SEPARATION AND DISTRIBUTION AGREEMENT by and between HOLCIM LTD and [EVERTECT AG] Dated as of [●], 2025

 

 

by and between

 

HOLCIM LTD

 

and

 

[EVERTECT AG]

 

Dated as of [●], 2025

TABLE OF CONTENTS

 

SCHEDULES

 

 

EXHIBITS

 

THIS SEPARATION AND DISTRIBUTION AGREEMENT (this “Agreement”), is entered into as of [●], by and between Holcim Ltd, a corporation (Aktiengesellschaft) incorporated in the Canton of Zug, Switzerland with enterprise identification number (UID) CHE-100.136.893 and its registered office at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇ (“Holcim”), and [Evertect AG], a corporation (Aktiengesellschaft) incorporated in the Canton of Zug, Switzerland with enterprise identification number (UID) CHE-238.689.758 and its registered office at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇ (“SpinCo”) (each a “Party” and together, the “Parties”).

 

 

WHEREAS, Holcim, acting through its direct and indirect Subsidiaries, currently conducts a number of businesses, including the SpinCo Business;

 

WHEREAS, the Board of Directors of Holcim (the “Holcim Board”) has determined that it is advisable and in the best interests of Holcim to separate Holcim into two separate, independent, publicly traded companies: (i) one comprising the Holcim Business, which shall continue to be owned and conducted, directly or indirectly, by Holcim, which will continue to be owned by the existing holders of ordinary shares of Holcim (the “Holcim Shares”), and (ii) one comprising the SpinCo Business, which shall be owned and conducted directly or indirectly by SpinCo, ordinary shares of which are intended to be distributed on a pro rata basis to existing holders of Holcim Shares (other than members of the Holcim Group who hold Holcim Shares in treasury or otherwise), with the balance of ordinary shares of SpinCo to be contributed to SpinCo prior to the Distribution (as defined below);

 

WHEREAS, in furtherance of the foregoing, the Holcim Board has determined that it is advisable and in the best interests of Holcim: (i) for Holcim and its Subsidiaries to enter into a series of transactions whereby Holcim and its Subsidiaries will be reorganized such that (A) Holcim and/or one or more other members of the Holcim Group will own all of the Holcim Assets and assume (or retain) all of the Holcim Liabilities, and (B) SpinCo and/or one or more other members of the SpinCo Group will own all of the SpinCo Assets and assume (or retain) all of the SpinCo Liabilities (the transactions referred to in this clause (i) being referred to herein as the “Separation”); and (ii) thereafter, for Holcim to (x) distribute to the existing holders of Holcim Shares (other than members of the Holcim Group who hold Holcim Shares in treasury or otherwise) as of the Cum-Dividend Time, on a pro rata basis and based on the distribution ratio determined by the Holcim Board, a number of ordinary shares of SpinCo (“SpinCo Shares”) (such transactions described in this clause (ii)(x), the “Distribution”), and (y) contribute the balance of SpinCo Shares to SpinCo as of the Effective Time, to be held by SpinCo as treasury shares (such transactions described in this clause (ii)(y), the “SpinCo Share Contribution”), such that no member of the Holcim Group will continue to own any SpinCo Shares following the Distribution;

 

WHEREAS, the holders of Holcim Shares have further resolved, on the terms contemplated hereby, that Holcim shall effect the Distribution by means of a distribution of an extraordinary dividend of the SpinCo Shares to holders of Holcim Shares in accordance with the terms and conditions of this Agreement;

 

WHEREAS, in furtherance of the foregoing, the holders of a majority of Holcim Shares represented at the [annual] general meeting of Holcim held at [●] [a.m.]/[p.m.], Central European Summer Time (“CEST”) on [●], 2025 at [●] (the “Holcim AGM”) approved, among other things, the Distribution and certain related matters necessary to declare and effectuate the Distribution in accordance with Swiss Law (such approval, the “Shareholder Approval”);

 

WHEREAS, SpinCo has not engaged in activities except those in connection with the transactions contemplated by the Internal Reorganization Steps Plan, the consummation of the transactions contemplated by this Agreement and those activities necessary in connection with its standup as an independent company (including activities with respect to the SpinCo Financing Arrangements, the SIX listing and the transactions contemplated by this Agreement);

 

WHEREAS, the Board of Directors of SpinCo has determined that it is advisable and in the best interests of SpinCo to effectuate the transactions contemplated by the Separation and Internal Reorganization Steps Plan;

 

WHEREAS, the Parties intend that the Distribution, together with certain internal reorganization transactions undertaken in anticipation of the Distribution, generally will qualify as tax-free for U.S. federal income tax purposes under Sections 368(a)(1)(D), 361 and 355 of the United States Internal Revenue Code of 1986, as amended (the “Code”), and that this Agreement is intended to be, and is hereby adopted as, a plan of reorganization under Section 368 of the Code to the extent relevant for these transactions;

 

WHEREAS, the Parties intend that the contribution by ▇▇▇▇▇▇ of the SpinCo Assets to the SpinCo Group as well as the Distribution, together with certain internal reorganization transactions undertaken as part of the Separation, be generally recognized and treated as a tax neutral restructuring for Swiss tax purposes; and

 

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation and to set forth certain other agreements that will, following the Distribution, govern certain matters relating to the Separation and the relationship of SpinCo and Holcim and their respective Groups.

 

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

 

ARTICLE I

 

 

Section 1.1          Definitions.  As used in this Agreement, the following terms shall have the meanings set forth below:

 

(1)          

 

(2)          

 

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(5)          

 

(6)          

 

(7)        

 

(8)        

 

(i)          all accounting and other legal and business books, records, ledgers and files, whether printed, electronic or written;

 

(ii)        all computers and other electronic data processing and communications equipment, fixtures, machinery, equipment, furniture, office equipment, automobiles, trucks and other transportation equipment, special and general tools, test devices, prototypes and models and other tangible personal property;

 

(iii)        all inventories of products, goods, materials, parts, raw materials and supplies;

 

(iv)        all interests in real property of whatever nature, including easements, rights-of-way, leases, subleases, licenses or other occupancy agreements, whether as fee owner, mortgagee or holder of a Security Interest in real property, lessor, sublessor, licensor, lessee, sublessee, licensee or otherwise;

 

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

 

(vi)        all Contracts and any rights or claims (whether accrued or contingent) arising under any Contracts;

 

(vii)       all deposits, letters of credit and performance and surety bonds;

 

(viii)    all written (including in electronic form) technical information, data, specifications, research and development information, engineering drawings and specifications, operating and maintenance manuals, and materials and analyses prepared by consultants and other third parties;

 

(ix)        all Intellectual Property;

 

(x)         all IT Assets;

 

(xi)        all Personal Data;

 

(xii)      all cost information, sales and pricing data, customer prospect lists, supplier records, customer and supplier lists, customer and vendor data, correspondence and lists, product data and literature, artwork, design, development and business process files and data, vendor and customer drawings, specifications, quality records and reports and other books, records, studies, surveys, reports, plans and documents;

 

(xiii)     all prepaid expenses, trade accounts and other accounts and notes receivables;

 

(xiv)     all claims, rights, remedies and recourse against any Person, whether sounding in tort, contract or otherwise, whether accrued or contingent;

 

(xv)      all claims, rights, remedies and recourse under insurance policies and all rights in the nature of insurance, indemnification, reimbursement or contribution;

 

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

 

(xvii)    all cash or Cash Equivalents, bank accounts, brokerage accounts, lock boxes and other deposit arrangements; and

 

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

 

(9)          

 

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(32)     

 

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(34)       

“Effective Time” means [immediately prior to the time at which the Distribution is effective]/[12:01am Central European Time] on the Ex-Dividend Date.

 

(35)      

 

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(44)       

“FinSA” means the Swiss Federal Act on Financial Services dated 15 June 2018 (SR 950.1);

 

(45)      

 

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(48)      

 

(49)       

 

(50)       

 

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(53)      

“Holcim Assets” means (i) Holcim’s or any of its Subsidiaries’ (including the members of the Holcim Group and the members of the SpinCo Group) right, title and interest in and to, as of the Effective Time, any and all Assets that are not SpinCo Assets and (ii) Specified Holcim Assets.

 

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(64)       

 

(65)       

“ICC Court” has the meaning assigned to such term in Section 8.3(c)(i).

 

(66)      

“Indebtedness” means, of any specified Person, (i) all obligations of such specified Person for borrowed money or arising out of any extension of credit to or for the account of such specified Person (including reimbursement or payment obligations with respect to surety bonds, letters of credit, bankers’ acceptances and similar instruments), (ii) all obligations of such specified Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such specified Person issued or assumed as the deferred purchase price of property or services, (iv) all Liabilities secured by (or for which any Person to which any such Liability is owed has an existing right, contingent or otherwise, to be secured by) any mortgage, deed of trust, lien, pledge or other encumbrance on property owned or acquired by such specified Person (or upon any revenues, income or profits of such specified Person therefrom), whether or not the obligations secured thereby have been assumed by the specified Person or otherwise become Liabilities of the specified Person, (v) all capital lease obligations of such specified Person, (vi) all securities or other similar instruments convertible or exchangeable into any of the foregoing, and (vii) any Liability of others of a type described in any of the preceding clauses (i) through (vii) in respect of which the specified Person has incurred, assumed or acquired a Liability by means of a guarantee.

 

(67)      

 

(68)       

 

(69)      

 

(70)       

“Indemnity Payment” has the meaning assigned to such term in Section 6.7(a).

 

(71)      

 

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(74)     

 

(75)       

 

(76)      

 

(77)       

“IT Assets” means all Software, computer systems, information technology and telecommunications equipment, databases, internet protocol addresses, data rights and documentation, reference, resource and training materials relating thereto, and all Contracts (including Contract rights) to the extent relating to any of the foregoing (including software license agreements, source code escrow agreements, information technology support and maintenance agreements, electronic database access contracts, domain name registration agreements, website hosting agreements, outsourcing agreements, service provider agreements, interconnection agreements, permits, radio licenses and telecommunications agreements), in each case, excluding any Know-How contained therein that is not intrinsically related to the operation or maintenance of such IT Assets.

 

(78)       

“Joint Actions” has the meaning assigned to such term in Section 6.11(d).

 

(79)     

“Know-How” means all trade secrets and other confidential or proprietary information, know-how and technical data, including any that comprise financial, business, scientific, technical, economic, or engineering information and instructions, including any confidential or proprietary raw materials, material lists, raw material specifications, manufacturing or production files or specifications, plans, drawings, blueprints, design tools, quality assurance and control procedures, simulation capability, research data, manuals, compilations, reports, including technical reports and research reports, analyses, formulas, formulations, designs, prototypes, methods, techniques, processes, rights in research, development, manufacturing, financial, marketing and business data, pricing and cost information, customer and supplier lists and information, procedures, inventions, and invention disclosure documents, in each case, other than published and issued Patents.

 

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(94)       

“Post-Distribution Claims” has the meaning assigned to such term in Section 9.1(a).

 

(95)       

“Post-Spin Holcim Entities” has the meaning assigned to such term in Section 2.2(c)(ii).

 

(96)       

“Post-Spin SpinCo Entities” has the meaning assigned to such term in Section 2.2(c)(i).

 

(97)       

“Pre-Distribution Claims” has the meaning assigned to such term in Section 9.1(b).

 

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(100)     

 

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(112)     

 

(113)     

 

(114)     

 

(115)     

“SIX Listing Rules” means the Listing Rules of SIX dated 13 May 2024.

 

(116)     

 

(117)     

 

(118)    

 

(119)    

 

(i)        all interests in the capital stock of, or other equity interests in, each member of the Holcim Group (other than Holcim) and all other equity, partnership, membership, joint venture and similar interests set forth on Schedule 1.1(119)(i) under the captions “Joint Ventures Interests” or “Other Equity Interests”;

 

(ii)         other than the SpinCo Contracts and subject to Section 2.8, all other Contracts to which Holcim, SpinCo or any of their Affiliates is a party or by which they or any of their respective Affiliates or any of their respective Assets are bound and, subject to Section 2.8, any rights or claims (whether accrued or contingent) of Holcim, SpinCo, or any of their respective Affiliates arising under all Contracts to which Holcim, SpinCo or any of their Affiliates is a party or by which they or any of their respective Affiliates or any of their respective Assets are bound, to the extent related to the Holcim Business;

 

