Exhibit 10.1
FORM OF
DISTRIBUTION AGREEMENT
DATED AS OF *, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇ CORPORATION
AND
COMBINED SPECIALTY CORPORATION
TABLE OF CONTENTS
PAGE
Article I Definitions and Interpretation.........................................................................2
1.1 Definitions..........................................................................................2
1.2 Interpretation......................................................................................11
Article II The Distribution.....................................................................................12
2.1 Issuance and Delivery of Combined Specialty Common Stock............................................12
2.2 Distribution of Combined Specialty Common Stock.....................................................12
2.3 Treatment of Fractional Shares......................................................................13
2.4 Aon Board Action....................................................................................13
2.5 Additional Approvals................................................................................13
Article III Business Separation.................................................................................13
3.1 Transfer of Combined Specialty Business.............................................................13
3.2 Aon Internal Restructuring..........................................................................14
3.3 Settlement of Intercompany Debt.....................................................................17
3.4 Assumption of Liabilities...........................................................................19
3.5 Termination of Existing Intercompany Agreements.....................................................19
3.6 Shared Contracts....................................................................................20
Article IV Business Separation Closing Matters..................................................................20
4.1 Delivery of Instruments of Conveyance...............................................................20
4.2 Delivery of Other Agreements........................................................................20
4.3 Provision of Corporate Records......................................................................20
Article V No Representations and Warranties.....................................................................21
5.1 No Aon Representations or Warranties................................................................21
5.2 No Combined Specialty Representations or Warranties.................................................21
Article VI Certain Covenants....................................................................................22
6.1 Third Party Consents................................................................................22
6.2 Material Governmental Approvals and Consents........................................................22
6.3 Non-Assignable Contracts............................................................................22
6.4 Novation of Assumed Liabilities; Release of Guarantees..............................................23
6.5 Further Assurances..................................................................................25
6.6 Nominee Shares......................................................................................26
6.7 Collection of Accounts Receivable...................................................................26
6.8 Election of Combined Specialty Board of Directors...................................................27
i
TABLE OF CONTENTS-CONTINUED
PAGE
6.9 Late Payments.......................................................................................27
6.10 Registration and Listing............................................................................27
6.11 No Noncompetition; Nonhiring........................................................................27
6.12 Litigation..........................................................................................28
6.13 Signs; Use of Company Name..........................................................................28
6.14 Commercially Reasonable Efforts.....................................................................29
Article VII Conditions to the Distribution......................................................................29
7.1 Approval by Aon Board of Directors..................................................................29
7.2 Receipt of IRS Private Letter Tax Ruling............................................................29
7.3 Compliance with State and Foreign Securities and "Blue Sky" Laws....................................29
7.4 SEC Filings and Approvals...........................................................................29
7.5 Effectiveness of Registration Statement; No Stop Order..............................................30
7.6 Dissemination of Information to Aon Stockholders....................................................30
7.7 Approval of NYSE Listing Application................................................................30
7.8 Operating Agreements................................................................................30
7.9 Resignations........................................................................................30
7.10 Consents............................................................................................30
7.11 No Actions..........................................................................................30
7.12 Consummation of Pre-Distribution Transactions.......................................................31
7.13 No Other Events.....................................................................................31
7.14 Satisfaction of Conditions..........................................................................31
Article VIII Insurance Matters..................................................................................31
8.1 Insurance Prior to the Distribution.................................................................31
8.2 Ownership of Existing Policies and Programs.........................................................31
8.3 Procurement of Insurance for Combined Specialty.....................................................31
8.4 Acquisition and Maintenance of Post-Distribution Combined Specialty Insurance Policies and Programs.32
8.5 Combined Specialty Directors' and Officers' Insurance...............................................32
8.6 Post-Distribution Insurance Claims Administration...................................................33
8.7 Allocation of Insurance Proceeds Under Aon Policies.................................................34
8.8 Certain Adjustments.................................................................................34
8.9 Non-Waiver of Rights to Coverage....................................................................34
8.10 Scope of Affected Policies of Insurance.............................................................35
Article IX Expenses.............................................................................................35
9.1 Allocation of Expenses..............................................................................35
ii
TABLE OF CONTENTS-CONTINUED
PAGE
Article X Indemnification.......................................................................................36
10.1 Release of Pre-Distribution Claims..................................................................36
10.2 Indemnification by Combined Specialty...............................................................37
10.3 Indemnification by Aon..............................................................................38
10.4 Applicability of and Limitation on Indemnification..................................................39
10.5 Adjustment of Indemnifiable Losses..................................................................40
10.6 Procedures for Indemnification of Third Party Claims................................................41
10.7 Procedures for Indemnification of Direct Claims.....................................................43
10.8 Contribution........................................................................................43
10.9 Remedies Cumulative.................................................................................44
10.10 Survival............................................................................................44
Article XI Dispute Resolution...................................................................................44
11.1 Agreement to Arbitrate..............................................................................44
11.2 Escalation and Mediation............................................................................44
11.3 Procedures for Arbitration..........................................................................45
11.4 Selection of Arbitrator.............................................................................46
11.5 Hearings............................................................................................46
11.6 Discovery and Certain Other Matters.................................................................46
11.7 Certain Additional Matters..........................................................................47
11.8 Continuity of Service and Performance...............................................................48
11.9 Law Governing Arbitration Procedures................................................................48
11.10 Choice of Forum.....................................................................................48
Article XII Access to Information and Services..................................................................48
12.1 Agreement for Exchange of Information...............................................................48
12.2 Ownership of Information............................................................................49
12.3 Compensation for Providing Information..............................................................49
12.4 Retention of Records................................................................................49
12.5 Limitation of Liability.............................................................................49
12.6 Production of Witnesses.............................................................................50
12.7 Confidentiality.....................................................................................50
12.8 Privileged Matters..................................................................................51
Article XIII Miscellaneous......................................................................................52
13.1 Entire Agreement....................................................................................52
13.2 Choice of Law and Forum.............................................................................52
13.3 Amendment...........................................................................................52
iii
TABLE OF CONTENTS-CONTINUED
PAGE
13.4 Waiver..............................................................................................52
13.5 Partial Invalidity..................................................................................52
13.6 Execution in Counterparts...........................................................................53
13.7 Successors and Assigns..............................................................................53
13.8 Third Party Beneficiaries...........................................................................53
13.9 Notices.............................................................................................53
13.10 Performance.........................................................................................53
13.11 No Public Announcement..............................................................................54
13.12 Termination.........................................................................................54
EXHIBITS
Exhibit A Employee Benefits Agreement
Exhibit B Tax Sharing and Disaffiliation Agreement
Exhibit C Transition Services Agreement
SCHEDULES
6.4(d) Aon Guarantees to be Released
6.4(c) Combined Specialty Guarantees to be Released
6.8 Board of Directors of Combined Specialty
6.12(a) Assumed Actions
6.12(b) Transferred Actions
11.2 Eligible Mediators
iv
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of *, 2002, between Aon
Corporation, a Delaware corporation ("AON"), and
Combined Specialty Corporation,
a Delaware corporation ("COMBINED SPECIALTY") and, as of the date hereof, a
wholly-owned Subsidiary (as hereinafter defined) of Aon.
W I T N E S S E T H :
WHEREAS, Aon is a holding company whose operating Subsidiaries
carry on, among other things, insurance underwriting businesses;
WHEREAS, the Board of Directors of Aon has determined that it
would be advisable and in the best interests of Aon and its stockholders for Aon
to transfer to Combined Specialty certain of its Subsidiaries, including, among
others, those Subsidiaries of Aon engaged in the insurance underwriting
business, as well as certain other assets and liabilities;
WHEREAS, Aon has agreed to transfer and assign, or cause to be
transferred and assigned, to Combined Specialty, such Subsidiaries and other
assets, and Combined Specialty has agreed to assume, or cause to be assumed by
one or more of its Subsidiaries, such liabilities (collectively, the
"CONTRIBUTION");
WHEREAS, the Board of Directors of Aon has determined that it
would be advisable and in the best interests of Aon and its stockholders for Aon
to distribute, as of 12:01 A.M., New York time, on the Distribution Date, on a
pro-rata basis to the holders of record as of the Record Date (as hereinafter
defined) (other than Aon and its Subsidiaries) of Aon common stock, $1 par value
(the "AON COMMON STOCK"), without any consideration being paid by such holders,
all of the outstanding shares of Combined Specialty common stock, $.01 par value
(the "COMBINED SPECIALTY COMMON STOCK"), then owned directly and indirectly by
Aon (the "DISTRIBUTION");
WHEREAS, for United States federal income tax purposes, the
Contribution and Distribution are intended to qualify for tax-free treatment
under Sections 355 and 368(a)(1)(D) of the Internal Revenue Code of 1986, as
amended (the "CODE"); and
WHEREAS, it is appropriate and desirable to set forth the
principal corporate transactions required to effect the Contribution and
Distribution and certain other agreements that will govern the relationship of
Aon and Combined Specialty following the Distribution.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Aon and Combined
Specialty agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following terms have the
meanings specified or referred to in this SECTION 1.1:
"A&A INTERNATIONAL" means Alexander & Alexander International
Inc., a Maryland corporation.
"ACTION" means any action, claim, suit, arbitration, inquiry,
subpoena, discovery request, proceeding or investigation by or before any court
or grand jury, any governmental or other regulatory or administrative entity,
agency or commission or any arbitration tribunal.
"ADVISORS" means Aon Advisors, Inc., a Virginia corporation.
"ADVISORS/AON NOTE" means the Master Note Agreement, dated as of
November 27, 1995, between Aon and Advisors and the Promissory Note, dated as of
November 27, 1995, executed by Aon in favor of Advisors pursuant to such Master
Note Agreement.
"AFFILIATE" means, with respect to any Person, any other Person
that directly or indirectly controls, is controlled by or is under common
control with such Person. For the purpose of this definition, the term "control"
means the power to direct the management of an entity, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the term "controlled" has the meaning correlative to the foregoing. After
the Distribution, Combined Specialty and Aon shall not be deemed to be under
common control for purposes hereof due solely to the fact that Combined
Specialty and Aon have common stockholders.
"AHL" means Aon UK Holdings Limited, a United Kingdom
corporation.
"AIS" means Aon Innovative Solutions, Inc., a Missouri
corporation.
"AIS/AON NOTE" means the Master Note Agreement, dated as of July
20, 1995, between Aon and AIS and the Promissory Note, dated as of July 20,
1995, executed by Aon in favor of AIS pursuant thereto.
"ALLOCATION" has the meaning specified in SECTION 8.7(a).
"ALLOCATION NOTICE" has the meaning specified in SECTION 8.7(b).
"ALLOCATION PAYMENT" has the meaning specified in SECTION 8.7(a).
"AON" has the meaning specified in the first paragraph of this
Agreement.
"AON COMMON STOCK" has the meaning specified in the fifth
paragraph of this Agreement.
2
"AON GROUP" means Aon Group, Inc., a Maryland corporation.
"AON INDEMNIFIED PARTIES" has the meaning specified in SECTION
10.2(a).
"AON POLICIES" has the meaning specified in SECTION 8.2.
"APPLICABLE DEADLINE" has the meaning specified in SECTION
11.3(b).
"ARBITRATION ACT" means the United States Arbitration Act, 9
U.S.C. Sections 1-16.
"ARBITRATION DEMAND DATE" has the meaning specified in Section
11.3(a).
"ARBITRATION DEMAND NOTICE" has the meaning specified in Section
11.3(a).
"ASG" means Aon Services Group, Inc., a Delaware corporation or
its successor limited liability company following the conversion contemplated by
SECTION 3.2(a).
"ASSUMED ACTIONS" has the meaning specified in SECTION 6.12(a).
"ASSUMED LIABILITIES" has the meaning specified in SECTION 3.4.
"ASSURANCE EUROPE" means Combined Life Assurance Company of
Europe Limited, an Ireland corporation.
"BOARD OF DIRECTORS" means the board of directors of the
referenced corporation or any duly authorized committee thereof.
"CANANWILL" means Cananwill Corporation, a Delaware corporation.
"CICA" means Combined Insurance Company of America, an
Illinois
corporation.
"CICA/AON NOTE" means the Master Note Agreement, dated as of
November 19,1990, between Aon and CICA, as amended, and the Promissory Note,
dated as of November 19,1990, executed by Aon in favor of CICA pursuant thereto,
as amended.
"CICA/ASG NOTE" means the Promissory Note, dated as of December
29, 2000, executed by ASG in favor of CICA.
"CICA/RISK SERVICES NOTE 1" means the 9.0% Guaranteed Senior Note
due October 24, 2001 (No. 1.), dated as of October 24, 1991, executed by Risk
Services in favor of CICA.
"CICA/RISK SERVICES NOTE 2" means the 9.0% Guaranteed Senior Note
due October 24, 2001 (No. 2.), dated as of October 24, 1991, executed by Risk
Services in favor of CICA.
3
"CICNZ" means Superannuation Fund (CICNZ) Limited, a New Zealand
corporation.
"CODE" has the meaning specified in the sixth paragraph of this
Agreement.
"COMBINED AUSTRALIA" means Combined Life Insurance Company of
Australia Limited, an Australia corporation.
"COMBINED EUROPE" means Combined Insurance Company of Europe
Limited, an Ireland corporation.
"COMBINED SPECIALTY" has the meaning specified in the first
paragraph of this Agreement.
"COMBINED SPECIALTY BUSINESS" means the business conducted by
Combined Specialty or its Subsidiaries, including, for periods prior to the
Contribution, the business conducted by any Subsidiary of Aon that is a
Transferred Subsidiary.
"COMBINED SPECIALTY COMMON STOCK" has the meaning specified in
the fifth paragraph of this Agreement.
"COMBINED SPECIALTY CONTRIBUTION" has the meaning specified in
SECTION 3.2(t).
"COMBINED SPECIALTY DISTRIBUTABLE SHARE" means for each holder of
record of Aon Common Stock as of the close of business on the Record Date one
share of Combined Specialty Common Stock for every three shares of Aon Common
Stock outstanding and held of record by such holder at such time.
"COMBINED SPECIALTY INDEMNIFIED PARTIES" has the meaning
specified in SECTION 10.3.
"CONSULTING NEW JERSEY" means Aon Consulting, Inc., a New Jersey
corporation.
"CONSULTING WORLDWIDE" means Aon Consulting Worldwide, Inc., a
Maryland corporation or its successor Delaware limited liability company
following the merger contemplated by SECTION 3.2(e).
"CONTRACT" means a contract, agreement, arrangement, lease,
memorandum or understanding of any nature, whether written or oral.
"CONTRIBUTED UK ASSETS" has the meaning specified in SECTION
3.2(l).
"CONTRIBUTION" has the meaning specified in the fourth paragraph
of this Agreement.
4
"CONVEYANCING INSTRUMENTS" has the meaning specified in SECTION
4.1.
"CREDIT" means Aon Credit Service Corporation, a Delaware
corporation.
"CSIC" means Combined Specialty Insurance Company, formerly known
as Virginia Surety Company, Inc., an
Illinois corporation.
"CSIC/AON NOTE" means the Master Note Agreement between Aon and
CSIC and the Promissory Note executed by Aon in favor of CSIC pursuant to such
Master Note Agreement.
"DEALER PERFORMANCE" means Dealer Performance, Inc., a Texas
corporation.
"DEALER PERFORMANCE/AON NOTE" means the Loan Agreement, dated as
of September 12, 2001, between Aon (as successor in interest to ARS) and Dealer
Performance.
"DISTRIBUTION" has the meaning specified in the fifth paragraph
of this Agreement.
"DISTRIBUTION DATE" means the date determined by the Board of
Directors of Aon as the date on which the shares of Combined Specialty Common
Stock are distributable to holders of record of Aon Common Stock as of the
Record Date.
"EMPLOYEE BENEFITS AGREEMENT" means the Employee Benefits
Agreement in substantially the form of EXHIBIT A hereto.
"ESCALATION NOTICE" has the meaning specified in SECTION 11.2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"EXPENSES" means any and all expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder (including court filing
fees, court costs, arbitration fees or costs, witness fees, and reasonable fees
and disbursements of legal counsel, investigators, expert witnesses,
consultants, accountants and other professionals).
"FIRST EXTENDED" means First Extended, Inc., a Delaware
corporation.
"FOREIGN EXCHANGE RATE" means, with respect to any currency other
than United States dollars, as of any date of determination, the average of the
opening bid and asked rates on such date at which such currency may be exchanged
for United States dollars as quoted by Bank of America (or any successor thereto
or other major money center commercial bank agreed to by the Parties).
5
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state, local
or other government, governmental, statutory or administrative authority,
regulatory body or commission or any court, tribunal or judicial or arbitral
body.
"GUARANTEE" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"HSR ACT" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976.
"INDEBTEDNESS" of any Person means: (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all capital lease obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED PARTY" has the meaning specified in SECTION 10.5(a).
"INDEMNIFYING PARTY" has the meaning specified in SECTION
10.5(a).
"INDEMNITY PAYMENT" has the meaning specified in SECTION 10.5(a).
6
"INFORMATION" has the meaning specified in SECTION 12.1(a).
"INFORMATION STATEMENT" has the meaning specified in SECTION
6.10(a).
"INSURANCE AMOUNT" has the meaning specified in SECTION 8.5.
"INSURANCE CHARGES" has the meaning specified in SECTION 8.6.
"INSURANCE PROCEEDS" means those monies (i) received by an
insured from an insurance carrier, (ii) paid by an insurance carrier on behalf
of the insured or (iii) received from any third Person in the nature of
insurance, contribution or indemnification in respect of any Liability, in each
such case net of any applicable premium adjustments (including
retrospectively-rated premium adjustments) and net of any costs or expenses
(including allocated costs of in-house counsel and professional personnel who
act in a role equivalent to outside counsel and related professional personnel)
incurred in the collection thereof.
"INSURED CLAIMS" means those Liabilities that, individually or in
the aggregate, are covered within the terms and conditions of any of the Aon
Policies, whether or not subject to deductibles, co-insurance, uncollectability,
premium adjustments, retrospectively-rated premium adjustments or retentions,
but only to the extent that such Liabilities are within applicable Aon Policy
limits, including aggregates.
"INTERCOMPANY AGREEMENTS" means any Contract between Aon or one
of its Subsidiaries and Combined Specialty or one of its Subsidiaries entered
into prior to the Distribution excluding this Agreement and the Operating
Agreements.
"IRS" means the Internal Revenue Service.
"LIABILITY" means any and all debts, liabilities and obligations,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising (unless otherwise
specified in this Agreement), including all costs and expenses relating thereto,
and including, without limitation, those debts, liabilities and obligations
arising under any law, rule, regulation, Action, threatened Action, order or
consent decree of any Governmental Authority or any award of any arbitrator of
any kind, and those arising under any contract, commitment or undertaking.
"LOSSES" means any and all losses, costs, obligations,
liabilities, settlement payments, awards, judgments, fines, penalties, damages,
fees, expenses, deficiencies, claims or other charges, absolute or contingent,
matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or
unknown (including, without limitation, the costs and expenses of any and all
Actions, threatened Actions, demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any such Actions or threatened Actions).
7
"MATERIAL GOVERNMENTAL APPROVALS AND CONSENTS" means any material
notices, reports or other filings to be made with or to, or any material
consents, registrations, approvals, permits, clearances or authorizations to be
obtained from, any Governmental Authority.
"MEXICO" means Combined Seguros Mexico, S.A. de C.V., a Mexico
corporation.
"NATIONAL" means The National Senior Membership Group
Association, a Washington not-for-profit corporation.
"NEW ZEALAND" means Combined Insurance Company of New Zealand
Limited, a New Zealand corporation.
"NON-PERMITTED NAMES" has the meaning specified in SECTION 6.13.
"NOTE 1" has the meaning specified in SECTION 3.2(n).
"NOTE 2" has the meaning specified in SECTION 3.2(o).
"NOTE 3" has the meaning specified in SECTION 3.2(p).
"NYSE" means The New York Stock Exchange, Inc. or any successor
thereto.
"OLYMPIC" means Olympic Health Management Systems, Inc. a
Washington corporation.
"OLYMPIC SENIOR" means The Olympic Senior Membership Group, Inc.,
a Washington not-for-profit corporation.
"OPERATING AGREEMENTS" means the Employee Benefits Agreement, the
Transition Services Agreement, the Tax Sharing Agreement and any other agreement
regarding the ongoing business and service relationships between Aon and
Combined Specialty and their respective Subsidiaries and Affiliates following
the Distribution.
"PALADIN" means Paladin Reinsurance Corporation, a New York
corporation.
"PARTY" means Aon or Combined Specialty.
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or Governmental Authority.
"PREMIER" means Premier Auto Finance, Inc., a Delaware
corporation.
8
"PRIME RATE" means the rate that Bank of America (or any
successor thereto or other major money center commercial bank agreed to by the
Parties) announces from time to time as its prime lending rate, as in effect
from time to time.
"PRIVILEGED INFORMATION" has the meaning specified in SECTION
12.8(a).
"PRIVILEGES" has the meaning specified in SECTION 12.8(a).
"RECORD DATE" means the date determined by the Board of Directors
of Aon as the record date for determining stockholders of Aon entitled to
receive shares of Combined Specialty Common Stock in the Distribution.
"REGISTRATION STATEMENT" has the meaning specified in SECTION
6.10(a).
"RETAINED ASSETS" has the meaning specified in SECTION 3.1.
"RETAINED BUSINESS" means the business of Aon and its
Subsidiaries other than the Combined Specialty Business.
"RETAINED LIABILITIES" has the meaning specified in SECTION 3.4.
"RFC" means Resource Financial Corporation, a Delaware
corporation.
"RISK RESOURCES" means Aon Special Risk Resources, Inc., a
Delaware corporation.
"RISK SERVICES" means Aon Risk Services International (Holdings)
Inc., a Delaware corporation.
"SEC" means the United States Securities and Exchange Commission.
"SHARED CONTRACT" means a Contract with a third Person that
directly benefits both Aon or one of its Subsidiaries (other than Combined
Specialty and its Subsidiaries) and Combined Specialty or one of its
Subsidiaries.
"SHARED CONTRACTUAL LIABILITIES" mean Liabilities in respect of
Shared Contracts.
"SPECIFIED SHAREHOLDERS" means Holdco #1, Inc., a Delaware
corporation, and Holdco #2, Inc., a Delaware corporation.
"SUBSIDIARY" means, when used with reference to any Person, any
corporation or other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such Person or
9
by any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; PROVIDED, HOWEVER, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
"SUPERANNUATION" means CICA Superannuation Nominees Pty. Ltd., an
Australia corporation.
"TAX" (and, with correlative meaning, "TAXES" and "TAXABLE")
means:
(i) any federal, state, local or foreign net income, gross
income, gross receipts, windfall profit, severance, property, production,
sales, use, license, excise, franchise, employment, payroll, withholding,
alternative or add-on minimum, ad valorem, value-added, transfer, stamp, or
environmental tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge of any kind whatsoever, together with any
interest or penalty, addition to tax or additional amount imposed by any
Governmental Authority; and
(ii) any Liability of either Party for the payment of amounts
with respect to payments of a type described in clause (i) as a result of
being a member of an affiliated, consolidated, combined or unitary group,
or as a result of any obligation of either Party under any Tax sharing
arrangement or Tax indemnity arrangement.
"TAX SHARING AGREEMENT" means the Tax Sharing and Disaffiliation
Agreement in substantially the form of EXHIBIT B hereto.
"TECHNICAL" means Aon Technical Insurance Services, Inc., an
Illinois corporation.
"THIRD PARTY CLAIM" has the meaning specified in SECTION 10.6(a).
"THIRD PARTY CONSENTS" has the meaning specified in SECTION 6.1.
"TRANSFER AGENT" means Equiserve Trust Company, NA, the transfer
agent appointed by Aon to distribute shares of Combined Specialty Common Stock
pursuant to the Distribution.
"TRANSFERRED ACTIONS" has the meaning specified in SECTION
6.12(b).
"TRANSFERRED ASSETS" means the capital stock of the Transferred
Subsidiaries together with any other assets transferred or contributed by Aon or
its Subsidiaries to Combined Specialty or its Subsidiaries pursuant to SECTION
3.2 or SECTION 3.3.
"TRANSFERRED SUBSIDIARIES" means the Subsidiaries of Combined
Specialty immediately prior to the Distribution.
10
"TRANSITION SERVICES AGREEMENT" means the Transition Services
Agreement in substantially the form of EXHIBIT C hereto.
"UK ASSETS" means the assets of the direct and indirect
Subsidiaries of AHL that, for United States federal income tax purposes, AHL is
viewed as owning directly, together with the shares of capital stock of UK
entities with respect to which it has not made "check-the-box" elections for
United States federal income tax purposes.
"UK HOLDCO" has the meaning specified in SECTION 3.2(l).
"UK NEWCO" has the meaning specified in SECTION 3.2(m).
"UNDERWRITING ENTITIES" has the meaning specified in SECTION
3.2(t).
"WARRANTY" means Aon Warranty Group, Inc., an
Illinois
corporation.
"WARRANTY II" has the meaning specified in SECTION 3.2(x).
1.2 INTERPRETATION. (a) In this Agreement, unless the context
clearly indicates otherwise:
(i) words used in the singular include the plural and words in
the plural include the singular;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement;
(iii) reference to any gender includes the other gender;
(iv) the word "including" means "including but not limited to";
(v) reference to any Article, Section, Exhibit or Schedule means
such Article or Section of, or such Exhibit or Schedule to, this Agreement,
as the case may be, and references in any Section or definition to any
clause means such clause of such Section or definition;
(vi) the words "herein," "hereunder," "hereof," "hereto" and
words of similar import shall be deemed references to this Agreement as a
whole and not to any particular Section or other provision hereof;
(vii) reference to any agreement, instrument or other document
means such agreement, instrument or other document as amended, supplemented
and modified from time to time to the extent permitted by the provisions
thereof and by this Agreement;
(viii) reference to any law (including statutes and ordinances)
means such law (including all rules and regulations promulgated thereunder)
as amended, modified,
11
codified or reenacted, in whole or in part, and in effect at the time of
determining compliance or applicability;
(ix) relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding" and "through"
means "through and including";
(x) accounting terms used herein shall have the meanings
historically ascribed to them by Aon and its Subsidiaries based upon Aon's
internal financial policies and procedures in effect prior to the date of
this Agreement;
(xi) in the event of any conflict between the provisions of the
body of this Agreement and the Exhibits or Schedules hereto, the provisions
of the body of this Agreement shall control;
(xii) the titles to Articles and headings of Sections contained
in this Agreement have been inserted for convenience of reference only and
shall not be deemed to be a part of or to affect the meaning or
interpretation of this Agreement; and
(xiii) any portion of this Agreement obligating a Party to take
any action or refrain from taking any action, as the case may be, shall
mean that such Party shall also be obligated to cause its relevant
Subsidiaries to take such action or refrain from taking such action, as the
case may be.
(b) This Agreement was negotiated by the Parties with the benefit of
legal representation, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against either Party
shall not apply to any construction or interpretation hereof.
ARTICLE II
THE DISTRIBUTION
2.1 ISSUANCE AND DELIVERY OF COMBINED SPECIALTY COMMON STOCK.
Combined Specialty shall issue to Aon the number of shares of Combined Specialty
Common Stock required so that the total number of shares of Combined Specialty
Common Stock held by Aon immediately prior to the Distribution is equal to the
total number of shares of Combined Specialty Common Stock distributable pursuant
to SECTION 2.2. Aon shall deliver to the Transfer Agent one or more stock
certificates representing all of the certificated shares of Combined Specialty
Common Stock then issued and outstanding, together with one or more stock
power(s) duly endorsed in blank and, with respect to any uncertificated shares,
shall take such steps as are necessary to permit such shares to be distributed
in the manner described in SECTION 2.2 below. The Transfer Agent will then
transfer and distribute such shares in the manner described in SECTION 2.2
below.
2.2 DISTRIBUTION OF COMBINED SPECIALTY COMMON STOCK. Promptly
following the Distribution Date, Aon shall instruct the Transfer Agent to
distribute to all holders of record of Aon Common Stock as of the Record Date
the Combined Specialty Distributable Share. Each
12
distributed share of Combined Specialty Common Stock shall be validly issued,
fully paid and nonassessable and shall be free of any preemptive rights. The
shares of Combined Specialty Common Stock distributed shall be distributed as
uncertificated shares registered in book-entry form through the direct
registration system. Except as required by applicable law, no certificates
therefor shall be distributed. The Transfer Agent shall deliver an account
statement to each holder of Combined Specialty Common Stock reflecting such
holder's ownership interest in shares of Combined Specialty Common Stock.
2.3 TREATMENT OF FRACTIONAL SHARES. No certificates or scrip
representing fractional shares of Combined Specialty Common Stock shall be
issued in the Distribution. In lieu of receiving fractional shares, each holder
of Aon Common Stock who otherwise would be entitled to receive a fractional
share of Combined Specialty Common Stock in the Distribution will receive cash
(rounded to the nearest cent) for such fractional share. Aon and Combined
Specialty shall instruct the Transfer Agent to determine the number of whole
shares of Combined Specialty Common Stock and fractional shares of Combined
Specialty Common Stock (rounded to the eighth decimal place) allocable to each
holder of record of Aon Common Stock as of the close of business on the Record
Date, to aggregate all such fractional shares into whole shares and to sell the
whole shares obtained thereby in the open market at the then prevailing prices
on behalf of holders who otherwise would be entitled to receive fractional share
interests, and the Transfer Agent shall distribute to each such holder such
holder's ratable share of the total proceeds of such sale. Aon shall bear the
costs of commissions incurred in connection with such sales.
2.4 AON BOARD ACTION. The Board of Directors of Aon shall, in its
sole discretion, determine the Record Date and the Distribution Date and all
appropriate procedures in connection with the Distribution. The Board of
Directors of Aon also shall have the right to adjust at any time prior to the
Distribution the Combined Specialty Distributable Share. The consummation of the
transactions provided for in this ARTICLE II shall be effected only after the
Distribution has been declared by the Board of Directors of Aon and after all of
the conditions set forth in ARTICLE VII hereof shall have been satisfied or
waived by Aon.
2.5 ADDITIONAL APPROVALS. Aon shall cooperate with Combined
Specialty in effecting, and if so requested by Combined Specialty, Aon shall, as
the majority stockholder of Combined Specialty prior to the Distribution, ratify
all actions that are reasonably necessary or desirable to be taken by Combined
Specialty to effectuate, the transactions referenced in or contemplated by this
Agreement in a manner consistent with the terms of this Agreement.
ARTICLE III
BUSINESS SEPARATION
3.1 TRANSFER OF COMBINED SPECIALTY BUSINESS. As more fully set
forth in this ARTICLE III and subject to the terms and conditions of this
Agreement and the Operating Agreements, prior to the Distribution, Aon and its
Subsidiaries shall convey, assign, transfer, contribute and set over, or cause
to be conveyed, assigned, transferred, contributed and set over, to Combined
Specialty and its Subsidiaries, and Combined Specialty and its Subsidiaries
shall
13
accept and receive, all right, title and interest of Aon and its Subsidiaries in
and to the Transferred Subsidiaries and the other Transferred Assets.
Notwithstanding anything to the contrary herein, the following assets (the
"RETAINED ASSETS") are not, and shall not be deemed to be, Transferred Assets:
(a) Cash and cash equivalents, any cash on hand or in bank
accounts, certificates of deposit, commercial paper and similar securities,
except for (i) deposits securing bonds, letters of credit, leases and all other
obligations related to the Combined Specialty Business, (ii) ▇▇▇▇▇ cash and
impressed funds related to the Combined Specialty Business, (iii) cash, cash
equivalents, certificates of deposit, commercial paper and similar securities
held in bank accounts of Combined Specialty or any of its Subsidiaries and (iv)
$*;
(b) Any right, title or interest in any tax refund, credit or
benefit to which Aon or any of its Subsidiaries is entitled in accordance with
the terms of the Tax Sharing Agreement;
(c) Any amounts accrued on the books and records of Aon or its
Subsidiaries with respect to any Retained Liabilities;
(d) Except as provided in the Employee Benefits Agreement, assets
relating to the provision of benefits to present or former employees of the
Combined Specialty Business;
(e) Any right, title or interest in any prepaid insurance
premiums for the Aon Policies existing immediately prior to the Distribution;
and
(f) All other assets of Aon and its Subsidiaries other than the
Transferred Assets.
3.2 AON INTERNAL RESTRUCTURING. In order to effect the
transactions contemplated by SECTION 3.1, Aon and its Subsidiaries will complete
the following transactions prior to the Distribution:
(a) ASG will convert to a Delaware limited liability company.
(b) ASG will, following its conversion to a Delaware limited
liability company, distribute all of the outstanding shares of capital stock of
its wholly-owned subsidiaries RFC, Olympic, Olympic Senior and National and its
20% interest in Paladin to Aon Group, its sole member.
(c) Risk Resources will distribute all of the outstanding shares
of capital stock of its wholly-owned subsidiary Technical and its 1% interest in
Superannuation to Aon Group, its sole stockholder.
(d) Following the distributions to Aon Group contemplated by the
preceding subparagraphs, Aon Group will distribute all of the outstanding shares
of capital stock of Technical, RFC, Olympic, Olympic Senior and National, its
20% interest in Paladin and its 1% interest in Superannuation to Aon, its sole
stockholder.
14
(e) Consulting Worldwide, a wholly-owned subsidiary of Aon Group,
will merge with and into a Delaware limited liability company, all of the
membership interests of which will be owned by Aon Group, with the Delaware
limited liability company continuing as the surviving entity.
(f) The Delaware limited liability company surviving the merger
contemplated by the immediately preceding subparagraph will distribute all of
the outstanding capital stock of its wholly-owned subsidiary Consulting New
Jersey to Aon Group, its sole member.
(g) Following the distribution to Aon Group contemplated by the
immediately preceding subparagraph, Aon Group will distribute all of the
outstanding shares of capital stock of Consulting New Jersey to Aon, its sole
stockholder.
(h) Aon Group will purchase CSIC's 22% interest in Risk Services
either for cash or in exchange for property.
(i) CSIC will distribute all of the outstanding shares of capital
stock of its wholly-owned subsidiary Credit to Aon, its sole stockholder.
(j) Following the distribution to Aon contemplated by the
immediately preceding subparagraph, Credit will distribute all of the
outstanding shares of capital stock of its wholly owned subsidiary Cananwill to
Aon, its sole stockholder.
(k) Following the distribution to Aon contemplated by the
immediately preceding subparagraph, Credit will merge with and into Premier,
with Premier surviving the merger.
(l) AHL (the common stock of which is owned 65.218% by Aon,
34.78% by Aon Group and 0.002% by A&A International and all of the preferred
stock of which is owned by Aon) will form a UK corporation ("UK HOLDCO"). AHL
will contribute the UK Assets other than entities engaged in the Combined
Specialty Business to UK Holdco (such contributed UK Assets, the "CONTRIBUTED UK
ASSETS") in exchange for all the stock of UK Holdco and the assumption by UK
Holdco of the debt of AHL. UK Holdco will make an election under Treasury
Regulation Section 1.7701-3 under the Code to be treated as a disregarded entity
for United States federal income tax purposes.
(m) Aon, Aon Group and A&A International will form a U.K.
corporation ("UK NEWCO").
(n) Aon Group will contribute a note ("NOTE 1") to UK Newco in an
amount equal to 34.78% of the fair market value of the common stock of AHL.
(o) A&A International will contribute a note ("NOTE 2") to UK
Newco in an amount equal to 0.002% of the fair market value of the common stock
of AHL.
(p) Aon will contribute a note ("NOTE 3") to UK Newco in an
amount equal to the value of UK Holdco less the combined amounts of Note 1 and
Note 2.
15
(q) UK Newco will acquire all of the outstanding capital stock of
UK Holdco from AHL for Note 1, Note 2 and Note 3.
(r) AHL will distribute Note 1 to Aon Group in exchange for Aon
Group's 34.78% interest in AHL common stock. AHL will distribute Note 2 to A&A
International in exchange for A&A International's 0.002% interest in AHL common
stock. AHL will distribute Note 3 to Aon without a corresponding exchange of
Aon's AHL shares.
(s) Aon will contribute the capital stock it holds of each of its
first tier Subsidiaries (other than Advisors, Warranty, AHL, CSIC, CICA,
Technical, Olympic, Olympic Senior, National, Combined Europe, Assurance Europe,
Combined Australia, RFC, the Specified Shareholders, First Extended, its 20%
interest in Paladin and its 1% interests in Superannuation, New Zealand, Mexico
and CICNZ) to Consulting New Jersey.
(t) Aon will contribute (the "COMBINED SPECIALTY CONTRIBUTION")
to Combined Specialty the capital stock held by it of the following entities
(the "UNDERWRITING ENTITIES") as follows:
(i) all of the outstanding capital stock of RFC,
(ii) all of the outstanding capital stock of Warranty,
(iii) all of the outstanding capital stock of AHL,
(iv) all of the outstanding capital stock of CSIC,
(v) all of the outstanding capital stock of CICA,
(vi) all of the outstanding capital stock of National,
(vii) all of the outstanding capital stock of Olympic Senior,
(viii) all of the outstanding capital stock of First Extended,
(ix) Aon's 20% interest in Paladin,
(x) Aon's 1% interest in Superannuation,
(xi) Aon's 1% interest in New Zealand,
(xii) Aon's 1% interest in Mexico, and
(xiii) Aon's 1% interest in CICNZ.
(u) Aon will transfer all of the outstanding capital stock of
Advisors, Olympic, Combined Australia, Assurance Europe and Combined Europe to
CICA in partial satisfaction of the debt owed by Aon to CICA.
(v) Aon will transfer all of the outstanding capital stock of
Technical to CSIC in partial satisfaction of debt owed by Aon to CSIC.
(w) Following the Combined Specialty Contribution, Warranty will
merge with and into AIS, with AIS continuing as the surviving entity.
16
(x) At the time of the merger contemplated by the immediately
preceding subparagraph, AIS will change its name to "Combined Warranty Group,
Inc." (hereinafter referred to as "WARRANTY II").
(y) Following the transaction contemplated by the immediately
preceding subparagraph, Combined Specialty will transfer the outstanding capital
stock of First Extended and RFC to Warranty II.
(z) Combined Specialty will transfer all of the outstanding
capital stock of National and Olympic Senior to CICA.
Notwithstanding the foregoing, Aon may elect in its sole discretion at any time
prior to the Distribution to omit or modify any of such transactions or to
include additional transactions.
3.3 SETTLEMENT OF INTERCOMPANY DEBT. In connection with the
transactions contemplated by SECTION 3.1, Aon and its Subsidiaries will complete
the following transactions prior to the Distribution in order to reduce
indebtedness that would otherwise be owed following the Distribution by Aon or
one of its Subsidiaries to Combined Specialty or one of its Subsidiaries:
(a) ADVISORS/AON NOTE. Prior to the transfer by Aon of all of the
outstanding capital stock of Advisors to CICA described in SECTION 3.2(u), Aon
will cause Advisors to cancel the entire balance of the Advisors/Aon Note, which
cancellation will be treated as a dividend from Advisors to Aon.
(b) CSIC/AON NOTE. Aon will repay in full the CSIC/Aon Note.
(c) AIS/AON NOTE. Aon will repay in full the AIS/Aon Note.
(d) DEALER PERFORMANCE/AON NOTE.
(i) CSIC will purchase the Dealer Performance/Aon Note from
Dealer Performance in exchange for an intercompany payable with
substantially similar terms.
(ii) Aon will repay approximately $15 million of the Dealer
Performance/Aon Note with cash that Aon expects to receive in dividends
from CICA and CSIC, subject to regulatory approval.
(iii) Aon will transfer to Combined Specialty the cash surrender
value associated with certain insurance policies insuring Combined
Specialty executives in exchange for the reduction of approximately $2.6
million in intercompany debt between Aon and Combined Specialty. Combined
Specialty will allocate approximately $1.3 million of this $2.6 million to
the Dealer Performance/Aon Note. Combined Specialty will cause CSIC to
reduce the principal balance of the Dealer Performance/Aon Note by $1.3
million in exchange for a note payable in the amount of $1.3 million from
Combined Specialty.
17
(iv) In exchange for the transfer by Aon of all of the
outstanding capital stock of Technical to CSIC as described in SECTION
3.2(v), intercompany debt between Aon and CSIC will be reduced by
approximately $1.5 million. CSIC will allocate such $1.5 million to the
reduction of the principal balance of the Dealer Performance/Aon Note.
(e) CICA/AON NOTE.
(i) Aon will transfer an office building complex located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ to CICA in exchange for the
reduction of approximately $15 million of the CICA/Aon Note.
(ii) Aon will repay approximately $9,771,428 of the CICA/Aon
Note.
(iii) Aon will transfer to Combined Specialty the cash surrender
value associated with certain insurance policies insuring Combined
Specialty executives in exchange for the reduction of approximately $2.6
million in intercompany debt. Combined Specialty will allocate
approximately $1.3 million of this $2.6 million to the CICA/Aon Note.
Combined Specialty will cause CICA to reduce the principal balance of the
note by $1.3 million in exchange for a note payable in the amount of $1.3
million from Combined Specialty.
(iv) Aon will transfer all of the outstanding capital stock of
Combined Australia to CICA, as described in SECTION 3.2(u), in exchange for
the reduction of approximately $9.8 million of the CICA/Aon Note.
(f) CICA/ASG NOTE.
(i) Aon will transfer all of the outstanding capital stock of
Olympic to CICA, as described in SECTION 3.2(u), in exchange for the
reduction of approximately $6.5 million of the CICA/ASG Note.
(ii) Following the transaction contemplated by the immediately
preceding subparagraph, Aon will repay any remaining balance of the
CICA/ASG Note with cash.
(g) CICA/RISK SERVICES NOTE 1.
(i) In exchange for the transfer by Aon of all of the outstanding
capital stock of Combined Europe to CICA as described in SECTION 3.2(u),
CICA will allocate $2.5 million of the approximately $44.5 million value of
Combined Europe towards consideration for an assignment to Aon of the right
to payment of $2.5 million on the CICA/Risk Services Note 1.
(ii) In exchange for the transfer by Aon of all of the
outstanding capital stock of Assurance Europe to CICA as described in
SECTION 3.2(u), CICA will allocate the approximately $12.3 million value of
Assurance Europe towards consideration for an assignment to Aon of the
right to payment of $12.3 million on the CICA/Risk Services
18
Note 1.
(iii) Aon will transfer an office building complex located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ to CICA. In exchange for such transfer,
CICA will allocate the approximately $2.5 million value of such office
building complex towards consideration for an assignment to Aon of the
right to payment of $2.5 million on the CICA/Risk Services Note 1.
(iv) In exchange for the transfer by Aon of all of the
outstanding capital stock of Advisors to CICA as described in SECTION
3.2(u), CICA will allocate the approximately $400,000 value of Advisors
towards consideration for an assignment to Aon of the right to payment of
$400,000 on the CICA/Risk Services Note 1.
(h) CICA/RISK SERVICES NOTE 2. In exchange for the transfer by
Aon of all of the outstanding capital stock of Combined Europe to CICA as
described in SECTION 3.2(u), CICA will allocate $42 million of the approximately
$44.5 million value of Combined Europe towards consideration for an assignment
to Aon of the CICA/Risk Services Note 2.
Notwithstanding the foregoing, Aon may elect in its sole discretion at any time
prior to the Distribution to omit or modify any of such transactions or to
include additional transactions.
3.4 ASSUMPTION OF LIABILITIES. In connection with the
transactions contemplated by SECTION 3.1, Combined Specialty or one or more of
its Subsidiaries shall assume, effective on or before the Distribution, and pay,
comply with and discharge all contractual and other Liabilities of Aon or its
Subsidiaries arising out of or relating to the Combined Specialty Business,
whether due or to become due (such Liabilities, the "ASSUMED LIABILITIES").
Notwithstanding anything to the contrary in this Agreement, neither Combined
Specialty nor any of its Subsidiaries shall assume any of the following
Liabilities of Aon or its Subsidiaries (the "RETAINED LIABILITIES"):
(a) Except as provided in the Employee Benefits Agreement, the
Liabilities under the Aon Benefit Plans (as defined in the Employee Benefits
Agreement);
(b) All Liabilities for which Aon is liable in accordance with
the terms of the Tax Sharing Agreement; and
(c) Liabilities arising out of or relating to the Retained Assets
or the Retained Business.
3.5 TERMINATION OF EXISTING INTERCOMPANY AGREEMENTS. Except as
otherwise expressly provided in this Agreement or in the Operating Agreements,
each Intercompany Agreement or intercompany arrangement and course of dealing,
whether or not in writing and whether or not binding, in effect immediately
prior to the Distribution, may be terminated by either party thereto after the
Distribution upon thirty days written notice to the other party and, except to
the extent the parties shall otherwise agree in writing, shall be terminated and
be of no further force and effect from and after January 1, 2003.
19
3.6 SHARED CONTRACTS. (a) With respect to Shared Contractual
Liabilities pursuant to, arising under or relating to any Shared Contract, such
Shared Contractual Liabilities shall be allocated between Aon and its
Subsidiaries, on the one hand, and Combined Specialty and its Subsidiaries, on
the other hand, as follows:
(i) First, if a Liability is incurred exclusively in respect of a
benefit received by one Party, the Party receiving such benefit shall be
responsible for such Liability; and
(ii) Second, if a Liability cannot be so allocated under clause
(i), such Liability shall be allocated between the Parties based on the
relative proportions of total benefit received (over the term of the Shared
Contract, measured as of the date of the allocation) under the relevant
Shared Contract. Notwithstanding the foregoing, each Party shall be
responsible for any and all Liabilities arising out of or resulting from
its breach of the relevant Shared Contract.
(b) If either Aon and its Subsidiaries, on the one hand, or
Combined Specialty and its Subsidiaries, on the other hand, receive any benefit
or payment under any Shared Contract that was intended for the other Party, the
Party receiving such benefit or payment will use commercially reasonable efforts
to deliver, transfer or otherwise afford such benefit or payment (on an
after-tax basis) to the other Party.
ARTICLE IV
BUSINESS SEPARATION CLOSING MATTERS
4.1 DELIVERY OF INSTRUMENTS OF CONVEYANCE. In order to effectuate
the transactions contemplated by ARTICLE III, the Parties shall execute and
deliver, or cause to be executed and delivered, prior to or as of the
Distribution such deeds, bills of sale, instruments of assumption, instruments
of assignment, stock powers, certificates of title and other instruments of
assignment, transfer, assumption and conveyance (collectively, the "CONVEYANCING
INSTRUMENTS") as the Parties shall reasonably deem necessary or appropriate to
effect such transactions.
4.2 DELIVERY OF OTHER AGREEMENTS. Prior to or as of the
Distribution, the Parties shall execute and deliver, or shall cause to be
executed and delivered, each of the Operating Agreements.
4.3 PROVISION OF CORPORATE RECORDS. Prior to or as promptly as
practicable after the Distribution, Aon shall deliver to Combined Specialty all
corporate books and records of Combined Specialty and its Subsidiaries and
copies of all corporate books and records of Aon or its Subsidiaries relating to
the Combined Specialty Business, including in each case all active agreements,
litigation files and government filings. From and after the Distribution, all
books, records and copies so delivered shall be the property of Combined
Specialty or one of its Subsidiaries, as the case may be.
20
ARTICLE V
NO REPRESENTATIONS AND WARRANTIES
5.1 NO AON REPRESENTATIONS OR WARRANTIES. Except as expressly set
forth herein or in any Operating Agreement, Aon does not represent or warrant in
any way (i) as to the value or freedom from encumbrance of, or any other matter
concerning, any of the Transferred Assets or (ii) as to the legal sufficiency to
convey title to any of the Transferred Assets on the execution, delivery and
filing of the Conveyancing Instruments. ALL SUCH ASSETS ARE BEING TRANSFERRED ON
AN "AS IS, WHERE IS" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY, TITLE, VALUE,
FREEDOM FROM ENCUMBRANCE OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, and Combined Specialty shall bear the economic and legal risks that any
conveyances of such assets shall prove to be insufficient or that Combined
Specialty's title to any such assets shall be other than good and marketable and
free of encumbrances. Except as expressly set forth in this Agreement or in any
Operating Agreement, Aon does not represent or warrant that the obtaining of the
consents or approvals, the execution and delivery of any amendatory agreements
and the making of the filings and applications contemplated by this Agreement
shall satisfy the provisions of all applicable agreements or the requirements of
all applicable laws or judgments, and, subject to SECTION 6.4, Combined
Specialty shall bear the economic and legal risk that any necessary consents or
approvals are not obtained or that any requirements of law or judgments are not
complied with. Notwithstanding the foregoing, the Parties shall fully cooperate
and use commercially reasonable efforts to obtain all consents and approvals, to
enter into all amendatory agreements and to make all filings and applications
that may be required for the consummation of the transactions contemplated by
this Agreement.
5.2 NO COMBINED SPECIALTY REPRESENTATIONS OR WARRANTIES. Except
as expressly set forth herein or in any Operating Agreement, Combined Specialty
does not represent or warrant in any way (i) as to the value or freedom from
encumbrance of, or any other matter concerning, any assets being transferred to
Aon or (ii) as to the legal sufficiency to convey title to any of such assets on
the execution, delivery and filing of the Conveyancing Instruments. ALL SUCH
ASSETS ARE BEING TRANSFERRED ON AN "AS IS, WHERE IS" BASIS WITHOUT ANY
REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
MARKETABILITY, TITLE, VALUE, FREEDOM FROM ENCUMBRANCE OR ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, and Aon shall bear the economic
and legal risks that any conveyances of such assets shall prove to be
insufficient or that Aon's title to any such assets shall be other than good and
marketable and free of encumbrances. Except as expressly set forth in this
Agreement or in any Operating Agreement, Combined Specialty does not represent
or warrant that the obtaining of the consents or approvals, the execution and
delivery of any amendatory agreements and the making of the filings and
applications contemplated by this Agreement shall satisfy the provisions of all
applicable agreements or the requirements of all applicable laws or judgments,
and, subject to SECTION 6.4, Aon shall bear the economic and legal risk that any
necessary consents or approvals are not obtained or that any requirements of law
or judgments are not complied with. Notwithstanding the foregoing, the Parties
shall fully
21
cooperate and use commercially reasonable efforts to obtain all
consents and approvals, to enter into all amendatory agreements and to make all
filings and applications that may be required for the consummation of the
transactions contemplated by this Agreement.
ARTICLE VI
CERTAIN COVENANTS
6.1 THIRD PARTY CONSENTS. The Parties will use commercially
reasonable efforts to obtain any material consents, approvals or waivers from
third parties (the "THIRD PARTY CONSENTS") required by the transactions
contemplated by this Agreement.
6.2 MATERIAL GOVERNMENTAL APPROVALS AND CONSENTS. The Parties
will use commercially reasonable efforts to obtain any Material Governmental
Approvals and Consents required by the transactions contemplated by this
Agreement.
6.3 NON-ASSIGNABLE CONTRACTS. (a) In the event and to the extent
that Aon or any of its Subsidiaries is unable to obtain any consent, approval or
amendment necessary for the transfer or assignment to Combined Specialty or one
of its Subsidiaries of any Contract or other rights relating to the Combined
Specialty Business that would otherwise be transferred or assigned to Combined
Specialty or one of its Subsidiaries as contemplated by this Agreement or any
other agreement or document contemplated hereby, (i) Aon and its Subsidiaries
shall continue to be bound thereby and the purported transfer or assignment to
Combined Specialty or one of its Subsidiaries shall automatically be deemed
deferred until such time as all legal impediments are removed and all necessary
consents have been obtained, and (ii) unless not permitted by the terms thereof
or by law, Combined Specialty or one of its Subsidiaries shall pay, perform and
discharge fully all of the obligations of Aon or its Subsidiaries thereunder
from and after the Distribution, or such earlier date as such transfer or
assignment would otherwise have taken place, and indemnify Aon and its
Subsidiaries for all indemnifiable Losses arising out of such performance by
Combined Specialty or its Subsidiaries. Aon and its Subsidiaries shall, without
further consideration therefor, pay and remit to Combined Specialty or its
Subsidiaries promptly all monies, rights and other considerations received in
respect of such performance. Aon and its Subsidiaries shall exercise or exploit
their rights and options under all such Contracts and other rights, agreements
and documents referred to in this SECTION 6.3(a) only as reasonably directed by
Combined Specialty and at Combined Specialty's expense. If and when any such
consent, approval or amendment shall be obtained or such Contract or other right
or agreement shall otherwise become transferable or assignable or be able to be
novated, Aon or its Subsidiaries shall promptly assign or transfer and novate
(to the extent permissible) all of its rights and obligations thereunder to
Combined Specialty or its Subsidiaries without payment of further consideration,
and Combined Specialty or its Subsidiaries shall, without the payment of any
further consideration therefor, assume such rights and obligations. To the
extent that the transfer or assignment of any Contract or other right (or the
proceeds thereof) pursuant to this SECTION 6.3(a) is prohibited by law, this
SECTION 6.3(a) shall operate to create a subcontract with Combined Specialty or
its Subsidiaries to perform each relevant Contract or other right, agreement or
document at a subcontract price equal to the monies, rights and other
22
considerations received by Aon or its Subsidiaries with respect to the
performance by Combined Specialty or its Subsidiaries thereunder.
(b) In the event and to the extent that Aon is unable to obtain
any consent, approval or amendment necessary for the transfer or assignment to
Aon or one of its Subsidiaries of any Contract or other rights not relating to
the Combined Specialty Business that would otherwise be transferred or assigned
to Aon or one of its Subsidiaries (excluding Combined Specialty and its
Subsidiaries) as contemplated by this Agreement or any other agreement or
document contemplated hereby, (i) the applicable Subsidiary of Combined
Specialty shall continue to be bound thereby and the purported transfer or
assignment to Aon or one of its Subsidiaries shall automatically be deemed
deferred until such time as all legal impediments are removed and all necessary
consents have been obtained, and (ii) unless not permitted by the terms thereof
or by law, Aon or one of its Subsidiaries shall pay, perform and discharge fully
all of the obligations of Combined Specialty or its Subsidiaries thereunder from
and after the Distribution, or such earlier date as such transfer or assignment
would otherwise have taken place, and indemnify Combined Specialty and its
Subsidiaries for all indemnifiable Losses arising out of such performance by Aon
or its Subsidiaries. Combined Specialty and its Subsidiaries shall, without
further consideration therefor, pay and remit to Aon or its Subsidiaries
promptly all monies, rights and other considerations received in respect of such
performance. Combined Specialty and its Subsidiaries shall exercise or exploit
its rights and options under all such Contracts and other rights, agreements and
documents referred to in this SECTION 6.3(b) only as reasonably directed by Aon
and at Aon's expense. If and when any such consent, approval or amendment shall
be obtained or such Contract or other right or agreement shall otherwise become
transferable or assignable or be able to be novated, Combined Specialty or its
Subsidiaries shall promptly assign or transfer and novate (to the extent
permissible) all of its rights and obligations thereunder to Aon or its
Subsidiaries without payment of further consideration, and Aon or its
Subsidiaries shall, without the payment of any further consideration therefor,
assume such rights and obligations. To the extent that the transfer or
assignment of any Contract or other right (or the proceeds thereof) pursuant to
this SECTION 6.3(b) is prohibited by law, this SECTION 6.3(b) shall operate to
create a subcontract with Aon or its Subsidiaries to perform each relevant
Contract or other right, agreement or document at a subcontract price equal to
the monies, rights and other considerations received by Combined Specialty or
its Subsidiaries with respect to the performance by Aon or its Subsidiaries
thereunder.
6.4 NOVATION OF ASSUMED LIABILITIES; RELEASE OF GUARANTEES. (a)
Except as otherwise specifically provided in SECTION 3.6 with respect to Shared
Contracts and elsewhere in this Agreement, it is expressly understood and agreed
to by the Parties that upon the assumption by Combined Specialty or its
Subsidiaries of the Assumed Liabilities, Aon, its Subsidiaries and their
respective officers, directors and employees shall be released unconditionally
by Combined Specialty and its Subsidiaries from any and all Liability, whether
joint, several or joint and several, for the discharge, performance or
observance of any of the Assumed Liabilities, so that Combined Specialty or its
Subsidiaries will be solely responsible for such Assumed Liabilities.
(b) Combined Specialty or its Subsidiaries, at the reasonable
request of Aon or its Subsidiaries, shall use commercially reasonable efforts to
obtain, or cause to be obtained, any
23
consent, approval, release, substitution or amendment required to novate
(including with respect to any federal government contract) or assign all
obligations under the Assumed Liabilities, or to obtain in writing the
unconditional release of all parties to such arrangements other than Combined
Specialty or its Subsidiaries; PROVIDED, HOWEVER, that Combined Specialty and
its Subsidiaries shall not be obligated to give any consideration therefor to
any third party from whom such consents, approvals, releases, substitutions or
amendments are requested.
(c) If Combined Specialty or its Subsidiaries are unable to
obtain, or to cause to be obtained, any such required consent, approval,
release, substitution or amendment, Aon and its Subsidiaries shall continue to
be bound by such Assumed Liability and, unless not permitted by law or the terms
thereof, Combined Specialty or its Subsidiaries shall, as agent or subcontractor
for Aon and its Subsidiaries, pay, perform and discharge fully all of the
obligations or other Liabilities of Aon and its Subsidiaries thereunder from and
after the date hereof. Combined Specialty and its Subsidiaries shall indemnify
and hold harmless Aon and its Subsidiaries against any Liabilities arising in
connection with such Assumed Liability, except to the extent that such Liability
is increased by virtue of action taken by Aon or any of its Subsidiaries
following the Distribution, or with Combined Specialty's or any of its
Subsidiaries' payment, performance and discharge of such Assumed Liability.
Except as otherwise set forth in this Agreement, Aon and its Subsidiaries shall,
without further consideration, pay and remit, or cause to be paid or remitted,
to Combined Specialty or its Subsidiaries promptly the after-tax amount of all
money, rights and other consideration received by it in respect of such
performance (unless any such consideration is a Retained Asset), increased by
any actual tax benefit derived by Aon or its Subsidiaries as a result of such
payment or remittance (with such tax benefit determined pursuant to SECTION
10.5(d)). If and when any such consent, approval, release, substitution or
amendment shall be obtained or such Assumed Liability shall otherwise become
assignable or be able to be novated, Aon and its Subsidiaries shall thereafter
assign, or cause to be assigned, all of their rights, obligations and other
Liabilities thereunder to Combined Specialty and its Subsidiaries without
payment of further consideration, and Combined Specialty and its Subsidiaries
shall, without the payment of any further consideration, assume such rights and
obligations.
(d) Combined Specialty shall (i) execute guarantees in
replacement of Guarantees of or by Aon or any Subsidiary of Aon (other than
Combined Specialty and its Subsidiaries) set forth in SCHEDULE 6.4(d) hereto and
(ii) use commercially reasonable efforts to cause Aon or such Subsidiary to be
fully released, as of the Distribution, in respect of all obligations under such
Guarantees. With respect to any obligations of Aon or any Subsidiary of Aon
under any other Guarantees relating to Combined Specialty and its Subsidiaries
or the business conducted by any of them which Aon notifies Combined Specialty
in writing, Combined Specialty shall use commercially reasonable efforts to
cause Aon or such Subsidiary to be fully released, in each case, as promptly as
practicable, in respect of all obligations of Aon or such Subsidiary under such
other Guarantees. Without limiting the foregoing, after the Distribution,
Combined Specialty will not renew, extend, amend or supplement any loan,
contract, lease or other obligation that is covered by any such other Guarantee
without providing evidence satisfactory to Aon that Aon has been released in
respect of all obligations under such other Guarantee. Any cash or other
collateral posted by Aon or one of its Subsidiaries in respect of any such other
Guarantee shall be delivered to Aon.
24
(e) Aon shall (i) execute guarantees in replacement of Guarantees
of or by Combined Specialty or any Subsidiary of Combined Specialty set forth in
SCHEDULE 6.4(e) hereto and (ii) use commercially reasonable efforts to cause
Combined Specialty or such Subsidiary to be fully released, as of the
Distribution, in respect of all obligations under such Guarantees. With respect
to any obligations of Combined Specialty or any Subsidiary of Combined Specialty
under any other Guarantees relating to Aon and its Subsidiaries following the
Distribution or the business conducted by any of them which Combined Specialty
notifies Aon in writing, Aon shall use commercially reasonable efforts to cause
Combined Specialty or such Subsidiary to be fully released, in each case, as
promptly as practicable, in respect of all obligations of Combined Specialty or
such Subsidiary under such other Guarantees. Without limiting the foregoing,
after the Distribution, Aon will not renew, extend, amend or supplement any
loan, contract, lease or other obligation that is covered by any such other
Guarantee without providing evidence satisfactory to Combined Specialty that
Combined Specialty has been released in respect of all obligations under such
other Guarantee. Any cash or other collateral posted by Combined Specialty or
one of its Subsidiaries in respect of any such other Guarantee shall be
delivered to Combined Specialty.
6.5 FURTHER ASSURANCES. (a) In addition to the actions
specifically provided for elsewhere in this Agreement, each of the Parties shall
use commercially reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things reasonably necessary, proper or
advisable under applicable laws, regulations and agreements to consummate and
make effective the Distribution and the other agreements and documents
contemplated hereby. Without limiting the generality of the foregoing, each
Party shall cooperate with the other Party to execute and deliver, or use
commercially reasonable efforts to cause to be executed and delivered, all
instruments, including instruments of conveyance, assignment and transfer, and
to make all filings with, and to obtain all consents, approvals or
authorizations of, any Governmental Authority or any other Person under any
permit, license, Contract or other instrument, and to take all such other
actions as such Party may reasonably be requested to take by the other Party
from time to time, consistent with the terms of this Agreement, in order to
confirm the title of Combined Specialty and its Subsidiaries to all of the
Combined Specialty Business, to put Combined Specialty or its Subsidiaries in
actual possession and operating control thereof and to permit Combined Specialty
or its Subsidiaries to exercise all rights with respect thereto and to
effectuate the provisions and purposes of this Agreement and the other
agreements and documents contemplated hereby or thereby.
(b) If, as a result of mistake or oversight, any asset reasonably
necessary to the conduct of the Combined Specialty Business is not transferred
to Combined Specialty or one of its Subsidiaries, or any asset reasonably
necessary to the conduct of the Retained Business is transferred to Combined
Specialty or one of its Subsidiaries, Aon and Combined Specialty shall negotiate
in good faith after the Distribution to determine whether such asset should be
transferred to Combined Specialty or one of its Subsidiaries or to Aon or one of
its Subsidiaries, as the case may be, and the terms and conditions upon which
such asset shall be made available to Combined Specialty or one of its
Subsidiaries or to Aon or one of its Subsidiaries, as the case
25
may be. Unless expressly provided to the contrary in this Agreement or any
Operating Agreement, if, as a result of mistake or oversight, any Liability
arising out of or relating to the Combined Specialty Business is retained by Aon
or one of its Subsidiaries, or any Liability arising out of or relating to the
Retained Business is assumed by Combined Specialty or one of its Subsidiaries,
Aon and Combined Specialty shall negotiate in good faith after the Distribution
to determine whether such Liability should be transferred to Combined Specialty
or one of its Subsidiaries or Aon or one of its Subsidiaries, as the case may
be, and/or the terms and conditions upon which any such Liability shall be
transferred.
6.6 NOMINEE SHARES. Aon agrees to use commercially reasonable
efforts to cause to be transferred to, or as directed by, Combined Specialty all
director's qualifying or other shares of capital stock of any of the Transferred
Subsidiaries held as of the Distribution by persons who are not employees of
Combined Specialty or its Subsidiaries. Combined Specialty agrees to use
commercially reasonable efforts to cause to be transferred to, or as directed
by, Aon all director's qualifying or other shares of capital stock of any Aon
Subsidiary other than Combined Specialty and the Transferred Subsidiaries held
as of the Distribution by employees of Combined Specialty or its Subsidiaries.
6.7 COLLECTION OF ACCOUNTS RECEIVABLE. (a) Following the
Distribution, Aon and its Subsidiaries shall be entitled to control all
collection actions related to the Retained Business and Combined Specialty and
its Subsidiaries shall be entitled to control all collection actions related to
the Combined Specialty Business, in each case including the determination of
what actions are necessary or appropriate and when and how to take any such
action.
(b) If, after the Distribution, Combined Specialty or one of its
Subsidiaries shall receive any remittance from any account debtors with respect
to the accounts receivable arising out of the Retained Business or other amounts
due Aon or its Subsidiaries in respect of services rendered by Aon or its
Subsidiaries after the Distribution, or Aon or one of its Subsidiaries shall
receive any remittance from any account debtors with respect to the accounts
receivable arising out of the Combined Specialty Business or other amounts due
Combined Specialty or its Subsidiaries in respect of services rendered by
Combined Specialty or its Subsidiaries after the Distribution, such Party shall
receive and deposit such remittance and hold the same for the benefit of the
other Party. The Parties shall reconcile any amounts held under this SECTION 6.7
on a monthly basis, with the difference between the amounts held by each Party
for the benefit of the other being settled by a cash payment to be made as soon
as practicable following such reconciliation and, in any event, no later than
five (5) business days following the completion of such reconciliation.
(c) Each Party shall deliver to the other such schedules and
other information with respect to accounts receivable as each shall reasonably
request from time to time in order to permit such Parties to reconcile their
respective records and to monitor the collection of all accounts receivable.
Each Party shall afford the other reasonable access to its books and records
relating to any accounts receivable.
26
6.8 ELECTION OF COMBINED SPECIALTY BOARD OF DIRECTORS. Prior to
the Distribution, Aon agrees to vote all shares of Combined Specialty Common
Stock held by it in favor of the nominees to the Board of Directors of Combined
Specialty, as set forth on SCHEDULE 6.8 hereto.
6.9 LATE PAYMENTS. Except as expressly provided to the contrary
in this Agreement or in any Operating Agreement, any amount not paid when due
pursuant to this Agreement or any Operating Agreement (and any amounts billed or
otherwise invoiced or demanded and properly payable that are not paid within
sixty (60) days of such ▇▇▇▇, invoice or other demand) shall accrue interest at
a rate per annum equal to the Prime Rate plus 2%.
6.10 REGISTRATION AND LISTING. Prior to the Distribution:
(a) Aon and Combined Specialty shall cooperate with respect to
the preparation of the registration statement on Form 10, including such
amendments or supplements thereto as may be necessary (together, the
"REGISTRATION STATEMENT"), to effect the registration of the Combined Specialty
Common Stock under the Exchange Act. The Registration Statement shall include an
information statement to be sent by Aon to its stockholders in connection with
the Distribution (the "INFORMATION STATEMENT"). Combined Specialty filed the
Registration Statement with the SEC on *. Combined Specialty shall use
commercially reasonable efforts to cause the Registration Statement to become
and remain effective under the Exchange Act as soon as reasonably practicable.
After the Registration Statement becomes effective, Aon shall mail the
Information Statement to the holders of Aon Common Stock.
(b) The Parties shall use commercially reasonable efforts to take
all such action as may be necessary or appropriate under state and foreign
securities and "Blue Sky" laws in connection with the transactions contemplated
by this Agreement.
(c) Aon and Combined Specialty shall prepare, and Combined
Specialty shall file and seek to make effective, an application for the listing
of the Combined Specialty Common Stock on the NYSE, subject to official notice
of issuance.
(d) The Parties shall cooperate in preparing, filing with the SEC
and causing to become effective any registration statements or amendments
thereto that are necessary or appropriate in order to effect the transactions
contemplated hereby or to reflect the establishment of, or amendments to, any
employee benefit plans contemplated hereby.
6.11 NO NONCOMPETITION; NONHIRING. (a) After the Distribution,
either Party may, except as otherwise provided in the Operating Agreements, (i)
engage in the same or similar activities or lines of business as the other Party
or (ii) do business, or refrain from doing business, with any potential or
actual supplier or customer of the other Party.
(b) During the period beginning on the date hereof and ending on
the first anniversary of the Distribution Date, neither Aon or its Subsidiaries
nor Combined Specialty or its Subsidiaries shall, directly or indirectly,
without the prior written consent of the other, hire
27
any person who is employed by, or who during such period has terminated
employment with, the other Party (or any of its Subsidiaries), PROVIDED,
HOWEVER, that such restrictions shall not apply with respect to the hiring of a
person whose employment was terminated on an involuntary basis by action of a
Party (or any of its Subsidiaries).
6.12 LITIGATION. (a) As of the Distribution, Combined Specialty
or its Subsidiaries, as appropriate, shall assume and pay all Liabilities that
may result from the Assumed Actions and all fees and costs relating to the
defense of the Assumed Actions, including attorneys' fees and costs incurred
after the Distribution. "ASSUMED ACTIONS" shall mean those cases, claims and
investigations (on which Aon, its Subsidiaries or its Affiliates, other than
Combined Specialty and its Subsidiaries, are a defendant or the party against
whom the claim or investigation is directed) primarily related to the Combined
Specialty Business, including reinsurance subrogation actions and those listed
on SCHEDULE 6.12(a) hereto.
(b) Aon and its Subsidiaries shall transfer the Transferred
Actions to Combined Specialty, and Combined Specialty shall receive and have the
benefit of all of the proceeds of such Transferred Actions. "TRANSFERRED
ACTIONS" shall mean those cases and claims (on which Aon, its Subsidiaries or
its Affiliates are a plaintiff or claimant) primarily relating to the Combined
Specialty Business, including reinsurance subrogation actions and those listed
on SCHEDULE 6.12(b) hereto.
(c) Each Party agrees that at all times from and after the
Distribution, if an Action is commenced by a third party naming both Parties as
defendants thereto and with respect to which one Party is a nominal defendant,
then the other Party shall use commercially reasonable efforts to cause such
nominal defendant to be removed from such Action.
6.13 SIGNS; USE OF COMPANY NAME. As soon as practicable, and in
any event within 180 days after the Distribution Date, the Parties, at Combined
Specialty's expense, shall remove (or, if necessary, on an interim basis cover
up) any and all exterior and interior signs and identifiers that refer or
pertain to Aon, any of its Subsidiaries or the Retained Business on the
Transferred Assets, in the case of Combined Specialty, or that refer or pertain
to Combined Specialty, any of its Subsidiaries or the Transferred Business on
the Retained Assets, in the case of Aon. After such period, (i) Combined
Specialty and its Subsidiaries shall not use or display the name "Aon," or any
variations thereof, or other trademarks, tradenames, logos or identifiers using
any of such names or otherwise owned by or licensed to Aon or any of its
Subsidiaries that have not been assigned or licensed to Combined Specialty or
any of its Subsidiaries, and (ii) Aon and its Subsidiaries shall not use or
display the name "Combined Specialty," "
Combined Specialty Corporation," or any
variations thereof, or other trademarks, tradenames, logos or identifiers using
any of such names or otherwise owned by or licensed to Combined Specialty or any
of its Subsidiaries that have not been assigned or licensed to Aon or any of its
Subsidiaries (collectively, the "NON-PERMITTED NAMES"), without the prior
written consent of the other Party; PROVIDED, HOWEVER, that notwithstanding the
foregoing, nothing contained in this Agreement shall prevent either Party from
using the other's name in public filings with Governmental Authorities,
materials intended for distribution to either Party's stockholders or any other
communication in any medium that describes the relationship between the Parties.
28
6.14 COMMERCIALLY REASONABLE EFFORTS. Upon the terms and subject
to the conditions set forth in this Agreement, each of the Parties agrees to use
all commercially reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and to assist and cooperate with the other
Parties in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including (i) the obtaining of all necessary
actions or non-actions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings (including
filings with Governmental Authorities) and the taking of all reasonable steps as
may be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Authority (including those in connection with
the HSR Act, if any), (ii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated hereby, including seeking to
have any stay or temporary restraining order entered by any court or other
Governmental Authority vacated or reversed and (iv) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO THE DISTRIBUTION
The obligation of Aon to effect the Distribution is subject to
the satisfaction or the waiver by Aon, of each of the following conditions:
7.1 APPROVAL BY AON BOARD OF DIRECTORS. This Agreement and the
transactions contemplated hereby, including the declaration of the Distribution,
shall have been duly approved by the Board of Directors of Aon in accordance
with applicable law and the Second Restated Certificate of Incorporation, as
amended, and By-laws of Aon.
7.2 RECEIPT OF IRS PRIVATE LETTER TAX RULING. Aon shall have
received a ruling from the IRS substantially to the effect that the Contribution
will qualify as a tax-free transaction for federal income tax purposes under
Section 368(a)(1)(D) or Section 351 of the Code, that the Distribution will
qualify as a tax-free distribution for federal income tax purposes under Section
355 of the Code, and that no income, gain or loss will be recognized by Aon,
Combined Specialty or their respective stockholders (other than with respect to
cash received in lieu of fractional shares) upon the Contribution or the
Distribution.
7.3 COMPLIANCE WITH STATE AND FOREIGN SECURITIES AND "BLUE SKY"
LAWS. The Parties shall have taken all such action as may be necessary or
appropriate under state and foreign securities and "blue sky" laws in connection
with the Distribution.
7.4 SEC FILINGS AND APPROVALS. The Parties shall have prepared
and Combined Specialty shall, to the extent required under applicable law, have
filed with the SEC any such documentation and no action letter requests that Aon
reasonably determines are necessary or desirable to effectuate the Distribution,
and each Party shall use commercially
29
reasonable efforts to obtain all necessary approvals or no action letters from
the SEC with respect thereto as soon as practicable.
7.5 EFFECTIVENESS OF REGISTRATION STATEMENT; NO STOP ORDER. The
Registration Statement shall have been declared effective by the SEC, and no
stop order suspending the effectiveness of the Registration Statement shall have
been initiated or, to the knowledge of either of the Parties, threatened by the
SEC.
7.6 DISSEMINATION OF INFORMATION TO AON STOCKHOLDERS. Prior to
the Distribution, the Parties shall have prepared and mailed to the holders of
Aon Common Stock such information concerning Combined Specialty, its business,
operations and management, the Distribution and such other matters as Aon shall
reasonably determine and as may be required by law.
7.7 APPROVAL OF NYSE LISTING APPLICATION. The Combined Specialty
Common Stock to be distributed in the Distribution shall have been approved for
listing on the NYSE, subject to official notice of issuance.
7.8 OPERATING AGREEMENTS. Each of the Operating Agreements shall
have been executed and delivered, and each of such agreements shall be in full
force and effect.
7.9 RESIGNATIONS. Prior to the Distribution, Aon shall cause all
of its designees to resign or to be removed as officers and from all Boards of
Directors or similar governing bodies of Combined Specialty and its Subsidiaries
and Combined Specialty shall cause all of its designees to resign or to be
removed as officers and from all Boards of Directors or similar governing bodies
of Aon and its Subsidiaries (other than Combined Specialty and its
Subsidiaries).
7.10 CONSENTS. (a) All Material Governmental Approvals and
Consents required to permit the valid consummation of the Distribution shall
have been obtained without any conditions being imposed that would have a
material adverse effect on Aon or Combined Specialty.
(b) Aon shall have obtained the consent, approval or waiver of
each Person (other than the Governmental Authorities referred to in SECTION
7.10(a)) whose consent, approval or waiver shall be required in connection with
the Distribution, except those for which the failure to obtain such consents,
approvals or waivers would not, in the reasonable opinion of Aon, individually
or in the aggregate have a material adverse effect on Aon, Combined Specialty or
the consummation of the Distribution.
7.11 NO ACTIONS. No action, suit or proceeding shall have been
instituted or threatened by or before any court or quasi-judicial or
administrative agency of any federal, state, local or foreign jurisdiction or
before any arbitrator to restrain, enjoin or otherwise prevent the Distribution
or the other transactions contemplated by this Agreement (including a stop order
with respect to the effectiveness of the Registration Statement), and no order,
injunction,
30
judgment, ruling or decree issued by any court of competent jurisdiction shall
be in effect restraining the Distribution or such other transactions.
7.12 CONSUMMATION OF PRE-DISTRIBUTION TRANSACTIONS. The
pre-Distribution transactions contemplated by ARTICLE III of this Agreement
shall have been consummated in all material respects.
7.13 NO OTHER EVENTS. No other events or developments shall have
occurred that, in the judgment of the Aon Board of Directors, would result in
the Distribution having a material adverse effect on Aon or its stockholders.
7.14 SATISFACTION OF CONDITIONS. The satisfaction of the
foregoing conditions are for the sole benefit of Aon and shall not give rise to
or create any duty on the part of Aon or the Aon Board of Directors to waive or
not waive any such condition, to effect the Distribution or in any way limit
Aon's power of termination set forth in SECTION 13.12.
ARTICLE VIII
INSURANCE MATTERS
8.1 INSURANCE PRIOR TO THE DISTRIBUTION. Combined Specialty does
hereby agree that Aon and its Subsidiaries shall not have any Liability
whatsoever as a result of the insurance policies and practices of Aon and its
Subsidiaries in effect at any time prior to the Distribution, including as a
result of the level or scope of any such insurance, the creditworthiness of any
insurance carrier, the terms and conditions of any policy and the adequacy or
timeliness of any notice to any insurance carrier with respect to any claim or
potential claim or otherwise.
8.2 OWNERSHIP OF EXISTING POLICIES AND PROGRAMS. Aon or one or
more of its Subsidiaries shall continue to own all property, casualty and
liability insurance policies and programs, including, without limitation,
primary and excess general liability, errors and omissions, automobile, workers'
compensation, property, fire, crime and surety insurance policies, in effect
before the Distribution (the "AON POLICIES"). Aon shall use commercially
reasonable efforts to maintain the Aon Policies in full force and effect up to
and including the Distribution Date, and, subject to the provisions of this
Agreement, Aon and its Subsidiaries shall retain all of their respective rights,
benefits and privileges, if any, under the Aon Policies. Nothing contained
herein shall be construed to be an attempted assignment of or to change the
ownership of the Aon Policies.
8.3 PROCUREMENT OF INSURANCE FOR COMBINED SPECIALTY. To the
extent not already provided for by the terms of an Aon policy, Aon shall use
commercially reasonable efforts to cause Combined Specialty and the appropriate
Combined Specialty Subsidiaries to be named as insureds under Aon Policies that
are related to the Combined Specialty Business and whose effective policy
periods include the Distribution Date, in respect of claims arising out of or
relating to periods prior to the Distribution; PROVIDED, HOWEVER, that nothing
contained herein shall be construed to require Aon or any of its Subsidiaries to
pay any additional premium or
31
other charges in respect to, or waive or otherwise limit any of its rights,
benefits or privileges under, any Aon Policy in order to effect the naming of
Combined Specialty and its Subsidiaries as such.
8.4 ACQUISITION AND MAINTENANCE OF POST-DISTRIBUTION COMBINED
SPECIALTY INSURANCE POLICIES AND PROGRAMS. Commencing on and as of the
Distribution Date, Combined Specialty shall establish and maintain separate
property, casualty and liability insurance policies and programs (including,
without limitation, primary and excess general liability, errors and omissions,
automobile, workers' compensation, property, fire, crime, surety and other
similar insurance policies) for activities and claims involving Combined
Specialty or any of its Subsidiaries or Affiliates, in each case with
commercially reasonable limits and deductibles. Combined Specialty agrees to
maintain errors and omissions coverage with limits of at least $* for a period
of at least * years after the Distribution. All insurance policies required to
be maintained by Combined Specialty shall be with insurers reasonably acceptable
to Aon with respect to financial condition and claims-paying ability. Combined
Specialty will exercise commercially reasonable efforts to secure liability
insurance to avoid potential gaps in coverage for claims arising from events
prior to the Distribution, which gap would not exist had the Combined Specialty
Business continued to be covered with the same retroactive dates existing in the
Aon Policies in effect on the Distribution Date. Combined Specialty and its
Subsidiaries shall be responsible for all administrative and financial matters
relating to insurance policies established and maintained by Combined Specialty
and its Subsidiaries or Affiliates for claims relating to any period on or after
the Distribution involving Combined Specialty or any of its Subsidiaries or
Affiliates. Notwithstanding any other agreement or understanding to the
contrary, except as set forth in SECTION 8.6 with respect to claims
administration and financial administration of the Aon Policies, neither Aon nor
any of its Subsidiaries or Affiliates shall have any responsibility for or
obligation to Combined Specialty or any of its Subsidiaries or Affiliates
relating to property and casualty insurance matters for any period, whether
prior to, on or after the Distribution Date. The provisions of this SECTION 8.4
regarding claims administration and financial administration relating to
insurance policies are not intended to limit the ability of either Party to
exercise its rights with respect to the defense of any Third Party Claim
pursuant to SECTION 10.6.
8.5 COMBINED SPECIALTY DIRECTORS' AND OFFICERS' INSURANCE. Aon
shall use commercially reasonable efforts to cause the persons currently serving
as officers and/or directors of Aon or any of its Subsidiaries who serve as
officers and/or directors of Combined Specialty or any of its Subsidiaries on
the Distribution Date to be covered for a period of six (6) years from the
Distribution Date by the directors' and officers' liability insurance policy
maintained by Aon (including corporate reimbursement) (PROVIDED that Aon may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions that are not less advantageous than such policy)
with respect to matters covered under the existing policy occurring prior to the
Distribution that were committed by such officers and/or directors in their
capacity as such; PROVIDED, HOWEVER, that in no event shall Aon be required to
expend with respect to any year more than 200% of the current annual premium
expended by Aon (the "INSURANCE AMOUNT") to maintain or procure insurance
coverage pursuant hereto; and PROVIDED, FURTHER, that if Aon is unable to
maintain or obtain the insurance called for by this SECTION 8.5,
32
Aon shall use commercially reasonable efforts to obtain as much comparable
insurance as available for the Insurance Amount. In the event Aon or any of its
successors or assigns (i) consolidates with or merges into any other Person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger, or (ii) transfers or conveys all or substantially all
of its properties and assets to any Person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of Aon assume the obligations set forth in this SECTION 8.5. The
provisions of this SECTION 8.5 are intended to be for the benefit of, and shall
be enforceable by, each such officer and director and his or her heirs and
representatives. As provided in SECTION 10.5, any amount Combined Specialty is
required to pay to Aon as an indemnity under this Agreement is reduced to the
extent Aon receives insurance proceeds from the above coverage, but only to the
extent such proceeds are actually received by Aon.
8.6 POST-DISTRIBUTION INSURANCE CLAIMS ADMINISTRATION. Aon and
its Subsidiaries shall have the primary right, responsibility and authority for
claims administration and financial administration of claims that relate to or
affect the Aon Policies. Upon notification by Combined Specialty or one of its
Subsidiaries or Affiliates of a claim relating to Combined Specialty or a
Subsidiary or Affiliate thereof under one or more of the Aon Policies, Aon shall
cooperate with Combined Specialty in asserting and pursuing coverage and payment
for such claim by the appropriate insurance carrier(s). In asserting and
pursuing such coverage and payment, Aon shall have sole power and authority to
make binding decisions, determinations, commitments and stipulations on its own
behalf and on behalf of Combined Specialty and its Subsidiaries and Affiliates,
which decisions, determinations, commitments and stipulations shall be final and
conclusive if reasonably made to maximize the overall economic benefit of the
Aon Policies. Combined Specialty and its Subsidiaries and Affiliates shall
assume responsibility for, and shall pay to the appropriate insurance carriers
or otherwise, any premiums, retrospectively-rated premiums, defense costs,
indemnity payments, deductibles, retentions or other charges (collectively,
"INSURANCE CHARGES") whenever arising, which shall become due and payable under
the terms and conditions of any applicable Aon Policy in respect of any
liabilities, losses, claims, actions or occurrences, whenever arising or
becoming known, involving or relating to any of the assets, businesses,
operations or liabilities of Combined Specialty or any of its Subsidiaries or
Affiliates, whether the same relate to the period prior to, on or after the
Distribution Date. To the extent that the terms of any applicable Aon Policy
provide that Aon or any of its Subsidiaries shall have an obligation to pay or
guarantee the payment of any Insurance Charges relating to Combined Specialty or
any of its Subsidiaries, Aon shall be entitled to demand that Combined Specialty
make such payment directly to the Person or entity entitled thereto. In
connection with any such demand, Aon shall submit to Combined Specialty a copy
of any invoice received by Aon pertaining to such Insurance Charges together
with appropriate supporting documentation, to the extent available. In the event
that Combined Specialty fails to pay any such Insurance Charges when due and
payable, whether at the request of the Person entitled to payment or upon demand
by Aon, Aon and its Subsidiaries may (but shall not be required to) pay such
insurance charges for and on behalf of Combined Specialty and, thereafter,
Combined Specialty shall forthwith reimburse Aon for such payment. Subject to
the other provisions of this ARTICLE VIII, the retention by Aon of the Aon
Policies and the responsibility for claims administration and financial
administration of such policies are in no way intended to limit, inhibit or
preclude any
33
right of Combined Specialty, Aon or any other insured to insurance
coverage for any Insured Claims under the Aon Policies. The provisions of this
SECTION 8.6 regarding claims administration and financial administration
relating to the Aon Policies are not intended to limit the ability of either
Party to exercise its rights with respect to the defense of any Third Party
Claim pursuant to SECTION 10.6.
8.7 ALLOCATION OF INSURANCE PROCEEDS UNDER AON POLICIES. (a) For
any claim period under an Aon Policy in which (i) Insurance Proceeds are
recovered and (ii) Insured Claims relate both to the Combined Specialty Business
and the Retained Business, the total Insurance Proceeds recovered for such claim
period and any applicable deductible or retention shall be allocated (an
"ALLOCATION") between them in proportion to the aggregate Insured Claims with
respect to such claim period asserted for the benefit of each. The Parties shall
settle by cash payment (an "ALLOCATION PAYMENT") any difference between (i) the
Insurance Proceeds received by (or previously allocated to) each and any
deductible or retention satisfied by (or previously allocated to) each and (ii)
the amounts determined in connection with an Allocation.
(b) Whenever Insurance Proceeds are received for a claim period
described in SECTION 8.7(a), Aon will, not later than [30 business days] after
receipt thereof, calculate an Allocation and the amount of any applicable
Allocation Payment and deliver notice (an "ALLOCATION NOTICE") thereof to
Combined Specialty. Combined Specialty shall have a period of [30 business days]
after the receipt of an Allocation Notice within which to respond thereto. If
Combined Specialty does not respond within such [30 business-day] period,
Combined Specialty shall be deemed to have accepted the Allocation Notice. If
Combined Specialty does respond within such [30 business-day] period and rejects
the Allocation Notice in whole or in part, Aon may pursue resolution as provided
in ARTICLE XI.
(c) Not later than [5 business days] following the date on which
an Allocation Notice has been accepted or is otherwise finally determined, Aon
or Combined Specialty, as the case may be, shall make any Allocation Payment set
forth on the Allocation Notice.
(d) If either Party incurs a Liability that would be an Insured
Claim with respect to any claim period described in SECTION 8.7(a) but for any
applicable policy limit, the Parties shall agree to an Allocation and a
corresponding Allocation Payment as if such Liability was an Insured Claim
without assuming the recovery of any additional Insurance Proceeds.
8.8 CERTAIN ADJUSTMENTS. The Parties acknowledge that prepaid
insurance premiums and any cash received by Aon or its Subsidiaries with respect
to prepaid insurance is not included within the Transferred Assets.
Notwithstanding the foregoing, Aon agrees to pay to Combined Specialty, promptly
upon receipt by Aon, the amount of any cash received by Aon and its Subsidiaries
from * as a premium adjustment to reflect the exclusion of Combined Specialty
and its Subsidiaries from the coverage of the Aon Policies.
8.9 NON-WAIVER OF RIGHTS TO COVERAGE. An insurance carrier that
would otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto, or, solely by virtue of the provisions of
this ARTICLE VIII, have any subrogation rights
34
with respect thereto, it being expressly understood and agreed that no
insurance carrier or any third party shall be entitled to a windfall (I.E., a
benefit they would not be entitled to receive had no Distribution occurred or in
the absence of the provisions of this ARTICLE VIII) by virtue of the provisions
hereof.
8.10 SCOPE OF AFFECTED POLICIES OF INSURANCE. The provisions of
this ARTICLE VIII relate solely to matters involving liability, casualty and
workers' compensation insurance, and shall not be construed to affect any
obligation of or impose any obligation on the Parties with respect to any life,
health and accident, dental or medical insurance policies applicable to any of
the officers, directors, employees or other representatives of the Parties or
their Affiliates.
ARTICLE IX
EXPENSES
9.1 ALLOCATION OF EXPENSES. (a) Except as otherwise provided in
this Agreement, the Operating Agreements or any other agreement contemplated
hereby, or as otherwise agreed to in writing by the Parties, all fees and
expenses incurred in connection with the transactions contemplated hereby or
thereby shall be paid by Aon. Specifically, (i) Aon shall absorb all of the
costs associated with the dedication of internal resources and personnel to such
transaction at all times prior to the Distribution, and (ii) Aon shall pay all
fees and expenses that are related directly to the implementation of the
Distribution transactions prior to the Distribution.
(b) Without limiting the generality of the foregoing, Aon shall
be solely responsible for the following costs incurred in connection with the
transactions contemplated hereby: (i) the reasonable fees and expenses of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, and other legal counsel, in connection with
its representation of Aon; (ii) the reasonable fees and expenses of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ relating to its financial advisory services rendered to Aon
and Combined Specialty in connection with the Distribution; (iii) the reasonable
fees and expenses of Ernst & Young LLP in connection with its audit and tax
services rendered to Aon; (iv) all SEC registration and "blue sky" filing fees
associated with the Registration Statement; (v) the printing, mailing and
distribution of the Information Statement to Aon's stockholders; (vi) the
reasonable fees and expenses of Combined Specialty's Transfer Agent and
registrar relating to the initial issuance of shares of Combined Specialty
Common Stock as a dividend to Aon's stockholders; (vii) the NYSE listing fees
for the Combined Specialty Common Stock; (viii) the design and initial printing
of certificates representing the Combined Specialty Common Stock; and (ix) the
development, search and registration of the name "Combined Specialty."
(c) [Notwithstanding SECTION 9.1(a)(i) above, Combined Specialty
shall be solely responsible for all fees, expenses and other costs incurred in
connection with the transactions contemplated hereby related to: (i) the
reasonable fees and expenses of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ in connection with
its representation of Combined Specialty related to the creation of benefits
plans; (ii) the reasonable fees and expenses relating to the syndication and
arrangement of credit facilities for Combined Specialty; and (iii) the
reasonable fees or expenses of any financial advisors, other than those approved
by Aon, retained by Combined Specialty in connection with any "road shows" or
presentations to investors.]
35
ARTICLE X
INDEMNIFICATION
10.1 RELEASE OF PRE-DISTRIBUTION CLAIMS. (a) Except as provided
in SECTION 10.1(b), effective as of the Distribution, each Party does hereby, on
behalf of itself and its respective Subsidiaries, successors and assigns,
remise, release and forever discharge the other Party, its respective
Subsidiaries, successors and assigns and all Persons who at any time prior to
the Distribution have been shareholders, directors, officers, agents or
employees of such Party (in each case, in their respective capacities as such),
and their respective heirs, executors, administrators, successors and assigns,
from any and all Liabilities whatsoever, whether at law or in equity (including
any right of contribution), whether arising under any contract or agreement, by
operation of law or otherwise, existing or arising from any acts or events
occurring or failing to occur or alleged to have occurred or to have failed to
occur or any conditions existing or alleged to have existed before the
Distribution, including, among others, any Liability (i) for the sale, lease,
construction or receipt of goods, property or services purchased, obtained or
used in the ordinary course of business by (x) the Combined Specialty Business
from Aon or its Subsidiaries (other than the Combined Specialty Business) or (y)
Aon or its Subsidiaries (other than the Combined Specialty Business) from the
Combined Specialty Business and (ii) in connection with the transactions and all
other activities to implement the Distribution.
(b) Nothing contained in SECTION 10.1(a) shall impair any right
of any Person to enforce this Agreement, any Operating Agreement or any
agreements, arrangements, commitments or understandings that are not to
terminate as of the Distribution, in each case in accordance with its terms.
Nothing contained in SECTION 10.1(a) shall release any Person from:
(i) any Liability provided in or resulting from any agreement of
the Parties that is not to terminate as of the Distribution;
(ii) any Liability, contingent or otherwise, assumed,
transferred, assigned, retained or allocated to that Person in accordance
with, or any other Liability of that Person under, this Agreement or any
Operating Agreement;
(iii) any Liability for unpaid amounts for products or services
or refunds owing on products or services due on a value-received basis for
work done by one Party at the request or on behalf of the other Party; or
(iv) any Liability that the Parties may have with respect to
indemnification or contribution pursuant to this Agreement for claims
brought against the Parties by third Persons, which Liability shall be
governed by the provisions of this ARTICLE X and, if applicable, the
appropriate provisions of the Operating Agreements.
(c) Neither Party shall make, nor permit any of its Subsidiaries
or controlled Affiliates to make, any claim or demand, or commence any Action
asserting any claim or
36
demand, including any claim of contribution or indemnification, against the
other Party, or any other Person released pursuant to SECTION 10.1(a), with
respect to any Liability released pursuant to SECTION 10.1(a).
(d) It is the intent of each of the Parties by virtue of the
provisions of this SECTION 10.1 to provide for a full and complete release and
discharge of all Liabilities existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed before the
Distribution, between the Parties (including any contractual agreements or
arrangements existing or alleged to exist between the Parties before the
Distribution), except as expressly set forth in SECTION 10.1(b). At any time, at
the reasonable request of either Party, the other Party shall execute and
deliver releases reflecting the provisions hereof.
10.2 INDEMNIFICATION BY COMBINED SPECIALTY. Except as provided in
SECTION 10.5, Combined Specialty shall indemnify, defend and hold harmless Aon
and each of its Subsidiaries, Affiliates, directors, officers, employees and
agents, and each of the heirs, executors, successors and assigns of any of the
foregoing (collectively, the "AON INDEMNIFIED PARTIES"), from and against any
and all Expenses or Losses incurred or suffered by Aon (and/or one or more of
the Aon Indemnified Parties), in connection with, relating to, arising out of or
due to, directly or indirectly, any of the following items:
(a) any claim that the information included in the Registration
Statement or the Information Statement that relates to the Combined Specialty
Business or any other information relating to the Combined Specialty Business is
or was false or misleading with respect to any material fact or omits or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, regardless of whether the occurrence, action or other
event giving rise to the applicable matter took place prior to or subsequent to
the Distribution;
(b) the Combined Specialty Business as conducted by Aon or its
Subsidiaries or Affiliates at any time prior to the Distribution, other than
the sale, lease, construction or receipt of goods, property or services
purchased, obtained or used in the ordinary course of business by Aon or its
Subsidiaries (other than the Combined Specialty Business) from the Combined
Specialty Business;
(c) the Transferred Assets;
(d) the Assumed Liabilities;
(e) any Guarantees of Aon or any Subsidiary of Aon (other than
Combined Specialty and its Subsidiaries) of obligations of Combined Specialty or
any of its Subsidiaries or that are otherwise related to the business conducted
by Combined Specialty and its Subsidiaries, including, without limitation, those
relating to insurance programs maintained by Aon or any Subsidiary of Aon
relating to Combined Specialty, its Subsidiaries, or the business conducted by
any of them;
37
(f) the breach by Combined Specialty or any of its Subsidiaries
of any covenant or agreement set forth in this Agreement, any Conveyancing
Instrument or any Operating Agreement other than the Transition Services
Agreement, regardless of when or where the loss, claim, accident, occurrence,
event or happening giving rise to the Expense or Loss took place, or whether any
such loss, claim, accident, occurrence, event or happening is known or unknown,
or reported or unreported, it being understood that the availability of
indemnification with respect to any loss, claim, accident, occurrence, event or
happening arising out of or relating to the Transition Services Agreement shall
be governed by the terms thereof;
(g) [the employee benefits provided or the actions taken or
omitted to be taken with respect thereto in connection with this Agreement, the
Employee Benefits Agreement or otherwise relating to the provision of employee
benefits to employees or former employees of Combined Specialty (or its
Subsidiaries), their beneficiaries, alternate payees or any other person
claiming benefits through them (except to the extent such Expenses or Losses are
specifically allocated to Aon pursuant to the Employee Benefits Agreement),
including, without limitation, Expenses or Losses arising in connection with
Combined Specialty's reduction, elimination or failure to provide any benefit
provided prior to or after the Distribution to its employees or employees of any
of its Subsidiaries; or]
(h) any use of, access to or reliance upon the information or
data made available to Combined Specialty or its Subsidiaries pursuant to
SECTION 12.1.
10.3 INDEMNIFICATION BY AON. Except as provided in SECTION 10.5,
Aon shall indemnify, defend and hold harmless Combined Specialty and each of its
Subsidiaries, Affiliates, directors, officers, employees and agents, and each of
the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "COMBINED SPECIALTY INDEMNIFIED PARTIES"), from and against
any and all Expenses or Losses incurred or suffered by Combined Specialty
(and/or one or more of the Combined Specialty Indemnified Parties) in connection
with, relating to, arising out of or due to, directly or indirectly, any of the
following items:
(a) any claim that the information included in the Registration
Statement or the Information Statement that relates to Aon or the Retained
Business or any other information relating to the Retained Business is or was
false or misleading with respect to any material fact or omits or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, regardless of whether the occurrence, action or other
event giving rise to the applicable matter took place prior to or subsequent to
the Distribution;
(b) the business (other than the Combined Specialty Business)
conducted by Aon or its Subsidiaries or Affiliates at any time prior to the
Distribution, other than the sale, lease, construction or receipt of goods,
property or services purchased, obtained or used in the ordinary course of
business by the Combined Specialty Business from Aon or its Subsidiaries
(other than the Combined Specialty Business);
38
(c) the Retained Assets;
(d) the Liabilities (including the Retained Liabilities) of Aon
or its Subsidiaries other than the Assumed Liabilities;
(e) any Guarantees of Combined Specialty or any Subsidiary of
Combined Specialty of obligations of Aon or any of its Subsidiaries (other than
Combined Specialty and its Subsidiaries) or that are otherwise related to the
business conducted by Aon and its Subsidiaries (other than Combined Specialty
and its Subsidiaries);
(f) the breach by Aon or any of its Subsidiaries of any covenant
or agreement set forth in this Agreement, any Conveyancing Instrument or any
Operating Agreement other than the Transition Services Agreement, regardless of
when or where the loss, claim, accident, occurrence, event or happening giving
rise to the Expense or Loss took place, or whether any such loss, claim,
accident, occurrence, event or happening is known or unknown, or reported or
unreported, it being understood that the availability of indemnification with
respect to any loss, claim, accident, occurrence, event or happening arising out
of or relating to the Transition Services Agreement shall be governed by the
terms thereof;
(g) Aon's reduction, elimination or failure to provide any
benefit provided prior to or after the Distribution to its employees (or
employees of its Subsidiaries), other than a benefit assumed by Combined
Specialty pursuant to the Employee Benefits Agreement, or any act or omission by
Aon in connection with the transfer of assets and liabilities from the Aon
Qualified Savings Plan and Aon Qualified Pension Plan to the CSC Qualified
Savings Plan and CSC Qualified Pension Plan; or
(h) any use of, access to or reliance upon the information or
data made available to Aon or its Subsidiaries pursuant to SECTION 12.1.
10.4 APPLICABILITY OF AND LIMITATION ON INDEMNIFICATION. (a)
Except as expressly provided herein, the indemnity obligation under this ARTICLE
X shall apply notwithstanding any investigation made by or on behalf of any
indemnified party and shall apply without regard to whether the loss, liability,
claim, damage, cost or expense for which indemnity is claimed hereunder is based
on strict liability, absolute liability or arises as an obligation for
contribution.
(b) Notwithstanding anything in this agreement to the contrary,
in no event shall Aon be liable to Combined Specialty (or any Combined Specialty
Indemnified Party), or Combined Specialty be liable to Aon (or any Aon
Indemnified Party), under this agreement for any special, consequential or
punitive damages, including loss of anticipated profits or loss or diminution of
revenues, regardless of the form of action, whether in contract, tort or
otherwise, except to the extent that such liability has been asserted by a third
party against a party entitled to indemnification hereunder.
39
10.5 ADJUSTMENT OF INDEMNIFIABLE LOSSES. (a) The amount that any
Party (an "INDEMNIFYING PARTY") is required to pay to any Person entitled to
indemnification hereunder (an "INDEMNIFIED PARTY") shall be reduced (including,
without limitation, retroactively) by any Insurance Proceeds and other amounts
actually recovered by or on behalf of such Indemnified Party in reduction of the
related Expense or Loss. If an Indemnified Party receives a payment (an
"INDEMNITY PAYMENT") required by this Agreement from an Indemnifying Party in
respect of any Expense or Loss and subsequently actually receives Insurance
Proceeds or other amounts in respect of such Expense or Loss, then such
Indemnified Party shall pay to the Indemnifying Party a sum equal to the lesser
of (i) the after-tax amount of such Insurance Proceeds or other amounts actually
received or (ii) the net amount of Indemnity Payments actually received
previously, in each case increased by any actual tax benefit derived by the
Indemnified Party as a result of such payment (with such tax benefit determined
pursuant to SECTION 10.5(d)). The Indemnified Party agrees that the Indemnifying
Party shall be subrogated to such Indemnified Party under any insurance policy.
(b) An insurer who would otherwise be obligated to pay any claim
shall not be relieved of the responsibility with respect thereto, or, solely by
virtue of the indemnification provisions hereof, have any subrogation rights
with respect thereto, it being expressly understood and agreed that no insurer
or any other third party shall be entitled to a "windfall" (i.e., a benefit he
or she would not be entitled to receive in the absence of the indemnification
provisions) by virtue of the indemnification provisions hereof.
(c) If any Indemnified Party realizes a Tax benefit or detriment
in one or more Tax periods by reason of having incurred an Expense or a Loss for
which such Indemnified Party receives an Indemnity Payment from an Indemnifying
Party (or by reason of the receipt of any Indemnity Payment), then such
Indemnified Party shall pay to such Indemnifying Party an amount equal to the
Tax benefit or such Indemnifying Party shall pay to such Indemnified Party an
additional amount equal to the Tax detriment (taking into account, without
limitation, any Tax detriment resulting from the receipt of such additional
amounts), as the case may be. The amount of any Tax benefit or any Tax detriment
for a Tax period realized by an Indemnified Party by reason of having incurred
an Expense or a Loss (or by reason of the receipt of any Indemnity Payment)
shall be deemed to equal the product obtained by multiplying (i) the amount of
any deduction or loss or inclusion in income for such period resulting from such
Expense or Loss (or the receipt of any Indemnity Payment or additional amount),
as the case may be, without regard to whether such deduction or loss or such
inclusion in income results in any actual decrease or increase in Tax liability
for such period (with the amount of any deduction or loss or inclusion in income
determined in accordance with SECTION 10.5(d) below), by (ii) the highest
applicable marginal Tax rate for such period (PROVIDED, HOWEVER, that the amount
of any Tax benefit attributable to an amount that is creditable shall be deemed
to equal the amount of such creditable item). Any payment due under this SECTION
10.5(c) with respect to a Tax benefit or Tax detriment realized by an
Indemnified Party in a Tax period shall be due and payable within 30 days from
the time the return for such Tax period is due, without taking into account any
extension of time granted to the Party filing such return.
(d) Amounts paid by Aon to or for the benefit of Combined
Specialty, or by
40
Combined Specialty to or for the benefit of Aon, under this ARTICLE X (and under
other specified provisions of this Agreement) shall be treated by the Parties,
for all applicable Tax purposes, as adjustments to the amount of Transferred
Assets.
(e) In the event that an Indemnity Payment shall be denominated
in a currency other than United States dollars, the amount of such payment shall
be translated into United States dollars using the Foreign Exchange Rate for
such currency determined in accordance with the following rules:
(i) with respect to an Expense or a Loss arising from payment by
a financial institution under a guarantee, comfort letter, letter of
credit, foreign exchange contract or similar instrument, the Foreign
Exchange Rate for such currency shall be determined as of the date on which
such financial institution shall have been reimbursed;
(ii) with respect to an Expense or a Loss covered by insurance,
the Foreign Exchange Rate for such currency shall be the Foreign Exchange
Rate employed by the insurance company providing such insurance in settling
such Expense or Loss with the Indemnifying Party; and
(iii) with respect to an Expense or a Loss not covered by clause
(i) or (ii) above, the Foreign Exchange Rate for such currency shall be
determined as of the date that notice of the claim with respect to such
Expense or Loss shall be given to the Indemnified Party.
10.6 PROCEDURES FOR INDEMNIFICATION OF THIRD PARTY CLAIMS. (a) If
any third party shall make any claim or commence any arbitration proceeding or
suit (collectively, a "THIRD PARTY CLAIM") against any one or more of the
Indemnified Parties with respect to which an Indemnified Party intends to make
any claim for indemnification against Combined Specialty under SECTION 10.2 or
against Aon under SECTION 10.3, such Indemnified Party shall promptly give
written notice to the Indemnifying Party describing such Third Party Claim in
reasonable detail, and the following provisions shall apply. Notwithstanding the
foregoing, the failure of any Indemnified Party to provide notice in accordance
with this SECTION 10.6(a) shall not relieve the related Indemnifying Party of
its obligations under this ARTICLE X, except to the extent that such
Indemnifying Party is actually prejudiced by such failure to provide notice.
(b) The Indemnifying Party shall have 20 business days after
receipt of the notice referred to in SECTION 10.6(a) to notify the Indemnified
Party that it elects to conduct and control the defense of such Third Party
Claim. If the Indemnifying Party does not give the foregoing notice, the
Indemnified Party shall have the right to defend, contest, settle or compromise
such Third Party Claim in the exercise of its exclusive discretion subject to
the provisions of SECTION 10.6(c), and the Indemnifying Party shall, upon
request from any of the Indemnified Parties, promptly pay to such Indemnified
Parties in accordance with the other terms of this SECTION 10.6(b) the amount of
any Expense or Loss resulting from their liability to the third party claimant.
If the Indemnifying Party gives the foregoing notice, the Indemnifying Party
shall have the right to undertake, conduct and control, through counsel
reasonably acceptable to the
41
Indemnified Party, and at its sole expense, the conduct and settlement of such
Third Party Claim, and the Indemnified Party shall cooperate with the
Indemnifying Party in connection therewith, PROVIDED that (i) the Indemnifying
Party shall use reasonable best efforts to prevent any lien, encumbrance or
other adverse charge to thereafter attach to any asset of any Indemnified Party;
(ii) the Indemnifying Party use reasonable best efforts to prevent any
injunction against any Indemnified Party; (iii) the Indemnifying Party shall
permit the Indemnified Party and counsel chosen by the Indemnified Party and
reasonably acceptable to the Indemnifying Party to monitor such conduct or
settlement and shall provide the Indemnified Party and such counsel with such
information regarding such Third Party Claim as either of them may reasonably
request (which request may be general or specific), but the fees and expenses of
such counsel (including allocated costs of in-house counsel and other personnel)
shall be borne by the Indemnified Party unless (A) the Indemnifying Party and
the Indemnified Party shall have mutually agreed to the retention of such
counsel or (B) the named parties to any such Third Party Claim include the
Indemnified Party and the Indemnifying Party and in the reasonable opinion of
counsel to the Indemnified Party representation of both parties by the same
counsel would be inappropriate due to actual or likely conflicts of interest
between them, in either of which cases the reasonable fees and disbursements of
counsel for such Indemnified Party (including allocated costs of in-house
counsel and other personnel) shall be reimbursed by the Indemnifying Party to
the Indemnified Party; and (iv) the Indemnifying Party shall agree promptly to
reimburse to the extent required under this ARTICLE X the Indemnified Party for
the full amount of any Expense or Loss resulting from such Third Party Claim and
all related expenses incurred by the Indemnified Party. In no event shall the
Indemnifying Party, without the prior written consent of the Indemnified Party,
settle or compromise any claim or consent to the entry of any judgment that does
not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party a release from all liability in respect of
such claim.
If the Indemnifying Party shall not have undertaken the conduct
and control of the defense of any Third Party Claim as provided above, the
Indemnifying Party shall nevertheless be entitled through counsel chosen by the
Indemnifying Party and reasonably acceptable to the Indemnified Party to monitor
the conduct or settlement of such claim by the Indemnified Party, and the
Indemnified Party shall provide the Indemnifying Party and such counsel with
such information regarding such Third Party Claim as either of them may
reasonably request (which request may be general or specific), but all costs and
expenses incurred in connection with such monitoring shall be borne by the
Indemnifying Party.
(c) So long as the Indemnifying Party is contesting any such
Third Party Claim in good faith, the Indemnified Party shall not pay or settle
any such Third Party Claim. Notwithstanding the foregoing, the Indemnified Party
shall have the right to pay or settle any such Third Party Claim, PROVIDED that
in such event the Indemnified Party shall waive any right to indemnity therefor
by the Indemnifying Party, and no amount in respect thereof shall be claimed as
an Expense or a Loss under this ARTICLE X.
If the Indemnified Party shall have undertaken the conduct and
control of the defense of any Third Party Claim as provided above, the
Indemnified Party, on not less than 30 days prior written notice to the
Indemnifying Party, may make settlement (including payment in
42
full) of such Third Party Claim, and such settlement shall be binding upon the
Parties for the purposes hereof, unless within said 30-day period the
Indemnifying Party shall have requested the Indemnified Party to contest such
Third Party Claim at the expense of the Indemnifying Party. In such event, the
Indemnified Party shall promptly comply with such request and the Indemnifying
Party shall have the right to direct the defense of such claim or any litigation
based thereon subject to all of the conditions of SECTION 10.6(b).
Notwithstanding anything in this SECTION 10.6(c) to the contrary, if the
Indemnified Party, in the belief that a claim may materially and adversely
affect it other than as a result of money damages or other money payments,
advises the Indemnifying Party that it has determined to settle a claim, the
Indemnified Party shall have the right to do so at its own cost and expense,
without any requirement to contest such claim at the request of the Indemnifying
Party, but without any right under the provisions of this ARTICLE X for
indemnification by the Indemnifying Party.
(d) To the extent that, with respect to any Tax audit or
proceeding governed by ARTICLE V of the Tax Sharing Agreement, there is any
inconsistency between the provisions of such ARTICLE V and of this SECTION 10.6,
the provisions of ARTICLE V of the Tax Sharing Agreement shall control with
respect to such Tax audit or proceeding.
10.7 PROCEDURES FOR INDEMNIFICATION OF DIRECT CLAIMS. Any claim
for indemnification on account of an Expense or a Loss made directly by the
Indemnified Party against the Indemnifying Party and that does not result from a
Third Party Claim shall be asserted by written notice from the Indemnified Party
to the Indemnifying Party specifically claiming indemnification hereunder. Such
Indemnifying Party shall have a period of 30 business days after the receipt of
such notice within which to respond thereto. If such Indemnifying Party does not
respond within such 30 business-day period, such Indemnifying Party shall be
deemed to have accepted responsibility to make payment and shall have no further
right to contest the validity of such claim. If such Indemnifying Party does
respond within such 30 business-day period and rejects such claim in whole or in
part, such Indemnified Party may pursue resolution as provided in ARTICLE XI.
10.8 CONTRIBUTION. If the indemnification provided for in this
ARTICLE X is unavailable to an Indemnified Party in respect of any Expense or
Loss arising out of or related to information contained in the Registration
Statement or the Information Statement, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Expense or Loss in such
proportion as is appropriate to reflect the relative fault of the Combined
Specialty Indemnified Parties, on the one hand, or the Aon Indemnified Parties,
on the other hand, in connection with the statements or omissions that resulted
in such Expense or Loss. The relative fault of any Combined Specialty
Indemnified Party, on the one hand, and of any Aon Indemnified Party, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission of a material fact relates to information about or supplied by the
Combined Specialty Business or a Combined Specialty Indemnified Party, on the
one hand, or about or by the Retained Business or an Aon Indemnified Party, on
the other hand.
43
10.9 REMEDIES CUMULATIVE. The remedies provided in this ARTICLE X
shall be cumulative and, subject to the provisions of ARTICLE XI below, shall
not preclude assertion by an Indemnified Party of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
10.10 SURVIVAL. All covenants and agreements of the Parties
contained in this Agreement relating to indemnification shall survive the
Distribution Date indefinitely, unless a specific survival or other applicable
period is expressly set forth herein.
ARTICLE XI
DISPUTE RESOLUTION
11.1 AGREEMENT TO ARBITRATE. Except as otherwise specifically
provided in any Operating Agreement, the procedures for discussion, negotiation
and arbitration set forth in this ARTICLE XI shall apply to all disputes,
controversies or claims (whether sounding in contract, tort or otherwise) that
may arise out of or relate to, or arise under or in connection with, this
Agreement or any Operating Agreement, or the transactions contemplated hereby or
thereby (including all actions taken in furtherance of the transactions
contemplated hereby or thereby on or prior to the date hereof). Each Party
agrees on behalf of itself and its respective Subsidiaries and controlled
Affiliates that the procedures set forth in this ARTICLE XI shall be the sole
and exclusive remedy in connection with any dispute, controversy or claim
relating to any of the foregoing matters and irrevocably waives any right to
commence any Action in or before any Governmental Authority, except as expressly
provided in SECTION 11.7(b) and except to the extent provided under the
Arbitration Act in the case of judicial review of arbitration results or awards.
EACH PARTY ON BEHALF OF ITSELF AND ITS RESPECTIVE SUBSIDIARIES AND CONTROLLED
AFFILIATES IRREVOCABLY WAIVES ANY RIGHT TO ANY TRIAL IN A COURT THAT WOULD
OTHERWISE HAVE JURISDICTION OVER ANY CLAIM, CONTROVERSY OR DISPUTE SET FORTH IN
THE FIRST SENTENCE OF THIS SECTION 11.1.
11.2 ESCALATION AND MEDIATION. (a) The Parties agree to use
commercially reasonable efforts to resolve expeditiously any dispute,
controversy or claim between them with respect to the matters covered hereby
that may arise from time to time on a mutually acceptable negotiated basis. In
furtherance of the foregoing, any Party involved in a dispute, controversy or
claim may deliver a notice (an "ESCALATION NOTICE") demanding an in-person
meeting involving representatives of the Parties at a senior level of management
of the Parties (or if the Parties agree, of the appropriate strategic business
unit or division within such entity). A copy of any such Escalation Notice shall
be given to the General Counsel, or like officer or official, of each Party
involved in the dispute, controversy or claim (which copy shall state that it is
an Escalation Notice pursuant to this Agreement). Any agenda, location or
procedures for such discussions or negotiations between the Parties may be
established by the Parties from time to time; PROVIDED, HOWEVER, that the
Parties shall use commercially reasonable efforts to meet within 30 days of the
Escalation Notice.
(b) The Parties may retain a mediator to aid the Parties in their
discussions and
44
negotiations by informally providing advice to the Parties. Any opinion
expressed by the mediator shall be strictly advisory and shall not be binding on
the Parties, nor shall any opinion expressed by the mediator be admissible in
any arbitration proceeding. The mediator shall be selected by the Party that did
not deliver the applicable Escalation Notice from the list of individuals set
forth on SCHEDULE 11.2, the names of which individuals were supplied to the
Parties by JAMS/Endispute. Costs of the mediation shall be borne equally by the
Parties involved in the matter, except that each Party shall be responsible for
its own expenses. Mediation is a prerequisite to a demand for arbitration under
SECTION 11.3.
11.3 PROCEDURES FOR ARBITRATION. (a) At any time after the
completion of the mediation required by SECTION 11.2(b) (the "ARBITRATION DEMAND
DATE"), any Party involved in the dispute, controversy or claim (regardless of
whether such Party delivered the Escalation Notice) may, unless the Applicable
Deadline (as hereinafter defined) has occurred, make a written demand (the
"ARBITRATION DEMAND NOTICE") that the dispute be resolved by binding
arbitration, which Arbitration Demand Notice shall be given to the Parties to
the dispute, controversy or claim in the manner set forth in SECTION 13.9. In
the event that any Party shall deliver an Arbitration Demand Notice to another
Party, such other Party may itself deliver an Arbitration Demand Notice to such
first Party with respect to any related dispute, controversy or claim with
respect to which the Applicable Deadline has not passed without the requirement
of delivering an Escalation Notice. No Party may assert that the failure to
resolve any matter during any discussions or negotiations, the course of conduct
during the discussions or negotiations or the failure to agree on a mutually
acceptable time, agenda, location or procedures for the meeting, in each case,
as contemplated by SECTION 11.2, is a prerequisite to a demand for arbitration
under this SECTION 11.3. In the event that any Party delivers an Arbitration
Demand Notice with respect to any dispute, controversy or claim that is the
subject of any then pending arbitration proceeding or of a previously delivered
Arbitration Demand Notice, all such disputes, controversies and claims shall be
resolved in the arbitration proceeding for which an Arbitration Demand Notice
was first delivered unless the arbitrator in his or her sole discretion
determines that it is impracticable or otherwise inadvisable to do so.
(b) Except as may be expressly provided in any Operating
Agreement, any Arbitration Demand Notice may be given until one year and 45 days
after the later of (i) the occurrence of the act or event giving rise to the
underlying claim or (ii) the date on which such act or event was, or should have
been, in the exercise of reasonable due diligence, discovered by the Party
asserting the claim (as applicable and as it may in a particular case be
specifically extended by the Parties in writing, the "APPLICABLE DEADLINE"). Any
discussions, negotiations or mediations between the Parties pursuant to this
Agreement or otherwise will not toll the Applicable Deadline unless expressly
agreed in writing by the Parties. Each Party agrees on behalf of itself and its
respective Subsidiaries and Affiliates that if an Arbitration Demand Notice with
respect to a dispute, controversy or claim is not given prior to the expiration
of the Applicable Deadline, such dispute, controversy or claim will be barred.
Subject to SECTION 11.7(d), upon delivery of an Arbitration Demand Notice
pursuant to SECTION 11.3(a) prior to the Applicable Deadline, the dispute,
controversy or claim shall be decided by a sole arbitrator in accordance with
the rules set forth in this ARTICLE XI.
45
11.4 SELECTION OF ARBITRATOR. (a) If the amount in dispute is
less than $500,000, the mediator selected by the provisions set forth in SECTION
11.2(b) above shall also serve as the sole arbitrator. If the amount in dispute
equals or exceeds $500,000, the mediator selected by the provisions set forth in
SECTION 11.2(b) above shall select a sole arbitrator from a list provided by
JAMS/Endispute. After selection of such sole arbitrator, the mediator shall have
no further role with respect to the dispute. Any arbitrator selected pursuant to
this paragraph (a) shall be disinterested with respect to any of the Parties and
the matter and shall be reasonably competent in the applicable subject matter.
(b) The sole arbitrator selected pursuant to paragraph (a) above
will set a time for the hearing of the matter which will commence no later than
90 days after the date of appointment of the sole arbitrator pursuant to
paragraph (a) above, and such hearing will be no longer than 30 days (unless in
the judgment of the arbitrator the matter is unusually complex and sophisticated
and thereby requires a longer time, in which event such hearing shall be no
longer than 90 days). The final decision of such arbitrator will be rendered in
writing to the Parties not later than 60 days after the last hearing date,
unless otherwise agreed by the Parties in writing.
11.5 HEARINGS. Within the time period specified in SECTION
11.4(b), the matter shall be presented to the arbitrator at a hearing by means
of written submissions of memoranda and verified witness statements, filed
simultaneously, and responses, if necessary in the judgment of the arbitrator or
both of the Parties. If the arbitrator deems it to be essential to a fair
resolution of the dispute, live cross-examination or direct examination may be
permitted, but is not generally contemplated to be necessary. The arbitrator
shall actively manage the arbitration with a view to achieving a just, speedy
and cost-effective resolution of the dispute, claim or controversy. The
arbitrator may, in his or her sole discretion, set time and other limits on the
presentation of each Party's case, its memoranda or other submissions, and
refuse to receive any proffered evidence that the arbitrator, in his or her sole
discretion, finds to be cumulative, unnecessary, irrelevant or of low probative
nature. Except as otherwise set forth herein, any arbitration hereunder will be
conducted in accordance with the JAMS/Endispute Streamlined Rules for
Commercial, Real Estate and Construction Cases then prevailing. The decision of
the arbitrator will be final and binding on the Parties, and judgment thereon
may be had and will be enforceable in any court having jurisdiction over the
Parties. Arbitration awards will bear interest from the date of the award at an
annual rate of the Prime Rate plus 2% per annum. To the extent that the
provisions of this Agreement and the prevailing rules of JAMS/Endispute
conflict, the provisions of this Agreement shall govern.
11.6 DISCOVERY AND CERTAIN OTHER MATTERS. (a) Any Party involved
in the applicable dispute may request limited document production from the other
Party of specific and expressly relevant documents, with the reasonable expenses
of the producing Party incurred in such production paid by the requesting Party.
Any such discovery (which rights to documents shall be substantially less than
document discovery rights prevailing under the Federal Rules of Civil Procedure)
shall be conducted expeditiously and shall not cause the hearing provided for in
SECTION 11.5 to be adjourned except upon consent of all of the Parties or upon
an extraordinary showing of cause demonstrating that such adjournment is
necessary to permit discovery essential to a Party to the proceeding.
Depositions, interrogatories or other forms of discovery (other than
46
the document production set forth above) shall not occur except by consent of
all of the Parties. Disputes concerning the scope of document production and
enforcement of the document production requests will be determined by written
agreement of the Parties or, failing such agreement, will be referred to the
arbitrator for resolution. All discovery requests will be subject to the
Parties' rights to claim any applicable privilege. The arbitrator will adopt
procedures to protect the proprietary rights of the Parties and to maintain the
confidential treatment of the arbitration proceedings (except as may be required
by law). Subject to the foregoing, the arbitrator shall have the power to issue
subpoenas to compel the production of documents relevant to the dispute,
controversy or claim.
(b) The arbitrator shall have full power and authority to
determine issues of arbitrability but shall otherwise be limited to interpreting
or construing the applicable provisions of this Agreement or any Operating
Agreement, and will have no authority or power to limit, expand, alter, amend,
modify, revoke or suspend any condition or provision of this Agreement or any
Operating Agreement; it being understood, however, that the arbitrator will have
full authority to implement the provisions of this Agreement or any Operating
Agreement and to fashion appropriate remedies for breaches of this Agreement
(including interim or permanent injunctive relief); PROVIDED, HOWEVER, that the
arbitrator shall not have any authority in excess of the authority a court
having jurisdiction over the Parties and the controversy or dispute would have
absent these arbitration provisions. It is the intention of the Parties that in
rendering a decision the arbitrator give effect to the applicable provisions of
this Agreement and the Operating Agreements and follow applicable law (it being
understood and agreed that this sentence shall not give rise to a right of
judicial review of the arbitrator's award).
(c) If a Party fails or refuses to appear at and participate in
an arbitration hearing after due notice, the arbitrator may hear and determine
the controversy upon evidence produced by the appearing Party.
(d) Arbitration costs shall be borne equally by each Party
involved in the matter, except that each Party shall be responsible for its own
attorney's fees and other costs and expenses, including the costs of witnesses
selected by such Party.
11.7 CERTAIN ADDITIONAL MATTERS. (a) Any arbitration award shall
be a bare award limited to a holding for or against a Party and shall be without
findings as to facts, issues or conclusions of law (including with respect to
any matters relating to the validity or infringement of patents or patent
applications) and shall be without a statement of the reasoning on which the
award rests, but must be in adequate form so that a judgment of a court may be
entered thereupon. Judgment upon any arbitration award hereunder may be entered
in any court having jurisdiction thereof.
(b) Prior to the time at which an arbitrator is appointed
pursuant to SECTION 11.4, any Party may seek one or more temporary restraining
orders in a court of competent jurisdiction if necessary in order to preserve
and protect the status quo. Neither the request for, nor the grant or denial of,
any such temporary restraining order shall be deemed a waiver of the obligation
to arbitrate as set forth herein, and the arbitrator may dissolve, continue or
modify any such order.
47
Any such temporary restraining order shall remain in effect until the first to
occur of the expiration of the order in accordance with its terms or the
dissolution thereof by the arbitrator.
(c) Except as required by law, the Parties shall hold, and shall
cause their respective officers, directors, employees, agents and other
representatives to hold, the existence, content and result of mediation or
arbitration in confidence in accordance with the provisions of ARTICLE XII and
except as may be required in order to enforce any award. Each of the Parties
shall request that any mediator or arbitrator comply with such confidentiality
requirement.
(d) In the event that at any time the sole arbitrator shall fail
to serve as an arbitrator for any reason, the Parties shall select a new
arbitrator who shall be disinterested as to the Parties and the matter in
accordance with the procedure set forth herein for the selection of the initial
arbitrator. The extent, if any, to which testimony previously given shall be
repeated or as to which the replacement arbitrator elects to rely on the
stenographic record (if there is one) of such testimony shall be determined by
the replacement arbitrator.
11.8 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the Parties will continue to provide service and honor all
other commitments under this Agreement and each Operating Agreement during the
course of dispute resolution pursuant to the provisions of this ARTICLE XI with
respect to all matters not subject to such dispute, controversy or claim.
11.9 LAW GOVERNING ARBITRATION PROCEDURES. The interpretation of
the provisions of this ARTICLE XI, only insofar as they relate to the agreement
to arbitrate and any procedures pursuant thereto, shall be governed by the
Arbitration Act and other applicable federal law. In all other respects, the
interpretation of this Agreement shall be governed as set forth in SECTION 13.2.
11.10 CHOICE OF FORUM. Any arbitration hereunder shall take place
in Chicago,
Illinois, unless otherwise agreed in writing by the Parties.
ARTICLE XII
ACCESS TO INFORMATION AND SERVICES
12.1 AGREEMENT FOR EXCHANGE OF INFORMATION. (a) At all times from
and after the Distribution Date for a period of ten (10) years, as soon as
reasonably practicable after written request: (i) Aon shall afford to Combined
Specialty, its Subsidiaries and their authorized accountants, counsel and other
designated representatives reasonable access during normal business hours to,
or, at Combined Specialty's expense, provide copies of, all records, books,
contracts, instruments, data, documents and other information (collectively,
"INFORMATION") in the possession or under the control of Aon immediately
following the Distribution that relates to Combined Specialty, the Combined
Specialty Business or employees of the Combined Specialty Business; and (ii)
Combined Specialty shall afford to Aon, its Subsidiaries and their authorized
accountants, counsel and other designated representatives reasonable access
during normal business hours to, or, at Aon's expense, provide copies of, all
Information in the possession or
48
under the control of Combined Specialty immediately following the Distribution
that relates to Aon, the Retained Business or employees of the Retained
Business; PROVIDED, HOWEVER, that in the event that either Party determines that
any such provision of or access to Information could be commercially
detrimental, violate any law or agreement or waive any attorney-client
privilege, the Parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.
(b) Either Party may request Information under SECTION 12.1(a)(i)
to comply with reporting, disclosure, filing or other requirements imposed on
the requesting party (including under applicable securities or tax laws) by a
Governmental Authority having jurisdiction over the requesting party, (ii) for
use in any other judicial, regulatory, administrative, Tax or other proceeding
or in order to satisfy audit, accounting, claims defense, regulatory filings,
litigation, Tax or other similar requirements, (iii) for use in compensation,
benefit or welfare plan administration or other bona fide business purposes or
(iv) to comply with its obligations under this Agreement or any Operating
Agreement.
12.2 OWNERSHIP OF INFORMATION. Any Information owned by one Party
that is provided to a requesting Party pursuant to SECTION 12.1 shall be deemed
to remain the property of the providing Party. Unless specifically set forth
herein, nothing contained in this Agreement shall be construed to grant or
confer rights of license or otherwise in any such Information.
12.3 COMPENSATION FOR PROVIDING INFORMATION. The Party requesting
Information agrees to reimburse the providing Party for the reasonable costs, if
any, of creating, gathering and copying such Information, to the extent that
such costs are incurred for the benefit of the requesting Party. Except as
otherwise specifically provided in this Agreement, such costs shall be computed
in accordance with the providing Party's standard methodology and procedures.
12.4 RETENTION OF RECORDS. To facilitate the possible exchange of
Information pursuant to this ARTICLE XII after the Distribution, the Parties
agree to use commercially reasonable efforts to retain all Information in their
respective possession or control on the Distribution Date in accordance with the
policies and procedures of Aon as in effect on the Distribution Date. No party
will destroy, or permit any of its Subsidiaries or controlled Affiliates to
destroy, any Information that the other Party may have the right to obtain
pursuant to this Agreement prior to the tenth anniversary of the date hereof,
and thereafter without first using commercially reasonable efforts to notify the
other Party of the proposed destruction and giving the other Party the
opportunity to take possession of such Information prior to such destruction;
PROVIDED, HOWEVER, that in the case of any Information relating to Taxes, such
period shall be extended to one year after the expiration of the applicable
statute of limitations (giving effect to any extensions thereof).
12.5 LIMITATION OF LIABILITY. No Party shall have any liability
to the other Party (i) with respect to any Information exchanged or provided
pursuant to this Agreement that is an estimate or forecast, or that is based on
an estimate or forecast, that is found to be inaccurate, in the absence of
willful misconduct by the Party providing such Information, or (ii) by virtue of
49
the destruction of any Information that is destroyed after commercially
reasonable efforts to comply with the provisions of SECTION 12.4.
12.6 PRODUCTION OF WITNESSES. At all times from and after the
Distribution, each Party shall use commercially reasonable efforts to make
available to the other Party (without cost (other than reimbursement of actual
out-of-pocket expenses) to, and upon prior written request of, the other Party)
its directors, officers, employees and agents as witnesses to the extent that
the same may reasonably be required by the other Party in connection with any
legal, administrative or other proceeding in which the requesting Party may from
time to time be involved with respect to the Combined Specialty Business, the
Retained Business or any transactions contemplated hereby.
12.7 CONFIDENTIALITY. (a) From and after the Distribution, each
of Aon and Combined Specialty shall hold, and shall cause their respective
directors, officers, employees, agents, consultants, advisors and other
representatives to hold, in strict confidence, with at least the same degree of
care that applies to Aon's confidential and proprietary information pursuant to
policies in effect as of the Distribution Date, all non-public information
concerning or belonging to the other Party or any of its Subsidiaries or
Affiliates obtained by it prior to the Distribution, accessed by it pursuant to
SECTION 12.1, or furnished to it by the other Party or any of its Subsidiaries
or Affiliates pursuant to this Agreement or any agreement or document
contemplated hereby, and shall not release or disclose such information to any
other Person, except its representatives, who shall be bound by the provisions
of this SECTION 12.7; PROVIDED, HOWEVER, that Aon and Combined Specialty and
their respective directors, officers, employees, agents, consultants, advisors
and other representatives may disclose such information if, and only to the
extent that, (i) a disclosure of such information is compelled by judicial or
administrative process or, in the opinion of such Party's counsel, by other
requirements of law (in which case the disclosing Party will provide, to the
extent practicable under the circumstances, advance written notice to the other
Party of its intent to make such disclosure), or (ii) such Party can show that
such information (A) is published or is or otherwise becomes available to the
general public as part of the public domain without breach of this Agreement;
(B) has been furnished or made known to the recipient without any obligation to
keep it confidential by a third party under circumstances which are not known to
the recipient to involve a breach of the third party's obligations to a Party
hereto; (C) was developed independently of information furnished to the
recipient under this Agreement; or (D) in the case of information furnished
after the Distribution, was not known to the recipient at the time of the
Distribution but became known to the recipient prior to the time of receipt
thereof from the other Party.
(b) Each Party acknowledges that the other Party would not have
an adequate remedy at law for the breach by the acknowledging Party of any one
or more of the covenants contained in this SECTION 12.7 and agrees that, in the
event of such breach, the other Party may, in addition to the other remedies
that may be available to it, apply to a court for an injunction to prevent
breaches of this SECTION 12.7 and to enforce specifically the terms and
provisions of this Section. Notwithstanding any other Section hereof, the
provisions of this SECTION 12.7 shall survive indefinitely.
50
12.8 PRIVILEGED MATTERS. (a) Each of Aon and Combined Specialty
agrees to maintain, preserve and assert all privileges, including, without
limitation, privileges arising under or relating to the attorney-client
relationship (which shall include without limitation the attorney-client and
work product privileges), that relate to any period prior to the Distribution
(the "PRIVILEGES"). Aon agrees that it shall not waive any Privilege relating to
the Combined Specialty Business that could be asserted under applicable law
without the prior written consent of Combined Specialty. Combined Specialty
agrees that it shall not waive any Privilege relating to the Retained Business
that could be asserted under applicable law without the prior written consent of
Aon. The rights and obligations created by this SECTION 12.8 shall apply to all
information which, but for the Distribution, either Party would have been
entitled to assert or did assert the protection of a Privilege ("PRIVILEGED
INFORMATION"), including without limitation, (i) any and all information
generated prior to the Distribution but which, after the Distribution, is in the
possession of either Party; and (ii) all information generated, received or
arising after the Distribution that refers to or relates to Privileged
Information generated, received or arising prior to the Distribution.
(b) Upon receipt by either Party of any subpoena, discovery or
other request that may call for the production or disclosure of Privileged
Information or if either Party obtains knowledge that any current or former
employee of Aon or Combined Specialty has received any subpoena, discovery or
other request that may call for the production or disclosure of Privileged
Information, such Party shall notify promptly the other Party of the existence
of the request and shall provide the other Party a reasonable opportunity to
review the information and to assert any rights it may have under this SECTION
12.8 or otherwise to prevent the production or disclosure of Privileged
Information. Each Party agrees that it will not produce or disclose any
information that may be covered by a Privilege under this SECTION 12.8 unless
(i) the other Party has provided its written consent to such production or
disclosure (which consent shall not be unreasonably withheld, conditioned or
delayed), or (ii) a court of competent jurisdiction has entered a final,
nonappealable order finding that the information is not entitled to protection
under any applicable Privilege.
(c) Aon's transfer of books and records and other information to
Combined Specialty, and Aon's agreement to permit Combined Specialty to possess
Privileged Information existing or generated prior to the Distribution, are made
in reliance on Combined Specialty's agreement, as set forth in SECTIONS 12.7 and
12.8, to maintain the confidentiality of Privileged Information and to assert
and maintain all applicable Privileges. The access to information being granted
pursuant to SECTION 12.1, the agreement to provide witnesses and individuals
pursuant to SECTION 12.6 and the transfer of Privileged Information to Combined
Specialty pursuant to this Agreement shall not be deemed a waiver of any
Privilege that has been or may be asserted under this SECTION 12.8 or otherwise.
Nothing in this Agreement shall operate to reduce, minimize or condition the
rights granted to Aon in, or the obligations imposed upon Combined Specialty by,
this SECTION 12.8.
51
ARTICLE XIII
MISCELLANEOUS
13.1 ENTIRE AGREEMENT. This Agreement and the Operating
Agreements, including the Schedules and Exhibits referred to herein and therein
and the documents delivered pursuant hereto and thereto, constitute the entire
agreement between the Parties with respect to the subject matter contained
herein or therein, and supersede all prior agreements, negotiations,
discussions, understandings, writings and commitments between the Parties with
respect to such subject matter.
13.2 CHOICE OF LAW AND FORUM. This Agreement shall be governed by
and construed and enforced in accordance with the substantive laws (except for
any otherwise applicable conflicts of law provisions) of the State of
Illinois
and the federal laws of the United States of America applicable therein, as
though all acts and omissions related hereto occurred in
Illinois. Any lawsuit
arising from or related to this Agreement or any of the Operating Agreements
shall be brought only in the United States District Court for the Northern
District of
Illinois or the Circuit Court of ▇▇▇▇ County,
Illinois. To the
extent permissible by law, the Parties hereby consent to the jurisdiction and
venue of such courts. Each Party hereby waives, releases and agrees not to
assert, and agrees to cause its Affiliates to waive, release and not to assert,
any rights such Party or its Affiliates may have under any foreign law or
regulation that would be inconsistent with the terms of this Agreement as
governed by
Illinois law.
13.3 AMENDMENT. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the Parties.
13.4 WAIVER. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the Party or Parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any Party, it is
in writing signed by an authorized representative of such Party. The failure of
any Party to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, or in any way to affect the validity
of this Agreement or any part hereof or the right of any Party thereafter to
enforce each and every such provision. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other or subsequent breach.
13.5 PARTIAL INVALIDITY. Wherever possible, each provision hereof
shall be interpreted in such a manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision or provisions shall be ineffective to the extent, but
only to the extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
52
13.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original instrument,
but all of which shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been signed by and delivered
to each of the Parties.
13.7 SUCCESSORS AND ASSIGNS. This Agreement and each Operating
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and thereto, respectively, and their successors and permitted assigns; PROVIDED,
HOWEVER, that the rights of either Party under this Agreement and each Operating
Agreement shall not be assignable by such Party without the prior written
consent of the other Party. The successors and permitted assigns hereunder shall
include, without limitation, any permitted assignee as well as the successors in
interest to such permitted assignee (whether by merger, liquidation (including
successive mergers or liquidations) or otherwise).
13.8 THIRD PARTY BENEFICIARIES. Except to the extent otherwise
expressly provided in SECTION 8.5 or ARTICLE X hereof or in any Operating
Agreement, the provisions of this Agreement and each Operating Agreement are
solely for the benefit of the Parties and their respective Affiliates,
successors and permitted assigns and shall not confer upon any third Person any
remedy, claim, liability, reimbursement or other right in excess of those
existing without reference to this Agreement or any Operating Agreement. Nothing
in this Agreement or any Operating Agreement shall obligate Aon or Combined
Specialty to assist any Combined Specialty Employee to enforce any rights such
employee may have with respect to any of the employee benefits described in this
Agreement.
13.9 NOTICES. All notices, requests, claims, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed given or delivered (i) when delivered personally, (ii) if transmitted by
facsimile, when confirmation of transmission is received, (iii) if sent by
registered or certified mail, postage prepaid, return receipt requested, on the
third business day after mailing or (iv) if sent by private courier, when
received; and shall be addressed as follows:
If to Aon, to:
[to come]
If to Combined Specialty, to:
[to come]
or to such other address as such Party may indicate by a notice delivered to the
other Party.
13.10 PERFORMANCE. Each Party shall 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.
53
13.11 NO PUBLIC ANNOUNCEMENT. Neither Aon nor Combined Specialty
shall, without the approval of the other, make any press release or other public
announcement concerning the transactions contemplated by this Agreement, except
as and to the extent that any such Party shall be so obligated by law or the
rules of any regulatory body, stock exchange or quotation system, in which case
the other Party shall be advised and the Parties shall use commercially
reasonable efforts to cause a mutually agreeable release or announcement to be
issued; PROVIDED, HOWEVER, that the foregoing shall not preclude communications
or disclosures necessary to implement the provisions of this Agreement or to
comply with the accounting and SEC disclosure obligations or the rules of any
stock exchange.
13.12 TERMINATION. Notwithstanding any provisions hereof, this
Agreement may be terminated and the Distribution abandoned at any time prior to
the Distribution by and in the sole discretion of the Board of Directors of Aon
without the prior written approval of any Person. In the event of such
termination, this Agreement shall forthwith become void and no Party shall have
any liability to any Person by reason of this Agreement, except that Aon shall
be liable for any costs and expenses, including attorneys' fees, incurred by
Combined Specialty or its Subsidiaries prior to or arising out of such
termination.
54
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their authorized representatives as of the date first above written.
AON CORPORATION
By:
COMBINED SPECIALTY CORPORATION
By:
55