the Ancillary Agreements will be paid by the Party incurring such fees,
costs or expenses. Notwithstanding the foregoing, Parent shall promptly
reimburse Xxxxx Xxxxxxx for all of its out-of-pocket third-party fees, costs and
expenses incurred directly in connection with the Separation or the
Distribution, including third-party fees, costs and expenses related to the
Registration Statement, to the extent incurred prior to the Distribution or, if
incurred thereafter, to the extent such third-party fees, costs and expenses,
including the amount thereof, were approved by Parent in writing prior to the
Distribution.
SECTION 9.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (other than the
laws regarding choice of laws and conflicts of laws that would apply the
substantive laws of any other jurisdiction) as to all matters, including matters
of validity, construction, effect, performance and remedies.
SECTION 9.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given to a
Party when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses and facsimile numbers and marked to the
attention of the person (by name or title) designated below (or to such other
address, facsimile number or person as a Party may designate by notice to the
other Party):
If to Parent or any member of the Parent Group:
U.S. Bancorp
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
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If to Xxxxx Xxxxxxx or any member of the Xxxxx Xxxxxxx Group:
Xxxxx Xxxxxxx Companies
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
SECTION 9.5 AMENDMENT, MODIFICATION OR WAIVER. This Agreement may be
amended, modified, waived or supplemented, in whole or in part, only by a
written agreement signed by all of the Parties. The waiver by such Parties of
any breach of this Agreement shall not be construed as a waiver of any
subsequent breach.
SECTION 9.6 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES. (a)
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the Parties and their successors and permitted assigns, but
neither this Agreement nor any of the rights, interests and obligations
hereunder shall be assigned or otherwise transferred, in whole or in part, by
any Party without the prior written consent of the other Party.
(b) Except for the provisions of Sections 4.2 through 4.8 relating
to indemnification, which are also for the benefit of the Indemnitees, this
Agreement is solely for the benefit of the Parties and is not intended to confer
upon any other Persons any rights or remedies hereunder.
SECTION 9.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9.8 NEGOTIATION. In the event of any dispute or disagreement
between any member of the Parent Group, on the one hand, and any member of the
Xxxxx Xxxxxxx Group, on the other hand, arising out of or in connection with
this Agreement or any Ancillary Agreement (including with respect to the
interpretation or performance of any provision thereof), the dispute or
disagreement, upon written request of Parent or Xxxxx Xxxxxxx, as applicable,
shall be referred to representatives of the Parties for decision, Parent being
represented by its Chief Financial Officer or General Counsel and Xxxxx Xxxxxxx
being represented by its Chief Financial Officer or General Counsel. Such
representatives of the Parties shall promptly meet in a good faith effort to
resolve the dispute or disagreement or determine a means to resolve the dispute
or disagreement. If such representatives do not agree upon a decision within 30
days after reference of the matter to them, each of Parent and Xxxxx Xxxxxxx
shall be free to exercise all rights and remedies available to them under this
Agreement or the applicable Ancillary Agreement.
SECTION 9.9 SPECIFIC PERFORMANCE. From and after the Distribution, 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 Parties agree that the party or parties to this Agreement or such Ancillary
Agreement who are or are to be thereby aggrieved shall have the right to
specific performance and injunctive or other equitable relief of its or their
rights under this Agreement or such Ancillary Agreement, in addition to any and
all other rights
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and remedies at law or in equity, and all such rights and remedies shall be
cumulative. The Parties agree that, from and after the Distribution, the
remedies at law for any breach or threatened breach of this Agreement or any
Ancillary Agreement, including monetary damages, are inadequate compensation for
any loss, that any defense in any action for specific performance that a remedy
at law would be adequate is hereby waived, and that any requirements for the
securing or posting of any bond with such remedy are hereby waived.
SECTION 9.10 MINNESOTA FORUM. Each of the Parties agrees that,
notwithstanding anything herein or in any of the Ancillary Agreements, all
actions or proceedings arising out of or in connection with this Agreement or
any Ancillary Agreement, or for recognition and enforcement of any judgment
arising out of or in connection with the foregoing agreements, shall be tried
and determined exclusively in the state or federal courts in the State of
Minnesota, and each of the Parties hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect to its property, generally
and unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each
of the Parties hereby expressly waives any right it may have to assert, and
agrees not to assert, by way of motion, as a defense, counterclaim or otherwise,
in any such action or proceeding: (1) any claim that it is not subject to
personal jurisdiction in the aforesaid courts for any reason; (2) any claim that
it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts; and (3) any claim that (i) any
of the aforesaid courts is an inconvenient or inappropriate forum for such
action or proceeding, (ii) venue is not proper in any of the aforesaid courts
and (iii) this Agreement or any such Ancillary Agreement, or the subject matter
hereof or thereof, may not be enforced in or by any of the aforesaid courts.
SECTION 9.11 INTERPRETATION; CONFLICT WITH ANCILLARY AGREEMENTS. The
Article and Section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the Parties and shall not
in any way affect the meaning or interpretation of this Agreement. The
provisions of this Agreement shall govern in the event of any conflict between
any provision of this Agreement and that of any Ancillary Agreement.
SECTION 9.12 SEVERABILITY. If any provision of this 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 the application of such provision to Persons or
circumstances 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, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any Party.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
U.S. BANCORP
By:
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Name:
Title:
XXXXX XXXXXXX COMPANIES
By:
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Name:
Title: