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Exhibit 2
[Draft of 4/11/01]
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DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
NEW ROCKWELL ▇▇▇▇▇▇▇, INC.
and
ROCKWELL SCIENTIFIC COMPANY, LLC
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June , 2001
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................ 1
SECTION 1.01 General.................................................... 1
ARTICLE II THE DISTRIBUTION........................................... 30
SECTION 2.01 The Distribution........................................... 30
SECTION 2.02 Cooperation Prior to the Distribution...................... 31
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution...... 31
SECTION 2.04 Waiver of Conditions....................................... 32
SECTION 2.05 Disclosure................................................. 32
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION.................. 32
SECTION 3.01 Intercorporate Reorganization.............................. 32
SECTION 3.02 Financial Instruments...................................... 36
SECTION 3.03 Shared Agreements.......................................... 36
SECTION 3.04 Intercompany Accounts and Arrangements..................... 37
SECTION 3.05 Cash Management............................................ 39
SECTION 3.06 The Rockwell ▇▇▇▇▇▇▇ Board and the Rockwell Science Center
Board...................................................... 41
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee............ 42
SECTION 3.08 Rockwell ▇▇▇▇▇▇▇ Certificate of Incorporation and By-Laws;
Rights Plan................................................ 43
SECTION 3.09 Insurance.................................................. 43
SECTION 3.10 Use of Names, Trademarks, etc.............................. 46
SECTION 3.11 Consents................................................... 51
SECTION 3.12 Intellectual Property...................................... 52
SECTION 3.13 Software and Other License Agreements...................... 57
SECTION 3.14 Charitable Trusts.......................................... 58
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION............................ 58
SECTION 4.01 Mutual Release............................................. 58
SECTION 4.02 Indemnification by Rockwell................................ 59
SECTION 4.03 Indemnification by Rockwell ▇▇▇▇▇▇▇........................ 59
SECTION 4.04 Indemnification by Rockwell Science Center................. 60
SECTION 4.05 Limitations on Indemnification Obligations................. 61
SECTION 4.06 Procedures Relating to Indemnification..................... 62
SECTION 4.07 Remedies Cumulative........................................ 63
SECTION 4.08 Survival of Indemnities.................................... 63
SECTION 4.09 Exclusivity of Tax Allocation Agreement.................... 64
ARTICLE V ACCESS TO INFORMATION...................................... 64
SECTION 5.01 Access to Information...................................... 64
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SECTION 5.02 Production of Witnesses.................................... 66
SECTION 5.03 Retention of Records....................................... 66
SECTION 5.04 Confidentiality............................................ 67
ARTICLE VI MISCELLANEOUS.............................................. 67
SECTION 6.01 Entire Agreement; Construction............................. 67
SECTION 6.02 Survival of Agreements..................................... 68
SECTION 6.03 Expenses................................................... 68
SECTION 6.04 Governing Law.............................................. 69
SECTION 6.05 Notices.................................................... 69
SECTION 6.06 Dispute Resolution......................................... 71
SECTION 6.07 Consent to Jurisdiction.................................... 71
SECTION 6.08 Amendments................................................. 72
SECTION 6.09 Assignment................................................. 72
SECTION 6.10 Captions; Currency......................................... 72
SECTION 6.11 Severability............................................... 72
SECTION 6.12 Parties in Interest........................................ 73
SECTION 6.13 Schedules.................................................. 73
SECTION 6.14 Termination................................................ 73
SECTION 6.15 Waivers; Remedies.......................................... 73
SECTION 6.16 Further Assurances......................................... 73
SECTION 6.17 Counterparts............................................... 73
SECTION 6.18 Performance................................................ 73
SECTION 6.19 Currency Calculations...................................... 73
SECTION 6.20 Interpretation............................................. 74
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ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
Schedule 1.01(a) - Rockwell ▇▇▇▇▇▇▇ Amended By-Laws
Schedule 1.01(b) - Rockwell ▇▇▇▇▇▇▇ Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell ▇▇▇▇▇▇▇ Aircraft
Schedule 1.01(j) - Rockwell ▇▇▇▇▇▇▇ Patents and Trademarks
Schedule 1.01(k) - Rockwell ▇▇▇▇▇▇▇ Shared Facilities
Schedule 1.01(l) - Former Businesses of Rockwell ▇▇▇▇▇▇▇
Schedule 1.01(m) - Rockwell ▇▇▇▇▇▇▇ Financial Instruments
Schedule 1.01(n) - Rockwell ▇▇▇▇▇▇▇ Litigation
Schedule 1.01(o) - Rockwell ▇▇▇▇▇▇▇ Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell ▇▇▇▇▇▇▇ Subsidiaries
Schedule 1.01(q) - Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell ▇▇▇▇▇▇▇ Securities
Schedule 1.01(y) - Rockwell Science Center Securities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell ▇▇▇▇▇▇▇ Charitable Trust Commitments
Schedule 4.02(b) - Certain Form 10 Sections
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June , 2001,
by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation
("Rockwell"), (ii) NEW ROCKWELL ▇▇▇▇▇▇▇, INC., a Delaware corporation and, as of
the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell ▇▇▇▇▇▇▇"), and
(iii) ROCKWELL SCIENTIFIC COMPANY, LLC, a Delaware limited liability company
and, as of the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell
Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined that
it is appropriate and desirable to distribute all outstanding shares of Rockwell
▇▇▇▇▇▇▇ Common Stock (as defined herein) on a pro rata basis to the holders of
Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center have
determined that it is appropriate and desirable to set forth the principal
corporate transactions required to effect such distribution and certain other
agreements that will govern certain matters relating to such distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACTION" means, with respect to any Person, any actual or threatened
or future action, suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Entity or any claims or other legal matters that have
been or may be asserted by or against, or otherwise affect, such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed thereto in
Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(B).
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"AFFILIATE" means, with respect to any specified Person, any other
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, following the
Time of Distribution no member of any Group shall be deemed to be an Affiliate
of any member of any other Group. For purposes of the immediately preceding
sentence, the term "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise.
"AGREEMENT" shall have the meaning ascribed thereto in the preamble.
"ANCILLARY AGREEMENTS" means, collectively, the Employee Matters
Agreement, the Tax Allocation Agreement, the Continuing Services Agreements, the
Rockwell Science Center Services Agreements, the Product Manufacturing
Agreement, the Transition Agreement and the Conveyance and Assumption
Instruments.
"ASSETS" means any and all assets, properties and rights, whether
tangible or intangible, real, personal or mixed, fixed, contingent or otherwise,
and wherever located (other than ownership interests in Subsidiaries), including
the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and fixtures,
leasehold improvements, repair parts, tools, plant, laboratory and office
equipment and supplies, computer hardware and software, computer
networking equipment, engineering and design equipment, test equipment and
other tangible personal property, together with any rights or claims
arising out of maintenance or service contracts relating thereto or the
breach of any express or implied warranty by the manufacturers or sellers
of any of such assets or any component part thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
(e) cash, cash on hand, cash equivalents, funds, certificates of
deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or not
current), performance and surety bonds and interests as beneficiary under
letters of credit and other similar instruments and all proceeds thereof;
(g) Securities;
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(h) swaps, collars, caps and other hedging arrangements of any kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in whatever
form or medium, including electronic media), including books, records,
notes, sales and sales promotional material and data, advertising
materials, credit information, cost and pricing information, customer and
supplier lists, business plans, reference catalogs, payroll and personnel
records and procedures, blue-prints, research and development files, data
and laboratory books, sales order files, litigation files, minute books,
stock ledgers, stock transfer records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by third
parties;
(m) claims, causes of action, choses in action, rights under express
or implied warranties, guarantees and indemnities and similar rights,
rights of recovery, rights of set-off, rights of subrogation and all other
rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in Section
3.11.
"AUTOMATION PRODUCTS" means (a) industrial automation products,
systems and software, including controllers, electrical and electronic controls,
I/O (input/output) systems, drives (including electronic drives for electric
motors), sensors, power devices, packaged control products, operator interface
devices, computer software and hardware products, gears, gear reducers,
bearings, shaft supports, shaft hangers, shaft couplings, collars, clutches,
sheaves, sprockets, pulleys, elevating and conveying machinery, power
transmission machinery and components thereof, network monitoring products and
motors and (b) training, installation, repair, maintenance, consulting, computer
programming, designing, engineering, technical support and other services for
use in the field of industrial automation.
"BNA" means Boeing North American, Inc., a Delaware corporation
formerly named Rockwell International Corporation, and any successor thereto.
"BOEING" means The Boeing Company, a Delaware corporation.
"BOEING POST-CLOSING COVENANTS AGREEMENT" means the Post-Closing
Covenants Agreement dated as of December 6, 1996 among Rockwell, Boeing, Boeing
NA, Inc. and BNA, including all amendments thereto.
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"BOEING TRANSITION AGREEMENT" means the Transition Agreement dated
as of December 6, 1996 by and among Rockwell, Boeing and BNA, including all
amendments thereto.
"BY-LAWS" means Rockwell ▇▇▇▇▇▇▇' amended by-laws substantially in
the form attached hereto as Schedule 1.01(a).
"CASH" means all cash, cash on hand, cash equivalents, funds,
certificates of deposit and similar instruments held by Rockwell or any of its
Subsidiaries and Affiliates (including members of the Rockwell ▇▇▇▇▇▇▇ Group and
members of the Rockwell Science Center Group) immediately prior to the Time of
Distribution (it being understood that cash equivalents do not include
intercompany cash management balances which will be eliminated as of the Time of
Distribution pursuant to Section 3.04(a)).
"CERTIFICATE OF INCORPORATION" means Rockwell ▇▇▇▇▇▇▇' restated
certificate of incorporation substantially in the form attached hereto as
Schedule 1.01(b).
"CLAIMS ADMINISTRATION" means the processing of claims made under
Policies, including the reporting of claims to the insurance carrier, management
and defense of claims, and providing for appropriate releases upon settlement of
claims.
"CLAIMS MADE POLICIES" shall have the meaning ascribed thereto in
Section 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"CONEXANT" means Conexant Systems, Inc., a Delaware corporation, and
any successor thereto.
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments thereto.
"CONEXANT TRANSITION AGREEMENT" means the Transition Agreement dated
as of December 31, 1998 by and between Rockwell and Conexant, including all
amendments thereto.
"CONSENTS" means consents, approvals, waivers, clearances,
exemptions, allowances, novations, authorizations, filings, registrations and
notifications.
"CONTINUING SERVICES AGREEMENTS" means (a) the continuing services
agreement between Rockwell ▇▇▇▇▇▇▇ and Rockwell entered into on or prior to the
Distribution Date pursuant to which, among other things, Rockwell ▇▇▇▇▇▇▇ will
provide Rockwell with payroll and employee benefits administration services and
(b) the continuing services agreement between Rockwell ▇▇▇▇▇▇▇ and Rockwell
Science Center entered into on or prior to the Distribution Date
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pursuant to which, among other things, Rockwell ▇▇▇▇▇▇▇ will provide Rockwell
Science Center with payroll and employee benefits administration services.
"CONTRACTS" means all agreements, real estate and other leases,
contracts, memoranda of understanding, letters of intent, sales orders, purchase
orders, open bids and other commitments, including in each case, all amendments,
modifications and supplements thereto and waivers and consents thereunder.
"CONVEYANCE AND ASSUMPTION INSTRUMENTS" means, collectively, the
various agreements, deeds, bills of sale, stock powers, certificates of title,
instruments of conveyance and assignment, instruments of assumption and other
instruments and documents to be entered into to effect the transfer of Assets
and Subsidiaries and the assumption of Liabilities contemplated by the
transactions described in Sections 3.01(b) and 3.01(c).
"COSTA MESA OFFICE LEASE" means the lease agreement dated December
20, 1996 between Rockwell and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates under which office
space located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ is leased to
Rockwell.
"CYPRESS ASSETS" means (i) Rockwell's Corporate Shared Services
Center located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, the lease
agreement dated July 17, 1991 between Rockwell and IRP ▇▇▇▇▇▇ Associates related
thereto and all leasehold improvements, equipment and other tangible assets
(including Rockwell's global employment management systems (GEMS) software,
pension recordkeeping integrated solutions management (PRISM) software and
subsystems related to such software) located thereat and (ii) the computer
servers located in Milwaukee, Wisconsin set forth on Schedule 1.01(c).
"DISPUTE" shall have the meaning ascribed thereto in Section 6.06.
"DISTRIBUTION" means the distribution, on the basis provided for in
Section 2.01, to holders of Rockwell Common Stock of the shares of Rockwell
▇▇▇▇▇▇▇ Common Stock owned by Rockwell on the Distribution Date.
"DISTRIBUTION AGENT" means the distribution agent selected by
Rockwell to distribute Rockwell ▇▇▇▇▇▇▇ Common Stock in connection with the
Distribution.
"DISTRIBUTION DATE" means the date determined by the Rockwell Board
as the date as of which the Distribution will be effected.
"EMPLOYEE MATTERS AGREEMENT" means the Employee Matters Agreement
between Rockwell and Rockwell ▇▇▇▇▇▇▇, substantially in the form attached hereto
as Annex A.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM 10" means the registration statement on Form 10 filed by
Rockwell ▇▇▇▇▇▇▇ with the Commission to effect the registration of the Rockwell
▇▇▇▇▇▇▇ Common Stock pursuant to the Exchange Act, including all amendments
thereto filed by Rockwell ▇▇▇▇▇▇▇ with the Commission prior to the Time of
Distribution.
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"FORMER BUSINESS" means any corporation, partnership, entity,
division, business unit, business, assets, plants, product line, operations or
contract (including any assets and liabilities comprising the same) that has
been sold, conveyed, assigned, transferred or otherwise disposed of or divested
(in whole or in part) by any member of the Pre-Distribution Group or the
operations, activities or production of which has been discontinued, abandoned,
completed or otherwise terminated (in whole or in part) by any member of the
Pre-Distribution Group.
"FORMER ROCKWELL CORPORATE EMPLOYEE" shall have the meaning ascribed
thereto in the Employee Matters Agreement.
"GOVERNMENTAL ENTITY" means any government or any court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, federal, state, local, domestic, foreign or
international.
"GROUP" means the Rockwell Automation Group, the Rockwell ▇▇▇▇▇▇▇
Group or the Rockwell Science Center Group, as applicable.
"INDEMNIFIABLE LOSSES" means, subject to Article IV, any and all
losses, Liabilities, claims, damages, deficiencies, obligations, fines,
payments, Taxes, Liens, costs and expenses, matured or unmatured, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown,
whenever arising and whether or not resulting from Third Party Claims (including
the costs and expenses of any and all Actions; all amounts paid in connection
with any demands, assessments, judgments, settlements and compromises relating
thereto; interest and penalties with respect thereto; out-of-pocket expenses and
reasonable attorneys', accountants' and other experts' fees and expenses
reasonably incurred in investigating, preparing for or defending against any
such Actions or in asserting, preserving or enforcing an Indemnitee's rights
hereunder; and any losses that may result from the granting of injunctive relief
as a result of any such Actions).
"INDEMNIFYING PARTY" shall have the meaning ascribed thereto in
Section 4.05(a).
"INDEMNITEE" means any of the Rockwell Automation Indemnitees, the
Rockwell ▇▇▇▇▇▇▇ Indemnitees or the Rockwell Science Center Indemnitees who or
which is entitled to seek indemnification under this Agreement.
"INDEMNITY REDUCTION AMOUNTS" shall have the meaning ascribed
thereto in Section 4.05(a).
"INFORMATION" means all records, books, contracts, instruments,
computer data and other data and information (in each case, in whatever form or
medium, including electronic media).
"INFORMATION STATEMENT" means the information statement with respect
to Rockwell ▇▇▇▇▇▇▇ sent to the holders of Rockwell Common Stock in connection
with the Distribution.
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"INSURANCE PROCEEDS" means monies (a) received by an insured from an
insurance carrier, (b) paid by an insurance carrier on behalf of an insured or
(c) received from any third party in the nature of insurance, contribution or
indemnification in respect of any Liability.
"INTELLECTUAL PROPERTY" means (a) inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents (including utility and design patents, industrial designs and
utility models), patent applications, patent and invention disclosures and all
other rights of inventorship, worldwide, together with all reissuances,
continuations, continuations-in-part, divisions, revisions, supplementary
protection certificates, extensions and re-examinations thereof; (b) trademarks,
service marks, trade names, trade dress, logos, domain names, business and
product names and slogans and any and every other form of trade identity and all
registrations and applications for registration thereof, worldwide; (c)
copyrights in copyrightable works and all other rights of authorship, worldwide,
and all applications (including the right to file applications), registrations
and renewals in connection therewith; (d) mask works and semiconductor chip
rights, worldwide, and all applications (including the right to file
applications), registrations and renewals in connection therewith; (e) trade
secrets and confidential business and technical information (including ideas,
research and development, know-how, formulas, technology, compositions,
manufacturing and production processes and techniques, technical data,
engineering, production and other designs, drawings, engineering notebooks,
industrial models, software and specifications and any other information meeting
the definition of a trade secret under the Uniform Trade Secrets Act); (f)
computer and electronic data processing programs and software, both source code
and object code (including data and related documentation, flow charts,
diagrams, descriptive texts and programs, computer print-outs, underlying tapes,
computer databases and similar items), computer applications and operating
programs; (g) rights to ▇▇▇ for and remedies against past, present and future
infringements of any or all of the foregoing and rights of priority and
protection of interests therein under the laws of any jurisdiction worldwide;
(h) all copies and tangible embodiments of any or all of the foregoing (in
whatever form or medium, including electronic media); (i) all other proprietary
and intellectual property rights and interests; and (j) all other rights
relating to any or all of the foregoing.
"IRS" means the Internal Revenue Service.
"LIABILITIES" means any and all claims, debts, liabilities,
commitments and obligations of whatever nature, whether fixed, contingent or
absolute, matured or unmatured, liquidated or unliquidated, accrued or not
accrued, known or unknown, due or to become due, whenever or however arising and
whether or not the same would be required by generally accepted accounting
principles to be reflected as a liability in financial statements or disclosed
in the notes thereto, including all costs and expenses relating thereto and
those claims, debts, liabilities, commitments and obligations:
(a) based upon, arising out of or relating to any law, rule,
regulation, order or consent decree of any Governmental Entity or any
noncompliance therewith or breach or violation of any thereof;
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(b) in respect of accounts payable;
(c) in respect of outstanding checks;
(d) based upon, arising out of or relating to workers' compensation,
automobile general liability, product liability, intellectual property
liability and other claims and matters (whether direct or for
indemnification of any Person or otherwise);
(e) based upon, arising out of or relating to Actions or any award
of any arbitrator of any kind;
(f) in respect of salary, bonuses, incentive payments, severance
payments and other compensation payments and all Taxes and withholdings
related thereto;
(g) in respect of employee welfare and fringe benefits;
(h) based upon, arising out of or relating to environmental matters
(including all removal, remediation or cleanup costs, investigatory costs,
governmental response costs, natural resources damages, property damages,
personal injury damages and all other costs and damages);
(i) based upon, arising out of or relating to Contracts;
(j) based upon, arising out of or relating to any tort (whether
based on negligence, strict liability or otherwise) or infringement; and
(k) in respect of products and services, including warranty
liabilities, deferred revenues, product liability claims and liabilities
in respect of the return, repair or replacement of products.
"LICENSES" means licenses, permits, authorizations, consents,
certificates, registrations, variances, franchises and other approvals from any
Governmental Entity, including those relating to environmental matters.
"LIEN" means any lien, security interest, pledge, mortgage, charge,
restriction, claim, retention of title agreement or other encumbrance of
whatever nature.
"LOS ANGELES OFFICE LEASE" means the lease agreement dated April 15,
1994 between Rockwell and Center West under which office space located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ is leased for the benefit of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇.
"MERITOR" means ArvinMeritor, Inc., an Indiana corporation,
successor by merger to Meritor Automotive, Inc., a Delaware corporation, and any
successor thereto.
"MERITOR DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of September 30, 1997 by and between Rockwell and Meritor, including
all amendments thereto.
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"MERITOR TRANSITION AGREEMENT" means the Transition Agreement dated
as of September 30, 1997 by and between Rockwell and Meritor, including all
amendments thereto.
"METLIFE TRUST" means (a) the MetLife Demutualization Grantor Trust
established by Rockwell in 2000 in connection with the demutualization of the
Metropolitan Life Insurance Company and (b) all funds contained therein and
rights related thereto.
"MILWAUKEE OFFICE LEASE" means the lease agreement dated March 5,
1999 between Rockwell and Firstar Bank N.A. under which office space located at
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ is leased to Rockwell.
"NYSE" means the New York Stock Exchange, Inc.
"OCCURRENCE BASIS POLICIES" shall have the meaning ascribed thereto
in Section 3.09(b)(i).
"ORDINARY COURSE INTERCOMPANY ARRANGEMENTS" shall have the meaning
ascribed thereto in Section 3.04(b)(ii).
"PERSON" means any individual, partnership, joint venture,
corporation, limited liability entity, trust, unincorporated organization or
other entity (including a Governmental Entity).
"PITTSBURGH OFFICE LEASE" means the lease agreement dated December
28, 1989 between Rockwell and Lincoln Liberty Avenue, Ltd. under which office
space located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ is leased to
Rockwell.
"POLICIES" means all insurance policies and insurance contracts of
any kind of the Pre-Distribution Group which were or are in effect at any time
at or prior to the Time of Distribution (other than insurance policies or
insurance contracts established in contemplation of the Distribution to cover
only members of the Rockwell ▇▇▇▇▇▇▇ Group or members of the Rockwell Science
Center Group from and after the Time of Distribution), including primary, excess
and umbrella, commercial general liability, fiduciary liability, product
liability, automobile, aircraft, property and casualty, business interruption,
directors and officers liability, employment practices liability, workers'
compensation, blanket crime, errors and omissions, special accident, cargo and
employee dishonesty insurance policies, bonds and captive insurance company
arrangements, together with all rights, benefits and privileges thereunder.
"PRE-DISTRIBUTION GROUP" means (a) each of Rockwell, the
Subsidiaries of Rockwell existing immediately prior to the Time of Distribution
(including members of the Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell
Science Center Group) and the former Subsidiaries of Rockwell, (b) each of the
predecessors of each of the foregoing (including BNA) and (c) each of the
present and former Subsidiaries and other Affiliates of each of the foregoing,
and their predecessors.
"PRESCRIPTION CENTER ASSETS" means Rockwell's prescription center
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, the lease agreement
dated April 1997 between
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Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ related thereto and
all leasehold improvements, equipment and other tangible assets located thereat.
"PRIVILEGED INFORMATION" means, with respect to any Group,
Information regarding a member of such Group, or any of its operations,
employees, Assets or Liabilities (whether in documents or stored in any other
form or known to its employees or agents) that is or may be protected from
disclosure pursuant to the attorney-client privilege, the work product doctrine
or other applicable privileges, that a member of any other Group may come into
possession of or obtain access to pursuant to this Agreement or otherwise.
"PRODUCT MANUFACTURING AGREEMENT" means the agreement between
Rockwell and Rockwell ▇▇▇▇▇▇▇ entered into on or prior to the Distribution Date
pursuant to which, among other things, Rockwell ▇▇▇▇▇▇▇ will provide the
Electronic Commerce business of Rockwell with product manufacturing services.
"RECIPIENT PARTY" shall have the meaning ascribed thereto in Section
3.11.
"RECORD DATE" means the close of business on the date determined by
the Rockwell Board as the record date for the Distribution.
"RECORDED AMOUNT" means, with respect to cash in U.S. bank accounts,
the amount on deposit in such bank accounts, as reflected on bank account
statements in respect of such bank accounts, as of the Time of Distribution. The
parties acknowledge that the Recorded Amount with respect to any U.S. bank
account will not have deducted therefrom the amount of outstanding checks issued
on such account.
"REPRESENTATIVE" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"RIGHTS" means the Rights to be issued pursuant to the Rights Plan.
"RIGHTS PLAN" means the rights agreement entered into on or prior to
the Distribution Date between Rockwell ▇▇▇▇▇▇▇ and [▇▇▇▇▇▇ Investor Services
LLC], as rights agent, substantially in the form filed as an exhibit to the Form
10.
"ROCKWELL" shall have the meaning ascribed thereto in the preamble.
"ROCKWELL AUTOMATION ASSETS" means the following:
(a) all rights of any member of the Rockwell Automation Group under
any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of the
Rockwell Automation Group pursuant to any Transaction Agreement;
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(c) all Assets (other than those described in paragraphs (b) and (d)
of the definition of "Rockwell ▇▇▇▇▇▇▇ Assets" and paragraphs (b) and (d)
of the definition of "Rockwell Science Center Assets") which immediately
prior to the Time of Distribution are owned by Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members
of the Rockwell Science Center Group) and which are used primarily in or
relate primarily to the Rockwell Automation Business, as the same shall
exist as of such time;
(d) the following specifically enumerated Assets which immediately
prior to the Time of Distribution are owned by Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members
of the Rockwell Science Center Group), in each case whether or not such
Assets are used primarily in or relate primarily to the Rockwell
Automation Business, the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science
Center Business:
(i) all (A) Rockwell Automation Retained Accounts, and (B)
Cash, including all cash contained in the Rockwell Automation
Retained Accounts, the Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts and the
Rockwell Science Center U.S. Bank Accounts, but not including cash
described in paragraph (d)(viii) of the definition of "Rockwell
▇▇▇▇▇▇▇ Assets" and paragraph (d)(ii) of the definition of "Rockwell
Science Center Assets";
(ii) all Securities, other than Rockwell ▇▇▇▇▇▇▇ Securities
and Rockwell Science Center Securities;
(iii) all Policies (including Shared Policies) and all rights,
benefits and privileges thereunder and related thereto (including
the right to receive any and all return premiums with respect
thereto), other than the right to assert claims under Shared
Policies to the extent described in Section 3.09(b);
(iv) other than as provided for in Section 3.10, all rights
in, and to the use of, the names, trademarks, trade names, domain
names and service marks "Rockwell", "Rockwell International",
"Rockwell Automation", "Rockwell ▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇▇ Science Center"
and "Rockwell Scientific Company" and all corporate symbols and
logos related thereto and all names, trademarks, trade names, domain
names and service marks which include the words "Rockwell" or
"Rockwell International";
(v) the Rockwell VEBA;
(vi) all Rockwell Science Center Shared Agreements that relate
to the Rockwell Automation Business and rights, benefits and
privileges thereunder and all Rockwell ▇▇▇▇▇▇▇ Shared Agreements and
rights, benefits and privileges thereunder, except that, with
respect to Shared Agreements relating to Unrelated Former
Businesses, Rockwell ▇▇▇▇▇▇▇ will have the rights described in
paragraph (c)(i) of the definition of "Rockwell ▇▇▇▇▇▇▇ Assets" and
Rockwell
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Science Center will have the rights described in paragraph (c)(i) of
the definition of "Rockwell Science Center Assets";
(vii) the patents, patent applications, invention disclosures
and registered trademarks set forth on Schedule 1.01(d);
(viii) 50% of Rockwell's ownership interest in Rockwell
Science Center;
(ix) all interests in charitable trusts (including the
Rockwell Charitable Trust and the Rockwell Canadian Charitable
Trust) and assets thereof, subject to the provisions of Section
3.14;
(x) 32% of all assets of the MetLife Trust;
(xi) the Rockwell Property Trust;
(xii) the Rockwell Insurance Escrow Account;
(xiii) the shared facilities set forth on Schedule 1.01(e);
(xiv) the aircraft set forth on Schedule 1.01(f);
(xv) the Milwaukee Office Lease and all leasehold
improvements, equipment and other assets located at or related to
the office facility leased thereunder;
(xvi) the Costa Mesa Office Lease and all leasehold
improvements, equipment and other assets located at or related to
the office facility leased thereunder;
(xvii) the Pittsburgh Office Lease and all leasehold
improvements, equipment and other assets located at or related to
the office facility leased thereunder;
(xviii) all Assets based upon, arising out of or relating to
the RAN Contract;
(xix) all Assets based upon, arising out of or relating to the
operations of (i) the Rocky Flats plant, Golden, Colorado and (ii)
the Hanford Nuclear Reservation, Hanford, Washington;
(xx) all rights to receive payments for services rendered
prior to the Time of Distribution under the Boeing Transition
Agreement (other than pursuant to Section 2 of the Boeing Transition
Agreement), the Meritor Transition Agreement and the Conexant
Transition Agreement (other than pursuant to Section 2 or 9 of the
Conexant Transition Agreement);
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(xxi) all rights in U.S. Patent #4,368,098 entitled "Epitaxial
Composite and Method of Making", all license agreements and
royalties with respect to the licensing thereof and all rights to
▇▇▇ and recover for and remedies against past, present and future
infringements thereof (including all rights in respect of the Action
Rockwell International Corporation v. United States and SDL, Inc.,
Civ. ▇▇. ▇▇-▇▇▇ ▇, ▇.▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇); and
(xxii) all rights in respect of Unrelated Former Businesses,
other than (A) rights expressly allocated to Rockwell ▇▇▇▇▇▇▇
pursuant to the Transaction Agreements in respect of Unrelated
Former Businesses and current and former employees thereof, which
shall constitute Rockwell ▇▇▇▇▇▇▇ Assets, (B) rights described in
paragraphs (c)(i) and (d) of the definition of "Rockwell ▇▇▇▇▇▇▇
Assets", which shall constitute Rockwell ▇▇▇▇▇▇▇ Assets and (C)
rights described in paragraphs (c)(i) and (d) of the definition of
"Rockwell Science Center Assets", which shall constitute Rockwell
Science Center Assets;
(e) all other Assets which immediately prior to the Time of
Distribution are owned by Rockwell or any of its Subsidiaries (including
members of the Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell Science
Center Group) that are not Rockwell ▇▇▇▇▇▇▇ Assets or Rockwell Science
Center Assets; and
(f) all rights, choses in action, causes of action and claims of
Rockwell or any of its Subsidiaries (including members of the Rockwell
▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group) to the
extent relating to any asset described in clauses (a) through (e) above.
Anything contained herein to the contrary notwithstanding, assets
described in paragraphs (b) and (d) of the definition of "Rockwell ▇▇▇▇▇▇▇
Assets" and paragraphs (b) and (d) of the definition of "Rockwell Science Center
Assets" will not be included in Rockwell Automation Assets.
"ROCKWELL AUTOMATION BUSINESS" means:
(a) the Automation business engaged in prior to the Time of
Distribution by the Pre-Distribution Group of researching, developing,
designing, engineering, manufacturing, building, selling, distributing,
installing, modifying, repairing, servicing and supporting Automation
Products (marketed under such names as Rockwell Automation, ▇▇▇▇▇-▇▇▇▇▇▇▇,
Rockwell Software, Dodge, and Reliance Electric);
(b) the Electronic Commerce business engaged in at all times prior
to the Time of Distribution by the Pre-Distribution Group of researching,
developing, designing, engineering, manufacturing, building, selling,
distributing, installing, modifying, repairing, servicing and supporting
electronic commerce products for call center systems and personalized
electronic commerce applications, including automatic call distributors,
computer telephony integration software, information collection,
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reporting, queuing and management systems, and call center systems and
consulting services;
(c) Former Businesses related primarily to any of the foregoing,
including Former Businesses listed on Schedule 1.01(g); and
(d) activities of the Pre-Distribution Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell Automation Business shall not include
(i) the Rockwell Science Center Business or (ii) the Unrelated Former
Businesses set forth on Schedule 1.01(h).
"ROCKWELL AUTOMATION EXPENSES" means:
(a) the following out-of-pocket costs and expenses of Rockwell or
any of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group
and members of the Rockwell Science Center Group), whether incurred and/or
paid before, at or after the Time of Distribution:
(i) all investment banking, legal and auditing fees and
expenses incurred in connection with effecting the Distribution
(other than (A) legal fees and expenses described in paragraphs (a)
and (b) of the definition of "Rockwell ▇▇▇▇▇▇▇ Expenses" or
paragraph (a) of the definition of "Rockwell Science Center
Expenses" and (B) any such fees and expenses incurred in connection
with any dispute or modification after the Distribution Date with
respect to the Transaction Agreements or the transactions
contemplated thereby or any claim under Article IV);
(ii) all fees and expenses of the Distribution Agent incurred
in connection with effecting the Distribution;
(iii) the initial listing fee payable to the NYSE for the
initial listing of the Rockwell ▇▇▇▇▇▇▇ Common Stock on the NYSE;
and
(iv) all out-of-pocket costs and expenses relating to the
Distribution to the extent the same relate to operations of the
Rockwell Automation Business after the Time Distribution; and
(b) all other out-of-pocket costs and expenses of Rockwell or any of
its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and
members of the Rockwell Science Center Group) incurred through the Time of
Distribution in connection with effecting the Distribution, the
preparation, execution and delivery of the Transaction Agreements and the
consummation of the Distribution which are not Rockwell ▇▇▇▇▇▇▇ Expenses
or Rockwell Science Center Expenses.
"ROCKWELL AUTOMATION GROUP" means Rockwell and the Rockwell
Subsidiaries.
"ROCKWELL AUTOMATION INDEMNITEES" means each member of the Rockwell
Automation Group, each of their respective Representatives and each of the
heirs, executors, successors and permitted assigns of any of the foregoing.
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"ROCKWELL AUTOMATION LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Automation Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Liabilities for which any member of the Rockwell Automation
Group is expressly made responsible pursuant to any Transaction Agreement;
(c) all Liabilities (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell ▇▇▇▇▇▇▇ Liabilities" and paragraphs
(b) and (d) of the definition of "Rockwell Science Center Liabilities") of
Rockwell or any of its Subsidiaries (including members of the Rockwell
▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group) to the
extent based upon, arising out of or relating to the Rockwell Automation
Assets or the Rockwell Automation Business;
(d) the following specifically enumerated Liabilities of Rockwell or
any of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group
and members of the Rockwell Science Center Group), in each case whether or
not such Liabilities relate to the Rockwell Automation Business, the
Rockwell Automation Assets, the Rockwell ▇▇▇▇▇▇▇ Business, the Rockwell
▇▇▇▇▇▇▇ Assets, the Rockwell Science Center Business or the Rockwell
Science Center Assets:
(i) all Liabilities in respect of the RAN Contract;
(ii) all Liabilities in respect of the operations of (A) the
Rocky Flats plant, Golden, Colorado and (B) the Hanford Nuclear
Reservation, Hanford, Washington;
(iii) all Liabilities in respect of the Milwaukee Office Lease
(other than Liabilities in respect of Former Rockwell Corporate
Employees as described in paragraph (d)(ii) of the definition of
"Rockwell ▇▇▇▇▇▇▇ Liabilities");
(iv) all Liabilities in respect of the Costa Mesa Office Lease
(other than Liabilities in respect of Former Rockwell Corporate
Employees as described in paragraph (d)(ii) of the definition of
"Rockwell ▇▇▇▇▇▇▇ Liabilities");
(v) all Liabilities in respect of the Pittsburgh Office Lease
(other than Liabilities in respect of Former Rockwell Corporate
Employees as described in paragraph (d)(ii) of the definition of
"Rockwell ▇▇▇▇▇▇▇ Liabilities");
(vi) all Liabilities based upon, arising out of or relating to
the wind tunnel donated by Rockwell to the University of California,
Los Angeles, in 1998;
(vii) all Liabilities based upon, arising out of or relating
to the Rockwell Debt, including all indebtedness outstanding
thereunder and interest and fees payable with respect thereto; and
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20
(viii) all Liabilities based upon, arising out of or relating
to Unrelated Former Businesses, other than (A) Liabilities expressly
allocated to Rockwell ▇▇▇▇▇▇▇ pursuant to the Transaction Agreements
in respect of Unrelated Former Businesses and current and former
employees thereof, which shall constitute Rockwell ▇▇▇▇▇▇▇
Liabilities, (B) Liabilities described in paragraphs (c)(iii) and
(d) of the definition of "Rockwell ▇▇▇▇▇▇▇ Liabilities", which shall
constitute Rockwell ▇▇▇▇▇▇▇ Liabilities, and (C) Liabilities
described in paragraph (c)(iii) of the definition of "Rockwell
Science Center Liabilities", which shall constitute Rockwell Science
Center Liabilities; and
(e) all other Liabilities of Rockwell or any of its Subsidiaries
(including members of the Rockwell ▇▇▇▇▇▇▇ Group and members of the
Rockwell Science Center Group) in respect of operations engaged in prior
to the Time of Distribution that are not Rockwell ▇▇▇▇▇▇▇ Liabilities or
Rockwell Science Center Liabilities.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
▇▇▇▇▇▇▇ Liabilities" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Liabilities" will not be included in Rockwell Automation
Liabilities.
"ROCKWELL AUTOMATION LICENSE AGREEMENT" shall have the meaning
ascribed thereto in Section 3.13.
"ROCKWELL AUTOMATION RETAINED ACCOUNTS" means all bank accounts of
Rockwell or any of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇
Group and members of the Rockwell Science Center Group) immediately prior to the
Time of Distribution, other than Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts, Rockwell
▇▇▇▇▇▇▇ Non-U.S. Bank Accounts, Rockwell Science Center U.S. Bank Accounts and
Rockwell Science Center Non-U.S. Bank Accounts.
"ROCKWELL BOARD" means the Board of Directors of Rockwell or a duly
authorized committee thereof.
"ROCKWELL CANADIAN CHARITABLE TRUST" means the Rockwell
International Canadian Trust.
"ROCKWELL CHARITABLE TRUST" means the Rockwell International
Corporation Trust.
"ROCKWELL CLIR FUND" means (a) the Rockwell Continued Life Insurance
Reserve Fund and (b) all funds contained therein and rights related thereto.
"ROCKWELL ▇▇▇▇▇▇▇" shall have the meaning ascribed thereto in the
preamble.
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"ROCKWELL ▇▇▇▇▇▇▇ ASSETS" means the following:
(a) all rights of any member of the Rockwell ▇▇▇▇▇▇▇ Group under any
Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of the
Rockwell ▇▇▇▇▇▇▇ Group pursuant to any Transaction Agreement;
(c) all Assets (other than those described in paragraphs (b) and (d)
of the definition of "Rockwell Automation Assets" and paragraphs (b) and
(d) of the definition of "Rockwell Science Center Assets") which
immediately prior to the Time of Distribution are owned by Rockwell or any
of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and
members of the Rockwell Science Center Group) and which are used primarily
in or relate primarily to the Rockwell ▇▇▇▇▇▇▇ Business, as the same shall
exist as of such time, including:
(i) all rights in respect of Unrelated Former Businesses
relating primarily to the operations of the Rockwell ▇▇▇▇▇▇▇
Business which do not constitute a Rockwell Automation Asset (or a
right related thereto) described in any of paragraphs (b) or (d)(i)
- (xxi) of the definition of "Rockwell Automation Assets", including
(A) rights to receive payments for services provided under Section 9
of the Conexant Transition Agreement; and (B) all rights to the
extent relating primarily to the operations of the Rockwell ▇▇▇▇▇▇▇
Business to receive indemnification from (x) BNA pursuant to the
Boeing Post-Closing Covenants Agreement, (y) Meritor pursuant to the
Meritor Distribution Agreement or (z) Conexant pursuant to the
Conexant Distribution Agreement;
(d) the following specifically enumerated Assets which immediately
prior to the Time of Distribution are owned by Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members
of the Rockwell Science Center Group), in each case whether or not such
Assets are used primarily in or relate primarily to the Rockwell
Automation Business, the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science
Center Business:
(i) 50% of Rockwell's ownership interest in Rockwell Science
Center;
(ii) the Cypress Assets;
(iii) the Prescription Center Assets;
(iv) the Los Angeles Office Lease and all leasehold
improvements, equipment and other tangible assets located at the
office facility leased thereunder;
(v) the Washington Office Assets;
(vi) the Rockwell CLIR Fund;
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(vii) the Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts and the Rockwell
▇▇▇▇▇▇▇ Non-U.S. Bank Accounts;
(viii) (x) all cash contained in the Rockwell ▇▇▇▇▇▇▇ Non-U.S.
Bank Accounts; (y) all balances contained in ▇▇▇▇▇ cash accounts at
non-U.S. locations of the Rockwell ▇▇▇▇▇▇▇ Business; and (z) the
dollar value of travelers checks at non-U.S. locations of the
Rockwell ▇▇▇▇▇▇▇ Business;
(ix) 65% of all assets of the MetLife Trust;
(x) the aircraft set forth on Schedule 1.01(i);
(xi) the Rockwell ▇▇▇▇▇▇▇ VEBA;
(xii) the Rockwell Good Government Committee;
(xiii) the patents, patent applications, invention disclosures
and registered trademarks set forth on Schedule 1.01(j);
(xiv) the Rockwell ▇▇▇▇▇▇▇ Securities; and
(xv) [the shared facilities set forth on Schedule 1.01(k)];
and
(e) all rights, choses in action, causes of action and claims of
Rockwell or any of its Subsidiaries (including members of the Rockwell
▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group) to the
extent relating to any asset described in clauses (a) through (d) above.
Anything contained herein to the contrary notwithstanding, assets
described in paragraphs (b) and (d) of the definition of "Rockwell Automation
Assets" and paragraphs (b) and (d) of the definition of "Rockwell Science Center
Assets" will not be included in Rockwell ▇▇▇▇▇▇▇ Assets.
"ROCKWELL ▇▇▇▇▇▇▇ BOARD" means the Board of Directors of Rockwell
▇▇▇▇▇▇▇.
"ROCKWELL ▇▇▇▇▇▇▇ BUSINESS" means:
(a) the Rockwell ▇▇▇▇▇▇▇ business engaged in prior to the Time of
Distribution by the Pre-Distribution Group of researching, developing,
designing, engineering, manufacturing, building, selling, distributing,
installing, modifying, repairing, servicing and supporting aviation
electronics and airborne and mobile communications products and systems
for commercial and military applications (marketed primarily under the
name Rockwell ▇▇▇▇▇▇▇), including (i) flight deck electronic products and
systems, including communications, navigation, display and automatic
flight control systems, as well as in-flight entertainment and information
management systems, and (ii) defense electronics products and systems,
including communications, navigation and integrated systems, for airborne,
ground and shipboard applications;
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(b) Former Businesses related primarily to any of the foregoing,
including the Former Businesses listed on Schedule 1.01(l); and
(c) activities of the Pre-Distribution Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell ▇▇▇▇▇▇▇ Business shall not include
(i) the Rockwell Science Center Business or (ii) the Unrelated Former
Businesses set forth on Schedule 1.01(h).
"ROCKWELL ▇▇▇▇▇▇▇ CHANGE IN CONTROL" means any of the following
events or circumstances: (a) any person (as that term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the beneficial owner (as that term
is used in Section 13(d) of the Exchange Act, and the rules and regulations
promulgated thereunder) of shares of Rockwell ▇▇▇▇▇▇▇ entitled to cast more than
50% of the votes at the time entitled to be cast generally for the election of
directors of Rockwell ▇▇▇▇▇▇▇; (b) more than 50% of the members of the Rockwell
▇▇▇▇▇▇▇ Board shall not be Rockwell ▇▇▇▇▇▇▇ Continuing Directors; or (c)
Rockwell ▇▇▇▇▇▇▇ shall be merged or consolidated with, or, in any transaction or
series of transactions, substantially all of the business or assets of Rockwell
▇▇▇▇▇▇▇ shall be sold to or otherwise acquired by, another corporation or entity
and, as a result thereof, the shareowners of Rockwell ▇▇▇▇▇▇▇ immediately prior
thereto shall not have at least 50% or more of the combined voting power of the
surviving, resulting or transferee corporation or entity immediately thereafter.
"ROCKWELL ▇▇▇▇▇▇▇ CHARITABLE TRUST" means the charitable trust to be
established by Rockwell ▇▇▇▇▇▇▇ prior to the Time of Distribution.
"ROCKWELL ▇▇▇▇▇▇▇ COMMON STOCK" means, collectively, the Common
Stock, par value $.01 per share, of Rockwell ▇▇▇▇▇▇▇ and the related Rights.
"ROCKWELL ▇▇▇▇▇▇▇ CONTINUING DIRECTOR" means any member of the
Rockwell ▇▇▇▇▇▇▇ Board who either (i) is a member of the Rockwell ▇▇▇▇▇▇▇ Board
as of the Time of Distribution or (ii) is thereafter elected to the Rockwell
▇▇▇▇▇▇▇ Board, or nominated for election by shareowners, by a vote of at least a
majority of the directors who are Rockwell ▇▇▇▇▇▇▇ Continuing Directors at the
time of such vote; provided, that an individual who is so elected or nominated
in connection with a merger, consolidation, acquisition or similar transaction
(but excluding the Distribution) shall not be a Rockwell ▇▇▇▇▇▇▇ Continuing
Director unless such individual was a Rockwell ▇▇▇▇▇▇▇ Continuing Director prior
thereto.
"ROCKWELL ▇▇▇▇▇▇▇ CREDIT FACILITIES" means [list of Rockwell ▇▇▇▇▇▇▇
credit facilities to be provided].
"ROCKWELL ▇▇▇▇▇▇▇ EXPENSES" means the following out-of-pocket costs
and expenses of Rockwell or any of its Subsidiaries (including members of the
Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group), in
each case, whether incurred and/or paid before, at or after the Time of
Distribution:
(a) all out-of-pocket costs and expenses (including legal fees and
expenses) of and related to the credit facilities established prior to the
Time of Distribution for the
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benefit of Rockwell ▇▇▇▇▇▇▇ and other members of the Rockwell ▇▇▇▇▇▇▇
Group with [ ], as agent;
(b) all out-of-pocket costs and expenses (including legal fees and
expenses) of and related to the commercial paper program established prior
to the Time of Distribution for the benefit of Rockwell ▇▇▇▇▇▇▇ and other
members of the Rockwell ▇▇▇▇▇▇▇ Group;
(c) all out-of-pocket costs and expenses of the transfer agent and
registrar for the Rockwell ▇▇▇▇▇▇▇ Common Stock;
(d) all out-of-pocket costs and expenses of executive search firms
in connection with recruiting officers and directors of the Rockwell
▇▇▇▇▇▇▇ Group to be in place at or after the Time of Distribution; and
(e) all other out-of-pocket costs and expenses relating to the
Distribution to the extent the same relate to operations of the Rockwell
▇▇▇▇▇▇▇ Business after the Time of Distribution.
"ROCKWELL ▇▇▇▇▇▇▇ FINANCIAL INSTRUMENTS" means all credit
facilities, guaranties, foreign currency forward exchange contracts, comfort
letters, letters of credit and similar instruments related solely to the
Rockwell ▇▇▇▇▇▇▇ Business under which any member of the Rockwell Automation
Group has any primary, secondary, contingent, joint, several or other Liability,
including those set forth on Schedule 1.01(m).
"ROCKWELL ▇▇▇▇▇▇▇ GROUP" means Rockwell ▇▇▇▇▇▇▇ and the Rockwell
▇▇▇▇▇▇▇ Subsidiaries.
"ROCKWELL ▇▇▇▇▇▇▇ INDEMNITEES" means each member of the Rockwell
▇▇▇▇▇▇▇ Group, each of their respective Representatives and each of the heirs,
executors, successors and permitted assigns of any of the foregoing.
"ROCKWELL ▇▇▇▇▇▇▇ LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell ▇▇▇▇▇▇▇ Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Liabilities for which any member of the Rockwell ▇▇▇▇▇▇▇
Group is expressly made responsible pursuant to any Transaction Agreement;
(c) all Liabilities (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Automation Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Liabilities") of Rockwell or any of its Subsidiaries (including members of
the Rockwell ▇▇▇▇▇▇▇ Group and members of the
20
25
Rockwell Science Center Group) to the extent based upon, arising out of or
relating to the Rockwell ▇▇▇▇▇▇▇ Assets or the Rockwell ▇▇▇▇▇▇▇ Business,
including:
(i) all Liabilities based upon, arising out of or relating to
Contracts that constitute Rockwell ▇▇▇▇▇▇▇ Assets (including any
primary, secondary, contingent or other obligations, such as under
guaranties or indemnities, in respect of such Contracts), including
Liabilities arising out of any breaches or violations and
Liabilities to make payments or otherwise in connection with the
termination thereof as a result of the transactions contemplated
hereby or otherwise;
(ii) all Liabilities to the extent relating to the Rockwell
▇▇▇▇▇▇▇ Business based upon, arising out of or relating to Contracts
(whether or not such Contracts constitute Rockwell ▇▇▇▇▇▇▇ Assets)
(including any primary, secondary, contingent or other obligations,
such as under guaranties or indemnities, in respect of such
Contracts), including Liabilities arising out of any breaches or
violations and Liabilities to make payments or otherwise in
connection with the termination thereof as a result of the
transactions contemplated hereby or otherwise and including
liabilities in respect of Shared Agreements as provided for in
Section 3.03(b); and
(iii) all Liabilities based upon, arising out of or relating
to Unrelated Former Businesses to the extent relating to the
operations of the Rockwell ▇▇▇▇▇▇▇ Business which do not constitute
a Rockwell Automation Liability described in any of paragraphs (b)
or (d)(i) - (vii) of the definition of "Rockwell Automation
Liabilities", including (A) all performance and other Liabilities
relating to the services required to be provided under Section 9 of
the Conexant Transition Agreement; and (B) all Liabilities to the
extent relating to the operations of the Rockwell ▇▇▇▇▇▇▇ Business
to indemnify (x) BNA and certain other Persons pursuant to the
Boeing Post-Closing Covenants Agreement, (y) Meritor and certain
other Persons pursuant to the Meritor Distribution Agreement or (z)
Conexant and certain other Persons pursuant to the Conexant
Distribution Agreement; and
(d) the following specifically enumerated Liabilities of Rockwell or
any of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group
and members of the Rockwell Science Center Group), in each case whether or
not such Liabilities relate to the Rockwell Automation Business, the
Rockwell Automation Assets, the Rockwell ▇▇▇▇▇▇▇ Business, the Rockwell
▇▇▇▇▇▇▇ Assets, the Rockwell Science Center Business or the Rockwell
Science Center Assets:
(i) all Liabilities based upon, arising out of or relating to
the Actions set forth on Schedule 1.01(n);
(ii) all Liabilities based upon, arising out of or relating to
Former Rockwell Corporate Employees, including all Liabilities based
upon, arising out of or relating to (A) claims of or relating to
Former Rockwell Corporate
21
26
Employees in respect of their employment with any member of the
Pre-Distribution Group; (B) relocation, severance and other amounts
payable to Former Rockwell Corporate Employees after the Time of
Distribution; (C) providing office, secretarial, telecommunications
and other support services to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ from and after the
Time of Distribution, including any monthly stipend paid to ▇▇.
▇▇▇▇▇ for the payment of such services; and (D) providing office,
secretarial, telecommunications and other support services to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ from and after the Time of Distribution, including all
Liabilities in respect of the Los Angeles Office Lease (and any
replacement thereof);
(iii) all Liabilities based upon, arising out of or relating
to workers' compensation claims of Rockwell ▇▇▇▇▇▇▇ Participants (as
defined in the Employee Matters Agreement);
(iv) all Liabilities based upon, arising out of or relating to
the Rockwell CLIR Fund;
(v) all Liabilities based upon, arising out of or relating to
the Cypress Assets or the operations thereof (it being understood
that Liabilities in respect of employees of the Rockwell Automation
Business engaged in payroll and benefits consolidation activities
shall constitute Rockwell Automation Liabilities);
(vi) all Liabilities based upon, arising out of or relating to
the Prescription Center Assets or the operations thereof;
(vii) all Liabilities based upon, arising out of or relating
to the Washington Office Assets or the operations thereof;
(viii) all Liabilities based upon, arising out of or relating
to claims in respect of the demutualization of the Metropolitan Life
Insurance Company;
(ix) all Liabilities based upon, arising out of or relating to
the Rockwell ▇▇▇▇▇▇▇ Credit Facilities, including all indebtedness
outstanding thereunder and interest and fees payable with respect
thereto;
(x) all Liabilities in respect of commitments of the Rockwell
▇▇▇▇▇▇▇ Charitable Trust to be assumed pursuant to Section 3.14; and
(xi) all Liabilities based upon, arising out of or relating to
corporate office overhead claims filed by Rockwell with the U.S.
Department of Defense prior to the Time of Distribution, including
all Liabilities in respect of any adjustments thereto (other than
any such Liabilities that would have been allocated to Rockwell
Science Center in accordance with government contract cost
allocation practices of Rockwell in effect immediately prior to the
Time of Distribution, which shall constitute Rockwell Science Center
Liabilities).
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and
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27
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Liabilities" will not be included in Rockwell ▇▇▇▇▇▇▇ Liabilities.
"ROCKWELL ▇▇▇▇▇▇▇ MARKS" shall have the meaning ascribed thereto in
Section 3.10(b)(i).
"ROCKWELL ▇▇▇▇▇▇▇ NON-U.S. BANK ACCOUNTS" means all bank accounts
set forth on Schedule 1.01(o).
"ROCKWELL ▇▇▇▇▇▇▇ SECURITIES" means the Securities set forth on
Schedule 1.01(x).
"ROCKWELL ▇▇▇▇▇▇▇ SHARED AGREEMENTS" means all Contracts under which
Rockwell or any Rockwell Subsidiary has any rights or primary, secondary,
contingent, joint, several or other Liability arising out of or relating to both
(i) the Rockwell ▇▇▇▇▇▇▇ Business and (ii) one or more other businesses of
Rockwell or any Rockwell Subsidiary (other than the Rockwell Science Center
Business), which by their terms will be outstanding or in effect as of or at any
time following the Time of Distribution.
"ROCKWELL ▇▇▇▇▇▇▇ SUBSIDIARY" means each Person listed on Schedule
1.01(p).
"ROCKWELL ▇▇▇▇▇▇▇ U.S. BANK ACCOUNTS" means all bank accounts set
forth on Schedule 1.01(q).
"ROCKWELL ▇▇▇▇▇▇▇ VEBA" means (a) [name of trust] and (b) all funds
contained therein and rights related thereto.
"ROCKWELL COMMON STOCK" means the Common Stock, par value $1.00 per
share, of Rockwell.
"ROCKWELL DEBT" means all Liabilities of Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members of the
Rockwell Science Center Group) based upon, arising out of or relating to:
(a) the 6.8% Notes of Reliance Electric Company due April 15, 2003;
(b) the 6.15% Notes of Rockwell due January 15, 2008;
(c) the 6.70% Debentures of Rockwell due January 15, 2028;
(d) the 5.20% Debentures of Rockwell due January 15, 2098;
(e) the Reliance Electric Company Athens-▇▇▇▇▇▇ County Industrial
Development Authority Revenue Bonds Series 1977;
(f) the commercial paper borrowings of Rockwell;
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28
(g) the Amended and Restated Credit Agreement dated December 3, 1997
among Rockwell, the banks parties thereto and ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as agent, and any borrowings thereunder; and
(h) [add Rockwell Automation overseas credit facilities.]
"ROCKWELL GOOD GOVERNMENT COMMITTEE" means the Rockwell
International Corporation Good Government Committee, a political action
committee (Federal Elections Commission I.D. No. C00324996), and all funds held
thereby.
"ROCKWELL INSURANCE ESCROW ACCOUNT" means (a) the escrow account
established by Rockwell prior to the Time of Distribution with Travelers
Insurance Company relating to the processing of the deductible portion of
certain workers' compensation losses and the self-insured retention portion of
certain commercial general liability losses and (b) all funds contained therein
and rights related thereto.
"ROCKWELL PROPERTY TRUST" means (a) the Master Rockwell Property
Exchange Trust established by Rockwell prior to the Time of Distribution to
receive proceeds from the sale of certain real property and to disburse trust
assets for the purpose of acquiring certain real property and (b) all funds
contained therein and rights related thereto.
"ROCKWELL SCIENCE CENTER" shall have the meaning ascribed thereto in
the preamble.
"ROCKWELL SCIENCE CENTER ASSETS" means the following:
(a) all rights of any member of the Rockwell Science Center Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of the
Rockwell Science Center Group pursuant to any Transaction Agreement;
(c) all Assets (other than those described in paragraphs (b) and (d)
of the definition of "Rockwell Automation Assets" and paragraphs (b) and
(d) of the definition of "Rockwell ▇▇▇▇▇▇▇ Assets") which immediately
prior to the Time of Distribution are owned by Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members
of the Rockwell Science Center Group) and which are used primarily in or
relate primarily to the Rockwell Science Center Business, as the same
shall exist as of such time, including:
(i) all rights in respect of Unrelated Former Businesses
relating primarily to the operations of the Rockwell Science Center
Business and which do not constitute a Rockwell Automation Asset
described in any of paragraphs (b) or (d)(i) - (xxi) of the
definition of "Rockwell Automation Assets" or a Rockwell ▇▇▇▇▇▇▇
Asset described in any of paragraphs (b) or (d) of the definition of
"Rockwell ▇▇▇▇▇▇▇ Assets", including (A) rights to receive payments
for services provided under Section 2 of the Boeing Transition
Agreement and under
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29
Section 2 of the Conexant Transition Agreement; and (B) all rights
to the extent relating primarily to the operations of the Rockwell
Science Center Business to receive indemnification from (x) BNA
pursuant to the Boeing Post-Closing Covenants Agreement, (y) Meritor
pursuant to the Meritor Distribution Agreement or (z) Conexant
pursuant to the Conexant Distribution Agreement;
(d) the following specifically enumerated Assets which immediately
prior to the Time of Distribution are owned by Rockwell or any of its
Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and members
of the Rockwell Science Center Group), in each case whether or not such
Assets are used primarily in or relate primarily to the Rockwell
Automation Business, the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science
Center Business:
(i) the Rockwell Science Center U.S. Bank Accounts and the
Rockwell Science Center Non-U.S. Bank Accounts;
(ii) (A) all cash contained in Rockwell Science Center U.S.
Bank Accounts of up to $2 million; (B) all cash contained in the
Rockwell Science Center Non-U.S. Bank Accounts; (C) all balances
contained in ▇▇▇▇▇ cash accounts at non-U.S. locations of the
Rockwell Science Center Business; and (D) the dollar value of
travelers checks at non-U.S. locations of the Rockwell Science
Center Business;
(iii) the Rockwell Science Center Securities;
(iv) the patents, patent applications, invention disclosures
and registered trademarks set forth on Schedule 1.01(r); and
(v) 3% of all assets of the MetLife Trust; and
(e) all rights, choses in action, causes of action and claims of
Rockwell or any of its Subsidiaries (including members of the Rockwell
▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group) to the
extent relating to any asset described in clauses (a) through (d) above.
Anything contained herein to the contrary notwithstanding, assets
described in paragraphs (b) and (d) of the definition of "Rockwell Automation
Assets" and paragraphs (b) and (d) of the definition of "Rockwell ▇▇▇▇▇▇▇
Assets" will not be included in Rockwell Science Center Assets.
"ROCKWELL SCIENCE CENTER BOARD" means the Board of [Directors] of
Rockwell Science Center.
"ROCKWELL SCIENCE CENTER BUSINESS" means:
(a) the business engaged in prior to the Time of Distribution by the
Rockwell Science Center Group of researching, developing, designing,
engineering, manufacturing, selling, licensing, servicing and supporting
technologies in electronics, imaging and optics, material and
computational sciences and information technologies;
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30
(b) Former Businesses related primarily to any of the foregoing; and
(c) activities of the Rockwell Science Center Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell Science Center Business shall not
include (i) the Rockwell Automation Business, (ii) the Rockwell ▇▇▇▇▇▇▇
Business or (iii) the Unrelated Former Businesses set forth on Schedule
1.01(h).
"ROCKWELL SCIENCE CENTER CREDIT FACILITIES" means [list of Rockwell
Science Center Credit Facilities, if any, to be provided].
"ROCKWELL SCIENCE CENTER EXPENSES" means the following out-of-pocket
costs and expenses of Rockwell or any of its Subsidiaries (including members of
the Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center Group) (in
each case, whether incurred and/or paid before, at or after the Time of
Distribution):
(a) all out-of-pocket costs and expenses (including legal fees and
expenses) of and related to the credit facilities established prior to the
Time of Distribution for the benefit of Rockwell Science Center and other
members of the Rockwell Science Center Group with [ ], as agent; and
(b) all other out-of-pocket costs and expenses related to the
Distribution to the extent the same relate to operations of the Rockwell
Science Center Business after the Time of Distribution.
"ROCKWELL SCIENCE CENTER FINANCIAL INSTRUMENTS" means all credit
facilities, guaranties, foreign currency forward exchange contracts, comfort
letters, letters of credit and similar instruments related solely to the
Rockwell Science Center Business under which any member of the Rockwell
Automation Group or the Rockwell ▇▇▇▇▇▇▇ Group has any primary, secondary,
contingent, joint, several or other Liability, including those set forth on
Schedule 1.01(s).
"ROCKWELL SCIENCE CENTER GROUP" means Rockwell Science Center and
the Rockwell Science Center Subsidiaries.
"ROCKWELL SCIENCE CENTER INDEMNITEES" means each member of the
Rockwell Science Center Group, each of their respective Representatives and each
of the heirs, executors, successors and permitted assigns of any of the
foregoing.
"ROCKWELL SCIENCE CENTER LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Science Center
Group under any Transaction Agreement to which it is or becomes a party;
(b) all Liabilities for which any member of the Rockwell Science
Center Group is expressly made responsible pursuant to any Transaction
Agreement;
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31
(c) all Liabilities (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Automation Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell ▇▇▇▇▇▇▇
Liabilities") of Rockwell or any of its Subsidiaries (including members of
the Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center
Group) to the extent based upon, arising out of or relating to the
Rockwell Science Center Assets or the Rockwell Science Center Business,
including:
(i) all Liabilities based upon, arising out of or relating to
Contracts that constitute Rockwell Science Center Assets (including
any primary, secondary, contingent or other obligations, such as
under guaranties or indemnities, in respect of such Contracts),
including Liabilities arising out of any breaches or violations and
Liabilities to make payments or otherwise in connection with the
termination thereof as a result of the transactions contemplated
hereby or otherwise;
(ii) all Liabilities to the extent relating to the Rockwell
Science Center Business based upon, arising out of or relating to
Contracts (whether or not such Contracts constitute Rockwell Science
Center Assets) (including any primary, secondary, contingent or
other obligations, such as under guaranties or indemnities, in
respect of such Contracts), including Liabilities arising out of any
breaches or violations and Liabilities to make payments or otherwise
in connection with the termination thereof as a result of the
transactions contemplated hereby or otherwise and including
Liabilities in respect of Shared Agreements as provided for in
Section 3.03(b); and
(iii) all Liabilities based upon, arising out of or relating
to Unrelated Former Businesses to the extent relating to the
operations of the Rockwell Science Center Business which do not
constitute a Rockwell Automation Liability described in any of
paragraphs (b) or (d)(i) - (vii) of the definition of "Rockwell
Automation Liabilities" or a Rockwell ▇▇▇▇▇▇▇ Liability described in
any of paragraphs (b) or (d) of the definition of "Rockwell ▇▇▇▇▇▇▇
Liabilities", including (A) all performance and other Liabilities
relating to the services required to be provided under Section 2 of
the Boeing Transition Agreement and Section 2 of the Conexant
Transition Agreement; and (B) all Liabilities to the extent relating
to the operations of the Rockwell Science Center Business to
indemnify (x) BNA and certain other Persons pursuant to the Boeing
Post-Closing Covenants Agreement, (y) Meritor and certain other
Persons pursuant to the Meritor Distribution Agreement or (z)
Conexant and certain other Persons pursuant to the Conexant
Distribution Agreement; and
(d) (i) all Liabilities based upon, arising out of or relating to
the Actions set forth on Schedule 1.01(t);
(ii) all Liabilities based upon, arising out of or relating to
the Rockwell Science Center Credit Facilities, including all
indebtedness outstanding thereunder and interest and fees payable
with respect thereto; and
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32
(iii) all Liabilities based upon, arising out of or relating
to corporate office overhead claims filed by Rockwell with the U.S.
Department of Defense prior to the Time of Distribution, including
all Liabilities in respect of any adjustments thereto, which would
have been allocated to Rockwell Science Center in accordance with
government contract cost allocation practices of Rockwell in effect
immediately prior to the Time of Distribution.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell ▇▇▇▇▇▇▇ Liabilities" will not be included in Rockwell Science Center
Liabilities.
"ROCKWELL SCIENCE CENTER MARKS" shall have the meaning ascribed
thereto in Section 3.10(c)(i).
"ROCKWELL SCIENCE CENTER NON-U.S. BANK ACCOUNTS" means the bank
accounts set forth on Schedule 1.01(u).
"ROCKWELL SCIENCE CENTER SECURITIES" means the Securities set forth
on Schedule 1.01(y).
"ROCKWELL SCIENCE CENTER SERVICES AGREEMENTS" means (a) the
agreement between Rockwell Science Center and Rockwell entered into on or prior
to the Distribution Date pursuant to which, among other things, Rockwell Science
Center will provide Rockwell with research and development services and (b) the
agreement between Rockwell Science Center and Rockwell ▇▇▇▇▇▇▇ entered into on
or prior to the Distribution Date pursuant to which, among other things,
Rockwell Science Center will provide Rockwell ▇▇▇▇▇▇▇ with research and
development services.
"ROCKWELL SCIENCE CENTER SHARED AGREEMENTS" means all Contracts
under which Rockwell or any Rockwell Subsidiary and/or Rockwell ▇▇▇▇▇▇▇ or any
Rockwell ▇▇▇▇▇▇▇ Subsidiary has any rights or primary, secondary, contingent,
joint, several or other Liability arising out of or relating to both (i) the
Rockwell Science Center Business and (ii) one or more other businesses of
Rockwell or any Rockwell Subsidiary and/or one or more other businesses of
Rockwell ▇▇▇▇▇▇▇ or any Rockwell ▇▇▇▇▇▇▇ Subsidiary, which by their terms will
be outstanding or in effect as of or at any time following the Time of
Distribution.
"ROCKWELL SCIENCE CENTER SUBSIDIARY" means each Person listed on
Schedule 1.01(v).
"ROCKWELL SCIENCE CENTER U.S. BANK ACCOUNTS" means all bank accounts
set forth on Schedule 1.01(w).
"ROCKWELL SUBSIDIARY" means each Subsidiary of Rockwell other than
Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries, Rockwell Science Center and
the Rockwell Science Center Subsidiaries.
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33
"ROCKWELL VEBA" means (a) the Trust for Employee Welfare Benefit
Programs of Rockwell International Corporation and (b) all funds contained
therein and rights related thereto.
"SECURITIES" means all short-term and long-term investments,
banker's acceptances, shares of stock, notes, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in profit-sharing
agreements, collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, puts, calls, straddles, options, investment
contracts, voting-trusts and certificates and other securities of any kind
(other than ownership interests in Subsidiaries, Rockwell Science Center and
joint ventures).
"SHARED AGREEMENTS" means Rockwell ▇▇▇▇▇▇▇ Shared Agreements and
Rockwell Science Center Shared Agreements.
"SHARED POLICIES" means (a) in the case of Rockwell ▇▇▇▇▇▇▇, all
Policies which include Rockwell ▇▇▇▇▇▇▇, any of the Rockwell ▇▇▇▇▇▇▇
Subsidiaries and/or the Rockwell ▇▇▇▇▇▇▇ Business within the definition of the
named insured and (b) in the case of Rockwell Science Center, all Policies which
include Rockwell Science Center, any of the Rockwell Science Center Subsidiaries
and/or the Rockwell Science Center Business within the definition of the named
insured.
"STRATEGIC SOURCING AGREEMENTS" means Shared Agreements (other than
those which do not relate to the Rockwell Automation Business) that are
strategic sourcing or similar agreements under which members of two or more
Groups purchased or had rights to purchase any products or services prior to the
Time of Distribution, as such Shared Agreements exist as of the Time of
Distribution.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, of which such Person
or any Subsidiaries of such Person controls or owns, directly or indirectly,
more than 50% of the stock or other equity interest, or more than 50% of the
voting power entitled to vote on the election of members to the board of
directors or similar governing body; provided, however, that for purposes of
this Agreement none of Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries,
Rockwell Science Center or the Rockwell Science Center Subsidiaries shall be
deemed to be a Rockwell Subsidiary.
"TAX" shall have the meaning ascribed thereto in the Tax Allocation
Agreement.
"TAX ALLOCATION AGREEMENT" means the Tax Allocation Agreement
between Rockwell and Rockwell ▇▇▇▇▇▇▇, substantially in the form attached hereto
as Annex B.
"TAX RULING" means a private letter ruling issued by the IRS in form
and substance satisfactory to Rockwell (in its sole discretion) indicating that
the Distribution will qualify as a tax-free spin-off to the shareowners of
Rockwell for federal income tax purposes under Section 368(a)(1)(D) of the Code.
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34
"THIRD PARTY CLAIM" shall have the meaning ascribed thereto in
Section 4.06(a).
"TIME OF DISTRIBUTION" means the close of business on the
Distribution Date.
"TRANSACTION AGREEMENTS" means, collectively, this Agreement and
each Ancillary Agreement.
"TRANSITION AGREEMENT" means the transition services agreement among
Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center entered into on or prior
to the Distribution Date and providing for various service and other
relationships among Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center
following the Distribution Date.
"TRANSITION PERIOD" shall have the meaning ascribed thereto in
Section 3.12(g)(i)(C).
"UNRELATED FORMER BUSINESSES" means all Former Businesses not
included in the Rockwell Automation Business, the Rockwell ▇▇▇▇▇▇▇ Business or
the Rockwell Science Center Business. Notwithstanding anything to the contrary
contained herein, Unrelated Former Businesses shall include the Former
Businesses set forth on Schedule 1.01(h).
"WASHINGTON OFFICE ASSETS" means Rockwell's office facility located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the lease agreement dated
December 31, 1997 between Rockwell and US Property Fund GmbH & Co. related
thereto and all leasehold improvements, equipment and other tangible assets
located thereat.
ARTICLE II
THE DISTRIBUTION
SECTION 2.01 The Distribution.
(a) Subject to Section 2.03, on or prior to the Distribution Date,
Rockwell will deliver to the Distribution Agent, for the benefit of holders of
record of Rockwell Common Stock as of the Record Date, a certificate or
certificates, endorsed by Rockwell in blank, representing, in the aggregate, a
number of shares of Rockwell ▇▇▇▇▇▇▇ Common Stock equal to the number of shares
of Rockwell Common Stock issued and outstanding as of the Record Date (excluding
treasury shares held by Rockwell), and Rockwell will instruct the Distribution
Agent to make book-entry credits on the Distribution Date or as soon thereafter
as practicable for each holder of record of Rockwell Common Stock as of the
Record Date, or the designated transferee or transferees of such holder, for a
number of shares of Rockwell ▇▇▇▇▇▇▇ Common Stock equal to the number of shares
of Rockwell Common Stock so held by such holder of record as of the Record Date
(excluding treasury shares held by Rockwell). The Distribution will be effective
as of the Time of Distribution.
(b) Rockwell and Rockwell ▇▇▇▇▇▇▇ will each provide to the
Distribution Agent all information (including information necessary to make
appropriate book-entry credits)
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and share certificates, in each case, as may be required in order to complete
the Distribution on the basis of one share of Rockwell ▇▇▇▇▇▇▇ Common Stock for
each share of Rockwell Common Stock issued and outstanding as of the Record Date
(excluding treasury shares held by Rockwell).
SECTION 2.02 Cooperation Prior to the Distribution. Prior to the
Distribution:
(a) Rockwell and Rockwell ▇▇▇▇▇▇▇ will prepare the Information
Statement, which will set forth appropriate disclosure concerning Rockwell
▇▇▇▇▇▇▇, the Distribution and such other matters as Rockwell and Rockwell
▇▇▇▇▇▇▇ may determine. Rockwell and Rockwell ▇▇▇▇▇▇▇ will prepare, and Rockwell
▇▇▇▇▇▇▇ will file with the Commission, the Form 10, which will include or
incorporate by reference the Information Statement. Rockwell ▇▇▇▇▇▇▇ will use
its reasonable best efforts to cause the Form 10 to become effective under the
Exchange Act as soon as practicable following the filing thereof. Promptly after
effectiveness of the Form 10 and completion of the Information Statement
included therein, Rockwell will mail to the holders of Rockwell Common Stock the
Information Statement.
(b) Rockwell and Rockwell ▇▇▇▇▇▇▇ will cooperate in preparing,
filing with the Commission and causing to become effective any registration
statements or amendments thereof which are required to reflect the establishment
of, or amendments to, any employee benefit and other plans contemplated by the
Employee Matters Agreement.
(c) Rockwell and Rockwell ▇▇▇▇▇▇▇ will take all such action as may
be necessary or appropriate under the securities or "blue sky" laws of the
states or other political subdivisions of the United States and the securities
laws of any applicable foreign countries or other political subdivisions thereof
in connection with the transactions contemplated by this Agreement.
(d) Rockwell and Rockwell ▇▇▇▇▇▇▇ will cause to be prepared, and
Rockwell ▇▇▇▇▇▇▇ will file and use its reasonable best efforts to have approved,
an application for the listing on the NYSE of the Rockwell ▇▇▇▇▇▇▇ Common Stock
to be distributed in the Distribution.
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution.
The Rockwell Board will in its discretion establish the Record Date and the
Distribution Date and all appropriate procedures in connection with the
Distribution, but in no event will the Distribution occur prior to such time as
each of the following conditions shall have been satisfied or shall have been
waived by the Rockwell Board in accordance with Section 2.04:
(a) Rockwell shall have received the Tax Ruling and the Tax Ruling
shall be in full force and effect and shall not have been modified or amended in
any respect adversely affecting the tax consequences set forth therein;
(b) the Rockwell Board shall have given final approval of the
Distribution;
(c) all material Consents which are required to effect the
Distribution shall have been obtained and shall be in full force and effect;
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(d) the Form 10 shall have become effective under the Exchange Act;
(e) the Certificate of Incorporation, the By-Laws and the Rights
Plan each shall have been adopted and be in effect;
(f) the Rockwell ▇▇▇▇▇▇▇ Common Stock shall have been approved for
listing upon notice of issuance on the NYSE;
(g) the transactions contemplated by Section 3.01 and Section 3.02
shall have been consummated in all material respects;
(h) Rockwell, Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center shall
have entered into each of the Ancillary Agreements to which they are parties and
each such agreement shall be in full force and effect;
(i) no order, injunction or decree issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing consummation of
the Distribution shall be in effect; and
(j) no suit, action or proceeding by or before any court of
competent jurisdiction or other Governmental Entity shall have been commenced
and be pending to restrain or challenge the Distribution, and no inquiry shall
have been received that in the reasonable judgment of the Rockwell Board may
lead to such a suit, action or proceeding;
provided that the satisfaction of such conditions will not create any obligation
on the part of Rockwell to effect or seek to effect the Distribution or in any
way limit Rockwell's right to terminate this Agreement set forth in Section 6.14
or alter the consequences of any such termination from those specified in
Section 6.14.
SECTION 2.04 Waiver of Conditions. Any or all of the conditions set
forth in Section 2.03 may be waived, in whole or in part, in the sole discretion
of the Rockwell Board.
SECTION 2.05 Disclosure. If at any time after the date hereof any of
the parties shall become aware of any circumstances that will or could
reasonably be expected to prevent any or all of the conditions contained in
Section 2.03 from being satisfied, it will promptly give to the other parties
written notice of those circumstances.
ARTICLE III
TRANSACTIONS RELATING TO THE DISTRIBUTION
SECTION 3.01 Intercorporate Reorganization.
(a) Prior to the Distribution Date, Rockwell and Rockwell ▇▇▇▇▇▇▇
will take all actions necessary to increase the outstanding shares of Rockwell
▇▇▇▇▇▇▇ Common Stock so that, immediately prior to the Distribution, Rockwell
will hold a number of shares of Rockwell ▇▇▇▇▇▇▇ Common Stock equal to the
number of shares of Rockwell
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Common Stock issued and outstanding as of the Record Date (excluding treasury
shares held by Rockwell).
(b) Subject to Section 3.11, prior to the Time of Distribution,
Rockwell, Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center will take, or cause to be
taken, all actions necessary, including the actions specified in Section
3.01(c), to have:
(i) Rockwell, each Rockwell Subsidiary, Rockwell Science Center and
each Rockwell Science Center Subsidiary assign and transfer, or cause to
be assigned and transferred, to Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Subsidiary, as appropriate, any and all right, title and interest of
Rockwell, each of the Rockwell Subsidiaries, Rockwell Science Center and
each of the Rockwell Science Center Subsidiaries in the Rockwell ▇▇▇▇▇▇▇
Subsidiaries;
(ii) Rockwell, each Rockwell Subsidiary, Rockwell ▇▇▇▇▇▇▇ and each
Rockwell ▇▇▇▇▇▇▇ Subsidiary assign and transfer, or cause to be assigned
and transferred, to Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, any and all right, title and interest of
Rockwell, each of the Rockwell Subsidiaries, Rockwell ▇▇▇▇▇▇▇ and each of
the Rockwell ▇▇▇▇▇▇▇ Subsidiaries in the Rockwell Science Center
Subsidiaries;
(iii) Rockwell ▇▇▇▇▇▇▇, each ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, Rockwell
Science Center and each Rockwell Science Center Subsidiary assign and
transfer, or cause to be assigned and transferred, to Rockwell or a
Rockwell Subsidiary, as appropriate, any and all right, title and interest
of Rockwell ▇▇▇▇▇▇▇, each of the Rockwell ▇▇▇▇▇▇▇ Subsidiaries, Rockwell
Science Center and each of the Rockwell Science Center Subsidiaries in the
Rockwell Subsidiaries;
(iv) Rockwell, each Rockwell Subsidiary, Rockwell Science Center and
each Rockwell Science Center Subsidiary assign and transfer, or cause to
be assigned and transferred, to Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Subsidiary, as appropriate, any and all right, title and interest of
Rockwell, each of the Rockwell Subsidiaries, Rockwell Science Center and
each of the Rockwell Science Center Subsidiaries in Rockwell ▇▇▇▇▇▇▇
Assets;
(v) Rockwell, each Rockwell Subsidiary, Rockwell ▇▇▇▇▇▇▇ and each
Rockwell ▇▇▇▇▇▇▇ Subsidiary assign and transfer, or cause to be assigned
and transferred, to Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, any and all right, title and interest of
Rockwell, each of the Rockwell Subsidiaries, Rockwell ▇▇▇▇▇▇▇ and each of
the Rockwell ▇▇▇▇▇▇▇ Subsidiaries in Rockwell Science Center Assets;
(vi) Rockwell ▇▇▇▇▇▇▇, each ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, Rockwell
Science Center and each Rockwell Science Center Subsidiary assign and
transfer, or cause to be assigned and transferred, to Rockwell or a
Rockwell Subsidiary, as appropriate, any and all right, title and interest
of Rockwell ▇▇▇▇▇▇▇, each of the Rockwell ▇▇▇▇▇▇▇ Subsidiaries,
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Rockwell Science Center and each of the Rockwell Science Center
Subsidiaries in Rockwell Automation Assets;
(vii) Rockwell, each Rockwell Subsidiary, Rockwell Science Center
and each Rockwell Science Center Subsidiary assign and transfer, or cause
to be assigned and transferred, to Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Subsidiary, as appropriate, and have Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Subsidiary, as appropriate, unconditionally assume and undertake
to pay, perform and discharge, in a timely manner and in accordance with
the terms thereof, all Liabilities of Rockwell, the Rockwell Subsidiaries,
Rockwell Science Center and the Rockwell Science Center Subsidiaries that
are Rockwell ▇▇▇▇▇▇▇ Liabilities;
(viii) Rockwell, each Rockwell Subsidiary, Rockwell ▇▇▇▇▇▇▇ and each
Rockwell ▇▇▇▇▇▇▇ Subsidiary assign and transfer, or cause to be assigned
and transferred, to Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, and have Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, unconditionally assume and
undertake to pay, perform and discharge, in a timely manner and in
accordance with the terms thereof, all Liabilities of Rockwell, the
Rockwell Subsidiaries, Rockwell ▇▇▇▇▇▇▇ and the Rockwell ▇▇▇▇▇▇▇
Subsidiaries that are Rockwell Science Center Liabilities; and
(ix) Rockwell ▇▇▇▇▇▇▇, each ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, Rockwell
Science Center and each Rockwell Science Center Subsidiary assign and
transfer, or cause to be assigned and transferred, to Rockwell or a
Rockwell Subsidiary, as appropriate, and have Rockwell or a Rockwell
Subsidiary, as appropriate, unconditionally assume and undertake to pay,
perform and discharge, in a timely manner and in accordance with the terms
thereof, all Liabilities of Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Subsidiaries, Rockwell Science Center and the Rockwell Science Center
Subsidiaries that are Rockwell Automation Liabilities.
In the event that at any time or from time to time (whether prior
to, at or after the Time of Distribution) any party (or any member of such
party's respective Group) shall receive or otherwise possess any Asset that is
allocated to any other Person pursuant to this Agreement or any Ancillary
Agreement, such party will promptly transfer, or cause to be transferred, such
Asset to the Person so entitled thereto. Prior to any such transfer, the Person
receiving or possessing such Asset will hold such Asset in trust for the benefit
of the Person entitled thereto (at the expense of the Person entitled thereto).
In the event that at any time or from time to time (whether prior
to, at or after the Time of Distribution) any party determines that any other
party (or any member of such other party's respective Group) shall not have
unconditionally assumed any Liabilities that are allocated to such other party
(or a member of such other party's respective Group) pursuant to this Agreement
or any Ancillary Agreement, such other party will promptly execute and deliver,
or cause to be executed and delivered, all such documents and instruments and
will take, or cause to be taken, all such actions as the requesting party may
reasonably request to unconditionally assume, or cause to be unconditionally
assumed, such Liabilities.
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(c) Subject to Section 3.11, Rockwell, Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Science Center will take, or cause to be taken, the actions described on
Schedule 3.01(c) in connection with United States and international operations
of the Rockwell ▇▇▇▇▇▇▇ Business, the Rockwell Automation Business and the
Rockwell Science Center Business.
(d) In connection with the transfers of Subsidiaries and Assets and
the assumptions of Liabilities contemplated by subsections (b) and (c) of this
Section 3.01, Rockwell, Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center will
execute or cause to be executed by the appropriate entities the Conveyance and
Assumption Instruments. The transfer of capital stock contemplated by such
subsections will be effected by means of delivery of stock certificates duly
endorsed or accompanied by duly executed stock powers and notation on the stock
record books of the corporation or other legal entities involved and, to the
extent required by applicable law, by notation on appropriate registries.
(e) Each of Rockwell (on behalf of itself and each other member of
the Rockwell Automation Group), Rockwell ▇▇▇▇▇▇▇ (on behalf of itself and each
other member of the Rockwell ▇▇▇▇▇▇▇ Group) and Rockwell Science Center (on
behalf of itself and each other member of the Rockwell Science Center Group)
understands and agrees that, except as expressly set forth in any Transaction
Agreement, no party to any Transaction Agreement or any other agreement or
document contemplated by any Transaction Agreement either has or is, in such
agreement or otherwise, representing or warranting in any way as to the Assets,
Subsidiaries, businesses or Liabilities retained, transferred or assumed as
contemplated hereby or thereby, as to any consents or approvals required in
connection with the transactions contemplated by the Transaction Agreements, as
to the value or freedom from any Lien of, or any other matter concerning, any
Assets, Liabilities or Subsidiaries of such party, or as to the absence of any
defenses or rights of setoff or freedom from counterclaim with respect to any
claim or other Assets or Subsidiaries of any party, or as to the legal
sufficiency of any assignment, document or instrument delivered hereunder or
thereunder to convey title to any Asset or Subsidiary or thing of value upon the
execution, delivery or filing hereof or thereof. Except as may expressly be set
forth in any Transaction Agreement, all Assets and Subsidiaries being
transferred or retained as contemplated by any Transaction Agreement or any
other agreement or document contemplated by any Transaction Agreement are being
transferred, or are being retained, on an "as is", "where is" basis (and, in the
case of the transfer of any real property, by means of a quitclaim or similar
form deed or conveyance) and the respective transferees shall bear the economic
and legal risks that any conveyance shall prove to be insufficient or that the
title to any Asset or Subsidiary shall be other than good and marketable and
free and clear of any Lien.
(f) It is the intention of the parties that payments made by the
parties to each other after the Time of Distribution pursuant to the Transaction
Agreements are to be treated as relating back to the transactions occurring
prior to the Time of Distribution pursuant to this Section 3.01 as an adjustment
to the transfers of Assets, Subsidiaries and Liabilities contemplated by this
Section 3.01, and Rockwell, Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center will,
and will cause their Subsidiaries to, take positions consistent with such
intention with any Tax authority, unless with respect to any payment any party
receives an opinion of counsel reasonably acceptable to Rockwell and Rockwell
▇▇▇▇▇▇▇ to the effect that there is no substantial authority for such a
position.
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SECTION 3.02 Financial Instruments.
(a) Rockwell ▇▇▇▇▇▇▇ will, at its expense, take or cause to be taken
all actions and enter into (or cause the Rockwell ▇▇▇▇▇▇▇ Subsidiaries to enter
into) such agreements and arrangements as shall be necessary to effect the
release of and substitution for each member of the Rockwell Automation Group, as
of the Time of Distribution, from all primary, secondary, contingent, joint,
several and other Liabilities in respect of Rockwell ▇▇▇▇▇▇▇ Financial
Instruments (it being understood that all Liabilities in respect of Rockwell
▇▇▇▇▇▇▇ Financial Instruments are Rockwell ▇▇▇▇▇▇▇ Liabilities).
(b) Rockwell ▇▇▇▇▇▇▇' obligations under this Section 3.02 will
continue to be applicable to all Rockwell ▇▇▇▇▇▇▇ Financial Instruments
identified at any time by Rockwell, whether before, at or after the Time of
Distribution.
(c) Rockwell Science Center will, at its expense, take or cause to
be taken all actions and enter into (or cause the Rockwell Science Center
Subsidiaries to enter into) such agreements and arrangements as shall be
necessary to effect the release of and substitution for each member of the
Rockwell Automation Group and each member of the Rockwell ▇▇▇▇▇▇▇ Group,
effective as of the Time of Distribution, from all primary, secondary,
contingent, joint, several and other Liabilities in respect of Rockwell Science
Center Financial Instruments (it being understood that all Liabilities in
respect of Rockwell Science Center Financial Instruments are Rockwell Science
Center Liabilities).
(d) Rockwell Science Center's obligations under this Section 3.02
will continue to be applicable to all Rockwell Science Center Financial
Instruments identified at any time by Rockwell or Rockwell ▇▇▇▇▇▇▇, as the case
may be, whether before, at or after the Time of Distribution.
SECTION 3.03 Shared Agreements.
(a) The parties acknowledge and understand that (i) all Rockwell
Science Center Shared Agreements that relate to the Rockwell Automation Business
and (ii) all Rockwell ▇▇▇▇▇▇▇ Shared Agreements shall constitute Rockwell
Automation Assets, except that, with respect to Shared Agreements relating to
Unrelated Former Businesses, Rockwell ▇▇▇▇▇▇▇ will have the rights described in
paragraph (c)(i) of the definition of "Rockwell ▇▇▇▇▇▇▇ Assets" and Rockwell
Science Center will have the rights described in paragraph (c)(i) of the
definition of "Rockwell Science Center Assets". All Rockwell Science Center
Shared Agreements that do not relate to the Rockwell Automation Business will
constitute (i) Rockwell ▇▇▇▇▇▇▇ Assets if they relate primarily to the Rockwell
▇▇▇▇▇▇▇ Business and (ii) Rockwell Science Center Assets if they relate
primarily to the Rockwell Science Center Business. No member of any Group will
extend or amend any Shared Agreement after the Time of Distribution unless it is
the owner of the Shared Agreement.
(b) The parties acknowledge and understand that (i) all Liabilities
in respect of Shared Agreements based upon, arising out of or relating to the
Rockwell Automation Business shall constitute Rockwell Automation Liabilities,
(ii) all Liabilities in respect of Shared
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Agreements based upon, arising out of or relating to the Rockwell ▇▇▇▇▇▇▇
Business shall constitute Rockwell ▇▇▇▇▇▇▇ Liabilities and (iii) all Liabilities
in respect of Shared Agreements based upon, arising out of or relating to the
Rockwell Science Center Business shall constitute Rockwell Science Center
Liabilities.
(c) The parties agree as follows with respect to Strategic Sourcing
Agreements:
(i) For so long as any member of the Rockwell Automation Group
derives any benefit under any Strategic Sourcing Agreement following
the Time of Distribution (including the ability to continue to make
purchases on the terms set forth in the Strategic Sourcing
Agreement) as a result of purchases by members of the Rockwell
▇▇▇▇▇▇▇ Group or the Rockwell Science Center Group, as the case may
be, then Rockwell ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ Science Center, as the case
may be, will use reasonable best efforts to, and will cause the
other members of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science
Center Group, as the case may be, to use reasonable best efforts to,
continue to make purchases under such Strategic Sourcing Agreement
in accordance with the terms thereof.
(ii) Each party will use its reasonable best efforts to
obtain, or cause to be obtained, any required consents of third
parties to Strategic Sourcing Agreements to allow members of any
Group to make purchases under Strategic Sourcing Agreements on the
terms and conditions of such Strategic Sourcing Agreements existing
as of the Time of Distribution.
(iii) If Rockwell receives any rebate from a third party to a
Strategic Sourcing Agreement after the Time of Distribution,
Rockwell will promptly pay to each of Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Science Center its proportionate share of such rebate, if any, as
reasonably determined by Rockwell (after deducting Rockwell's
out-of-pocket costs and expenses incurred in connection with
obtaining such rebate), based on the amount of purchases made by
each Group under such Strategic Sourcing Agreement that the rebate
relates to.
(iv) If Rockwell is required for any reason to return after
the Time of Distribution all or any portion of a rebate received
from a third party to a Strategic Sourcing Agreement, then each of
Rockwell ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center will promptly upon
request of Rockwell pay to Rockwell its proportionate share of such
rebate, as reasonably determined by Rockwell.
SECTION 3.04 Intercompany Accounts and Arrangements.
(a) Elimination of Intercompany Accounts.
(i) Except as set forth in Section 3.04(a)(ii) or on Schedule
3.04(a), Rockwell ▇▇▇▇▇▇▇, on behalf of itself and each other member
of the Rockwell ▇▇▇▇▇▇▇ Group, Rockwell, on behalf of itself and
each other member of the Rockwell Automation Group, and Rockwell
Science Center, on behalf of itself and each other member of the
Rockwell
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Science Center Group, hereby settle and eliminate, by cancellation or
transfer to a member of the other Group (whether to cancel or transfer
and the manner thereof will be determined by Rockwell), effective as of
the Time of Distribution, all intercompany receivables, payables and
other balances (including intercompany cash management balances)
existing immediately prior to the Time of Distribution (a) between
Rockwell ▇▇▇▇▇▇▇ and/or any Rockwell ▇▇▇▇▇▇▇ Subsidiary, on the one
hand, and Rockwell and/or any Rockwell Subsidiary, on the other hand,
(b) between Rockwell Science Center and/or any Rockwell Science Center
Subsidiary, on the one hand, and Rockwell and/or any Rockwell
Subsidiary, on the other hand, and (c) between Rockwell Science Center
and/or any Rockwell Science Center Subsidiary, on the one hand, and
Rockwell ▇▇▇▇▇▇▇ and/or any Rockwell ▇▇▇▇▇▇▇ Subsidiary, on the other
hand.
(ii) The provisions of Section 3.04(a)(i) will not apply to
any intercompany receivables, payables and other balances [(A) incurred
in connection with or in contemplation of the transactions described on
Schedule 3.01(c) or (B)] arising under any Transaction Agreement,
including those arising under Section 3.05 and those incurred in
connection with the payment by any party of any expenses which are
required to be paid or reimbursed by the other party pursuant to
Section 6.03.
(b) Intercompany Agreements.
(i) Except as set forth in Section 3.04(b)(ii), in furtherance
of the releases and other provisions of Section 4.01, Rockwell ▇▇▇▇▇▇▇,
on behalf of itself and each other member of the Rockwell ▇▇▇▇▇▇▇
Group, Rockwell, on behalf of itself and each other member of the
Rockwell Automation Group, and Rockwell Science Center, on behalf of
itself and each other member of the Rockwell Science Center Group,
hereby terminate any and all agreements, arrangements, commitments or
understandings in existence as of the Time of Distribution, whether or
not in writing (A) between or among Rockwell ▇▇▇▇▇▇▇ and/or any
Rockwell ▇▇▇▇▇▇▇ Subsidiary, on the one hand, and Rockwell and/or any
Rockwell Subsidiary, on the other hand, (B) between or among Rockwell
Science Center and/or any Rockwell Science Center Subsidiary, on the
one hand, and Rockwell and/or any Rockwell Subsidiary, on the other
hand, and (C) between or among Rockwell Science Center and/or any
Rockwell Science Center Subsidiary, on the one hand, and Rockwell
▇▇▇▇▇▇▇ and/or any Rockwell ▇▇▇▇▇▇▇ Subsidiary, on the other hand. No
such terminated agreement, arrangement, commitment or understanding
(including any provision thereof which purports to survive termination)
shall be of any further force or effect after the Time of Distribution.
(ii) The provisions of Section 3.04(b)(i) will not apply to
any of the following agreements, arrangements, commitments or
understandings (or to any of the provisions thereof): (A) the
Transaction Agreements (and each other agreement, instrument or
document expressly contemplated by any Transaction Agreement to be
entered into by any party hereto or any of the members of their
respective Groups); [(B) any agreements, arrangements, commitments or
understandings relating to any matter described in Section
3.04(a)(ii);] (C) any agreements, arrangements, commitments or
understandings listed or described on Schedule 3.04(b)(ii); (D) any
agreements, arrangements,
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commitments or understandings to which any Person other than the
parties hereto and their respective Affiliates is a party; (E) any
other agreements, arrangements, commitments or understandings that any
of the Transaction Agreements expressly contemplates will survive the
Time of Distribution; and (F) any agreements, arrangements, commitments
or understandings (x) between Rockwell ▇▇▇▇▇▇▇ and/or any Rockwell
▇▇▇▇▇▇▇ Subsidiary, on the one hand, and Rockwell and/or any Rockwell
Subsidiary, on the other hand, (y) between Rockwell Science Center
and/or any Rockwell Science Center Subsidiary, on the one hand, and
Rockwell and/or any Rockwell Subsidiary, on the other hand, or (z)
between Rockwell Science Center and/or any Rockwell Science Center
Subsidiary, on the one hand, and Rockwell ▇▇▇▇▇▇▇ and/or any Rockwell
▇▇▇▇▇▇▇ Subsidiary, on the other hand, in any such case for the
purchase or sale of goods or services of a type which the provider
thereof provides to unaffiliated third parties in the ordinary course
of its business ("Ordinary Course Intercompany Arrangements");
provided, however, that in the event any such Ordinary Course
Intercompany Arrangements (other than any Ancillary Agreements) do not,
as of the Time of Distribution, contain commercially reasonable
arm's-length terms of a type to which unaffiliated parties would
reasonably agree or do not include terms which would normally appear in
such arrangements between unaffiliated parties, Rockwell, Rockwell
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Science Center, as the case may be, will cause
such Ordinary Course Intercompany Arrangements to be amended so that
they will contain terms which are, as of the Time of Distribution,
commercially reasonable arm's-length terms of a type to which
unaffiliated parties would reasonably agree.
SECTION 3.05 Cash Management.
(a) Bank Accounts. Subject to Section 3.05(b), (i) all
Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts and Rockwell ▇▇▇▇▇▇▇ Non-U.S. Bank Accounts
will constitute Rockwell ▇▇▇▇▇▇▇ Assets, (ii) all Rockwell Science Center U.S.
Bank Accounts and Rockwell Science Center Non-U.S. Bank Accounts will constitute
Rockwell Science Center Assets, and (iii) all Rockwell Automation Retained
Accounts will constitute Rockwell Automation Assets.
(b) Cash Balances.
(i) Rockwell ▇▇▇▇▇▇▇ will pay to Rockwell (by wire transfer to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania,
Account No. 102-3474), within three business days after the
Distribution Date, (A) the Recorded Amount of cash in the Rockwell
▇▇▇▇▇▇▇ U.S. Bank Accounts, (B) all balances contained immediately
prior to the Time of Distribution in ▇▇▇▇▇ cash accounts at U.S.
locations of the Rockwell ▇▇▇▇▇▇▇ Business, and (C) the dollar value of
travelers checks immediately prior to the Time of Distribution at U.S.
locations of the Rockwell ▇▇▇▇▇▇▇ Business.
(ii) (A) In the event the Recorded Amount of cash in the
Rockwell Science Center U.S. Bank Accounts (x) exceeds $2 million,
Rockwell Science Center will pay to Rockwell (by wire transfer to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania,
Account No. 102-3474), within three business days after the
Distribution Date, an amount equal to such excess or (y) is less than
$2 million, Rockwell will pay to
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44
Rockwell Science Center, within three business days after the
Distribution Date, an amount equal to such deficit.
(B) Rockwell Science Center will pay to Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A., Pittsburgh,
Pennsylvania, Account No. 102-3474), within three business days after
the Distribution Date, (x) all balances contained immediately prior to
the Time of Distribution in ▇▇▇▇▇ cash accounts at U.S. locations of
the Rockwell Science Center Business, and (y) the dollar value of
travelers checks immediately prior to the Time of Distribution at U.S.
locations of the Rockwell Science Center Business.
(c) Rockwell Customer Payments. Each of Rockwell ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ Science Center will, and will cause their respective Subsidiaries and
Affiliates to, forward promptly to Rockwell (for the account of Rockwell or the
applicable Rockwell Subsidiary) any customer payments in respect of accounts
receivable constituting Rockwell Automation Assets received by Rockwell ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Science Center or any of their respective Subsidiaries or Affiliates
after the Time of Distribution, whether received in lock boxes, via wire
transfer or otherwise. Such amounts will be forwarded by wire transfer (to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account
No. 102-3474) in the case of customer payments received within thirty days after
the Distribution Date and by check in the case of customer payments received
thereafter.
(d) Rockwell ▇▇▇▇▇▇▇ Customer Payments. Each of Rockwell and
Rockwell Science Center will, and will cause their respective Subsidiaries and
Affiliates to, forward promptly to Rockwell ▇▇▇▇▇▇▇ (for the account of Rockwell
▇▇▇▇▇▇▇ or the applicable Rockwell ▇▇▇▇▇▇▇ Subsidiary) any customer payments in
respect of accounts receivable constituting Rockwell ▇▇▇▇▇▇▇ Assets received by
Rockwell, Rockwell Science Center or any of their respective Subsidiaries or
Affiliates after the Time of Distribution, whether received in lock boxes, via
wire transfer or otherwise. Such amounts will be forwarded by wire transfer in
the case of customer payments received within thirty days after the Distribution
Date and by check in the case of customer payments received thereafter.
(e) Rockwell Science Center Customer Payments. Each of
Rockwell and Rockwell ▇▇▇▇▇▇▇ will, and will cause their respective Subsidiaries
and Affiliates to, forward promptly to Rockwell Science Center (for the account
of Rockwell Science Center or the applicable Rockwell Science Center Subsidiary)
any customer payments in respect of accounts receivable constituting Rockwell
Science Center Assets received by Rockwell, Rockwell ▇▇▇▇▇▇▇ or any of their
respective Subsidiaries or Affiliates after the Time of Distribution, whether
received in lock boxes, via wire transfer or otherwise. Such amounts will be
forwarded by wire transfer in the case of customer payments received within
thirty days after the Distribution Date and by check in the case of customer
payments received thereafter.
(f) Funding of Outstanding Checks.
(i) The following subsections of this Section 3.05(f) are
intended to implement the parties' agreement that (A) Rockwell ▇▇▇▇▇▇▇
or a Rockwell ▇▇▇▇▇▇▇
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Subsidiary will be liable for payment of checks relating to the
Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell ▇▇▇▇▇▇▇ Liabilities that are
outstanding immediately prior to the Time of Distribution and (B)
Rockwell Science Center or a Rockwell Science Center Subsidiary will be
liable for payment of checks relating to the Rockwell Science Center
Business or the Rockwell Science Center Liabilities that are
outstanding immediately prior to the Time of Distribution.
(ii) Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary will
fund all amounts in respect of checks that are outstanding immediately
prior to the Time of Distribution and presented for payment at or after
the Time of Distribution in Rockwell ▇▇▇▇▇▇▇ U.S. Bank Accounts or
Rockwell ▇▇▇▇▇▇▇ Non-U.S. Bank Accounts. Rockwell Science Center or a
Rockwell Science Center Subsidiary will fund all amounts in respect of
checks that are outstanding immediately prior to the Time of
Distribution and presented for payment at or after the Time of
Distribution in Rockwell Science Center U.S. Bank Accounts or Rockwell
Science Center Non-U.S. Bank Accounts.
(iii) Rockwell or a Rockwell Subsidiary will fund all amounts
in respect of checks that are outstanding immediately prior to the Time
of Distribution and presented for payment at or after the Time of
Distribution in Rockwell Automation Retained Accounts. Within three
business days after Rockwell's request:
(A) Rockwell ▇▇▇▇▇▇▇ will reimburse Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A.,
Pittsburgh, Pennsylvania, account number 102-3474), for the
account of Rockwell or the applicable Rockwell Subsidiary, for
all such amounts funded by Rockwell or a Rockwell Subsidiary
in respect of checks relating to the Rockwell ▇▇▇▇▇▇▇ Business
or the Rockwell ▇▇▇▇▇▇▇ Liabilities that are outstanding
immediately prior to the Time of Distribution and presented
for payment at or after the Time of Distribution in Rockwell
Automation Retained Accounts;
(B) Rockwell Science Center will reimburse Rockwell
(by wire transfer to Rockwell's bank account at Mellon Bank,
N.A., Pittsburgh, Pennsylvania, account number 102-3474), for
the account of Rockwell or the applicable Rockwell Subsidiary,
for all such amounts funded by Rockwell or a Rockwell
Subsidiary in respect of checks relating to the Rockwell
Science Center Business or the Rockwell Science Center
Liabilities that are outstanding immediately prior to the Time
of Distribution and presented for payment at or after the Time
of Distribution in Rockwell Automation Retained Accounts.
(iv) No checks relating to the Rockwell ▇▇▇▇▇▇▇ Business or
the Rockwell Science Center Business will be issued on any Rockwell
Automation Retained Accounts at or after the Time of Distribution.
SECTION 3.06 The Rockwell ▇▇▇▇▇▇▇ Board and the Rockwell
Science Center Board.
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(a) Prior to the Time of Distribution, Rockwell and Rockwell
▇▇▇▇▇▇▇ will take all actions which may be required to elect or otherwise
appoint the persons named in the Form 10 to constitute the board of directors of
Rockwell ▇▇▇▇▇▇▇ at the Time of Distribution.
(b) Prior to the Time of Distribution, Rockwell and Rockwell
▇▇▇▇▇▇▇ will take all actions which may be required to elect or otherwise
appoint the persons set forth on Schedule 3.06(b) to constitute the board of
[directors] of Rockwell Science Center at the Time of Distribution.
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee.
(a) Rockwell will cause all of its employees and directors and
all of the employees and directors of each other member of the Rockwell
Automation Group to resign, not later than the Time of Distribution, from all
boards of directors or similar governing bodies of Rockwell ▇▇▇▇▇▇▇ or any other
member of the Rockwell ▇▇▇▇▇▇▇ Group [and of Rockwell Science Center or any
other member of the Rockwell Science Center Group] on which they serve, and from
all positions as officers of Rockwell ▇▇▇▇▇▇▇ or any other member of the
Rockwell ▇▇▇▇▇▇▇ Group [and of Rockwell Science Center or any other member of
the Rockwell Science Center Group] in which they serve, except as otherwise
specified on Schedule 3.07. Rockwell ▇▇▇▇▇▇▇ will cause all of its employees and
directors and all of the employees and directors of each other member of the
Rockwell ▇▇▇▇▇▇▇ Group to resign, not later than the Time of Distribution, from
all boards of directors or similar governing bodies of Rockwell or any other
member of the Rockwell Automation Group [and of Rockwell Science Center or any
other member of the Rockwell Science Center Group] on which they serve, and from
all positions as officers of Rockwell or any other member of the Rockwell
Automation Group [and of Rockwell Science Center or any other member of the
Rockwell Science Center Group] in which they serve, except as otherwise
specified on Schedule 3.07. [Rockwell Science Center will cause all of its
employees and directors and all of the employees and directors of each other
member of the Rockwell Science Center Group to resign, not later than the Time
of Distribution, from all boards of directors or similar governing bodies of
Rockwell or any other member of the Rockwell Automation Group and of Rockwell
▇▇▇▇▇▇▇ or any other member of the Rockwell ▇▇▇▇▇▇▇ Group on which they serve,
and from all positions as officers of Rockwell or any other member of the
Rockwell Automation Group and of Rockwell ▇▇▇▇▇▇▇ or any other member of the
Rockwell ▇▇▇▇▇▇▇ Group in which they serve, except as otherwise specified on
Schedule 3.07.]
(b) Rockwell will cause each of its employees, and each of the
employees of the other members of the Rockwell Automation Group, who holds stock
or similar evidence of ownership of any Rockwell ▇▇▇▇▇▇▇ Group entity or
Rockwell Science Center Group entity as nominee for such entity pursuant to the
laws of the country in which such entity is located to transfer such stock or
similar evidence of ownership to the Person so designated by Rockwell ▇▇▇▇▇▇▇ or
Rockwell Science Center, as the case may be, to be such nominee as of and after
the Time of Distribution. Rockwell ▇▇▇▇▇▇▇ will cause each of its employees, and
each of the employees of the other members of the Rockwell ▇▇▇▇▇▇▇ Group, who
holds stock or similar evidence of ownership of any Rockwell Automation Group
entity or Rockwell Science Center Group entity as nominee for such entity
pursuant to the laws of the country in which such entity is located to transfer
such stock or similar evidence of ownership to the Person so designated by
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47
Rockwell or Rockwell Science Center, as the case may be, to be such nominee as
of and after the Time of Distribution. Rockwell Science Center will cause each
of its employees, and each of the employees of the other members of the Rockwell
Science Center Group, who holds stock or similar evidence of ownership of any
Rockwell Automation Group entity or Rockwell ▇▇▇▇▇▇▇ Group entity as nominee for
such entity pursuant to the laws of the country in which such entity is located
to transfer such stock or similar evidence of ownership to the Person so
designated by Rockwell or Rockwell ▇▇▇▇▇▇▇, as the case may be, to be such
nominee as of and after the Time of Distribution.
(c) Rockwell will cause each of its employees and each of the
employees of the other members of the Rockwell Automation Group to revoke or
withdraw their express written authority, if any, to act on behalf of any
Rockwell ▇▇▇▇▇▇▇ Group entity or Rockwell Science Center Group entity as an
agent or representative thereof after the Time of Distribution. Rockwell ▇▇▇▇▇▇▇
will cause each of its employees and each of the employees of the other members
of the Rockwell ▇▇▇▇▇▇▇ Group to revoke or withdraw their express written
authority, if any, to act on behalf of any Rockwell Automation Group entity or
Rockwell Science Center Group entity as an agent or representative thereof after
the Time of Distribution. Rockwell Science Center will cause each of its
employees and each of the employees of the other members of the Rockwell Science
Center Group to revoke or withdraw their express written authority, if any, to
act on behalf of any Rockwell Automation Group entity or Rockwell ▇▇▇▇▇▇▇ Group
entity as an agent or representative thereof after the Time of Distribution.
SECTION 3.08 Rockwell ▇▇▇▇▇▇▇ Certificate of Incorporation and
By-Laws; Rights Plan. Prior to the Time of Distribution, (a) the Rockwell
▇▇▇▇▇▇▇ Board will (i) approve the Certificate of Incorporation and will cause
the same to be filed with the Secretary of State of the State of Delaware and
(ii) adopt the By-Laws, and (b) Rockwell, as sole shareowner of Rockwell
▇▇▇▇▇▇▇, ▇▇▇▇ approve the Certificate of Incorporation. Prior to the Time of
Distribution, the Rockwell ▇▇▇▇▇▇▇ Board will adopt the Rights Plan and declare
a dividend of the Rights so that each share of Rockwell ▇▇▇▇▇▇▇ Common Stock
issued and outstanding as of the Time of Distribution will initially have one
Right attached thereto.
SECTION 3.09 Insurance.
(a) Coverage. Coverage of Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Subsidiaries, Rockwell Science Center and the Rockwell Science Center
Subsidiaries under all Policies shall cease as of the Time of Distribution. From
and after the Time of Distribution, Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Subsidiaries, Rockwell Science Center and the Rockwell Science Center
Subsidiaries will be responsible for obtaining and maintaining all insurance
coverages in their own right. All Policies will constitute Rockwell Automation
Assets and will be retained by Rockwell and the Rockwell Subsidiaries, together
with all rights, benefits and privileges thereunder (including the right to
receive any and all return premiums with respect thereto).
(b) Rights Under Shared Policies. From and after the Time of
Distribution, Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries, Rockwell
Science Center and the Rockwell Science Center Subsidiaries will have no rights
with respect to any Policies, except that:
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48
(i) Rockwell ▇▇▇▇▇▇▇ will have the right to assert claims (and
Rockwell will use reasonable best efforts to assist Rockwell ▇▇▇▇▇▇▇ in
asserting claims) for any loss, liability or damage with respect to
Rockwell ▇▇▇▇▇▇▇ Assets or Rockwell ▇▇▇▇▇▇▇ Liabilities under Shared
Policies with third-party insurers which are "occurrence basis"
Policies ("Occurrence Basis Policies") arising out of insured incidents
occurring from the date coverage thereunder first commenced until the
Time of Distribution to the extent that the terms and conditions of any
such Occurrence Basis Policies and agreements relating thereto so
allow;
(ii) Rockwell ▇▇▇▇▇▇▇ will have the right to continue to
prosecute claims with respect to Rockwell ▇▇▇▇▇▇▇ Assets or Rockwell
▇▇▇▇▇▇▇ Liabilities properly asserted with the insurance carrier prior
to the Time of Distribution (and Rockwell will use reasonable best
efforts to assist Rockwell ▇▇▇▇▇▇▇ in connection therewith) under
Shared Policies with third-party insurers which are Policies written on
a "claims made" basis ("Claims Made Policies") arising out of insured
incidents occurring from the date coverage thereunder first commenced
until the Time of Distribution to the extent that the terms and
conditions of any such Claims Made Policies and agreements relating
thereto so allow;
(iii) Rockwell Science Center will have the right to assert
claims (and Rockwell will use reasonable best efforts to assist
Rockwell Science Center in asserting claims) for any loss, liability or
damage with respect to Rockwell Science Center Assets or Rockwell
Science Center Liabilities under Occurrence Basis Policies arising out
of insured incidents occurring from the date coverage thereunder first
commenced until the Time of Distribution to the extent that the terms
and conditions of any such Occurrence Basis Policies and agreements
relating thereto so allow; and
(iv) Rockwell Science Center will have the right to continue
to prosecute claims with respect to Rockwell Science Center Assets or
Rockwell Science Center Liabilities properly asserted with the
insurance carrier prior to the Time of Distribution (and Rockwell will
use reasonable best efforts to assist Rockwell Science Center in
connection therewith) under Claims Made Policies arising out of insured
incidents occurring from the date coverage thereunder first commenced
until the Time of Distribution to the extent that the terms and
conditions of any such Claims Made Policies and agreements relating
thereto so allow;
provided, that in the case of each of clauses (i), (ii), (iii) and (iv) above,
(A) all of Rockwell's and each Rockwell Subsidiary's reasonable costs and
expenses incurred in connection with the foregoing are promptly paid by Rockwell
▇▇▇▇▇▇▇ or Rockwell Science Center, as the case may be, (B) Rockwell and the
Rockwell Subsidiaries may, at any time, without liability or obligation to
Rockwell ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, Rockwell Science Center or
any Rockwell Science Center Subsidiary (other than as set forth in Section
3.09(c)), amend, commute, terminate, buy-out, extinguish liability under or
otherwise modify any Occurrence Basis Policies or Claims Made Policies (and such
claims shall be subject to any such amendments, commutations, terminations,
buy-outs, extinguishments and modifications), (C) such claims will be subject to
(and recovery thereon will be reduced by the amount of) any applicable
deductibles, retentions, self-insurance provisions or any payment or
reimbursement
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49
obligations of Rockwell, any Rockwell Subsidiary or any Affiliate of Rockwell or
any Rockwell Subsidiary in respect thereof, and (D) such claims will be subject
to exhaustion of aggregate limits. Rockwell's obligation to use reasonable best
efforts to assist Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center in asserting
claims under Occurrence Basis Policies will include using reasonable best
efforts in assisting Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center to establish
its right to coverage under Occurrence Basis Policies (so long as all of
Rockwell's costs and expenses in connection therewith are promptly paid by
Rockwell ▇▇▇▇▇▇▇ or Rockwell Science Center, as the case may be). None of
Rockwell or the Rockwell Subsidiaries will bear any Liability for the failure of
an insurance carrier to pay any claim under any Occurrence Basis Policy or
Claims Made Policy. It is understood that any Claims Made Policies will not
provide any coverage to Rockwell ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries,
Rockwell Science Center or the Rockwell Science Center Subsidiaries for
incidents occurring prior to the Time of Distribution but which are asserted
with the insurance carrier after the Time of Distribution.
(c) Rockwell Actions. In the event that after the Time of
Distribution Rockwell or any Rockwell Subsidiary proposes to amend, commute,
terminate, buy-out, extinguish liability under or otherwise modify any
Occurrence Basis Policies or Claims Made Policies under which Rockwell ▇▇▇▇▇▇▇
or Rockwell Science Center has rights to assert claims pursuant to Section
3.09(b) in a manner that would adversely affect any such rights of Rockwell
▇▇▇▇▇▇▇ or Rockwell Science Center, (i) Rockwell will give Rockwell ▇▇▇▇▇▇▇
and/or Rockwell Science Center, as the case may be, prior notice thereof and
consult with Rockwell ▇▇▇▇▇▇▇ and/or Rockwell Science Center, as the case may
be, with respect to such action (it being understood that the decision to take
any such action will be in the sole discretion of Rockwell) and (ii) Rockwell
will pay to Rockwell ▇▇▇▇▇▇▇ and/or Rockwell Science Center, as the case may be,
its equitable share (which shall be determined by Rockwell based on the amount
of premiums paid by or allocated to the Rockwell ▇▇▇▇▇▇▇ Business or the
Rockwell Science Center Business, as the case may be, in respect of the
applicable Shared Policy) of any net proceeds actually received by Rockwell from
the insurance carrier of the applicable Shared Policy as a result of such action
by Rockwell (after deducting Rockwell's reasonable costs and expenses incurred
in connection with such action).
(d) Administration. From and after the Time of Distribution:
(i) Rockwell will be responsible for the Claims Administration
with respect to claims of Rockwell and the Rockwell Subsidiaries under
Occurrence Basis Policies and Claims Made Policies;
(ii) Rockwell ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, as
appropriate, will be responsible for the Claims Administration with
respect to the claims of Rockwell ▇▇▇▇▇▇▇ and the Rockwell ▇▇▇▇▇▇▇
Subsidiaries under Occurrence Basis Policies and Claims Made Policies
permitted under Section 3.09(b); and
(iii) Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, will be responsible for the Claims
Administration with respect to the claims of Rockwell Science Center
and the Rockwell Science Center Subsidiaries under Occurrence Basis
Policies and Claims Made Policies permitted under Section 3.09(b).
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(e) Insurance Premiums. Rockwell will pay all premiums
(retrospectively-rated or otherwise) as required under the terms and conditions
of the respective Shared Policies in respect of periods prior to the Time of
Distribution, whereupon (i) Rockwell ▇▇▇▇▇▇▇ will, upon request of Rockwell,
forthwith reimburse Rockwell for that portion of such premiums paid by Rockwell
as are reasonably determined by Rockwell to be attributable to the Rockwell
▇▇▇▇▇▇▇ Business and (ii) Rockwell Science Center will, upon request of
Rockwell, forthwith reimburse Rockwell for that portion of such premiums paid by
Rockwell as are reasonably determined by Rockwell to be attributable to the
Rockwell Science Center Business.
(f) Agreement for Waiver of Conflict and Shared Defense. In
the event that an Occurrence Basis Policy or Claims Made Policy provides
coverage for two or more of (i) Rockwell and/or a Rockwell Subsidiary, (ii)
Rockwell ▇▇▇▇▇▇▇ and/or a Rockwell ▇▇▇▇▇▇▇ Subsidiary and (iii) Rockwell Science
Center and/or a Rockwell Science Center Subsidiary relating to the same
occurrence, Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center, as
applicable, agree to defend jointly and to waive any conflict of interest
necessary to the conduct of that joint defense. Nothing in this Section 3.09(f)
will be construed to limit or otherwise alter in any way the indemnity
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
(g) Directors' and Officers' Insurance. Rockwell will use its
reasonable best efforts to cause the persons currently serving as directors
and/or officers of Rockwell or any Subsidiary of Rockwell who will be, effective
as of the Time of Distribution, directors and/or officers of Rockwell ▇▇▇▇▇▇▇,
any ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiary, Rockwell Science Center or any Rockwell Science
Center Subsidiary to be covered for a period of six years from the Time of
Distribution with respect to claims arising from facts or events which occurred
prior to the Time of Distribution by the directors' and officers' liability
insurance policies maintained by Rockwell during such six-year period following
the Time of Distribution for all persons who served as directors and/or officers
of Rockwell or any Rockwell Subsidiary prior to the Time of Distribution with
respect to claims arising from facts or events which occurred prior to the Time
of Distribution.
SECTION 3.10 Use of Names, Trademarks, etc.
(a) From and after the Time of Distribution, subject to
Sections 3.10(b), 3.10(c) and 3.10(d), Rockwell will own all rights of Rockwell
or any of its Subsidiaries (including members of the Rockwell ▇▇▇▇▇▇▇ Group and
members of the Rockwell Science Center Group) in, and to the use of, the names
"Rockwell", "Rockwell International", "Rockwell ▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇▇ Science
Center" and "Rockwell Scientific Company" and all corporate symbols and logos
related thereto and any name or ▇▇▇▇ which includes the words "Rockwell" or
"Rockwell International" and all derivatives thereof. From and after the Time of
Distribution, except as permitted in Sections 3.10(b), 3.10(c) and 3.10(d), the
Rockwell ▇▇▇▇▇▇▇ Group and the Rockwell Science Center Group will not use or
have any rights to the names, trademarks, trade names, domain names and service
marks "Rockwell", "Rockwell International", "Rockwell ▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇▇
Science Center" or "Rockwell Scientific Company" or any corporate symbol or logo
related thereto or any name or ▇▇▇▇ which includes the words "Rockwell" or
"Rockwell International" or any derivative thereof or any name or ▇▇▇▇
confusingly similar thereto, or any
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51
special script, type font, form, style, logo, design, device, trade dress or
symbol which contains the trademark, trade name or service ▇▇▇▇ "Rockwell" or
"Rockwell International" or any derivative thereof or any name or ▇▇▇▇
confusingly similar thereto. From and after the Time of Distribution the
Rockwell ▇▇▇▇▇▇▇ Group will not hold itself out as having any affiliation with
the Rockwell Automation Group.
(b) (i) Rockwell hereby grants to Rockwell ▇▇▇▇▇▇▇ an
exclusive, perpetual, non-transferable (other than by way of
sublicenses to members of the Rockwell ▇▇▇▇▇▇▇ Group) license to
utilize without obligation to pay royalties to Rockwell the names,
trademarks, trade names, domain names and service marks (A) "Rockwell",
but only in the combined format "Rockwell ▇▇▇▇▇▇▇", and (B) "Rockwell
▇▇▇▇▇▇▇" (collectively, the "Rockwell ▇▇▇▇▇▇▇ Marks") in connection
with businesses of the Rockwell ▇▇▇▇▇▇▇ Group, other than researching,
developing, designing, engineering, manufacturing, building, selling,
distributing, installing, modifying, repairing, servicing or supporting
Automation Products. Unless and until the license granted under this
Section 3.10(b) is terminated, Rockwell will not use, nor grant a
license to any third party to use, the name, trademark, trade name,
domain name or service ▇▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇".
(ii) As a condition to the license granted by this Section
3.10(b), Rockwell ▇▇▇▇▇▇▇ will use the Rockwell ▇▇▇▇▇▇▇ Marks (A) in
connection with goods and services having a level of quality at least
as high as that established by the Rockwell ▇▇▇▇▇▇▇ Business prior to
the Distribution Date and (B) in compliance with all applicable laws
and regulations.
(iii) Rockwell will have the right to exercise quality
control over Rockwell ▇▇▇▇▇▇▇' and any permitted sublicensee's
presentation of the Rockwell ▇▇▇▇▇▇▇ Marks to that degree reasonably
necessary, in the opinion of Rockwell, to maintain the validity and
enforceability of the Rockwell ▇▇▇▇▇▇▇ Marks and the name, trademark,
trade name, domain name or service ▇▇▇▇ "Rockwell" and to protect the
goodwill associated with any of the foregoing. Rockwell ▇▇▇▇▇▇▇ will,
upon request by Rockwell, submit to Rockwell materials of the Rockwell
▇▇▇▇▇▇▇ Group bearing the Rockwell ▇▇▇▇▇▇▇ Marks as Rockwell may
reasonably require to ensure Rockwell ▇▇▇▇▇▇▇' and any permitted
sublicensee's compliance with the obligations set forth in this Section
3.10(b).
(iv) (A) Rockwell may terminate the license granted under
this Section 3.10(b) in the event of a material breach of this Section
3.10(b) by any member of the Rockwell ▇▇▇▇▇▇▇ Group that has not been
cured within sixty days (or ninety days, if substantial progress is
being made at the end of such sixty day period) of written notice by
Rockwell to Rockwell ▇▇▇▇▇▇▇.
(B) The license granted under this Section 3.10(b)
will terminate automatically on the 180th day after a Rockwell
▇▇▇▇▇▇▇ Change of Control.
(v) From and after the Time of Distribution, subject to
Section 3.10(f), Rockwell ▇▇▇▇▇▇▇ will have all rights of Rockwell or
any of its Subsidiaries (including
47
52
members of the Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell
Science Center Group) in, and to the use of, the name "▇▇▇▇▇▇▇" (other
than in the combined format "Rockwell ▇▇▇▇▇▇▇") and all corporate
symbols and logos related thereto and all derivatives thereof.
(c) (i) Rockwell hereby grants to Rockwell Science Center an
exclusive, perpetual, non-transferable (other than by way of sublicenses
to members of the Rockwell Science Center Group) license to utilize
without obligation to pay royalties to Rockwell the names, trademarks,
trade names, domain names and service marks (A) "Rockwell", but only in
the combined format "Rockwell Science Center", "Rockwell Scientific" or
"Rockwell Scientific Company" and (B) "Rockwell Science Center",
"Rockwell Scientific" and "Rockwell Scientific Company" (collectively,
the "Rockwell Science Center Marks") in connection with the business of
Rockwell Science Center as it exists on the Distribution Date. Unless
and until the license granted under this Section 3.10(c) is terminated,
Rockwell will not use, nor grant a license to any third party to use,
the Rockwell Science Center Marks.
(ii) As a condition to the license granted by this Section
3.10(c), Rockwell Science Center will use the Rockwell Science Center
Marks (A) in connection with goods and services having a level of
quality at least as high as that established by the Rockwell Science
Center Business prior to the Distribution Date and (B) in compliance
with all applicable laws and regulations.
(iii) Rockwell will have the right to exercise quality
control over Rockwell Science Center's and any permitted sublicensee's
presentation of the Rockwell Science Center Marks to that degree
reasonably necessary, in the opinion of Rockwell, to maintain the
validity and enforceability of the Rockwell Science Center Marks and
the name, trademark, trade name or service ▇▇▇▇ "Rockwell" and to
protect the goodwill associated with the foregoing. Rockwell Science
Center will, upon request by Rockwell, submit to Rockwell materials of
the Rockwell Science Center Group bearing the Rockwell Science Center
Marks as Rockwell may reasonably require to ensure Rockwell Science
Center's and any permitted sublicensee's compliance with the
obligations set forth in this Section 3.10(c).
(iv) (A) Rockwell may terminate the license granted under
this Section 3.10(c) in the event of a material breach of this Section
3.10(c) by any member of the Rockwell Science Center Group that has not
been cured within sixty days (or ninety days, if substantial progress
is being made at the end of such sixty day period) of written notice by
Rockwell to Rockwell Science Center.
(B) The license granted under this Section 3.10(c)
will terminate automatically on the 180th day after the
aggregate equity ownership interest of Rockwell and Rockwell
▇▇▇▇▇▇▇ in Rockwell Science Center falls below 50%.
(d) In addition to, and without limiting the licenses granted
in Section 3.10(b) and Section 3.10(c), Rockwell hereby grants to each of
Rockwell ▇▇▇▇▇▇▇ and Rockwell Science
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53
Center a non-exclusive, non-transferable (other than by way of sublicenses to
members of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center Group, as
the case may be) license to utilize without obligation to pay royalties to
Rockwell the names, trademarks, trade names or domain names "Rockwell" and
"Rockwell International" and any corporate symbol or logo related thereto in
connection with stationery, supplies, labels, catalogs, vehicles, signs and
products of the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science Center
Business, as the case may be, described in paragraphs (i) through (vi) of this
Section 3.10(d), subject to the terms and conditions of this Section 3.10(d) and
Section 3.10(e), in each case in the same manner and to the same extent as such
names, trademarks, trade names, domain names, corporate symbols or logos were
used by the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science Center Business,
as the case may be, at any time within the five year period preceding the
Distribution:
(i) All stationery, invoices, purchase orders and other
similar documents of a transactional nature, business cards, outside
forms such as packing lists, labels, and cartons, forms for internal
use only and product literature constituting Rockwell ▇▇▇▇▇▇▇ Assets or
Rockwell Science Center Assets, as the case may be, as of the Time of
Distribution may be used for a period of one year following the
Distribution Date or until the supply is exhausted, whichever is the
first to occur.
(ii) All domain names used in the Rockwell ▇▇▇▇▇▇▇ Business
and the Rockwell Science Center Business as of the Time of Distribution
may continue to be used for a period not to exceed two years following
the Distribution Date.
(iii) All vehicles constituting Rockwell ▇▇▇▇▇▇▇ Assets or
Rockwell Science Center Assets, as the case may be, as of the Time of
Distribution may continue to be used without re-marking (except as to
legally required permit numbers, license numbers, etc.) for a period
not to exceed (A) twelve months following the Distribution Date or (B)
the date of disposition of the vehicle, whichever is the first to
occur.
(iv) Within six months following the Distribution Date,
Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center, as the case may be, will
cause to be removed from display at all owned and leased facilities
constituting Rockwell ▇▇▇▇▇▇▇ Assets or Rockwell Science Center Assets,
respectively, all demountable displays which contain the names,
trademarks or trade names "Rockwell" or "Rockwell International" (other
than, (x) in the case of Rockwell ▇▇▇▇▇▇▇, in the combined format
"Rockwell ▇▇▇▇▇▇▇" and (y) in the case of Rockwell Science Center, in
the combined format "Rockwell Science Center" or "Rockwell Scientific
Company") or any corporate symbol related thereto and Rockwell ▇▇▇▇▇▇▇
and Rockwell Science Center each will remove, or will cause the removal
of, all signs displaying any such name, trademark, trade name or
corporate symbol at all such facilities (A) located in the United
States, no later than six months following the Distribution Date and
(B) located outside the United States, no later than twelve months
following the Distribution Date.
(v) Products of the Rockwell ▇▇▇▇▇▇▇ Business and the Rockwell
Science Center Business may have applied thereto the names, trademarks
or trade names
49
54
"Rockwell" or "Rockwell International" or any Rockwell corporate symbol
or logo related thereto for a period of six months after the
Distribution.
(vi) Products of the Rockwell ▇▇▇▇▇▇▇ Business and the
Rockwell Science Center Business in finished goods inventory and work
in process (to the extent the same bear the names, trademarks or trade
names "Rockwell" or "Rockwell International" at the Time of
Distribution or have any such trademark or trade name applied to them
in accordance with paragraph (v) above) may be disposed of without
re-marking.
(e) (i) Apart from the rights granted under Section 3.10(b),
Section 3.10(c) and Section 3.10(d), no member of the Rockwell ▇▇▇▇▇▇▇
Group or the Rockwell Science Center Group shall have any right, title
or interest in, or to the use of, the names, trademarks, trade names or
domain names "Rockwell" or "Rockwell International" or any corporate
symbol or logo related thereto, either alone or in combination with any
other word, name, symbol, device, trademarks, or any combination
thereof. Anything contained herein to the contrary notwithstanding,
except as expressly permitted by Section 3.10(b), Section 3.10(c) and
Section 3.10(d), in no event will any member of the Rockwell ▇▇▇▇▇▇▇
Group or any member of the Rockwell Science Center Group utilize the
names, trademarks, trade names or domain names "Rockwell" or "Rockwell
International" or any corporate symbol or logo related thereto as a
component of a company or trade name. Rockwell ▇▇▇▇▇▇▇ and Rockwell
Science Center each will not, and will cause each other member of the
Rockwell ▇▇▇▇▇▇▇ Group and the Rockwell Science Center Group, as the
case may be, not to, challenge or contest the validity of such names,
trademarks, trade names, domain names, corporate symbols or logos, the
registration thereof or the ownership thereof by the Rockwell
Automation Group. Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center each
will not, and will cause each other member of the Rockwell ▇▇▇▇▇▇▇
Group and the Rockwell Science Center Group, as the case may be, not
to, apply anywhere at any time for any registration as owner or
exclusive licensee of such names, trademarks, trade names, domain
names, corporate symbols or logos. If, notwithstanding the foregoing,
any member of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center
Group develops, adopts or acquires, directly or indirectly, any right,
title or interest in, or to the use of, any such names, trademarks,
trade names, domain names, corporate symbols or logos in any
jurisdiction, or any goodwill incident thereto, Rockwell ▇▇▇▇▇▇▇ or
Rockwell Science Center, as the case may be, will, upon the request of
Rockwell, and for a nominal consideration of one dollar, assign or
cause to be assigned to Rockwell or any designee of Rockwell, all
right, title and interest in, and to the use of, such names,
trademarks, trade names, domain names, corporate symbols or logos in
any and all jurisdictions, together with any goodwill incident thereto.
(ii) If the laws of any country require that any ▇▇▇▇ subject
to Section 3.10(b), Section 3.10(c) or Section 3.10(d) or the right of
any member of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center
Group to use any ▇▇▇▇ as permitted by Section 3.10(b), Section 3.10(c)
or Section 3.10(d) be registered in order to fully protect the Rockwell
Automation Group, then Rockwell ▇▇▇▇▇▇▇ or Rockwell Science Center, as
the case may be, and Rockwell will cooperate in constituting such
member of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center
Group, as the case may be, as a registered user (or its equivalent) in
each of the countries in which such registration is necessary. Any
expenses for registering such ▇▇▇▇ or constituting such member of the
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55
Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center Group, as the
case may be, as a registered user in any country shall be borne by
Rockwell ▇▇▇▇▇▇▇ or Rockwell Science Center, as the case may be. Any
registration of such member of the Rockwell ▇▇▇▇▇▇▇ Group or the
Rockwell Science Center Group, as the case may be, as a registered user
of any ▇▇▇▇ hereunder shall be expunged on termination of the period of
permitted use under this Agreement or upon a breach or threatened
breach by any member of the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell
Science Center Group, as the case may be, of the terms of this Section
3.10 and Rockwell ▇▇▇▇▇▇▇ or Rockwell Science Center, as the case may
be, will, upon request of Rockwell, take all necessary steps to cause
such registration to be so expunged upon such termination or breach or
threatened breach. In addition, (A) Rockwell ▇▇▇▇▇▇▇ hereby constitutes
and appoints Rockwell the true and lawful attorney of Rockwell ▇▇▇▇▇▇▇
with full power of substitution, in the name and on behalf of Rockwell
▇▇▇▇▇▇▇ (and at the cost of Rockwell ▇▇▇▇▇▇▇), to take all necessary
steps to cause such registration to be so expunged upon such
termination or breach or threatened breach by a member of the Rockwell
▇▇▇▇▇▇▇ Group and (B) Rockwell Science Center hereby constitutes and
appoints Rockwell the true and lawful attorney of Rockwell Science
Center with full power of substitution in the name and on behalf of
Rockwell Science Center (and at the cost of Rockwell Science Center),
to take all necessary steps to cause such registration to be so
expunged upon such termination or breach or threatened breach by a
member of the Rockwell Science Center Group.
(iii) Rockwell will have the right to terminate the license
granted in Section 3.10(b) and/or Section 3.10(d) (with respect to
Rockwell ▇▇▇▇▇▇▇) in the event of a material breach of this Section
3.10(e) by any member of the Rockwell ▇▇▇▇▇▇▇ Group that has not been
cured within sixty days (or ninety days, if substantial progress is
being made at the end of such sixty day period) after written notice by
Rockwell to Rockwell ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ will have the right to terminate
the license granted in Section 3.10(c) and/or Section 3.10(d) (with
respect to Rockwell Science Center) in the event of a material breach
of this Section 3.10(e) by any member of the Rockwell Science Center
Group that has not been cured within sixty days (or ninety days, if
substantial progress is being made at the end of such sixty day period)
after written notice by Rockwell to Rockwell Science Center.
(f) From and after the Distribution Date, the Rockwell
Automation Group will not hold itself out as having an affiliation with the
Rockwell ▇▇▇▇▇▇▇ Group.
SECTION 3.11 Consents. Prior to and after the Distribution
Date, Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center will, and will
cause their respective Subsidiaries to, use their reasonable best efforts (as
requested by any other party) to obtain, or to cause to be obtained, all
Consents and to resolve all impracticalities of assignments or transfers
necessary for the transfer of all Assets, Subsidiaries and Liabilities
contemplated to be transferred pursuant to this Article III; provided, however,
that none of Rockwell, Rockwell ▇▇▇▇▇▇▇ or Rockwell Science Center or their
respective Subsidiaries shall be obligated to pay any consideration or
51
56
offer or grant any financial accommodation in connection therewith. Anything
contained herein to the contrary notwithstanding, this Agreement shall not
constitute an agreement to assign any Contract, License or Asset if an
assignment or attempted assignment of the same without the Consent of any other
party or parties thereto or other required Consent would constitute a breach
thereof or of any applicable law or in any way impair the rights of any member
of the Rockwell Automation Group, the Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell
Science Center Group, as the case may be, thereunder. If any such Consent is not
obtained or if an attempted assignment would be ineffective or would impair any
member of a Group's rights under any such Contract, License or Asset so that the
contemplated assignee hereunder (the "Recipient Party") would not receive all
such rights, then (x) the party contemplated hereunder to assign such Contract,
License or Asset (the "Assigning Party") will use reasonable best efforts (it
being understood that such efforts shall not include any requirement of the
Assigning Party to pay any consideration or offer or grant any financial
accommodation) to provide or cause to be provided to the Recipient Party, to the
extent permitted by law, the benefits of any such Contract, License or Asset and
the Assigning Party will promptly pay or cause to be paid to the Recipient Party
when received all moneys and properties received by the Assigning Party with
respect to any such Contract, License or Asset and (y) the Recipient Party will
pay, perform and discharge on behalf of the Assigning Party all of the Assigning
Party's Liabilities thereunder in a timely manner and in accordance with the
terms thereof. In addition, the Assigning Party will take such other actions (at
the Recipient Party's expense) as may reasonably be requested by the Recipient
Party in order to place the Recipient Party, insofar as reasonably possible, in
the same position as if such Contract, License or Asset had been transferred as
contemplated hereby and so all the benefits and burdens relating thereto,
including possession, use, risk of loss, potential for gain and dominion,
control and command, shall inure to the Recipient Party. If and when such
Consents are obtained, the transfer of the applicable Contract, License or Asset
shall be effected as promptly following the Time of Distribution as shall be
practicable in accordance with the terms of this Agreement. To the extent that
any transfers and assumptions contemplated by this Article III shall not have
been consummated on or prior to the Time of Distribution, the parties shall
cooperate to effect such transfers as promptly following the Time of
Distribution as shall be practicable, it nonetheless being agreed and understood
by the parties that no party shall be liable in any manner to any other party
for any failure of any of the transfers contemplated by this Article III to be
consummated prior to the Time of Distribution.
SECTION 3.12 Intellectual Property.
(a) Rockwell hereby covenants not to (and to cause the
Rockwell Subsidiaries not to) assert any claims or rights, bring any suit, or
institute any other action against the Rockwell ▇▇▇▇▇▇▇ Group or any Person in
the chain of title of products and services of the Rockwell ▇▇▇▇▇▇▇ Group, based
upon any infringement of any Intellectual Property (excluding trademarks, trade
names, domain names, service marks, trade dress or any other form of trade
identity) which constitutes Rockwell Automation Assets and which immediately
after the Time of Distribution is either owned by the Rockwell Automation Group
or under which the Rockwell Automation Group has a right to license or grant
immunity from suit without payment of royalties to a third party which might
occur as a result of any manufacture, use, import, sale or other disposition by
the Rockwell ▇▇▇▇▇▇▇ Group of products or services after the Time of
Distribution in the conduct of the Rockwell ▇▇▇▇▇▇▇ Business (as such business
is being
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57
conducted at the Time of Distribution, or any related extensions or expansions
thereof). This covenant not to ▇▇▇ shall extend in perpetuity to (i) the
Rockwell ▇▇▇▇▇▇▇ Group and (ii) assignees of the Rockwell ▇▇▇▇▇▇▇ Group, but
only in connection with the sale or other disposition of all or any part of the
Rockwell ▇▇▇▇▇▇▇ Business to which such Intellectual Property relates.
(b) Rockwell hereby covenants not to (and to cause the
Rockwell Subsidiaries not to) assert any claims or rights, bring any suit, or
institute any other action against the Rockwell Science Center Group or any
Person in the chain of title of products and services of the Rockwell Science
Center Group, based upon any infringement of any Intellectual Property
(excluding trademarks, trade names, domain names, service marks, trade dress or
any other form of trade identity) which constitutes Rockwell Automation Assets
and which immediately after the Time of Distribution is either owned by the
Rockwell Automation Group or under which the Rockwell Automation Group has a
right to license or grant immunity from suit without payment of royalties to a
third party which might occur as a result of any manufacture, use, import, sale
or other disposition by the Rockwell Science Center Group of products or
services after the Time of Distribution in the conduct of the Rockwell Science
Center Business (as such business is being conducted at the Time of
Distribution, or any related extensions or expansions thereof). This covenant
not to ▇▇▇ shall extend in perpetuity to (i) the Rockwell Science Center Group
and (ii) assignees of the Rockwell Science Center Group, but only in connection
with the sale or other disposition of all or any part of the Rockwell Science
Center Business to which such Intellectual Property relates.
(c) Rockwell ▇▇▇▇▇▇▇ hereby covenants not to (and to cause the
Rockwell ▇▇▇▇▇▇▇ Subsidiaries not to) assert any claims or rights, bring any
suit, or institute any other action against the Rockwell Automation Group or any
Person in the chain of title of products and services of the Rockwell Automation
Group, based upon any infringement of any Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell ▇▇▇▇▇▇▇ Assets and which
immediately after the Time of Distribution is either owned by the Rockwell
▇▇▇▇▇▇▇ Group or under which the Rockwell ▇▇▇▇▇▇▇ Group has a right to license
or grant immunity from suit without payment of royalties to a third party which
might occur as a result of any manufacture, use, import, sale or other
disposition by the Rockwell Automation Group of products or services after the
Time of Distribution in the conduct of the Rockwell Automation Business (as such
business is being conducted at the Time of Distribution, or any related
extensions or expansions thereof). This covenant not to ▇▇▇ shall extend in
perpetuity to (i) the Rockwell Automation Group and (ii) assignees of the
Rockwell Automation Group, but only in connection with the sale or other
disposition of all or any part of the Rockwell Automation Business to which such
Intellectual Property relates.
(d) Rockwell ▇▇▇▇▇▇▇ hereby covenants not to (and to cause the
Rockwell ▇▇▇▇▇▇▇ Subsidiaries not to) assert any claims or rights, bring any
suit, or institute any other action against the Rockwell Science Center Group or
any Person in the chain of title of products and services of the Rockwell
Science Center Group, based upon any infringement of any Intellectual Property
(excluding trademarks, trade names, domain names, service marks, trade dress or
any other form of trade identity) which constitutes Rockwell ▇▇▇▇▇▇▇ Assets and
which
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58
immediately after the Time of Distribution is either owned by the Rockwell
▇▇▇▇▇▇▇ Group or under which the Rockwell ▇▇▇▇▇▇▇ Group has a right to license
or grant immunity from suit without payment of royalties to a third party which
might occur as a result of any manufacture, use, import, sale or other
disposition by the Rockwell Science Center Group of products or services after
the Time of Distribution in the conduct of the Rockwell Science Center Business
(as such business is being conducted at the Time of Distribution, or any related
extensions or expansions thereof). This covenant not to ▇▇▇ shall extend in
perpetuity to (i) the Rockwell Science Center Group and (ii) assignees of the
Rockwell Science Center Group, but only in connection with the sale or other
disposition of all or any part of the Rockwell Science Center Business to which
such Intellectual Property relates.
(e) Rockwell Science Center hereby covenants not to (and to
cause the Rockwell Science Center Subsidiaries not to) assert any claims or
rights, bring any suit, or institute any other action against the Rockwell
Automation Group or any Person in the chain of title of products and services of
the Rockwell Automation Group, based upon any infringement of any Intellectual
Property (excluding trademarks, trade names, domain names, service marks, trade
dress or any other form of trade identity) which constitutes Rockwell Science
Center Assets and which immediately after the Time of Distribution is either
owned by the Rockwell Science Center Group or under which the Rockwell Science
Center Group has a right to license or grant immunity from suit without payment
of royalties to a third party which might occur as a result of any manufacture,
use, import, sale or other disposition by the Rockwell Automation Group of
products or services after the Time of Distribution in the conduct of the
Rockwell Automation Business (as such business is being conducted at the Time of
Distribution, or any related extensions or expansions thereof). This covenant
not to ▇▇▇ shall extend in perpetuity to (i) the Rockwell Automation Group and
(ii) assignees of the Rockwell Automation Group, but only in connection with the
sale or other disposition of all or any part of the Rockwell Automation Business
to which such Intellectual Property relates.
(f) Rockwell Science Center hereby covenants not to (and to
cause the Rockwell Science Center Subsidiaries not to) assert any claims or
rights, bring any suit, or institute any other action against the Rockwell
▇▇▇▇▇▇▇ Group or any Person in the chain of title of products and services of
the Rockwell ▇▇▇▇▇▇▇ Group, based upon any infringement of any Intellectual
Property (excluding trademarks, trade names, domain names, service marks, trade
dress or any other form of trade identity) which constitutes Rockwell Science
Center Assets and which immediately after the Time of Distribution is either
owned by the Rockwell Science Center Group or under which the Rockwell Science
Center Group has a right to license or grant immunity from suit without payment
of royalties to a third party which might occur as a result of any manufacture,
use, import, sale or other disposition by the Rockwell ▇▇▇▇▇▇▇ Group of products
or services after the Time of Distribution in the conduct of the Rockwell
▇▇▇▇▇▇▇ Business (as such business is being conducted at the Time of
Distribution, or any related extensions or expansions thereof). This covenant
not to ▇▇▇ shall extend in perpetuity to (i) the Rockwell ▇▇▇▇▇▇▇ Group and (ii)
assignees of the Rockwell ▇▇▇▇▇▇▇ Group, but only in connection with the sale or
other disposition of all or any part of the Rockwell ▇▇▇▇▇▇▇ Business to which
such Intellectual Property relates.
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(g) (i) For purposes of this Section 3.12(g), the following
terms will have the following definitions:
(A) "Administrative Services" means services
pertaining to personnel, payroll, property management,
benefits, human resource management, financial planning, case
docketing and management, contract and subcontract
management, facilities management, proposal activities and
other similar services.
(B) "Administrative Services Software" means
software originated internally and owned by Rockwell or any
of its Subsidiaries (including members of the Rockwell
▇▇▇▇▇▇▇ Group and members of the Rockwell Science Center
Group) prior to the Time of Distribution and relating to the
provision of Administrative Services to business units of
Rockwell or any of its Subsidiaries (including members of the
Rockwell ▇▇▇▇▇▇▇ Group and members of the Rockwell Science
Center Group) immediately prior to the Time of Distribution,
regardless of where ownership of such software vests after
the Time of Distribution. Administrative Services Software
also shall include materials and documentation supplied by
one party to the other pursuant to clause (iv) of this
Section 3.12(g).
(C) "Transition Period" means the period from the
Time of Distribution until the termination or expiration of
the provision of services pursuant to each of the Transition
Agreement and the Continuing Services Agreements.
(ii) Anything contained herein to the contrary
notwithstanding, the following licenses shall govern Administrative
Services Software:
(A) Effective as of the Time of Distribution,
Rockwell, on behalf of itself and the Rockwell Subsidiaries,
hereby grants to the Rockwell ▇▇▇▇▇▇▇ Group and the Rockwell
Science Center Group a royalty-free, world-wide, irrevocable
non-exclusive license to use Administrative Services Software
which constitutes Rockwell Automation Assets and which
immediately after the Time of Distribution is either owned by
the Rockwell Automation Group or under which the Rockwell
Automation Group has a right to license without the payment
of royalties to a third party, but only for the internal
business purposes of the Rockwell ▇▇▇▇▇▇▇ Group or the
Rockwell Science Center Group, as the case may be, including
the right to sublicense only to (x) members of the Rockwell
▇▇▇▇▇▇▇ Group or the Rockwell Science Center Group, as the
case may be, and (y) service providers to use the
Administrative Services Software for or on behalf of the
Rockwell ▇▇▇▇▇▇▇ Group or the Rockwell Science Center Group,
as the case may be.
(B) Effective as of the Time of Distribution,
Rockwell ▇▇▇▇▇▇▇, on behalf of itself and the Rockwell
▇▇▇▇▇▇▇ Subsidiaries, hereby grants to the Rockwell
Automation Group and the Rockwell Science Center Group a
royalty-free, world-wide, irrevocable non-exclusive license
to use Administrative
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Services Software which constitutes Rockwell ▇▇▇▇▇▇▇ Assets
and which immediately after the Time of Distribution is
either owned by the Rockwell ▇▇▇▇▇▇▇ Group or under which the
Rockwell ▇▇▇▇▇▇▇ Group has a right to license without the
payment of royalties to a third party, but only for the
internal business purposes of the Rockwell Automation Group
or the Rockwell Science Center Group, as the case may be,
including the right to sublicense only to (x) members of the
Rockwell Automation Group or the Rockwell Science Center
Group, as the case may be, and (y) service providers to use
the Administrative Services Software for or on behalf of the
Rockwell Automation Group or the Rockwell Science Center
Group, as the case may be.
(C) Effective as of the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell
Science Center Subsidiaries, hereby grants to the Rockwell
Automation Group and the Rockwell ▇▇▇▇▇▇▇ Group a
royalty-free, world-wide, irrevocable non-exclusive license
to use Administrative Services Software which constitutes
Rockwell Science Center Assets and which immediately after
the Time of Distribution is either owned by the Rockwell
Science Center Group or under which the Rockwell Science
Center Group has a right to license without the payment of
royalties to a third party, but only for the internal
business purposes of the Rockwell Automation Group or the
Rockwell ▇▇▇▇▇▇▇ Group, as the case may be, including the
right to sublicense only to (x) members of the Rockwell
Automation Group or the Rockwell ▇▇▇▇▇▇▇ Group, as the case
may be, and (y) service providers to use the Administrative
Services Software for or on behalf of the Rockwell Automation
Group or the Rockwell ▇▇▇▇▇▇▇ Group, as the case may be.
(D) Except as set forth in this paragraph (ii),
the licenses granted pursuant to this Section 3.12(g) do not
include the right to sublicense. Software originated or
maintained during the Transition Period by a party and
relating to the provision of Administrative Services to any
other party pursuant to the Transition Agreement or the
Continuing Services Agreements shall be considered
Administrative Services Software subject to the above
licenses, provided, that the party to be licensed has paid a
mutually agreeable share of the origination and/or
maintenance costs for such software and requests during the
Transition Period that such software be subject to such
licenses.
(iii) Each party shall have the right to use, disclose,
perform, display, copy, distribute and make derivatives of
Administrative Services Software within the scope of the licenses
granted herein. Title to Administrative Services Software and all
rights therein, including all rights in patents, copyrights and trade
secrets and any other intellectual property rights applicable thereto,
shall remain vested in the party to which ownership is allocated
pursuant to this Agreement. Notwithstanding anything to the contrary
contained herein, each licensed party agrees that it will not use,
copy, disclose, sell, assign or sublicense, or otherwise transfer
Administrative Services Software licensed to it under this Section
3.12(g) or any derivatives thereof, except as expressly provided in
this Section 3.12(g).
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(iv) To the extent that a licensed party does not have copies
of any Administrative Services Software or materials and documentation
(such as source code listings, flow charts, user guides and
programmer's guides) relating to the operation and maintenance of such
Administrative Services Software to which another applicable party has
ownership, such owning party shall, as soon as practicable after
request of the licensed party, supply to the licensed party copies of
such Administrative Services Software and any related operating and
maintenance materials or documentation existing as of the Time of
Distribution.
(v) In the event that Administrative Services Software is used
by the owner in the ordinary course of its business either associated
or bundled with software owned or controlled by a third party (e.g., as
a suite of software), without which the Administrative Services
Software would be wholly or partly inoperable or otherwise unfit for
its intended purposes, the grant of the licenses under the provisions
of this Section 3.12(g) shall not be construed as an implied license to
use the software of such a third party or as an undertaking on the part
of the owner of the Administrative Services Software to obtain a
license to permit the use of such third party software.
(h) (i) Rockwell makes no representations or warranties of any
kind with respect to the validity, scope or enforceability of any Intellectual
Property of Rockwell or the Rockwell Subsidiaries subject to this Section 3.12
and none of Rockwell or the Rockwell Subsidiaries has any obligation to file or
prosecute any patent applications or maintain any patents in force in connection
therewith. Notwithstanding anything contained herein to the contrary, this
Section 3.12 will not be applicable to any rights in, and to the use of, the
names, trademarks, trade names and service marks "Rockwell" and "Rockwell
International" and all corporate symbols and logos related thereto and all
names, trademarks, trade names and service marks which include the words
"Rockwell" or "Rockwell International" or any derivative thereof.
(ii) Rockwell ▇▇▇▇▇▇▇ makes no representations or warranties
of any kind with respect to the validity, scope or enforceability of
any Intellectual Property of Rockwell ▇▇▇▇▇▇▇ or the Rockwell ▇▇▇▇▇▇▇
Subsidiaries subject to this Section 3.12 and none of Rockwell ▇▇▇▇▇▇▇
or the Rockwell ▇▇▇▇▇▇▇ Subsidiaries has any obligation to file or
prosecute any patent applications or maintain any patents in force in
connection therewith.
(iii) Rockwell Science Center makes no representations or
warranties of any kind with respect to the validity, scope or
enforceability of any Intellectual Property of Rockwell Science Center
or the Rockwell Science Center Subsidiaries subject to this Section
3.12 and none of Rockwell Science Center or the Rockwell Science Center
Subsidiaries has any obligation to file or prosecute any patent
applications or maintain any patents in force in connection therewith.
SECTION 3.13 Software and Other License Agreements. If after
the Time of Distribution, Rockwell ▇▇▇▇▇▇▇ (or any member of the Rockwell
▇▇▇▇▇▇▇ Group) or Rockwell Science Center (or any member of the Rockwell Science
Center Group), as the case may be, no
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longer has licensee rights under any software or other license agreement of
Rockwell (or any member of the Rockwell Automation Group) (a "Rockwell
Automation License Agreement") that, prior to the Time of Distribution, was used
in the conduct of the Rockwell ▇▇▇▇▇▇▇ Business or the Rockwell Science Center
Business, as the case may be, (i) because such license agreement does not
constitute a Rockwell ▇▇▇▇▇▇▇ Asset or a Rockwell Science Center Asset, as the
case may be, (ii) because the transfer of, or sublicense under such Rockwell
Automation License Agreement required the consent of a third party and such
consent was not obtained or (iii) for any other reason, then Rockwell ▇▇▇▇▇▇▇ or
Rockwell Science Center, as the case may be, shall be responsible for all costs
and expenses incurred in connection with the procurement of new license
agreements to replace any such Rockwell Automation License Agreements.
SECTION 3.14 Charitable Trusts. Prior to the Time of
Distribution, Rockwell ▇▇▇▇▇▇▇ shall have established the Rockwell ▇▇▇▇▇▇▇
Charitable Trust. Prior to the Time of Distribution, Rockwell shall cause $[ ]
to be transferred from the Rockwell Charitable Trust to the Rockwell ▇▇▇▇▇▇▇
Charitable Trust. Prior to the Time of Distribution, Rockwell shall cause to be
transferred to the Rockwell ▇▇▇▇▇▇▇ Charitable Trust, and Rockwell and Rockwell
▇▇▇▇▇▇▇ shall cause the Rockwell ▇▇▇▇▇▇▇ Charitable Trust to assume, the
commitments of the Rockwell Charitable Trust set forth on Schedule 3.14.
ARTICLE IV
MUTUAL RELEASE; INDEMNIFICATION
SECTION 4.01 Mutual Release. Effective as of the Time of
Distribution and except as otherwise specifically set forth in the Transaction
Agreements, each of Rockwell, on behalf of itself and the Rockwell Subsidiaries,
Rockwell ▇▇▇▇▇▇▇, on behalf of itself and the Rockwell ▇▇▇▇▇▇▇ Subsidiaries, and
Rockwell Science Center, on behalf of itself and the Rockwell Science Center
Subsidiaries, hereby releases and forever discharges each other party and its
Subsidiaries, and its and their respective officers, directors, agents, record
and beneficial security holders (including trustees and beneficiaries of trusts
holding such securities), advisors and Representatives (in each case, in their
respective capacities as such) and their respective heirs, executors,
administrators, successors and assigns, of and from all debts, demands, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages,
claims and Liabilities whatsoever of every name and nature, both in law and in
equity, which the releasing party has or ever had or ever will have, which arise
out of or relate to events, circumstances or actions taken by such other party
occurring or failing to occur or any conditions existing at or prior to the Time
of Distribution; provided, however, that the foregoing general release shall not
apply to (i) any Liabilities or other obligations (including Liabilities with
respect to payment, reimbursement, indemnification or contribution) under the
Transaction Agreements or assumed, transferred, assigned, allocated or arising
under any of the Transaction Agreements (including any Liability that the
parties may have with respect to payment, performance, reimbursement,
indemnification or contribution pursuant to any Transaction Agreement for claims
brought against the parties by third Persons) and the foregoing release will not
affect any party's right to enforce the Transaction Agreements in accordance
with their terms, (ii) any Liability arising from or relating to any agreement,
arrangement, commitment or undertaking described in
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Section 3.04(b)(ii) (including Ordinary Course Intercompany Arrangements), or
(iii) any Liability the release of which would result in the release of any
Person other than a Person released pursuant to this Section 4.01 (provided,
that the parties agree not to bring suit or permit any of their Subsidiaries to
bring suit against any member of any other Group with respect to any Liability
to the extent such member of the other Group would be released with respect to
such Liability by this Section 4.01 but for this clause (iii)).
SECTION 4.02 Indemnification by Rockwell. Subject to the
provisions of this Article IV, Rockwell shall indemnify, defend and hold
harmless the Rockwell ▇▇▇▇▇▇▇ Indemnitees and the Rockwell Science Center
Indemnitees from and against, and pay or reimburse, as the case may be, the
Rockwell ▇▇▇▇▇▇▇ Indemnitees and the Rockwell Science Center Indemnitees for,
all Indemnifiable Losses, as incurred, suffered by any Rockwell ▇▇▇▇▇▇▇
Indemnitee or Rockwell Science Center Indemnitee, as the case may be, based
upon, arising out of or relating to the following (except that paragraph (b)
below shall not apply to Rockwell Science Center Indemnitees):
(a) the Rockwell Automation Assets or the Rockwell Automation
Liabilities (including the failure by Rockwell or any other member of the
Rockwell Automation Group to pay, perform or otherwise discharge such
Liabilities in accordance with their terms), whether such Indemnifiable Losses
are based upon, arise out of or relate to events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or asserted
before, at or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the sections of the Form 10 listed on Schedule
4.02(b), or any omission or alleged omission to state in such sections a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; but only in each case with respect to information relating to the
Rockwell Automation Group provided by Rockwell expressly for use in the sections
of the Form 10 listed on Schedule 4.02(b);
(c) the breach by any member of the Rockwell Automation Group
of any agreement or covenant contained in a Transaction Agreement which does not
by its express terms expire at the Time of Distribution; or
(d) the enforcement by the Rockwell ▇▇▇▇▇▇▇ Indemnitees or the
Rockwell Science Center Indemnitees, as the case may be, of their rights to be
indemnified, defended and held harmless under this Agreement.
SECTION 4.03 Indemnification by Rockwell ▇▇▇▇▇▇▇. Subject to
the provisions of this Article IV, Rockwell ▇▇▇▇▇▇▇ shall indemnify, defend and
hold harmless the Rockwell Automation Indemnitees and the Rockwell Science
Center Indemnitees from and against, and pay or reimburse, as the case may be,
the Rockwell Automation Indemnitees and the Rockwell Science Center Indemnitees
for, all Indemnifiable Losses, as incurred, suffered by any Rockwell Automation
Indemnitee or Rockwell Science Center Indemnitee, as the case may be, based
upon,
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arising out of or relating to the following (except that paragraphs (b) and (d)
below will not apply to Rockwell Science Center Indemnitees):
(a) the Rockwell ▇▇▇▇▇▇▇ Assets or the Rockwell ▇▇▇▇▇▇▇
Liabilities (including the failure by Rockwell ▇▇▇▇▇▇▇ or any other member of
the Rockwell ▇▇▇▇▇▇▇ Group to pay, perform or otherwise discharge Rockwell
▇▇▇▇▇▇▇ Liabilities in accordance with their terms), whether such Indemnifiable
Losses are based upon, arise out of or relate to events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or asserted
before, at or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the Form 10, or any omission or alleged omission to
state in the Form 10 a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except in each case with respect to information
relating to the Rockwell Automation Group provided by Rockwell expressly for use
in the sections of the Form 10 listed on Schedule 4.02(b);
(c) the breach by any member of the Rockwell ▇▇▇▇▇▇▇ Group of
any agreement or covenant contained in a Transaction Agreement which does not by
its express terms expire at the Time of Distribution;
(d) the use by members of the Rockwell ▇▇▇▇▇▇▇ Group of any
names, trademarks, trade names, domain names or corporate symbols or logos
pursuant to Section 3.10(b) or Section 3.10(d); or
(e) the enforcement by the Rockwell Automation Indemnitees or
the Rockwell Science Center Indemnitees, as the case may be, of their rights to
be indemnified, defended and held harmless under this Agreement.
SECTION 4.04 Indemnification by Rockwell Science Center.
Subject to the provisions of this Article IV, Rockwell Science Center shall
indemnify, defend and hold harmless the Rockwell Automation Indemnitees and the
Rockwell ▇▇▇▇▇▇▇ Indemnitees from and against, and pay or reimburse, as the case
may be, the Rockwell Automation Indemnitees and the Rockwell ▇▇▇▇▇▇▇ Indemnitees
for, all Indemnifiable Losses, as incurred, suffered by any Rockwell Automation
Indemnitee or Rockwell ▇▇▇▇▇▇▇ Indemnitee, as the case may be, based upon,
arising out of or relating to the following (except that paragraph (c) below
will not apply to Rockwell ▇▇▇▇▇▇▇ Indemnitees):
(a) the Rockwell Science Center Assets or the Rockwell Science
Center Liabilities (including the failure by Rockwell Science Center or any
other member of the Rockwell Science Center Group to pay, perform or otherwise
discharge Rockwell Science Center Liabilities in accordance with their terms),
whether such Indemnifiable Losses are based upon, arise out of or relate to or
are otherwise in connection with events, occurrences, actions, omissions, facts,
circumstances or conditions occurring, existing or asserted before, at or after
the Time of Distribution;
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(b) the breach by any member of the Rockwell Science Center
Group of any agreement or covenant contained in a Transaction Agreement which
does not by its express terms expire at the Time of Distribution;
(c) the use by members of the Rockwell Science Center Group of
any names, trademarks, trade names, domain names or corporate symbols or logos
pursuant to Section 3.10(c) or Section 3.10(d); or
(d) the enforcement by the Rockwell Automation Indemnitees or
the Rockwell ▇▇▇▇▇▇▇ Indemnitees, as the case may be, of their rights to be
indemnified, defended and held harmless under this Agreement.
SECTION 4.05 Limitations on Indemnification Obligations.
(a) The amount which any party (an "Indemnifying Party") is or
may be required to pay to an Indemnitee in respect of Indemnifiable Losses or
other Liability for which indemnification is provided under this Agreement shall
be reduced by any amounts actually received (including Insurance Proceeds
actually received) by or on behalf of such Indemnitee (net of increased
insurance premiums and charges related directly and solely to the related
Indemnifiable Losses and costs and expenses (including reasonable legal fees and
expenses) incurred by such Indemnitee in connection with seeking to collect and
collecting such amounts) in respect of such Indemnifiable Losses or other
Liability (such net amounts are referred to herein as "Indemnity Reduction
Amounts"). If any Indemnitee receives any Indemnity Reduction Amounts in respect
of an Indemnifiable Loss for which indemnification is provided under this
Agreement after the full amount of such Indemnifiable Loss has been paid by an
Indemnifying Party or after an Indemnifying Party has made a partial payment of
such Indemnifiable Loss and such Indemnity Reduction Amounts exceeds the
remaining unpaid balance of such Indemnifiable Loss, then the Indemnitee shall
promptly remit to the Indemnifying Party an amount equal to the excess (if any)
of (A) the amount theretofore paid by the Indemnifying Party in respect of such
Indemnifiable Loss, less (B) the amount of the indemnity payment that would have
been due if such Indemnity Reduction Amounts in respect thereof had been
received before the indemnity payment was made. An insurer or other third party
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 any benefit they would not be entitled to receive in the absence
of the indemnification provisions by virtue of the indemnification provisions
hereof.
(b) In determining the amount of any Indemnifiable Losses,
such amount shall be (i) reduced to take into account any net Tax benefit
realized by the Indemnitee arising from the incurrence or payment by the
Indemnitee of such Indemnifiable Losses and (ii) increased to take into account
any net Tax cost incurred by the Indemnitee as a result of the receipt or
accrual of payments hereunder (grossed-up for such increase), in each case
determined by treating the Indemnitee as recognizing all other items of income,
gain, loss, deduction or credit before recognizing any item arising from such
Indemnifiable Losses. It is the intention of the parties to
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this Agreement that indemnity payments made pursuant to this Agreement are to be
treated as relating back to the Distribution as an adjustment to capital (i.e.,
capital contribution or distribution), and the parties shall not take any
position inconsistent with such intention before any Tax Authority (as defined
in the Tax Allocation Agreement), except to the extent that a final
determination (as defined in Section 1313 of the Code) with respect to the
recipient party causes any such payment not to be so treated.
SECTION 4.06 Procedures Relating to Indemnification.
(a) If a claim or demand is made against an Indemnitee, or an
Indemnitee shall otherwise learn of an assertion, by any Person who is not a
party to this Agreement (or an Affiliate thereof) as to which an Indemnifying
Party may be obligated to provide indemnification pursuant to this Agreement (a
"Third Party Claim"), such Indemnitee will notify the Indemnifying Party in
writing, and in reasonable detail, of the Third Party Claim reasonably promptly
after becoming aware of such Third Party Claim; provided, however, that failure
to give such notification will not affect the indemnification provided hereunder
except to the extent the Indemnifying Party shall have been actually prejudiced
as a result of such failure. Thereafter, the Indemnitee will deliver to the
Indemnifying Party, promptly after the Indemnitee's receipt thereof, copies of
all material notices and documents (including court papers) received or
transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party will be entitled to participate in or to assume the defense
thereof (in either case, at the expense of the Indemnifying Party) with counsel
selected by the Indemnifying Party and reasonably satisfactory to the
Indemnitee. Should the Indemnifying Party so elect to assume the defense of a
Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee
for any legal or other expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, that if in the Indemnitee's
reasonable judgment a conflict of interest exists in respect of such claim or if
the Indemnifying Party shall have assumed responsibility for such claim with any
reservations or exceptions, such Indemnitee will have the right to employ
separate counsel reasonably satisfactory to the Indemnifying Party to represent
such Indemnitee and in that event the reasonable fees and expenses of such
separate counsel (but not more than one separate counsel for all Indemnitees
similarly situated) shall be paid by such Indemnifying Party. If the
Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee
will have the right to participate in the defense thereof and to employ counsel,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party will control such
defense. The Indemnifying Party will be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof. If the Indemnifying Party
assumes the defense of any Third Party Claim, the Indemnifying Party will
promptly supply to the Indemnitee copies of all material correspondence and
documents relating to or in connection with such Third Party Claim and keep the
Indemnitee fully informed of all material developments relating to or in
connection with such Third Party Claim (including providing to the Indemnitee on
request updates and summaries as to the status thereof). If the Indemnifying
Party chooses to defend a Third Party Claim, the parties hereto will cooperate
in the defense thereof (such cooperation to be at the expense, including
reasonable legal fees and expenses, of
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the Indemnifying Party), which cooperation shall include the retention in
accordance with this Agreement and (upon the Indemnifying Party's request) the
provision to the Indemnifying Party of records and information which are
reasonably relevant to such Third Party Claim, and making employees available on
a mutually convenient basis to provide additional information and explanation of
any material provided hereunder.
(c) No Indemnifying Party will consent to any settlement,
compromise or discharge (including the consent to entry of any judgment) of any
Third Party Claim without the Indemnitee's prior written consent (which consent
will not be unreasonably withheld); provided, that if the Indemnifying Party
assumes the defense of any Third Party Claim, the Indemnitee will agree to any
settlement, compromise or discharge of such Third Party Claim which the
Indemnifying Party may recommend and which by its terms obligates the
Indemnifying Party to pay the full amount of Indemnifiable Losses in connection
with such Third Party Claim and unconditionally and irrevocably releases the
Indemnitee and its Affiliates completely from all Liability in connection with
such Third Party Claim; provided, however, that the Indemnitee may refuse to
agree to any such settlement, compromise or discharge (x) that provides for
injunctive or other nonmonetary relief affecting the Indemnitee or any of its
Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would
otherwise materially adversely affect the Indemnitee or any of its Affiliates.
Whether or not the Indemnifying Party shall have assumed the defense of a Third
Party Claim, the Indemnitee will not (unless required by law) admit any
liability with respect to, or settle, compromise or discharge, such Third Party
Claim without the Indemnifying Party's prior written consent (which consent will
not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does
not involve a Third Party Claim will be asserted by reasonably prompt written
notice given by the Indemnitee to the Indemnifying Party from whom such
indemnification is sought. The failure by any Indemnitee so to notify the
Indemnifying Party will not relieve the Indemnifying Party from any liability
which it may have to such Indemnitee under this Agreement, except to the extent
that the Indemnifying Party shall have been actually prejudiced by such failure.
(e) In the event of payment in full by an Indemnifying Party
to any Indemnitee in connection with any Third Party Claim, such Indemnifying
Party will 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 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 will cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense of such Indemnifying Party, in prosecuting any
subrogated right or claim.
SECTION 4.07 Remedies Cumulative. Subject to the provisions of
Section 6.06, the remedies provided in this Article IV shall be cumulative and
shall not preclude assertion by any Indemnitee of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
SECTION 4.08 Survival of Indemnities. The obligations of each
of Rockwell, Rockwell ▇▇▇▇▇▇▇ and Rockwell Science Center under this Article IV
will not terminate at any
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time and will survive the sale or other transfer by any party of any assets or
businesses or the assignment by any party of any Liabilities with respect to any
Indemnifiable Losses of the other related to such assets, businesses or
Liabilities.
SECTION 4.09 Exclusivity of Tax Allocation Agreement.
Notwithstanding anything in this Agreement to the contrary, the Tax Allocation
Agreement will be the exclusive agreement among the parties with respect to all
Tax matters, including indemnification in respect of Tax matters.
ARTICLE V
ACCESS TO INFORMATION
SECTION 5.01 Access to Information.
(a) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell ▇▇▇▇▇▇▇ and its
Representatives (at Rockwell ▇▇▇▇▇▇▇' expense) reasonable access and duplicating
rights during normal business hours and upon reasonable advance notice to all
Information within Rockwell's possession or control or in the possession or
control of a Rockwell Subsidiary relating to Rockwell ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Subsidiary or the Rockwell Collins Business insofar as such access is
reasonably required by Rockwell Collins or any Rockwell Collins Subsidiary,
subject to the provisions below regarding Privileged Information.
(b) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell Science Center
and its Representatives (at Rockwell Science Center's expense) reasonable access
and duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell's possession or control or in the
possession or control of a Rockwell Subsidiary relating to Rockwell Science
Center, any Rockwell Science Center Subsidiary or the Rockwell Science Center
Business insofar as such access is reasonably required by Rockwell Science
Center or any Rockwell Science Center Subsidiary, subject to the provisions
below regarding Privileged Information.
(c) From and after the Time of Distribution, Rockwell Collins
will, and will cause each Rockwell Collins Subsidiary to, afford to Rockwell and
its Representatives (at Rockwell's expense) reasonable access and duplicating
rights during normal business hours and upon reasonable advance notice to all
Information within Rockwell Collins' possession or control or in the possession
or control of a Rockwell Collins Subsidiary relating to Rockwell, any Rockwell
Subsidiary or the Rockwell Automation Business insofar as such access is
reasonably required by Rockwell or any Rockwell Subsidiary, subject to the
provisions below regarding Privileged Information.
(d) From and after the Time of Distribution, Rockwell Collins
will, and will cause each Rockwell Collins Subsidiary to, afford to Rockwell
Science Center and its
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Representatives (at Rockwell Science Center's expense) reasonable access and
duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell Collins' possession or control or in
the possession or control of a Rockwell Collins Subsidiary relating to Rockwell
Science Center, any Rockwell Science Center Subsidiary or the Rockwell Science
Center Business insofar as such access is reasonably required by Rockwell
Science Center or any Rockwell Science Center Subsidiary, subject to the
provisions below regarding Privileged Information.
(e) From and after the Time of Distribution, Rockwell Science
Center will, and will cause each Rockwell Science Center Subsidiary to, afford
to Rockwell and its Representatives (at Rockwell's expense) reasonable access
and duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell Science Center's possession or control
or in the possession or control of a Rockwell Science Center Subsidiary relating
to Rockwell, any Rockwell Subsidiary or the Rockwell Automation Business insofar
as such access is reasonably required by Rockwell or any Rockwell Subsidiary,
subject to the provisions below regarding Privileged Information.
(f) From and after the Time of Distribution, Rockwell Science
Center will, and will cause each Rockwell Science Center Subsidiary to, afford
to Rockwell Collins and its Representatives (at Rockwell Collins' expense)
reasonable access and duplicating rights during normal business hours and upon
reasonable advance notice to all Information within Rockwell Science Center's
possession or control or in the possession or control of a Rockwell Science
Center Subsidiary relating to Rockwell Collins, any Rockwell Collins Subsidiary
or the Rockwell Collins Business insofar as such access is reasonably required
by Rockwell Collins or any Rockwell Collins Subsidiary, subject to the
provisions below regarding Privileged Information.
(g) Without limiting the foregoing, Information may be
requested under this Article V for audit, accounting, claims, litigation,
insurance, environmental and safety and tax purposes, as well as for purposes of
fulfilling disclosure and reporting obligations and for performing this
Agreement and the transactions contemplated hereby.
In furtherance of the foregoing:
(i) Each party acknowledges that (A) each of Rockwell,
Rockwell Collins and the Rockwell Science Center (and the members of
the Rockwell Automation Group, the Rockwell Collins Group and the
Rockwell Science Center Group, respectively) has or may obtain
Privileged Information; (B) there are a number of Actions affecting one
or more of the members of the Rockwell Automation Group, the Rockwell
Collins Group and the Rockwell Science Center Group; (C) the parties
may have a common legal interest in Actions, in the Privileged
Information, and in the preservation of the confidential status of the
Privileged Information; and (D) each of Rockwell, Rockwell Collins and
Rockwell Science Center intends that the transactions contemplated by
the Transaction Agreements and any transfer of Privileged Information
in connection therewith shall not operate as a waiver of any
potentially applicable privilege.
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(ii) Each of Rockwell, Rockwell Collins and Rockwell Science
Center agrees, on behalf of itself and each member of the Group of
which it is a member, not to disclose or otherwise waive any privilege
attaching to any Privileged Information relating to the business of
another Group without providing prompt written notice to and obtaining
the prior written consent of the applicable other party, which consent
will not be unreasonably withheld. In the event of a disagreement
between any member of the Rockwell Automation Group, any member of the
Rockwell Collins Group and/or any member of the Rockwell Science Center
Group concerning the reasonableness of withholding such consent, no
disclosure will be made prior to a final, nonappealable resolution of
such disagreement.
(iii) Upon any member of the Rockwell Automation Group, any
member of the Rockwell Collins Group or any member of the Rockwell
Science Center Group receiving any subpoena or other compulsory
disclosure notice from a court, other Governmental Entity or otherwise
which requests disclosure of Privileged Information, in each case
relating to the business of another Group, the recipient of the notice
will promptly provide to the applicable other party (following the
notice provisions set forth herein) a copy of such notice, the intended
response, and all materials or information relating to the other Group
that might be disclosed. In the event of a disagreement as to the
intended response or disclosure, unless and until the disagreement is
resolved as provided in Section 5.01(g)(ii), the parties will cooperate
to assert all defenses to disclosure claimed by any Group, at the cost
and expense of the Group claiming such defense to disclosure, and shall
not disclose any disputed documents or information until all legal
defenses and claims of privilege have been finally determined.
SECTION 5.02 Production of Witnesses. Subject to Section 5.01,
after the Time of Distribution, each of Rockwell, Rockwell Collins and Rockwell
Science Center will, and will cause each member of the Rockwell Automation
Group, the Rockwell Collins Group and the Rockwell Science Center Group,
respectively, to, make available to each other party and members of such other
party's Group, upon written request and at the cost and expense of the party so
requesting, its directors, officers, employees and agents as witnesses to the
extent that any such Person may reasonably be required (giving consideration to
business demands of such directors, officers, employees and agents) in
connection with any Actions or other proceedings in which the requesting party
may from time to time be involved, provided that the same shall not unreasonably
interfere with the conduct of business by the Group of which the request is
made.
SECTION 5.03 Retention of Records. Except as otherwise
required by law or agreed to by the parties in writing, if any Information
relating to the business, assets or Liabilities of a member of a Group is
retained by a member of any other Group, each of Rockwell, Rockwell Collins and
Rockwell Science Center will, and will cause the members of the Group of which
it is a member to, retain for the period required by the applicable Rockwell
records retention policy in effect immediately prior to the Time of Distribution
all such Information in such Group's possession or under its control. In
addition, after the expiration of such required retention period, if any member
of a Group wishes to destroy or dispose of any such Information, prior to
destroying or disposing of any of such Information, (1) Rockwell, Rockwell
Collins or Rockwell Science Center, on behalf of the member of its Group that is
proposing to dispose of or
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destroy any such Information, will provide no less than 30 days' prior written
notice to the applicable other party, specifying in reasonable detail the
Information proposed to be destroyed or disposed of, and (2) if, prior to the
scheduled date for such destruction or disposal, the recipient of such notice
requests in writing that any of the Information proposed to be destroyed or
disposed of be delivered to such requesting party, the party whose Group is
proposing to dispose of or destroy such Information promptly will arrange for
the delivery of the requested Information to a location specified by, and at the
expense of, the requesting party.
SECTION 5.04 Confidentiality. Subject to Section 5.01, which
shall govern Privileged Information, from and after the Time of Distribution,
each of Rockwell, Rockwell Collins and Rockwell Science Center shall hold, and
shall use reasonable efforts to cause members of its Group and its and their
Representatives to hold, in strict confidence all Information concerning each
other party's Group in its possession or control or furnished to it by such
other party's Group pursuant to the Transaction Agreements or the transactions
contemplated thereby and will not release or disclose such Information to any
other Person, except members of its Group and its and their Representatives, who
will be bound by the provisions of this Section 5.04; provided, however, that
any member of the Rockwell Automation Group, the Rockwell Collins Group or the
Rockwell Science Center Group may disclose such Information to the extent that
(a) disclosure is compelled by judicial or administrative process or, in the
opinion of such Person's counsel, by other requirements of law (in which case
the party required to make such disclosure will notify the other party as soon
as practicable of such obligation or requirement and cooperate with the other
party to limit the Information required to be disclosed and to obtain a
protective order or other appropriate remedy with respect to the Information
ultimately disclosed) or (b) such Person can show that such Information was (i)
available to such Person on a nonconfidential basis (other than from a member of
another party's Group) prior to its disclosure by such Person, (ii) in the
public domain through no fault of such Person, or (iii) lawfully acquired by
such Person from another source after the time that it was furnished to such
Person by another party's Group, and not acquired from such source subject to
any confidentiality obligation on the part of such source known to the acquiror,
or on the part of the acquiror. Each party acknowledges that it will be liable
for any breach of this Section 5.04 by its Representatives to whom such
Information is disclosed by such party. Notwithstanding the foregoing, each of
Rockwell, Rockwell Collins and Rockwell Science Center will be deemed to have
satisfied its obligations under this Section 5.04 with respect to any
Information (other than Privileged Information) if it exercises the same care
with regard to such Information as it takes to preserve confidentiality for its
own similar Information.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Entire Agreement; Construction. This Agreement
and the Ancillary Agreements, including any annexes, schedules and exhibits
hereto or thereto, and other agreements and documents referred to herein and
therein, will together constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and will supersede all prior
negotiations, agreements and understandings of the parties of any nature,
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whether oral or written, with respect to such subject matter. Notwithstanding
any other provisions in the Transaction Agreements to the contrary, (i) in the
event and to the extent that there is a conflict between the provisions of this
Agreement and the provisions of the Employee Matters Agreement or the Tax
Allocation Agreement, the provisions of the Employee Matters Agreement or the
Tax Allocation Agreement, as appropriate, will control and (ii) in the event and
to the extent that there is a conflict between the provisions of this Agreement
and the provisions of any Conveyance and Assumption Instruments, the provisions
of this Agreement will control.
SECTION 6.02 Survival of Agreements. Except as otherwise
contemplated by the Transaction Agreements, all covenants and agreements of the
parties contained in the Transaction Agreements will remain in full force and
effect and survive the Time of Distribution.
SECTION 6.03 Expenses.
(a) Except as otherwise set forth in any Transaction
Agreement, (i) all Rockwell Automation Expenses will be charged to and paid by
Rockwell, (ii) all Rockwell Collins Expenses will be charged to and paid by
Rockwell Collins and (iii) all Rockwell Science Center Expenses will be charged
to and paid by Rockwell Science Center.
(b) Within ten days after the Distribution Date, Rockwell
Collins will reimburse Rockwell (by wire transfer to Rockwell's bank account at
Mellon Bank, N.A., Pittsburgh, Pennsylvania, account number 102-3474) for all
amounts in respect of Rockwell Collins Expenses paid by Rockwell or any of its
Subsidiaries (including members of the Rockwell Collins Group and members of the
Rockwell Science Center Group) before or at the Time of Distribution and
notified in writing by Rockwell to Rockwell Collins within five days after the
Distribution Date. Promptly after Rockwell's request therefor, Rockwell Collins
will reimburse Rockwell (by wire transfer to the same bank account referred to
in the preceding sentence) for all Rockwell Collins Expenses paid by Rockwell or
any of its Subsidiaries before, at or after the Time of Distribution (other than
as previously reimbursed by Rockwell Collins pursuant to the preceding
sentence). Rockwell will, at the request of Rockwell Collins, provide Rockwell
Collins with appropriate documentation to support Rockwell Collins Expenses
required to be reimbursed to Rockwell pursuant to this Section 6.03(b).
(c) Within ten days after the Distribution Date, Rockwell
Science Center will reimburse Rockwell (by wire transfer to Rockwell's bank
account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account No. 102-3474)
for all amounts in respect of Rockwell Science Center Expenses paid by Rockwell
or any of its Subsidiaries (including members of the Rockwell Collins Group and
members of the Rockwell Science Center Group) before or at the Time of
Distribution and notified in writing by Rockwell to Rockwell Science Center
within five days after the Distribution Date. Promptly after Rockwell's request
therefor, Rockwell Science Center will reimburse Rockwell (by wire transfer to
the same bank account referred to in the preceding sentence) for all Rockwell
Science Center Expenses paid by Rockwell or any of its Subsidiaries before, at
or after the Time of Distribution (other than as previously reimbursed by
Rockwell Science Center pursuant to the preceding sentence). Rockwell will, at
the request of Rockwell Science Center, provide Rockwell Science Center with
appropriate documentation to
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support Rockwell Science Center Expenses required to be reimbursed to Rockwell
pursuant to this Section 6.03(c).
(d) Except as otherwise set forth in any Transaction
Agreement, all out-of-pocket costs and expenses incurred following the Time of
Distribution in connection with implementation of the transactions contemplated
by the Transaction Agreements will be charged to and paid by the party for whose
benefit the expenses are incurred, with any out-of-pocket expenses which cannot
be allocated on such basis to be split equally between Rockwell and Rockwell
Collins.
SECTION 6.04 Governing Law. This Agreement will be governed by
and construed in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 6.05 Notices. All notices, requests, claims, demands
and other communications required or permitted to be given hereunder will be in
writing and will be delivered by hand or telecopied, e-mailed or sent, postage
prepaid, by registered, certified or express mail or reputable overnight courier
service and will be deemed given when so delivered by hand or telecopied, when
e-mail confirmation is received if delivered by e-mail, or three business days
after being so mailed (one business day in the case of express mail or overnight
courier service). All such notices, requests, claims, demands and other
communications will be addressed as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:
(a) If to Rockwell:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Mr. Michael A. Bless
Senior Vice President,
Finance and Planning and
Chief Financial Officer
Telecopy: (414) 212-5552
E-mail: mabless@corp.rockwell.com
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with a copy to:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and
Secretary
Telecopy: (414) 212-5357
E-mail: wjcalise@corp.rockwell.com
(b) If to Rockwell Collins:
New Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laerickson@collins.rockwell.com
with a copy to:
New Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: [ ]
Senior Vice President,
General Counsel and
Secretary
Telecopy: (319) [ ]
E-mail: [ ]
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(c) If to Rockwell Science Center:
Rockwell Scientific Company, LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Derek Cheung
Vice President and Center Director
Telecopy: (805) 373-4775
E-Mail: [dcheung@rsc.rockwell.com]
with a copy to:
Rockwell Scientific Company, LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Wayne A. Davey
Controller and Director Business
Operations
Telecopy: (805) 373-4775
E-Mail: wadavey@rsc.rockwell.com
and with a copy to Rockwell and Rockwell Collins.
SECTION 6.06 Dispute Resolution. In the event that any
dispute, claim or controversy (collectively, a "dispute") arises out of or
relates to any provision of this Agreement or the performance hereof, the Chief
Financial Officers of the parties to the dispute will attempt a good faith
resolution of such dispute within thirty days after receipt by the parties of
written notice from any party of such dispute. Should they be unable to resolve
such dispute within thirty days of receipt of such written notification, or
within such other time as they may agree, such dispute will be referred for
resolution to the Chief Executive Officers of the parties to the dispute. Should
they be unable to resolve such dispute within thirty days following such
referral to them, or within such other time as they may agree, the parties to
the dispute will then attempt in good faith to resolve such dispute by mediation
in accordance with the then-existing CPR Model Procedure for Mediation of
Business Disputes, promulgated by the CPR Institute for Dispute Resolution, New
York City. If such mediation is unsuccessful within sixty days after
commencement thereof, any party to the dispute may pursue any other remedies
available to it.
SECTION 6.07 Consent to Jurisdiction. Each of Rockwell,
Rockwell Collins and Rockwell Science Center irrevocably submits to the
exclusive jurisdiction of (i) the Court of Chancery in and for the State of
Delaware and the Superior Court in and for the State of Delaware and (ii) the
United States District Court for the District of Delaware, for the purposes of
any suit, action or other proceeding arising out of the Transaction Agreements
or any transaction contemplated thereby (and agrees not to commence any action,
suit or proceeding relating thereto except in such courts). Each of Rockwell,
Rockwell Collins and Rockwell Science Center further agrees that service of any
process, summons, notice or document hand
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delivered or sent by U.S. registered mail to such party's respective address set
forth in Section 6.05 will be effective service of process for any action, suit
or proceeding in Delaware with respect to any matters to which it has submitted
to jurisdiction as set forth in the immediately preceding sentence. Each of
Rockwell, Rockwell Collins and Rockwell Science Center irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of the Transaction Agreements or the transactions
contemplated thereby in (i) the Court of Chancery in and for the State of
Delaware and the Superior Court in and for the State of Delaware or (ii) the
United States District Court for the District of Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. Notwithstanding the foregoing, each
party agrees that a final judgment in any action, suit or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment in any
jurisdiction or in any other manner provided in law or in equity.
SECTION 6.08 Amendments. This Agreement cannot be amended,
modified or supplemented except by a written agreement executed by each party
affected thereby.
SECTION 6.09 Assignment. No party to this Agreement will
convey, assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties in their sole
and absolute discretion, except that, other than as expressly provided herein,
any party may (without obtaining any consent) assign any of its rights hereunder
to a successor to all or any part of its business. Any such conveyance,
assignment or transfer requiring the prior written consent of the other parties
which is made without such consent will be void ab initio. No assignment of this
Agreement will relieve the assigning party of its obligations hereunder.
SECTION 6.10 Captions; Currency. The article, section and
paragraph captions herein and the table of contents hereto are for convenience
of reference only, do not constitute part of this Agreement and will not be
deemed to limit or otherwise affect any of the provisions hereof. Unless
otherwise specified, all references herein to numbered articles or sections are
to articles and sections of this Agreement and all references herein to annexes
or schedules are to annexes and schedules to this Agreement. Unless otherwise
specified, all references contained in this Agreement, in any annex or schedule
referred to herein or in any instrument or document delivered pursuant hereto to
dollars or "$" shall mean United States Dollars.
SECTION 6.11 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, will remain in full force and effect and will in no way be
affected, impaired or invalidated thereby. If the economic or legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party as a result thereof, the parties will negotiate in good faith in an effort
to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
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SECTION 6.12 Parties in Interest. This Agreement is binding
upon and is for the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not made for the benefit of
any Person not a party hereto, and no Person other than the parties hereto or
their respective successors and permitted assigns will acquire or have any
benefit, right, remedy or claim under or by reason of this Agreement, except
that the provisions of Sections 4.02, 4.03 and 4.04 hereof shall inure to the
benefit of the Persons referred to therein.
SECTION 6.13 Schedules. All annexes and schedules attached
hereto are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Capitalized terms used in the schedules hereto but not
otherwise defined therein will have the respective meanings assigned to such
terms in this Agreement.
SECTION 6.14 Termination. This Agreement may be terminated and
the Distribution abandoned at any time prior to the Time of Distribution by and
in the sole discretion of the Rockwell Board without the approval of Rockwell
Collins, Rockwell Science Center, or Rockwell's shareowners. In the event of
such termination, no party will have any liability of any kind to any other
party on account of such termination.
SECTION 6.15 Waivers; Remedies. The conditions to Rockwell's
obligation to consummate the Distribution are for the sole benefit of Rockwell
and may be waived in writing by Rockwell in whole or in part in Rockwell's sole
discretion. No failure or delay on the part of Rockwell, Rockwell Collins or
Rockwell Science Center in exercising any right, power or privilege hereunder
will operate as a waiver thereof, nor will any waiver on the part of Rockwell,
Rockwell Collins or Rockwell Science Center of any right, power or privilege
hereunder operate as a waiver of any other right, power or privilege hereunder,
nor will any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. Subject to the provisions of Section
6.06, the rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which the parties may otherwise have at law
or in equity.
SECTION 6.16 Further Assurances. From time to time after the
Distribution, as and when requested by any party hereto, each other party shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such actions as the
requesting party may reasonably request to consummate the transactions
contemplated by the Transaction Agreements.
SECTION 6.17 Counterparts. This Agreement may be executed in
separate counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts will together constitute the same
agreement.
SECTION 6.18 Performance. Each party will cause to be
performed and hereby guarantees the performance of all actions, agreements and
obligations set forth herein to be performed by any Subsidiary or Affiliate of
such party.
SECTION 6.19 Currency Calculations. Following the Distribution
Date, for purposes of calculating the United States Dollar equivalent of any
amount payable under any
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Transaction Agreement which is denominated in a currency other than United
States Dollars, the New York foreign exchange selling rate applicable to such
currency will be used, as published in the Wall Street Journal, New York
Edition, for the second business day preceding the earlier of the date such
payment is due or the date such payment is made (it being understood that this
Section 6.19 shall not apply to the conversion of foreign currency balances made
as of the Distribution Date in accordance with standard Rockwell accounting
practices and procedures).
SECTION 6.20 Interpretation. Any reference to any federal,
state, local, or foreign law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. For
the purposes of this Agreement, (i) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires, (ii) the terms "hereof",
"herein", and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement and (iii) the word "including" and words
of similar import when used in this Agreement shall mean "including, without
limitation".
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
hereinabove written.
ROCKWELL INTERNATIONAL CORPORATION
By:
-----------------------------------
Name:
Title:
NEW ROCKWELL COLLINS, INC.
By:
-----------------------------------
Name:
Title:
ROCKWELL SCIENTIFIC COMPANY, LLC
By:
-----------------------------------
Name:
Title:
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