(iii)        subject to Article IX, any and all rights of any member of the Holcim Group under any Holcim Insurance Policies;

 

(iv)        the Assets listed or described on Schedule 1.1(119)(iv) and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of the Holcim Group;

 

(v)       any and all Intellectual Property (excluding Software, which for clarity is governed by Section 1.1(119)(vi)) owned by Holcim, SpinCo, or any of their respective Affiliates as of the Effective Time, in each case to the extent that such Intellectual Property is (1) a registration or application for registration of Intellectual Property, or is valid, enforceable or otherwise protectable under the Laws, in any jurisdiction outside of the SpinCo Jurisdictions (excluding Intellectual Property set forth on Schedule 1.1(122)(iv)), (2) Trademarks to be licensed by Holcim or its Affiliates to SpinCo under the Trademark License Agreement (including, for the avoidance of doubt, the Holcim House Marks (as defined in the Trademark License Agreement)), or (3) otherwise set forth on Schedule 1.1(119)(v);

 

(vi)       all IT Assets owned, licensed to or by, or held by Holcim, SpinCo, or any of their respective Affiliates as of the Effective Time that are (1) not used exclusively or held for use exclusively in the SpinCo Business, or (2) otherwise set forth on Schedule 1.1(119)(vi);

 

(vii)      all Cash Equivalents in any Accounts owned by a member of the SpinCo Group, or otherwise in the control of a member of the Holcim Group, as of the Effective Time;

 

(viii)     (1) any and all real property owned by the Holcim Group as of the Effective Time, except as set forth on Schedule 1.1(119)(viii)(1), including all land and land improvements, structures, buildings, fixtures, audiovisual, telecommunications and other electronic equipment, components and systems attached to or within the walls of, or otherwise integrated into the structure of, a building, building improvements, and all easements, rights of way and other appurtenances pertaining thereto or accruing to the benefit thereof; and (2) any and all leases or subleases of real property by the Holcim Group as of the Effective Time, except as set forth on Schedule 1.1(119)(viii)(2) including, to the extent provided for in such leases, any land and land improvements, structures, buildings, fixtures, audiovisual, telecommunications and other electronic equipment, components and systems attached to or within the walls of, or otherwise integrated into the structure of, a building, building improvements, and all easements, rights of way and other appurtenances pertaining thereto or accruing to the benefit of the lessee thereunder (collectively, the “Holcim Properties”); and

 

(ix)        any collateral securing any Holcim Liability as of the Effective Time.

 

(120)     

“Specified Holcim Liabilities” means:

 

(i)         any and all Liabilities expressly assumed or retained by the Holcim Group pursuant to this Agreement or any Ancillary Agreement, including any obligations and Liabilities of any member of the Holcim Group under this Agreement or the Ancillary Agreements;

 

(ii)        any and all Liabilities (including Environmental Liabilities) of Holcim, SpinCo, or any of their respective Affiliates, to the extent relating to, arising out of or resulting from:

 

(A)         the operation or conduct of the Holcim Business, as conducted at any time prior to, on or after the Distribution (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Holcim, SpinCo, or any of their respective Affiliates (whether or not such act or failure to act is or was within such Person’s authority) with respect to the Holcim Business);

 

(B)         the operation or conduct of any business conducted by any member of the Holcim Group at any time after the Distribution (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Holcim or any of its Affiliates after the Distribution (whether or not such act or failure to act is or was within such Person’s authority) with respect to the Holcim Business); or

 

(C)         any Holcim Assets whether arising before, on or after the Distribution (other than, with respect to any Contract that is a Holcim Asset and subject to Section 2.8, any Liabilities to the extent related to the operation or conduct of the SpinCo Business);

 

In the event of any conflict between this Section 1.1(120)(ii) and any other subsection of this Section 1.1(120), such subsection which specifically addresses any Liability shall control with respect thereto; provided that nothing herein shall be construed to limit Holcim’s liability for its own conduct following the Distribution pursuant to Section 1.1(120)(ii)(B);

 

(iii)       any and all Liabilities (including under applicable U.S. federal and state securities laws and under applicable Swiss laws) relating to, arising out of or resulting from (x) any statement in a Distribution Disclosure Document or Financing Disclosure Document that expressly relates to the Holcim Business, (y) any statement in a SpinCo Disclosure Document filed prior to the Effective Time that expressly relates to the Holcim Business or (z) any Holcim AGM Materials;

 

(iv)        any and all accounts payable to the extent related to or arising out of the SpinCo Business or any other Holcim Liability;

 

(v)         any and all Liabilities relating to, arising out of or resulting from (1) the Proceedings set forth on Schedule 1.1(120)(v)(1) and (2) the Proceedings set forth on Schedule 1.1(120)(v)(2), but in the case of this clause (2), solely to the extent related to the Holcim Business or the Holcim Assets (or as specified therein); and

 

(vi)        notwithstanding anything to the contrary set forth in subsections (i)-(v) hereof, the Liabilities listed or described on Schedule 1.1(120)(vi).

 

(121)     

 

(122)     

 

(i)         all interests in the capital stock of, or other equity interests in, each member of the SpinCo Group (other than SpinCo) and all other equity, partnership, membership, joint venture and similar interests set forth on Schedule 1.1(122)(i) under the captions “Joint Ventures Interests” or “Other Equity Interests”;

 

(ii)         all SpinCo Contracts, and, subject to Section 2.8, any rights or claims (whether accrued or contingent) of Holcim, SpinCo, or any of their respective Affiliates, arising thereunder, and any other rights or claims (whether accrued or contingent) primarily relating to or arising from any SpinCo Asset or the SpinCo Business;

 

(iii)        to the extent the category of such Asset is not already covered by subclauses (i)–(ii) or (iv)-(xv) of this definition, and subject to the express terms thereof, all Assets that are primarily used, or held for use primarily in, the SpinCo Business, including;

 

(A)       all tangible personal property and interests therein, including machinery, equipment, computer hardware, furniture, fixtures, tools, equipment, vehicles, raw materials, works-in-process, supplies, parts, finished goods and products and other inventories (including any goods, products or other inventories held at any location controlled by a member of either Group or held by a customer on consignment for a member of either Group, any goods, products or other inventories purchased by a member of either Group that are in transit and any goods, products or other inventories sold to or loaned to a customer or Third Party that are in transit to be returned to a member of either Group), in each case that are primarily used, or held for use primarily in, the operation or conduct of the SpinCo Business or that are produced for use or sale by the SpinCo Business, including those set forth on Schedule 1.1(122)(iii)(A), excluding in each case any IT Assets; and

 

(B)          (1) all Records primarily relating to the SpinCo Business (except to the extent in the possession of Holcim or any member of the Holcim Group as of immediately following the Distribution, in which case only copies thereof and to the extent the subject of a reasonably detailed request if requested pursuant to Section 7.2) and (2) copies of the portions of all Records that relate to, but do not primarily relate to, the SpinCo Business;

 

(iv)       any and all Intellectual Property (excluding Software, which for clarity is governed by Section 1.1(122)(v)) owned by Holcim, SpinCo, or any of their respective Affiliates as of the Effective Time, in each case to the extent that such Intellectual Property is (1) a registration or application for registration of Intellectual Property, or is valid, enforceable or otherwise protectable under the Laws, in each of the SpinCo Jurisdictions (excluding Intellectual Property set forth on Schedule 1.1(119)(v) and Trademarks to be licensed by Holcim or its Affiliates to SpinCo under the Trademark License Agreement (including, for the avoidance of doubt, the Holcim House Marks (as defined in the Trademark License Agreement))), or (2) otherwise set forth on Schedule 1.1(122)(iv);

 

(v)         all IT Assets owned, licensed to or by, or held by Holcim, SpinCo, or any of their respective Affiliates as of the Effective Time that are (1) used exclusively or held for use exclusively in the SpinCo Business, or (2) otherwise set forth on Schedule 1.1(122)(v) (such IT Assets described by this Section 1.1(122)(v) the “SpinCo IT Assets”);

 

(vi)       all accounts and notes receivable owed to a member of the SpinCo Group (including, for the avoidance of doubt, such portion of any accounts and notes receivable of the Holcim Group attributable to goods or services sold or provided by the SpinCo Business);

 

(vii)      all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items, in each case held by any member of the SpinCo Group (including, for the avoidance of doubt, such portion of any credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items of the Holcim Group to the extent they are used or held for use in, or arise out of, the operation or conduct of the SpinCo Business or the ownership or operation of the SpinCo Assets), including those set forth on Schedule 1.1(122)(vii);

 

(viii)     all rights, claims, causes of action and credits to the extent relating to any SpinCo Asset or SpinCo Liability (other than to the extent related to a Holcim Liability), including those arising under any guaranty, warranty, indemnity, right of recovery, right of set-off or similar right, including those set forth on Schedule 1.1(122)(viii); provided for the avoidance of doubt, that nothing in this Section 1.1(122)(viii) shall alter the ownership, including as between the Parties, of any Intellectual Property underlying or providing any such rights, claims, causes of action or credits;

 

(ix)       (1) any and all real property owned by the SpinCo Group as of the Effective Time, except as set forth on Schedule 1.1(122)(ix)(1), including all land and land improvements, structures, buildings, fixtures, audiovisual, telecommunications and other electronic equipment, components and systems attached to or within the walls of, or otherwise integrated into the structure of, a building, building improvements, and all easements, rights of way and other appurtenances pertaining thereto or accruing to the benefit thereof; and (2) any and all leases or subleases of real property by the SpinCo Group as of the Effective Time, except as set forth on Schedule 1.1(122)(ix)(2) including, to the extent provided for in such leases, any land and land improvements, structures, buildings, fixtures, audiovisual, telecommunications and other electronic equipment, components and systems attached to or within the walls of, or otherwise integrated into the structure of, a building, building improvements, and all easements, rights of way and other appurtenances pertaining thereto or accruing to the benefit of the lessee thereunder (collectively, the “SpinCo Properties”);

 

(x)         any and all licenses, permits, registrations, approvals and authorizations issued by any Governmental Authority to or in the name of a member of the SpinCo Group as of the Effective Time, except any licenses, permits, registrations, approvals and authorizations set forth on Schedule 1.1(122)(x);

 

(xi)       all Accounts owned by a member of the SpinCo Group (but subject to subclause (xii) of this definition with respect to any Cash Equivalents contained therein);

 

(xii)      all Cash Equivalents in any Accounts owned by a member of the SpinCo Group, or otherwise in the control of a member of the SpinCo Group, as of the Effective Time;

 

(xiii)     any and all Assets (other than Intellectual Property, IT Assets, Cash Equivalents and equity interests of any Person) reflected on the SpinCo Balance Sheet or the accounting records supporting such balance sheet and any Assets acquired by or for SpinCo or any member of the SpinCo Group subsequent to the date of the SpinCo Balance Sheet which, had they been so acquired on or before such date and owned as of such date, would have been reflected on the SpinCo Balance Sheet if prepared on a consistent basis, subject to any dispositions of any of such Assets subsequent to the date of the SpinCo Balance Sheet (including dispositions of any Assets acquired after the date of the SpinCo Balance Sheet);

 

(xiv)      subject to Article IX and other than Holcim Insurance Policies, any and all rights of any member of the SpinCo Group under any insurance policies acquired prior to the Effective Time directly by and in the name of SpinCo or a member of the SpinCo Group and that provide coverage solely for one or more members of the SpinCo Group; and

 

(xv)       the Assets listed or described on Schedule 1.1(122)(xv) and any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement as Assets to be retained by, or assigned or transferred to, any member of the SpinCo Group.

 

Notwithstanding the foregoing, the SpinCo Assets shall in no event include the Specified Holcim Assets.

 

(123)    

 

(124)    

 

(125)    

 

(i)          any Contract that relates exclusively to the SpinCo Business;

 

(ii)       any Contract or part thereof that is otherwise expressly contemplated pursuant to this Agreement or any of the Ancillary Agreements to be retained by, transferred or assigned to, any member of the SpinCo Group; and

 

(iii)        the Contracts listed or described on Schedule 1.1(125)(iii).

 

(126)     

“SpinCo Controlled Existing Actions” has the meaning assigned to such term in Section 6.11(b).

 

(127)    

 

(128)     

[“SpinCo Financing Arrangements” means the financing arrangements described on Schedule 1.1(128).]

 

(129)     

 

(130)     

 

(131)     

 

(132)     

“SpinCo Jurisdictions” means each of the jurisdictions specified on Schedule 1.1(132).

 

(133)      

 

(i)          any and all Liabilities expressly assumed or retained by the SpinCo Group pursuant to this Agreement or the Ancillary Agreements, including any obligations and Liabilities of any member of the SpinCo Group under this Agreement or the Ancillary Agreements;

 

(ii)         any and all Liabilities (including Environmental Liabilities) of Holcim, SpinCo, or any of their respective Affiliates, to the extent relating to, arising out of or resulting from:

 

(A)        the operation or conduct of the SpinCo Business, as conducted at any time prior to, on or after the Distribution (including any Liability (x) to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of Holcim, SpinCo, or any of their respective Affiliates (whether or not such act or failure to act is or was within such Person’s authority) with respect to the SpinCo Business and (y) that relates to or arises out of any Contract that is a Holcim Asset, solely to the extent related to the operation or conduct of the SpinCo Business prior to the Distribution);

 

(B)         the operation or conduct of any business conducted by any member of the SpinCo Group at any time after the Distribution (including any Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative of SpinCo or any of its Affiliates after the Distribution (whether or not such act or failure to act is or was within such Person’s authority) with respect to the SpinCo Business); or

 

(C)        any SpinCo Assets, whether arising before, on or after the Distribution (including any Liability relating to, arising out of or resulting from any SpinCo Contracts or (but solely to the extent such Liability relates to the operation or conduct of the SpinCo Business));

 

In the event of any conflict between this Section 1.1(133)(ii) and any other subsection of this Section 1.1(133), such subsection which specifically addresses any Liability shall control with respect thereto; provided that nothing herein shall be construed to limit SpinCo’s liability for its own conduct (and the conduct of any member of the SpinCo Group) following the Distribution pursuant to Section 1.1(133)(ii)(B); provided, further, that, in respect of any lease or sublease for real property, only those Liabilities relating to, arising out of or resulting from the leases or subleases of SpinCo Properties shall be a SpinCo Liability;

 

(iii)        any and all Liabilities (including under applicable U.S. federal and state securities laws and under applicable Swiss laws) relating to, arising out of or resulting from any SpinCo Disclosure Document, Distribution Disclosure Document or Financing Disclosure Document (including the preparation and publication thereof and any and all Liabilities relating to, arising out of or resulting from 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 statement therein not misleading, with respect to all information contained therein) in each case except for Liabilities constituting Holcim Liabilities;

 

(iv)       any and all Liabilities relating to, arising out of or resulting from (x) the SpinCo Financing Arrangements (including Liability for any Indebtedness for borrowed money incurred in connection therewith) and any and all fees, costs and expenses, including legal fees and costs, associated therewith or with the raising of funds or incurrence of Indebtedness for borrowed money in connection therewith (whether unpaid as of the time of the Distribution or arising thereafter) or (y) any other Indebtedness outstanding as of the Effective Time to the extent related to the operation or conduct of the SpinCo Business and any Indebtedness incurred by any member of the SpinCo Group following the Effective Time;

 

(v)         any and all Liabilities relating to, arising out of or resulting from (1) the Proceedings set forth on Schedule 1.1(133)(v)(1) and (2) the Proceedings set forth on Schedule 1.1(133)(v)(2), but in the case of this clause (2), solely to the extent related to the SpinCo Business or the SpinCo Assets or as may be specified therein;

 

(vi)        any and all Liabilities reflected on the SpinCo Balance Sheet or the accounting records supporting such balance sheet and any Liabilities incurred by or for SpinCo or any member of the SpinCo Group subsequent to the date of the SpinCo Balance Sheet which, had they been so incurred on or before such date, would have been reflected on the SpinCo Balance Sheet if prepared on a consistent basis, subject to any discharge of any of such Liabilities subsequent to the date of the SpinCo Balance Sheet; it being understood that (1) the SpinCo Balance Sheet and the accounting records supporting such balance sheet shall be used to determine the types of, and methodologies used to determine, those Liabilities that are included in the definition of SpinCo Liabilities pursuant to this subclause (vi); and (2) the amounts set forth on the SpinCo Balance Sheet with respect to any Liabilities shall not be treated as minimum amounts or limitations on the amount of such Liabilities that are included in the definition of SpinCo Liabilities pursuant to this subclause (vi) or otherwise dispositive of the amount thereof pursuant to this or the other clause of this definition;

 

(vii)       any and all Liabilities relating to, arising out of or resulting from any (1) indemnification obligations to any current or former director or officer of the SpinCo Group and (2) ownership of the equity, partnership, membership, joint venture and similar interests set forth on Schedule 1.1(122)(i) under the captions “Joint Ventures Interests” or “Other Equity Interests”;

 

(viii)      any and all accounts payable to the extent related to or arising out of the Holcim Business or any other SpinCo Liability; and

 

(ix)        notwithstanding anything to the contrary set forth in subsections (i)-(vii) hereof, the Liabilities set forth on Schedule 1.1(133)(ix).

 

Notwithstanding the foregoing, the SpinCo Liabilities shall in any event not include any Specified Holcim Liabilities; provided that no Specified Holcim Liabilities shall be construed to limit any Liability of SpinCo in subsection (ii) or (iv) hereof which shall at all times be entirely a SpinCo Liability; provided, further, that this clause shall not limit any sharing of Liabilities as otherwise set forth in this definition and the definition of Specified Holcim Liabilities.

 

(134)     

 

(135)     

 

(136)     

 

(137)     

 

(138)     

 

(139)     

 

(140)     

 

(141)     

 

(142)     

 

(143)     

 

(144)     

 

(145)    

 

(146)     

 

(147)     

“Transfer” has the meaning assigned to such term in Section 2.2(c)(i) and the term “Transferred” shall have its correlative meaning.

 

(148)     

“Transfer Documents” means, collectively, the various instruments, assignments, agreements, Contracts and other documents entered into and to be entered into to effect the transfer and (if applicable) recordation of Assets and the assumption of Liabilities in the manner contemplated by this Agreement (including as contemplated by the Internal Reorganization Steps Plan) or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement (other than the Ancillary Agreements), each of which shall be in such form and dated as of such date as Holcim shall determine.

 

(149)     

“Transition Services Agreement” means the transition services agreement by and between Holcim and SpinCo (or their respective Affiliates), to be entered into at or prior to the Effective Time, substantially in the form attached as Exhibit C hereto.

 

Section 1.2         References; Interpretation.  References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa.  Any action to be taken by the board of directors of a Party may be taken by a committee of the board of directors of such Party if properly delegated by the board of directors of a Party to such committee.  Unless the context otherwise requires:

 

(a)         the words “include,” “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation”;

 

(b)        references in this Agreement to Articles, Sections, Annexes, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement;

 

(c)         the words “hereof,” “hereby” and “herein” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement;

 

(d)         the word “or” shall have the inclusive meaning represented by the phrase “and/or”;

 

(e)         any reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;

 

(f)          any reference to any Law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;

 

(g)         unless the context requires otherwise, any references in this Agreement to “Holcim” shall also be deemed to refer to the applicable member of the Holcim Group, references to “SpinCo” shall also be deemed to refer to the applicable member of the SpinCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Holcim or SpinCo shall be deemed to require Holcim or SpinCo, as the case may be, to cause the applicable members of the Holcim Group or the SpinCo Group, respectively, to take, or refrain from taking, any such action;

 

(h)         the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or thing extends, and such phrase shall not mean simply “if”;

 

(i)          all references to “$” or dollar amounts are to the lawful currency of the United States of America;

 

(j)          any capitalized terms used in any Schedule to this Agreement or to any Ancillary Agreement but not otherwise defined therein shall have the meaning as defined in this Agreement or the Ancillary Agreement to which such Schedule is attached, as applicable;

 

(k)         references in this Agreement to any time shall be to [New York, New York] time unless otherwise expressly provided herein; and

 

(l)         as described in Section 10.24, to the extent that the terms and conditions of any Schedule hereto conflicts with the express terms of the body of this Agreement or any Ancillary Agreement, the terms of such Schedule shall control; it being understood that the Parties intend to include in the Schedules hereto any exceptions to the general rules described in the body of this Agreement and to give full effect to such exceptions, with respect to the matters expressly set forth therein.

 

	HOLCIM LTD
	By:
		Name:
		Title:
	[EVERTECT AG]
	By:
		Name:
		Title: