AGREEMENT AND PLAN OF MERGER AND EXCHANGE
by and among
E.I. du Pont de Nemours and Company,
▇▇▇▇▇▇▇ Purina Company,
Protein Technologies International Holdings, Inc.
and
The Other Parties Named Herein
Dated as of December 2, 1997
v
i
TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Closing 5
Section 1.2 Domestic Closings 6
Section 1.3 Du Pont Merger Subsidiaries 6
Section 1.4 Du Pont Shares 6
Section 1.6 Foreign Closings 6
Section 1.7 Foreign Protein Subsidiaries 6
Section 1.8 Indebtedness 6
Section 1.9 Initial Completion Date 6
Section 1.10 [Intentionally Omitted.] 6
Section 1.11 Net Debt Amount 6
Section 1.12 Person 7
Section 1.13 PTIBV Exchange 7
Section 1.14 Shares 7
Section 1.15 Subsidiary 7
Section 1.16 Tax Return 7
Section 1.17 Taxes 7
Section 1.18 U.S. Protein Subsidiaries 8
ARTICLE II
THE MERGERS AND FOREIGN EXCHANGES; CLOSINGS
Section 2.1 The Mergers 8
Section 2.2 Conversion of U.S. Protein Shares
in the Mergers 13
Section 2.3 Conversion of Capital Stock of the
Du Pont Merger Subsidiaries in the Merg-ers 14
Section 2.4 Foreign Exchanges; Asset Transfers 14
Section 2.5 Closings 18
Section 2.6 Allocation of Shares 21
ARTICLE III
CERTAIN ADDITIONAL TRANSACTIONS
Section 3.1 Intercompany Accounts 21
Section 3.2 Payment or Defeasance of Indebt-e ness 22
Section 3.3 Transfer of Certain Shares 22
Section 3.4 Certain Asset Transfers 22
Section 3.5 Beneficial Ownership of the Foreign Pro-tein
Subsidiaries following the
Ini-tial Com-pletion Date. 23
Section 3.7 Net Debt Amount 24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ AND STOCK-HOLDER
Section 4.1 Organization 25
Section 4.2 Capitalization; Subsidiaries; Fuji
Joint Venture 26
Section 4.3 Authorization; Binding Effect 28
Section 4.4 Consents and Approvals; No ▇▇▇▇▇-
tions 29
Section 4.5 SEC Reports and Financial State-
ments 30
Section 4.6 Absence of Certain Changes 31
Section 4.7 No Undisclosed Liabilities 31
Section 4.8 Litigation 32
Section 4.9 Employee Benefit Plans. 32
Section 4.10 No Default; Compliance with Appli-
ca-ble Laws, etc. 36
Section 4.11 Intellectual Prop-erty 38
Section 4.12 [Intentionally Omitted.] 42
Section 4.13 Insurance 42
Section 4.14 Related Party Transac-tions; Inter-
com-pany Matters 43
Section 4.15 Products Liability 44
Section 4.16 Title; Real Properties 45
Section 4.17 Environmental Matters 48
Section 4.18 Indebtedness 50
Section 4.19 Labor and Employment Matters; Col-
lec-tive Bar-gain-ing Agreements 50
Section 4.20 Acquisition for Investment 51
Section 4.21 PTIFS Liquidation 51
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF DU PONT
AND THE DU PONT MERGER SUBSIDIARIES
Section 5.1 Organization 51
Section 5.2 Capitalization 52
Section 5.3 Authorization 52
Section 5.4 Consents and Approvals; No ▇▇▇▇▇-
tions 53
Section 5.5 SEC Reports and Financial State-
ments 53
Section 5.6 No Prior Activities 54
Section 5.7 Compliance with Securities Laws;
Absence of Changes 54
Section 5.8 Acquisition for Investment 54
ARTICLE VI
COVENANTS
Section 6.1 Interim Operations of the Pro-tein
Subsid-iaries 55
Section 6.2 Access; Confidentiality 58
Section 6.3 Consents and Approvals 59
Section 6.4 No Solicitation 60
Section 6.5 Brokers or Finders 61
Section 6.6 Further Assurances 61
Section 6.7 Publicity 61
Section 6.8 Notification of Certain Matters 61
Section 6.9 Employee Matters 62
Section 6.10 Non-Competition, Etc. 76
Section 6.11 Use of Names and Marks 79
Section 6.12 Related Agreements 80
Section 6.13 Reorganization 81
Section 6.14 Cash and Bank Accounts. 82
Section 6.15 Industrial Revenue Bonds and Other
Real Estate Issues 85
Section 6.16 Interim Operations of Du Pont 86
Section 6.17 Delivery of Surveys and Title Poli-cies 86
Section 6.19 Insurance 87
Section 6.20 Novogen 89
ARTICLE VII
CONDITIONS
Section 7.1 Conditions to Each Party's Obliga tion
to Effect the Mergers 89
Section 7.2 Conditions to Obligation of U.S.
Protein Subsidiaries to Effect the Merg-ers 89
Section 7.3 Conditions to Obligation of the Du Pont
U.S. Merger Subsidiaries to Effect the Mergers 91
Section 7.4 Conditions to Obligation of Stock- holder
to Effect the Foreign Exchanges 93
Section 7.5 Conditions to Obligation of Du Pont to Effect
the Foreign Exchanges 94
ARTICLE VIII
TERMINATION
Section 8.1 Termination 95
Section 8.2 Effect of Termination 96
ARTICLE IX
SURVIVAL AND INDEMNIFICATION
Section 9.1 Survival of Representa-tions, War- ran-ties
and Covenants 96
Section 9.2 Indemnification 97
ARTICLE X
MISCELLANEOUS
Section 10.1 Fees and Expenses 103
Section 10.2 Amendment 103
Section 10.3 Extension; Waiver 103
Section 10.4 Notices 104
Section 10.5 Interpretation 105
Section 10.6 Counterparts 105
Section 10.7 Entire Agreement; No Third Party
Benefi-ciaries 106
Section 10.8 Severability 106
Section 10.9 Governing Law; Forum 106
Section 10.10 Release 107
Section 10.11 Assignment 107
Schedules
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Schedule 2.2 -- U.S. Protein Subsidiaries Valuations
Schedule 2.4 -- Foreign Protein Subsidiaries Valuations
Exhibits
--------
Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4 -- Form of Foreign Exchange
Agree-ments
Exhibit B -- Intentionally Omitted
Exhibit C -- Form of Banque Brussels Agreement
Exhibit D -- Form of Bridging Services Agree-ment
Exhibit E -- Form of Registration Rights Agreement
Exhibit F -- Form of Tax Sharing Agreement
Exhibits G-1 and G-2 -- Form of Du Pont Reorga-nization Cer- tif-i-▇▇▇▇▇
Exhibits H-1 and H-2 -- Form of ▇▇▇▇▇▇▇ Reorganization Cer- tif-i-▇▇▇▇▇
Exhibit I -- Form of Headquarters Lease
Exhibits J-1 and J-2 -- Form of R&D Lease
Exhibit K -- Form of Intellectual Property Assignment
Exhibit L -- Form of IRB Lease Agreement
Exhibit M -- Form of Commodities Purchasing Agreement
Exhibit N -- Form of Sales Office Employees Agreements
Defined Term Section No.
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ix
vi
Index of Defined Terms
Defined Term Section No.
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Acquisition Proposal 6.4
ADM Article IV
Adjustment Amount 6.14(e)
Agreement Preamble
Applicable Discount Rate 6.9(e)(i)(A)
Applicable Du Pont Plan 6.9(b)
Applicable Laws 4.4
Asset Transfers 3.4(a)
Assets 3.4(a)
Authority 6.15(a)
Balance Sheets 4.5(b)
Banque Brussels Agreement 3.2
Basket Amount 9.2(c)
Bonds 6.15(a)
Bridging Services Agreement 6.12
Business Recitals
Canadian Foreign Funded Benefit Plan 6.9(k)
Certificates of Merger 2.1(b)
Closing 1.1
COBRA Coverage 6.9(b)
Code Recitals
Commodities Purchasing Agreement 6.12
Confidentiality Agreement 6.2(a)
Copyrights 4.11(a)
Dairy Food Employees 6.9(a)(i)
Damages 9.2(a)
Defective Products 4.15
DGCL 2.1(a)(i)
Domestic Benefit Plans 4.9(a)(i)
Domestic Closings 1.2
Du Pont Preamble
Du Pont Common Stock Recitals
Du Pont Indemnified Parties 9.2(a)
Du Pont Merger Subsidiaries 1.3
Du Pont Parties Preamble
Du Pont's Pension Plan 6.9(e)(i)
Du Pont's Reimbursement Plan 6.9(d)(iii)
Du Pont Shares 1.4
Effective Time 2.1(b)
Environmental Claim 4.17(a)
Environmental Laws 4.17(a)
ERISA 4.9(a)(i)
ERISA Affiliate 4.9(a)(i)
Excess Cash 6.14(d)
Exchange Act 4.5(a)
Excluded Assets 1.5
Executive Plans 6.9(h)(ii)
Fiber Merger 2.1(a)(i)
Fiber Sales Preamble
Fiber Surviving Corporation 2.1(a)(i)
Final Termination Date 8.1(b)
Financial Statements 4.5(b)
Foreign Benefit Plans 4.9(a)(ii)
Foreign Book Accrual Benefit Plan 6.9(n)
Foreign Book Reserve Benefit Plan 6.9(o)
Foreign Closing Date 2.5(b)(i)
Foreign Closings 1.6
Foreign Employees 6.9(a)(ii)
Foreign Exchange Agreements 2.4(a)(i)
Foreign Exchanges 2.4(a)(i)
Foreign Protein Shares Recitals
Foreign Protein Subsidiaries 1.7
Foreign Transfer Date 6.9(e)(iii)
Fuji Joint Venture 4.1(d)
Fuji Shares 4.1(d)
GAAP 4.5(b)
Governmental Entity 4.4
Headquarters Lease 6.12
HSR Act 4.4
Imperial BTI Preamble
Imperial BTI Merger 2.1(a)(ii)
Imperial BTI Surviving Corporation 2.1(a)(ii)
Income Statements 4.5(b)
Indebtedness 1.8
Indemnified Party 9.2(f)
Indemnifying Party 9.2(f)
Information 6.18(a)
Initial Completion Date 1.9
Initial Transfer Amount 6.9(e)(i)
Intellectual Property 4.11(a)
Intellectual Property Assignment 6.12
IRB Loan Agreements 6.15(a)
IRB Lease Agreements 6.15(a)
IRS 1.17
License Agreements 4.11(a)
Lien 4.2(c)
Material Adverse Effect 4.1(b)
Materials of Environmental Concern 4.17(a)
Market Value 1.10
Mergers 2.1(a)(ix)
Merger Conversion Ratios 2.2(a)
Net Debt Amount 1.11
New Pointer Subsidiaries 3.4(a)
NFI Preamble
NFI Merger 2.1(a)(iii)
NFI Surviving Corporation 2.1(a)(iii)
Off-Site Materials 9.2(h)(A)
Oklahoma Landlord Consents 2.4(e)
Operating Agreement(s) 6.12
Patents 4.11(a)
PBGC 4.9(c)
PBO 6.9(e)(i)
Permits 4.10(b)
Person 1.12
Plant Lease 2.4(e)
Pointer Preamble
Pointer Merger 2.1(a)(iv)
Pointer Surviving Corporation 2.1(a)(iv)
Policies 6.9(h)(vii)
Proceedings 4.8
Products 4.15
Projects 6.15(a)
Protein Competitive Business 6.10(a)
Protein Employees 6.9(a)(iv)
Protein Foreign Funded Benefit Plan 6.9(k)
Protein Subsidiaries Recitals
Protein Subsidiary Contracts 4.4
PTI Preamble
PTI Argentina 3.4(a)
PTI Asia Pacific Preamble
PTI Asia Pacific Merger 2.1(a)(v)
PTI Asia Pacific Surviving Corporation 2.1(a)(v)
PTI Brazil 3.4(a)
PTI Development Preamble
PTI Development Merger 2.1(a)(ix)
PTI Development Surviving Corporation 2.1(a)(ix)
PTI Europe Preamble
PTI Europe Merger 2.1(a)(vi)
PTI Europe Surviving Corporation 2.1(a)(vi)
PTI Germany 1.7
PTI Merger 2.1(a)(viii)
PTI Mexico Recitals
PTI Moscow 1.7
PTI Sales Preamble
PTI Sales Merger 2.1(a)(vii)
PTI Sales Surviving Corporation 2.1(a)(vii)
PTI Shares Recitals
PTI Spain Recitals
PTI Surviving Corporation 2.1(a)(viii)
PTI UK Recitals
PTI Venezuela 1.7
PTIBV 1.7
PTIBV Exchange 1.13
PTIBV Shares Recitals
PTIFS 3.6
PTIFS Liquidation 3.6
PTIM 3.1
PTO 6.9(i)
Qualcepts Letter Article IV
R&D Lease 6.12
▇▇▇▇▇▇▇ Preamble
▇▇▇▇▇▇▇ Disclosure Schedule 4.1(d)
▇▇▇▇▇▇▇ Foreign Funded Benefit Plan 6.9(m)
▇▇▇▇▇▇▇ Group 6.10(a)
▇▇▇▇▇▇▇ Indemnified Parties 9.2(b)
▇▇▇▇▇▇▇ ▇▇▇▇▇ 6.11(a)
▇▇▇▇▇▇▇ Parties Preamble
▇▇▇▇▇▇▇'▇ Pension Plan 6.9(e)(i)
▇▇▇▇▇▇▇'▇ Reimbursement Plan 6.9(d)(iii)
Real Properties 4.16(c)
Registration Rights Agreement 6.12
RP Argentina Recitals
RP Brazil Recitals
Sales Office Employees Agreements 6.12
SEC 4.5(a)
Second Payment 6.9(e)(i)
Secretary of State 2.1(b)
Securities Act 4.4
Senior Management Group 10.5
Shares 1.14
Software 4.11(a)
Soil Injection Leases 2.4(e)
Soy Competitive Business 6.10(a)
Stockholder Preamble
Sub No. 1 Preamble
Sub No. 2 Preamble
Sub No. 3 Preamble
Sub No. 4 Preamble
Sub No. 5 Preamble
Sub No. 6 Preamble
Sub No. 7 Preamble
Sub No. 8 Preamble
Sub No. 9 Preamble
Subsidiary 1.15
Surviving Corporations 2.1(a)(ix)
Surviving Corporation Stock 2.3
Survivor Life Insurance Plan 6.9(h)(vii)
Survivor Life Participants 6.9(h)(vii)
Tax Return 1.16
Tax Sharing Agreement 6.12
Taxes 1.17
Technology 4.11(a)
Title IV Plan 4.9(a)(i)
Trademarks 4.11(a)
Transfer Amount 6.9(e)(i)
Transfer Date 6.9(a)(iv)
Transferor Subsidiaries 3.4(a)
Transferred Employees 6.9(a)(i)
Transferred Executive Plans 6.9(h)(ii)
Transferred Foreign Employees 6.9(a)(iii)
Transferred Subsidiaries Recitals
Trustees 6.9(h)(vii)
U.S. Protein Shares Recitals
U.S. Protein Subsidiaries 1.18
Voting Debt 4.2(b)
WARN Act 6.1(n)
wholly owned 1.15
8
AGREEMENT AND PLAN OF MERGER AND EXCHANGE
-----------------------------------------------
AGREE-MENT AND PLAN OF MERGER AND EXCHANGE, (this "Agree-ment")
----------
dated as of December 2, 1997, by and among
(a) ▇▇▇▇▇▇▇ Purina Company, a Missouri corpo-ra-tion ("▇▇▇▇▇▇▇"), (b)
-------
Protein Technologies Internation-al Holdings, Inc., a Dela-ware corpo-ra-tion
and wholly owned subsidiary of VCS Holding Company which is a wholly owned
subsidiary of ▇▇▇▇▇▇▇ ("Stock-hold-er"), (c) Fiber Sales & Devel-opment
-------------
Corpo-ra-tion, a Dela-ware corpo-ration and wholly owned subsid-iary of
Stock-holder ("Fiber Sales"), (d) Imperi-al Biotech-nolo-gy, U.S., Inc., a
------------
Dela-ware corpo-ration and wholly owned subsidiary of Stock-holder ("Impe-rial
---------
BTI"), (e) Nutri-tious Foods, Inc., a Dela-ware corpo-ration and wholly
---
owned subsid-iary of Stock-hold-er ("NFI"), (f) Pointer Spe-cialty Chemi-cals,
---
Inc., a Delaware corpo-ration and wholly owned subsid-iary of Stock-holder
("Pointer"), (g) Protein Technolo-▇▇▇▇ International Asia Pacific
------
Corpora-tion, a Delaware corpo-ration and wholly owned subsidiary of
------
Stock-holder ("PTI Asia Pacific"), (h) Protein Tech-nologies Inter-national
------ ------------------
Europe, Inc., a Dela-ware corpo-ration and wholly owned sub-sid-iary of
Stock-holder ("PTI Eu-rope"), (i) Protein Technolo-▇▇▇▇ Inter-na-tional Sales,
-----------
Inc., a Dela-ware corpo-ration and wholly owned subsidiary of Stock-hold-er
("PTI Sales"), (j) Pro-tein Technologies Internation-al, Inc., a Delaware
----------
corpo-ration and wholly owned subsidiary of Stock-holder ("PTI"), (k) Pro-tein
-- ---
Technologies Interna-tional Develop-ment Corpora-tion, a Dela-ware
corpo-ration and wholly owned subsidiary of Stockholder ("PTI Develop-ment"),
----------------
-- The above entities are hereinafter collec-tively called the
"▇▇▇▇▇▇▇ Parties" --
AND
(b) E.I. du Pont de Nemours and Company, a Dela-ware corpo-ration ("Du
--
-Pont"), (m) DuPont PTI 1 Co. ("Sub No. 1"), a Delaware corporation and a
---- ---------
direct wholly owned sub-sid-iary of Du Pont, (n) DuPont PTI 2 Co. ("Sub No.
--- -------
2"), a Delaware corpora-tion and a direct wholly owned sub-sidiary of Du Pont,
-
(o) DuPont PTI 3 Co. ("Sub No. 3"), a Dela-ware corporation and a direct
---------
wholly owned subsidiary of Du Pont, (p) DuPont PTI 4 Co. ("Sub No. 4"), a
---------
Delaware corpo-ration and a direct wholly owned subsidiary of Du Pont, (q)
DuPont PTI 5 Co. ("Sub No. 5"), a Delaware corpora-tion and a direct wholly
---------
owned subsidiary of Du Pont, (r) DuPont PTI 6 Co. ("Sub No. 6"), a Delaware
---------
corporation and a direct wholly owned subsidiary of Du Pont, (s) DuPont PTI 7
Co. ("Sub No. 7"), a Delaware corporation and a direct wholly owned
-----------
sub-sidiary of Du Pont, (t) DuPont PTI 8 Co. ("Sub No. 8"), a Delaware
---- ---------
corporation and a direct wholly owned subsidiary of Du Pont, and (u) DuPont
-
PTI 9 Co. ("Sub No. 9"), a Dela-ware corpora-tion and a direct wholly owned
---------
subsidiary of Du Pont
-- The above entities are hereinafter collec-tively called the
"Du Pont Parties."
WHEREAS, certain Subsidiaries (as defined in Section 1.15
hereof) of ▇▇▇▇▇▇▇ are en-gaged, on a world-wide basis, in the manu-fac-ture,
dis-tri-bution and sale of soy protein, food fiber, pet food coat-ing and
industrial polymer products (the "Busi-ness");
---------
WHEREAS, Stockholder is the record and benefi-cial owner of:
(i) all the issued and outstanding shares of common stock, par value
$0.10 per share, of Fiber Sales;
(ii) all the issued and outstanding shares of common stock, par value
$1.00 per share, of Imperial BTI;
(iii) all the issued and outstanding shares of common stock, par value
$1.00 per share, of NFI;
(iv) all the issued and outstanding shares of common stock, par value
$1.00 per share, of Pointer;
(v) all the issued and outstanding shares of common stock, par value
$1.00 per share, of PTI Asia Pacific);
(vi) all the issued and outstanding shares of common stock, par value
$1.00 per share, of PTI Europe;
(vii) all the issued and outstanding shares of common stock, par value
$1.00 per share, of PTI Sales;
(viii) all the issued and outstanding shares of common stock, par value
$1.00 per share, of PTI;
(ix) all the issued and outstanding shares of common stock, par value
$10.00 per share, of PTI Devel-op-ment;
(x) all the issued and outstanding shares (other than director
qualifying shares) of common stock, par value 100,000DM per share, of Protein
Technol-ogies Inter-national (Deutschland) GmBH, a German corpo-ra-tion;
(xi) all the issued and outstanding shares (other than director
qualifying shares) of common stock, par value $1.00 per share, of Protein
Tech-nologies Inter-na-tional Australia Pty. Limited, an Australian
corpora-tion;
(xii) all the issued and outstanding shares (other than director
qualifying shares) of common stock, par value 10 rubles per share, of Protein
Tech-nol-ogies Inter-na-tional Moscow, a Russian corpo-ration;
(xiii) all the issued and outstanding shares (other than director
qualifying shares) of common stock, par value DLF 100 per share, of Protein
Technol-▇-▇▇▇▇ Inter-na-tional Overseas B.V. (Nether-lands), a Dutch
corporation (the "PTIBV Shares"); and
-------------
(xiv) 900 of the issued and outstanding shares (other than 100 shares
owned by PTI) of common stock, par value BS 1,000 per share, of Venezuelan
Pro-tein Tech-▇▇▇-▇-▇▇▇▇ Inter-na-tional PTI C.A., a Venezuela corpo-ra-tion
(the shares referenced in clauses (i) through (ix) above are collectively
referred to herein as the "U.S. Protein Shares" and the shares referenced in
-------------------
clauses (x) through (xiv) (including the 100 shares owned by PTI in the case
of clause (xiv)) above are col-lec-tive-ly re-ferred to herein as the
"For-eign Protein Shares").
------------------
WHEREAS, on the Initial Completion Date (as de-fined in Section
1.9 hereof), the closing of the Merg-ers (as de-fined in Sec-tion 2.1(a)(ix)
hereof) and the PTIBV Ex-change (as de-fined in Sec-tion 1.13 hereof) and any
other For-eign Exchang-es (as de-fined in Section 2.4(a)(i) hereof) which can
occur at such time will occur substan-tially simulta-neous-ly and any other
remain-ing Foreign Exchanges will occur as soon as prac-ti-cable there-after
upon the terms and sub-ject to the condi-tions set forth herein;
WHEREAS, it is contemplated that as of the Initial Completion
Date, the Business, in its entirety, will be con-ducted by the U.S. Protein
Subsidiaries (as defined in Section 1.18 hereof) and the Foreign Protein
Subsidiaries (as defined in Section 1.7 hereof) and their directly and
indi-rectly owned Subsidiaries (collectively, the "Protein Subsidiar-ies") and
---------------------
that the Protein Subsid-iaries will own or have the right to use all assets
necessary for the operation of the Business as it is currently conducted,
except that certain operations currently conducted by ▇▇▇▇▇▇▇ Purina
Argenti-na S.A. ("▇▇ ▇▇▇▇▇▇▇-na") and ▇▇▇▇▇▇▇ Purina Do Bra-sil, Ltda. ("RP
-------------- --
Bra-zil") relating to the Business may be trans-ferred fol-low-ing, rather
-----
than prior to, the Initial Comple-tion Date to Protein Subsid-iaries as set
-
forth herein and that sales operations in the countries of Canada, Japan, the
Philippines, Thailand, Malaysia and Singapore will be con-ducted by
individuals who will technically be employed by Subsidiaries of ▇▇▇▇▇▇▇ other
than the Protein Subsidiar-ies, for a period of time until such individuals
can be trans-ferred to a Subsidiary of Du Pont as set forth herein;
WHEREAS, the parties hereto desire that Stock-hold-er transfer
all of the U.S. Protein Shares and the Foreign Pro-tein Shares to Du Pont in
exchange for the trans-fer by Du Pont to Stock-holder of shares of common
stock, par value $0.30 per share, of Du Pont ("Du Pont Common Stock"), upon
--------------------
the terms and sub-ject to the condi-tions set forth herein, such exchange to
occur by merger in the case of each of the U.S. Protein Sub-sid-iaries and by
exchange of shares other-wise;
WHEREAS, the respective Boards of Directors of each of the Du
Pont Merger Subsidiaries (as defined in Section 1.3 hereof) and each of the
U.S. Protein Subsid-iaries have ap-proved and declared advis-able this
Agree-ment and the merger of each of the Du Pont Merger Subsid-iaries with and
into each of the re-spective U.S. Protein Subsidiar-ies (and have recommended
to their respec-tive stock-holders that they adopt this Agree-ment), upon the
terms and subject to the condi-tions set forth herein, whereby each U.S.
Pro-tein Share will be con-verted into the number of shares of Du Pont Common
Stock deter-mined pursu-ant to Sec-tion 2.2 hereof and each share of stock of
each Du Pont Merger Subsidiary shall be converted into U.S. Protein Shares as
provided for here-in;
WHEREAS, the respective Boards of Directors of Du Pont, ▇▇▇▇▇▇▇
and Stockholder (i) have each approved this Agreement and the mergers of their
respective Sub-sidiaries and, in their capacity as the sole stockholder of a
U.S. Protein Subsidiary or a Du Pont Merger Subsid-iary, as the case may be,
have adopted this Agreement upon the terms and subject to the condi-tions set
forth herein and (ii) have each approved the exchange of the Foreign Protein
Shares for shares of Du Pont Common Stock as provided for here-in;
WHEREAS, prior to the Initial Completion Date, ▇▇▇▇▇▇▇ shall
cause (i) all of the out-standing shares of capital stock of Protein
Tech-nolo-▇▇▇▇ International Iberica S.A., a Spanish corpora-tion ("PTI
---
Spain"), (ii) all of the out-stand-ing shares of capi-tal stock of Pro-tein
Tech-nologies Interna-tional (U.K.) Limit-ed, an Eng-lish corpo-ration ("PTI
---
UK") (which, in turn holds all of the outstand-ing shares of capital stock of
-
Foodmaker Limited, Imperial Biotechnolo-gy Prod-ucts Limited and Pro-tein
Technolo-▇▇▇▇ Inter-na-tional Ire-land Limited) and (iii) all of the
out-stand-ing shares of capi-tal stock of Protein Tech-nolo-▇▇▇▇
Interna-tional S.A. de C.V., a Mexican corpora-tion ("PTI Mexi-co" and,
-----------
to-geth-er with PTI Spain and PTI UK, the "Trans-ferred Subsidiaries"), to be
-------------------------
con-trib-uted to Point-er upon the terms and subject to the condi-tions set
forth herein;
WHEREAS, ▇▇▇▇▇▇▇ shall cause two newly formed Sub-sidiaries of
Pointer to acquire the assets primarily asso-ci-at-ed with or used in the
Busi-ness which are current-ly held by RP Argentina and RP Brazil upon the
terms and sub-ject to the condi-tions set forth here-in; and
WHEREAS, for federal income tax purposes, it is intended that
each of the Mergers and each of the Foreign Exchang-es shall constitute a
reorganiza-tion within the meaning of section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that with respect to each Merger
----
and each Foreign Exchange this Agree-ment shall con-stitute a "plan of
reorga-niza-tion" for purposes of the Code;
NOW, THEREFORE, in consideration of the forego-ing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE II
CERTAIN DEFINITIONS
In this Agreement and the ▇▇▇▇▇▇▇ Disclosure Sched-ule (as
defined in Section 4.1(d) hereof), the words and expressions set out in this
Article I shall have the meanings set forth below, unless the context
explicitly requires other-wise:
ARTICLE IISection .1 Closing Closing Closing Closing: A
------- ------- ------- -------
Domestic Closing (as defined in Section 1.2 hereof) or a Foreign Closing (as
de-fined in Section 1.6 hereof).
ARTICLE IISection .2 Domestic Closings Domestic Closings
----------------- -----------------
Domestic Closings Domestic Closings: The closings of the Mergers.
-------------- ------------------
ARTICLE IISection .3 Du Pont Merger Subsidiaries Du Pont Merger
--------------------------- --------------
Subsidiaries Du Pont Merger Subsidiaries Du Pont Merger Subsidiaries:
----------- --------------------------- ---------------------------
Col-lec-tively, Sub ▇▇. ▇, ▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇. ▇, Sub No. 5,
Sub No. 6, Sub No. 7, Sub No. 8 and Sub No. 9.
ARTICLE IISection .4 Du Pont Shares Du Pont Shares Du Pont
-------------- -------------- -------
Shares Du Pont Shares: The aggregate amount of shares of Du Pont Common
---- --------------
Stock to be issued pursu-ant to the Mergers and the Foreign Exchanges.
ARTICLE IISection .5 Excluded Assets: Those assets owned by a
---------------
Protein Subsidiary, RP Argentina or RP Brazil that are not being directly or
indirectly trans-ferred to Du Pont as part of the Busi-ness, in-cluding the
Belgium Coordi-nation Center and the Dairy Food Systems division including the
plant locat-ed in ▇▇▇▇▇ City, Wisconsin and the assets thereat.
ARTICLE IISection .6 Foreign Closings Foreign Closings
---------------- ----------------
Foreign Closings Foreign Closings: The closings of the exchange, transfer
---------- ----------------
and acquisition of the respec-tive Foreign Protein Shares of each Foreign
Protein Sub-sidiary in exchange for shares of Du Pont Common Stock (as
contemplated by Sec-tion 2.4(a) hereof).
ARTICLE IISection .7 Foreign Protein Subsidiaries Foreign Protein
---------------------------- ---------------
Subsidiaries Foreign Protein Subsidiaries Foreign Protein
------------ ------------------------------ ---------------
Subsidiaries: Col-lec-tively, Protein Technol-ogies International
-------
(Deutsch-land) GmBH ("PTI Germany"), Pro-tein Tech-nologies Inter-na-tional
------ ------------
Aus-tra-lia Pty. Limit-ed, Protein Tech-nol-ogies Inter-na-tional Moscow ("PTI
---
Moscow"), Pro-tein Technolo-▇▇▇▇ Inter-na-tional Over-seas B.V.
------
(Neth-er-lands) ("PTIBV") and Venezuelan Pro-tein Tech-▇▇▇-▇-▇▇▇▇
------
Inter-na-tional PTI C.A. ("PTI Venezuela").
------
ARTICLE IISection .8 Indebtedness Indebtedness Indebtedness
------------ ------------ ------------
Indebtedness: Of any Person (as defined in Section 1.12 hereof) means
------------
(1) in-debt-edness for bor-rowed money of such Person (in-clud-ing any
long-term or short-term por-tions there-of) and (2) any in-debt-▇▇-▇▇▇▇
▇▇-cured by the assets of, or ▇▇▇▇▇▇-▇▇▇▇ by, such Person or evi-denced by a
note, bond, letter of cred-it, inden-ture or similar in-stru-ment; provided,
--------
however, that Indebtedness shall not be deemed to include accounts payable or
------
intercom-pany notes.
ARTICLE IISection .9 Initial Completion Date Initial Completion
----------------------- ------------------
Date Initial Completion Date Initial Completion Date: The date of the
--- ----------------------- -----------------------
Domestic Closings.
ARTICLE IISection .10 [Intentionally Omitted.] [Intentionally
Omitted.] [Intentionally Omitted.] [Intentionally Omitted.]
ARTICLE IISection .11 Net Debt Amount Net Debt Amount Net
--------------- --------------- ---
Debt Amount Net Debt Amount: When used with respect to any Protein
--------- ----------------
Subsidiary, as the case may be, the sum of all Indebtedness of such Protein
---
Subsid-iary and all of its Sub-sid-iar-ies, other than Indebtedness referred
to in Section 6.15 of this Agreement.
ARTICLE IISection .12 Person Person Person Person: Any
------ ------ ------ ------
natural per-son, firm, individu-al, corpo-ra-tion, part-ner-ship, joint
ven-ture, busi-ness trust, trust, asso-ciation, compa-ny or any other
busi-ness orga-ni-za-tion or entity, wheth-er incor-po-rat-ed or
unin-corpo-rat-ed.
ARTICLE IISection .13 PTIBV Exchange PTIBV Exchange PTIBV
-------------- -------------- -----
Exchange PTIBV Exchange: The ex-change, trans-fer and acquisition
----- ---------------
contemplated by Section 2.4(a) hereof of Du Pont Common Stock for the PTIBV
----
Shares.
ARTICLE IISection .14 Shares Shares Shares Shares:
------ ------ ------ ------
Collectively, the U.S. Protein Shares and the Foreign Protein Shares.
ARTICLE IISection .15 Subsidiary Subsidiary Subsidiary
---------- ---------- ----------
Subsidiary: With respect to any Person, of which (i) such Person or any other
--------
Subsidiary of such Person is a gener-al part-ner or (ii) at least a
major-ity of the out-standing shares of capital stock or part-nership or other
interests having an inter-est in profits or in assets upon liquida-tion is
di-rectly or indi-rectly owned or con-trolled by such Per-son, by any one or
more of its Subsid-iaries, or by such Person and one or more of its
Subsid-iaries. Refer-ences to a "wholly owned" Subsid-iary of an entity
-------------
include a Subsid-iary all of the common equity of which, other than direc-tor
quali-fying shares, is owned, directly or through wholly owned Sub-sid-iaries,
by such enti-ty.
ARTICLE IISection .16 Tax Return Tax Return Tax Return
---------- ---------- ----------
Tax Return: Any re-port, return, document, declara-tion or other
---------
infor-ma-tion or filing re-quired to be sup-plied to any taxing authority or
--------
juris-dic-tion (foreign or domes-tic) with respect to Taxes, includ-ing,
without limita-tion, informa-tion re-turns, any docu-ments with respect to or
accompany-ing payments of estimated Taxes, or with respect to or accom-panying
requests for the exten-sion of time in which to file any such report,
return, document, declara-tion or other information.
ARTICLE IISection .17 Taxes Taxes Taxes Taxes: Any and
----- ----- ----- -----
all taxes, charg-es, fees, levies or other assess-ments, in-cluding, without
limi-ta-tion, income, gross re-ceipts, excise, real or personal property,
sales, withhold-ing, social securi-ty, occupa-tion, use, service, service use,
license, net worth, payroll, franchise, transfer and record-ing taxes,
fees and charges, imposed by the Internal Revenue Service ("IRS") or any
---
taxing au-thor-i-ty (wheth-er domes-tic or for-eign includ-ing, without
limi-ta-tion, any state, county, local or foreign govern-ment or any
subdi-vision or taxing agency thereof (includ-ing a United States
posses-sion)), whether computed on a sepa-rate, consol-idated, uni-tary,
com-bined or any other basis; and such term shall include any interest whether
paid or received, fines, penal-ties or addi-tional amounts attrib-utable to,
or imposed upon, or with respect to, any such taxes, charges, fees, levies or
other as-sessments.
ARTICLE IISection .18 U.S. Protein Subsidiaries U.S. Protein
------------------------- ------------
Subsidiaries U.S. Protein Subsidiaries U.S. Protein Subsidiaries:
-------- ------------------------- -------------------------
Collec-tive-ly, Fiber Sales, Imperial BTI, NFI, Point-er, PTI Asia Pacific,
PTI Europe, PTI Sales, PTI and PTI Development.
ARTICLE III
THE MERGERS AND FOREIGN EXCHANGES; CLOSINGS
ARTICLE IIISection .1 The Mergers The Mergers The Mergers
----------- ----------- -----------
The Mergers.
------------
(a) (i) Upon the terms and subject to the condi-tions of this
Agreement, at the Ef-fective Time (as de-fined in Section 2.1(b) hereof), Sub
No. 1 shall be merged (the "Fiber Merg-er") with and into Fiber Sales
--------------
whereupon the sepa-rate exis-tence of Sub No. 1 shall cease. After the Fiber
Merg-er, Fiber Sales shall con-tin-ue as the surviv-ing corpora-tion (the
"Fiber Surviv-ing Corpora-tion") and shall con-tinue to be gov-erned by the
----------------------------
law of the State of Dela-ware and shall continue its existence under the name
"Fiber Sales & Develop-ment Corporation" until there-after duly amended or
changed in accor-dance with applica-ble law. The Fiber Merger shall have the
effects speci-fied in the General Cor-pora-tion Law of the State of Delaware
(the "DGCL").
----
(i) Upon the terms and subject to the condi-tions of this Agreement, at
the Effec-tive Time, Sub No. 2 shall be merged (the "Imperial BTI Merg-er")
--------------------
with and into Imperial BTI where-upon the sepa-rate exis-tence of Sub No. 2
shall cease. After the Imperial BTI Merg-er, Imperial BTI shall contin-ue as
the surviving corpo-ra-tion (the "Imperial BTI Surviv-ing Corpora-tion") and
------------------------------------
shall continue to be gov-erned by the law of the State of Dela-ware and shall
con-tinue its existence under the name "Imperi-al Bio-tech-nology, U.S., Inc."
until there-after duly amend-ed or changed in accor-dance with
applica-ble law. The Impe-rial BTI Merger shall have the effects speci-fied
in the DGCL.
(ii) Upon the terms and sub-ject to the condi-tions of this Agreement,
at the Effec-tive Time, Sub No. 3 shall be merged (the "NFI Merger") with and
----------
into NFI whereupon the sepa-rate exis-tence of Sub No. 3 shall cease. After
the NFI Merg-er, NFI shall con-tinue as the sur-viving corpora-tion (the "NFI
---
Sur-viving Corpo-ra-tion") and shall continue to be gov-erned by the law of
-------------------------
the State of Dela-ware and shall continue its exis-tence under the name
--
"Nutri-tious Foods, Inc." until there-after duly amended or changed in
--
accordance with applica-ble law. The NFI Merger shall have the effects
--
speci-fied in the DGCL.
--
(iii) Upon the terms and subject to the condi-tions of this Agreement,
at the Effective Time, Sub No. 4 shall be merged (the "Pointer Merg-er") with
---------------
and into Pointer whereupon the sepa-rate exis-tence of Sub No. 4 shall cease.
After the Point-▇▇ ▇▇▇▇-er, Pointer shall continue as the surviving
corpo-ra-tion (the "Pointer Surviving Corporation") and shall con-tin-ue to be
-----------------------------
gov-erned by the law of the State of Dela-ware and shall continue its
existence under the name "Point-er Specialty Chemicals, Inc." until
there-after duly amended or changed in accor-dance with applica-ble law. The
Point-er Merger shall have the ef-fects speci-fied in the DGCL.
(iv) Upon the terms and subject to the condi-tions of this Agreement, at
the Effective Time, Sub No. 5 shall be merged (the "PTI Asia Pacific
----------------
Merger") with and into PTI Asia Pacific whereupon the sepa-rate exis-tence of
--
Sub No. 5 shall cease. After the PTI A-sia Pacific Merg-er, PTI Asia Pacific
shall continue as the surviving corpo-ra-tion (the "PTI Asia Pacific Surviving
--------------------------
Corpora-tion") and shall con-tin-ue to be governed by the law of the State of
------------
Dela-ware and shall continue its existence under the name "Protein
Technolo-▇▇▇▇ Interna-tional Asia Pacific Corpora-tion" until there-after duly
amend-ed or changed in accor-dance with applica-ble law. The PTI A-sia
Pacific Merger shall have the effects speci-fied in the DGCL.
(v) Upon the terms and subject to the condi-tions of this Agreement, at
the Effective Time, Sub No. 6 shall be merged (the "PTI Europe Merger") with
-----------------
and into PTI Europe whereupon the sepa-rate exis-tence of Sub No. 6 shall
cease. After the PTI E-urope Merg-er, PTI Europe shall con-tinue as the
surviving corpo-ra-tion (the "PTI Europe Surviving Corporation") and shall
---------------------------------
con-tin-ue to be governed by the law of the State of Dela-ware and shall
continue its existence under the name "Protein Technolo-▇▇▇▇ Inter-national
Europe, Inc." until there-after duly amend-ed or changed in accor-dance with
applica-ble law. The PTI E-urope Merger shall have the effects speci-fied in
the DGCL.
(vi) Upon the terms and subject to the condi-tions of this Agreement, at
the Effective Time, Sub No. 7 shall be merged (the "PTI Sales Merger")
----------------
with and into PTI Sales whereupon the separate exis-tence of Sub No. 7 shall
cease. After the PTI S-ales Merg-er, PTI Sales shall continue as the
sur-viving corpo-ra-tion (the "PTI Sales Surviving Corpo-ration") and shall
--------------------------------
continue to be gov-erned by the law of the State of Dela-ware and shall
continue its existence under the name "Protein Technolo-▇▇▇▇ Inter-national
Sales, Inc." until there-after duly amend-ed or changed in accor-dance with
appli-ca-ble law. The PTI S-ales Merger shall have the effects speci-fied in
the DGCL.
(vii) Upon the terms and subject to the condi-tions of this Agreement,
at the Effective Time, Sub No. 8 shall be merged (the "PTI Merger") with and
----------
into PTI whereupon the separate exis-tence of Sub No. 8 shall cease. After
the PTI Merg-er, PTI shall continue as the surviv-ing corpo-ra-tion (the "PTI
---
Surviving Corpo-ra-tion") and shall continue to be gov-erned by the law of the
-----------------------
State of Dela-ware and shall continue its exis-tence under the name
"Protein Technolo-▇▇▇▇ Inter-nation-al, Inc." until there-after duly amend-ed
or changed in accor-dance with applica-ble law. The PTI Merger shall have the
effects speci-fied in the DGCL.
(viii) Upon the terms and subject to the condi-tions of this Agreement,
at the Effective Time, Sub No. 9 shall be merged (the "PTI Develop-ment
----------------
Merg-er" and, to-gether with the Fiber Merger, Imperi-al BTI Merger, NFI
-
Merger, Pointer Merger, PTI Asia Pacific Merger, PTI Europe Merger, PTI Sales
Merger and PTI Merg-er, the "Merg-ers") with and into PTI Devel-op-ment
--------
where-up-on the sepa-rate exis-tence of Sub No. 9 shall cease. After the PTI
D-evel-opment Merg-er, PTI Devel-opment shall contin-ue as the surviving
corpo-ra-tion (the "PTI Development Surviving Corpora-tion" and, together with
--------------------------------------
the Fiber Surviving Corpora-tion, Imperial BTI Surviving Corpo-ration,
NFI Surviving Corpora-tion, Pointer Surviving Corporation, PTI Asia Pacific
Sur-viving Corpo-ration, PTI Europe Surviving Corpora-tion, PTI Sales
Surviving Corpo-ration and PTI Surviving Corpo-ra-tion, the "Surviv-ing
----------
Corpo-rations") and shall con-tin-ue to be gov-erned by the law of the State
-------
of Dela-ware and shall con-tinue its existence under the name "Pro-tein
Technologies International Devel-opment Corpora-tion" until there-after duly
amend-ed or changed in accor-dance with applica-ble law. The PTI D-evelopment
Merger shall have the effects speci-fied in the DGCL.
(b) Concurrently with the Domestic Closings, the parties hereto shall
cause cer-tifi-▇▇▇▇▇ of merger (the "Cer-tif-i-▇▇▇▇▇ of Merg-er") with respect
--------------------------
to each of the Mergers to be exe-cut-ed and filed with the Secretary of
State of the State of Dela-ware (the "Secre-tary of State") as provided in the
-------------------
DGCL. The Mergers shall become effec-tive on the date and time (the
"Effec-tive Time") at which the Cer-tif-icates of Merger are duly filed with
--------
the Secre-tary of State.
(c) (i) Upon the Fiber Merg-er, all the rights, privileg-es,
immunities, powers and franchis-es of Fiber Sales and Sub No. 1 shall vest in
the Fiber Surviv-ing Corporation and all obli-ga-tions, re-stric-tions,
dis-abili-ties, duties, debts and liabili-ties of Fiber Sales and Sub No. 1
shall be the obli-ga-tions, re-stric-tions, dis-abili-ties, duties, debts and
liabilities of the Fiber Sur-viv-ing Corpo-ra-tion.
(i) Upon the Imperial BTI Merger, all the rights, privileg-es,
immunities, powers and franchis-es of Imperial BTI and Sub No. 2 shall vest in
the Imperi-al BTI Surviving Corporation and all obli-gations,
restric-tions, disabilities, duties, debts and liabili-ties of Imperial BTI
and Sub No. 2 shall be the obliga-tions, restric-tions, disabili-ties, duties,
debts and lia-bilities of the Impe-rial BTI Surviving Corporation.
(ii) Upon the NFI Merger, all the rights, privileg-es, immunities,
powers and franchis-es of NFI and Sub No. 3 shall vest in the NFI Sur-viving
Corpora-tion and all obli-gations, restric-tions, disabilities, duties, debts
and liabilities of NFI and Sub No. 3 shall be the obliga-tions, restric-tions,
disabil-ities, duties, debts and lia-bilities of the NFI Surviving
Corporation.
(iii) Upon the Pointer Merger, all the rights, privileg-es, immunities,
powers and franchis-es of Pointer and Sub No. 4 shall vest in the Point-er
Surviving Corpo-ration and all obli-ga-tions, re-stric-tions, disabilities,
duties, debts and lia-bilities of Pointer and Sub No. 4 shall be the
obliga-tions, re-stric-tions, disabil-ities, duties, debts and lia-bilities of
the Pointer Surviv-ing Corporation.
(iv) Upon the PTI Asia Pacific Merger, all the rights, privileg-es,
immunities, powers and ▇▇▇▇-▇▇▇▇-es of PTI Asia Pacific and Sub No. 5 shall
vest in the PTI Asia Pacific Surviv-ing Corporation and all obli-gations,
re-stric-tions, dis-abilities, duties, debts and lia-bilities of PTI Asia
Pacific and Sub No. 5 shall be the obliga-tions, restric-tions, disabil-ities,
duties, debts and lia-bilities of the PTI Asia Pacific Sur-viving
Corporation.
(v) Upon the PTI Europe Merger, all the rights, privileg-es, immunities,
powers and franchis-es of PTI Europe and Sub No. 6 shall vest in the PTI
Europe Surviving Corporation and all obli-gations, restric-tions,
disabilities, duties, debts and lia-bili-ties of PTI Europe and Sub No. 6
shall be the obliga-tions, restric-tions, disabil-ities, duties, debts and
lia-bilities of the PTI Europe Surviving Corporation.
(vi) Upon the PTI Sales Merger, all the rights, privileg-es, immunities,
powers and franchis-es of PTI Sales and Sub No. 7 shall vest in the PTI
Sales Surviving Corporation and all obli-gations, restric-tions, disabilities,
duties, debts and lia-bilities of PTI Sales and Sub No. 7 shall be the
obliga-tions, restric-tions, disabil-ities, duties, debts and lia-bili-ties of
the PTI Sales Surviving Corporation.
(vii) Upon the PTI Merger, all the rights, privileg-es, immunities,
powers and franchis-es of PTI and Sub No. 8 shall vest in the PTI Sur-viving
Corpora-tion and all obli-gations, restric-tions, disabilities, duties, debts
and lia-bilities of PTI and Sub No. 8 shall be the obliga-tions,
restric-tions, disabil-ities, duties, debts and lia-bilities of the PTI
Surviving Corporation.
(viii) Upon the PTI Development Merger, all the rights, privileg-es,
immunities, powers and ▇▇▇▇-▇▇▇▇-es of PTI Development and Sub No. 9 shall
vest in the PTI Development Surviving Corporation and all obli-gations,
restric-tions, disabilities, duties, debts and lia-bilities of PTI Development
and Sub No. 9 shall be the obliga-tions, restric-tions, disabil-ities,
duties, debts and lia-bilities of the PTI Development Surviv-ing Corporation.
(d) The Cer-tif-icate of Incor-po-ra-tion of each of the U.S. Protein
Subsidiaries in effect imme-di-ate-ly prior to the Effec-tive Time (copies of
which have been delivered by ▇▇▇▇▇▇▇ to Du Pont) shall be the Cer-tif-i-cate
of Incor-pora-tion of each of the respec-tive Surviv-ing Corpo-ra-tions, until
there-after duly amended in accor-dance with applica-ble law.
(e) The By-laws of each of the Du Pont Merger Subsidiaries in effect
imme-di-ately prior to the Effec-tive Time shall be the By-laws of each of the
respective Surviv-ing Corpo-ra-tions, until there-af-ter duly amend-ed in
accor-dance with applica-ble law, the Cer-tif-i-cate of Incor-po-ration of
such Surviv-ing Corpo-ration and the By-laws of such Sur-viv-ing
Corpo-ra-tion.
(f) From and after the Effective Time, the direc-tors of each of the
Du Pont Merger Subsid-iar-ies at the Effec-tive Time shall be the ini-tial
direc-tors of each of the re-spective Surviving Corpora-tions, and the
offi-cers of each of the U.S. Protein Subsidiaries at the Effec-tive Time
shall be the initial offi-cers of each of the respective Sur-viving
Corpora-tions, in each case until their re-spec-tive succes-sors are duly
elected or appoint-ed and quali-fied in accordance with applicable law.
ARTICLE IIISection .2 Conversion of U.S. Protein Shares in the
----------------------------------------
Mergers Conversion of U.S. Protein Shares in the Mergers Conversion of
- ------------------------------------------------ -------------
U.S. Protein Shares in the Mergers Conversion of U.S. Protein Shares
----------------------------------- ---------------------------------
in the Mergers. As of the Effec-tive Time, by virtue of the Mergers and
----------------
with-out any action on the part of Stockholder:
-----
(a) With respect to each U.S. Pro-tein Subsid-iary, each U.S. Protein
Share thereof issued and outstanding immedi-ately prior to the Effective
Time (other than the U.S. Protein Shares to be cancelled in accordance with
Section 2.2(c) hereof) shall be converted into those respective num-bers of
shares of Du Pont Common Stock equal to the respec-tive quo-tients
(collectively, the "Merger Con-ver-sion Ra-tios") of (x) the amount set forth
---------------------------
in Schedule 2.2 hereto oppo-site the name of such U.S. Pro-tein Sub-sid-iary
divid-ed by (y) the number of U.S. Protein Shares of such U.S. Protein
Subsid-iary issued and out-stand-ing imme-di-ately prior to the Effec-tive
Time (other than U.S. Protein Shares to be can-cel-led in accor-dance with
Section 2.2(c) here-of). The number of shares of Du Pont Common Stock issued
pursuant to the fore-go-ing shall be rounded to the nearest whole number.
(b) All U.S. Protein Shares, when so con-vert-ed, shall auto-mat-i-cally
cease to be out-stand-ing and shall be can-cel-led and re-tired and shall
cease to exist, and Stock-holder shall there-after cease to have any rights
with re-spect there-to, except the right to receive certif-i-▇▇▇▇▇
repre-senting shares of Du Pont Common Stock into which the U.S. Protein
Shares have been converted.
(c) All U.S. Protein Shares owned by such U.S. Protein Subsidiary or
any wholly owned Sub-sid-iary there-of imme-di-ately prior to the Effec-tive
Time shall be can-cel-led and re-tired and no con-▇▇▇-▇▇-ation shall be
deliv-ered in exchange therefor.
(d) Subject to rounding errors, the aggregate number of shares of Du
Pont Common Stock to be issued pursu-ant to Sections 2.2(a) and 2.4(a) hereof
shall be equal to Twenty Two Million Five Hundred Thousand (22,500,000).
ARTICLE IIISection .3 Conversion of Capital Stock of the Du Pont
------------------------------------------
Merger Subsidiaries in the Mergers Conversion of Capital Stock of the Du
-------------------------------- -------------------------------------
Pont Merger Subsidiaries in the Mergers Conversion of Capital Stock of the
-------------------------------------- ----------------------------------
Du Pont Merger Subsidiaries in the Mergers Conversion of Capital
----------------------------------------------- ---------------------
Stock of the Du Pont Merger Subsidiaries in the Mergers. As of the Effec-tive
---------------------------------------------------
Time, by virtue of the Mergers and with-out any action on the part of Du Pont,
each share of common stock of each of the Du Pont Merger Subsidiaries issued
and out-stand-ing immedi-ately prior to the Effective Time shall be
con-vert-ed into and become one fully paid and nonas-sess-able share of common
stock of the respective Sur-viving Corpo-ra-tion into which such Du Pont
Merger Subsidiary has been merged ("Sur-viving Corpora-tion Stock") with the
-----------------------------
same rights, powers and privi-leges as the U.S. Protein Shares so con-verted
and shall consti-tute the only out-stand-ing shares of capital stock of each
of the Sur-viving Corpo-ra-tions.
ARTICLE IIISection .4 Foreign Exchanges; Asset Transfers Foreign
---------------------------------- -------
Exchanges; Asset Transfers Foreign Exchanges; Asset Transfers Foreign
--------------------------- ---------------------------------- -------
Exchanges; Asset Transfers.
----------------------------
(a) (i) Upon the terms and subject to the condi-tions of this Agreement,
at the Foreign Closings, Stock-holder shall exchange, trans-fer and deliv-er
to Du Pont, and Du Pont shall acquire from Stock-holder, free and clear of all
liens, claims, op-tions, charges, security interests, encumbranc-es and
re-stric-tions of any kind, all For-eign Protein Shares in separate ex-change
trans-actions (collec-tively, the "Foreign Ex-changes") of the Foreign
-------------------
Pro-tein Shares of each Foreign Protein Subsid-iary for those respective
numbers of shares of Du Pont Common Stock set forth in Schedule 2.4 hereto;
provided that the Foreign Ex-changes relat-ing to PTIBV and PTI Venezuela
------ ----
shall be pursu-ant to the agreements sub-stantial-ly in the form attached
--
hereto as Exhibits A-1 and A-2 and the Asset sales contem-plated by Section
--
3.4 hereof shall be accom-plished pursuant to agreements substantially in the
form at-tached hereto as Exhibits A-3 and A-4 (collectively, the "For-eign
--------
Ex-change Agree-ments"). To the extent that any Foreign Closings do not occur
------------------
on the Ini-tial Comple-tion Date, Du Pont shall place the shares of Du Pont
Common Stock so allocated to any Foreign Pro-tein Subsidiary for which the
Foreign Clos-ing is de-layed in escrow with an inde-pendent third party
reason-ably acceptable to ▇▇▇▇▇▇▇ until such Foreign Closings do occur. Upon
the occur-rence of such Foreign Closings, the respective allocat-ed shares
held in escrow, along with any divi-dends paid with respect there-to following
the Initial Completion Date, shall be deliv-ered to Stockholder. Upon
termina-tion pursuant to Sec-tion 8.1(b) hereof, any shares of Du Pont Common
Stock not previ-ously released from escrow shall be re-delivered to Du Pont
along with any divi-dends paid thereon. Not-withstanding the fore-going, Du
Pont shall have the right to deliver the Du Pont Shares relating to any
Foreign Exchange that does not occur on the Initial Completion Date to ▇▇▇▇▇▇▇
on the Initial Completion Date and ▇▇▇▇▇▇▇ agrees to transfer such Shares back
to Du Pont together with all dividends or distributions paid thereon in the
event this Agree-ment is terminated with respect thereto without such For-eign
Ex-change having closed.
(i) At each Foreign Closing, ▇▇▇▇▇▇▇ shall cause any director qualifying
shares of the applicable Foreign Protein Subsidiary to be transferred to
such Person as Du Pont designates to ▇▇▇▇▇▇▇ in writing at least two (2) days
prior to the respective Foreign Clos-ing Date (as defined in Section 2.5(b)(i)
hereof).
(b) After the execution and delivery of this Agree-ment, in the event
that either Du Pont or ▇▇▇▇▇▇▇ determines that it is in its best interest to
effect any additional foreign stock exchanges pursuant to separate agreements,
Du Pont and ▇▇▇▇▇▇▇ shall, and shall cause their re-spec-tive applicable
Subsidiaries to, negotiate in good faith such agreements and arrangements,
consistent with the terms hereof, as are necessary to effectuate such
addi-tional foreign stock exchanges and to execute and deliver such mutually
acceptable agreements and arrangements as Du Pont and ▇▇▇▇▇▇▇ shall negotiate.
(c) Du Pont and ▇▇▇▇▇▇▇ shall, and ▇▇▇▇▇▇▇ shall cause its applica-ble
Subsid-iaries to, exe-cute on or prior to each For-eign Clos-ing Date such
addi-tion-al agree-ments and ar-range-ments as may be neces-sary or
appro-pri-ate, (A) to trans-fer the relevant For-eign Protein Shares to Du
Pont, (B) to trans-fer to Du Pont in such jurisdic-tion such local product
regis-tra-tions, franchis-es, li-censes, Intellectual Property (as defined in
Section 4.11(a) hereof) and any other gov-ern-mental autho-ri-za-tions or
other rights owned or held by ▇▇▇▇▇▇▇, Stock-holder, any other Subsidiary of
▇▇▇▇▇▇▇ or the For-eign Pro-tein Sub-sid-iaries that are neces-sary to the
conduct of the Busi-ness in such juris-diction, (C) subject to Section
2.5(a)(iv) hereof, to make all such further as-sign-ments and do all such
other acts as are neces-sary or ▇▇▇▇▇-able to carry out the intent of the
parties that the Busi-ness, as a going concern, be fully vested in Du Pont as
of the applica-ble Foreign Clos-ing Date and operated for its benefit and
burden as of 12:01 AM (local time) on December 3, 1997 and (D) to pro-vide
for, and nego-tiate in good faith, such other agree-ments and ar-range-ments
relat-ing to the foregoing as the par-ties deem appro-pri-ate, in-cluding any
such agree-ments or ar-range-ments relat-ing to the treat-ment of em-ploy-ees,
bene-fit plans and Taxes.
(d) If any asset that is exclusively used in the Busi-ness is not owned
by one or more Protein Subsidiaries as of the date of this Agreement, or
leased from a Person or Gov-ern-mental Entity (as defined in Section 4.4
hereof) by one or more Pro-tein Sub-sid-iaries as of the date of this
Agree-ment, includ-ing the furniture and equip-ment set forth in Section
2.4(d)(x) of the ▇▇▇▇▇▇▇ Disclosure Schedule, ▇▇▇▇▇▇▇ shall, as to assets
owned by ▇▇▇▇▇▇▇ or a Subsidiary of ▇▇▇▇▇▇▇ and as to assets located in Pryor,
Oklahoma that are subject to the Plant Lease (as defined in Section
2.4(e) hereof), and as to other as-sets, ▇▇▇▇▇▇▇ shall use its rea-son-able
best ef-forts to, trans-fer, assign and deliv-er such asset (or, in the case
of the Plant Lease, such Lease) to such a U.S. Pro-tein Sub-sid-iary prior to
the Initial Com-pletion Date, unless such asset re-lates exclu-sively to a
Foreign Protein Subsid-iary in which case ▇▇▇▇▇▇▇ shall deliver such asset to
such Foreign Pro-tein Subsidiary prior to the For-eign Closing Date with
respect to such Foreign Protein Subsidiary; pro-vided that the timing of the
--------- ----
trans-fer, as-signment and deliv-ery to a Protein Subsid-iary of the assets
set forth in Section 2.4(d) of the ▇▇▇▇▇▇▇ Dis-closure Sched-ule shall occur
as soon as practica-ble thereaf-ter but in any event not later than January
31, 1998 or, in the case of the import license relating to Argentina, March
31, 1998. With re-spect to any such as-set, to the extent that it is
neces-sary or ▇▇▇▇▇-able to exe-cute deeds, as-sign-ments and other
instru-ments of trans-fer, in-cluding with re-spect to assets owned by a
Sub-sid-iary of ▇▇▇▇▇▇▇ other than a Protein Sub-sid-iary, ▇▇▇▇▇▇▇ shall
deliver such deeds, as-sign-ments and in-stru-ments of trans-fer at the time
such asset is trans-ferred as Du Pont rea-sonably re-quests. If such assets
cannot be transferred, assigned or delivered prior to the Initial Completion
Date or the re-spective Foreign Clos-ing Date, as the case may be, ▇▇▇▇▇▇▇
shall use its best efforts to give the benefits of ownership of such assets to
the U.S. Protein Subsidiary or Foreign Protein Subsidiary, as the case may be,
until trans-fer, assignment or delivery can be complet-ed. Subject to Section
2.5(a)(iv) hereof, the entire eco-nom-ic bene-fi-cial inter-est in and to, and
the risk of loss with respect to, such assets shall, regard-less of when legal
title there-to shall be transferred to the appropriate U.S. Protein
Subsid-iary or Foreign Pro-tein Subsid-iary, pass to those entities at
Clos-ing. ▇▇▇▇▇▇▇ shall, or shall cause its Subsidiaries to, hold such assets
for the benefit and risk of Du Pont and shall cooperate with it in any lawful
and reasonable ar-rangements designed to provide the benefits of ownership of
the assets to it. In the event that the legal interest in such assets or any
claim, right or benefit arising thereun-der or resulting therefrom, is not
capable of being sold, assigned, trans-ferred or conveyed here-un-der as a
result of the failure to receive any consents or ap-provals required for such
trans-fer, then the legal inter-est in such assets shall not be sold,
assigned, transferred or conveyed unless and until approval, consent or waiver
there-of is obtained. ▇▇▇▇▇▇▇ shall, or shall cause its Subsid-iaries, at its
or their expense, to use reasonable best efforts to cooperate in obtaining
such consents or approvals as may be necessary to complete such transfers and
to obtain satisfac-tion of condi-tions to transfer as soon as practica-ble
after the date of this Agreement. The failure to obtain any such consents or
approvals prior to Closing shall not affect Du Pont's obli-gations to complete
the Mergers and Foreign Ex-changes except as set forth in Arti-cle VI hereof.
Nothing in this Agree-ment shall be construed as an attempt to assign to the
U.S. Protein Subsidiaries or the Foreign Protein Subsid-iaries any legal
interest in such assets which, as a matter of law or by the terms of any
legally binding con-tract, engage-ment or commitment to which the legal owner
is sub-ject, is not assignable without the consent of any other party, unless
such consent shall have been given.
(e) Notwithstanding anything herein to the con-trary, ▇▇▇▇▇▇▇ covenants
and agrees that (i) prior to the Initial Completion Date it shall use its
reasonable best efforts to obtain, and (ii) prior to January 31, 1998 it shall
obtain, the landlord's consent to the subletting of the IRB Lease
Agreements (as defined in Section 6.15 here-of), each dated Novem-ber 1, 1977,
relating to the Projects (as defined in Section 6.15 hereof).
Notwith-standing any-thing to the con-trary here-in, ▇▇▇▇▇▇▇ cove-nants and
agrees that (a) prior to the Ini-tial Comple-tion Date, ▇▇▇▇▇▇▇ shall use its
rea-son-able best efforts to ob-tain, and (b) except in the case of clause
(iii) below, prior to January 31, 1998, it shall obtain the landlord's
con-sent to (i) the as-sign-ment of the Lease Agree-ment dated Novem-ber 1,
1977 relat-ing to the Pryor, Oklahoma manufactur-ing facility and commonly
known as the "Plant Lease"; (ii) the assignment of the leases relat-ing to the
-----------
soil injec-tion operations in Pryor, Oklahoma dated January 27, 1981, as
amended, and May 1, 1983, as amended (collec-tively, the "Soil Injection
--------------
Leas-es"); and (iii) the modifi-cation of the Soil Injection Leases to provide
--
the tenant with options to extend the terms thereof, and the purchase option
outside exercise dates thereunder, for five (5) successive periods of ten (10)
years each at the cur-rently existing rental without altering any other rights
or obliga-tions of the tenant thereunder, such assign-ments to be to the
Protein Subsidiary referenced in the following sen-tence (the con-sents
re-ferred to in claus-es (i), (ii) and (iii) above, collec-tive-ly, the
"Okla-homa Landlord Con-sents"). As soon as practicable and in any event
-------------------------
prior to January 31, 1998, ▇▇▇▇▇▇▇ shall assign the Plant Lease and the Soil
Injec-tion Leases and sublet the IRB Leases to a U.S. Pro-tein Sub-sid-iary in
accor-dance with Section 2.4(d) hereof. ▇▇▇▇▇▇▇ covenants and agrees that
notwith-standing ▇▇▇▇▇▇▇'▇ or the Oklahoma Ordinance Works Authority's
reten-tion of owner-ship in the por-tion of the Projects ac-quired and/or
con-structed in connec-tion with the Bond issues dated Novem-ber 1, 1977 in
accor-dance with the terms hereof, the por-tions of the Pro-jects acquired
and/or constructed in connec-tion with the Bond issues dated Septem-ber 1,
1996 and March 1, 1990 shall be trans-ferred to a U.S. Protein Subsid-iary in
accordance with Section 2.4(d) hereof. ▇▇▇▇▇▇▇ covenants and agrees that any
and all acts to be performed by ▇▇▇▇▇▇▇ under this Section and Section 6.15(a)
hereof shall be at the sole cost and expense of ▇▇▇▇▇▇▇, in-clud-ing, but not
limited to, payment of any and all sums re-quired to acquire title to the
Pro-jects including any in-creased or unforeseen costs that result from any
acts or omissions occurring with re-spect to the Projects from and after the
date hereof, and the payment of trans-fer Taxes and other costs and expenses
relating thereto.
(f) ▇▇▇▇▇▇▇ shall, at the Initial Completion Date, assign, transfer and
deliver to Du Pont (or such Protein Subsidiaries as Du Pont shall designate)
the commod-ities purchase agreements listed in Section 2.4(f) of the ▇▇▇▇▇▇▇
Disclosure Schedule.
Closings Closings Closings
-------- -------- --------
ARTICLE IIISection .5 Closings.
--------
(a) Domestic Closings.
------------------
(i) The Domestic Closings shall, sub-ject to the provi-sions of Arti-cle
VII here-of, take place at 10:00 AM as soon as prac-ti-ca-ble, but in no
event later than the second busi-ness day fol-lowing (A) satis-fac-tion of the
condi-tion set forth in Section 7.1(c) hereof and (B) the satisfaction or
waiver of the condi-tion set forth in Section 7.3(j) hereof, at rooms rented
by Stockholder at the Hotel Du Pont in Wilmington, Dela-ware, unless anoth-er
time, date or place is agreed to in writ-ing by the par-ties hereto.
Notwithstanding anything herein to the contrary, the Domestic Closings shall,
subject to the satisfaction or waiver of the conditions set forth in Section
7.1, 7.2 and 7.3 here-of, take place at 10:00 AM (Eastern Time) on December 3,
1997 or as soon thereafter as practicable.
(ii) At the Domestic Closings and concur-rently with the Effective Time,
(A) Du Pont shall deliver to Stockhold-er, certif-icates repre-sent-ing
shares of Du Pont Common Stock issued pursuant to the Mergers regis-tered in
the name of Stockholder broken down into certif-icates repre-senting such
numbers of shares of Du Pont Common Stock as Stock-hold-er re-quests at least
seven busi-ness days prior to the Initial Completion Date; (B) Stock-hold-er
shall deliv-er to each of the U.S. Protein Subsid-iar-ies, cer-tifi-▇▇▇▇▇
repre-sent-ing U.S. Protein Shares which shall there-up-on be can-celled and
(C) each of the U.S. Protein Subsidiaries shall deliv-er to Du Pont
cer-tifi-▇▇▇▇▇, ▇▇▇▇▇-tered in Du Pont's name, repre-senting shares of
Sur-viv-ing Corpo-ra-tion Stock to be issued to Du Pont pursu-ant to Section
2.3 here-of.
(iii) All shares of Du Pont Common Stock issued upon the surren-der for
exchange of the U.S. Pro-tein Shares in accordance with the terms of this
Arti-cle II shall be deemed to have been made in full satis-faction of all
rights per-taining to such U.S. Protein Shares. On and after the Effec-tive
Time there shall be no further registration of transfers on the stock
trans-fer books of any of the U.S. Protein Subsid-iaries of the U.S. Protein
Shares which were out-stand-ing imme-di-ately prior to the Effective Time.
(iv) The Closings shall, upon their oc-cur-rence, be deemed to have
been ef-fec-tive as of 12:01 AM (lo-cal time) on December 3, 1997, ex-cept for
pur-poses of Section 3.1 and Arti-cles VIII and IX here-of.
(b) Foreign Closings.
-----------------
(i) Each Foreign Closing shall, upon the terms and subject to the
conditions set forth in this Agreement and the applicable Foreign Exchange
Agree-ment, if any, take place at such place as shall be mutually agreed to by
the parties hereto and at such time that is the later of (A) the Initial
Completion Date and (B) the second business day following the satisfaction or
waiver of the condi-tions set forth in Sections 7.4 and 7.5 hereof applicable
to such Foreign Exchange or at such other time as the parties hereto may agree
(each such date, a "For-eign Closing Date"). Not-with-stand-ing the terms of
---------------------
this Agree-ment or of any such For-eign Exchange Agree-ment, Du Pont shall be
under no obli-gation to pur-chase any of the For-eign Protein Shares and
▇▇▇▇▇▇▇ shall be under no obliga-tion to exchange any such Shares prior to the
Initial Comple-tion Date. It is contemplated that the Foreign Closing
relating to the PTIBV Exchange will occur on the Ini-tial Completion Date and
that most of the other Foreign Closings will occur on the first business day
following the Initial Completion Date.
(ii) At each Foreign Closing, Stockholder shall deliver to Du Pont the
fol-low-ing:
(A) A stock certificate or stock cer-tifi-▇▇▇▇▇
representing the number of those Foreign Pro-tein Shares subject to such
Foreign Closing that are owned by Stockholder as set forth in Section 4.2(a)
of the ▇▇▇▇▇▇▇ Disclosure Schedule, with ap-pro-pri-ate stock powers duly
en-dorsed in blank or accom-pa-▇▇▇▇ by other duly exe-cuted in-stru-ments of
transfer.
(B) All other documents required to be delivered by
Stockholder on or prior to such For-eign Closing Date pursuant to this
Agreement or the ap-plicable Foreign Exchange Agreement, if any, or otherwise
required from Stockholder in con-nec-tion herewith and therewith.
(iii) At each Foreign Closing, Stock-holder shall cause the applicable
Foreign Protein Subsidiary to deliver to Du Pont:
(A) The resignations of the members of the board of
directors of such Foreign Pro-tein Sub-sidiary as Du Pont shall request prior
to the applicable Foreign Closing Date.
(B) The stock books, stock ledgers, min-ute books
and corporate seal, if any, of such For-eign Protein Subsidiary; provided that
-------- ----
any of the foregoing items shall be deemed to have been deliv-ered pursuant to
this Section 2.5(b)(iii)(B) if such item has been delivered to or is otherwise
located at such Foreign Protein Subsidiary, or any offices of such Foreign
Protein Subsidiary.
(iv) At each Foreign Closing, Du Pont shall deliver to Stockholder
shares of Du Pont Common Stock as indicated in Schedule 2.4 hereto.
ARTICLE IIISection .6 Allocation of Shares Allocation of Shares
-------------------- --------------------
Allocation of Shares Allocation of Shares. The parties cove-nant and
-------------------- --------------------
agree that the shares of Du Pont Common Stock to be received in the Mergers
and Foreign Exchanges shall be allocated as provided in Schedules 2.2 and 2.4
hereto. The par-ties further covenant and agree that they shall use such
alloca-tion for all ▇▇▇▇▇-cial and Tax report-ing purpos-es.
ARTICLE IV CERTAIN ADDITIONAL TRANSACTIONS CERTAIN ADDITIONAL
TRANSACTIONS CERTAIN ADDITIONAL TRANSACTIONS
CERTAIN ADDITIONAL TRANSACTIONS
ARTICLE IVSection .1 Intercompany Accounts Intercompany Accounts
--------------------- ---------------------
Intercompany Accounts Intercompany Accounts. Prior to the Initial
---------------------- ---------------------
Completion Date, all intercompany re-ceiv-▇▇▇▇▇ of Protein Technologies
International Financial Ser-vic-es N.V. shall be repaid and the proceeds shall
be dis-trib-ut-ed up to ▇▇▇▇▇▇▇, except for such amounts as may be used to
defease commercial paper obligations or repay Indebtedness or inter-company
accounts payable of Pro-tein Inter-na-tional Manu-fac-turing Bel-gium, N.V.
("PTIM"). As of 11:59 PM on November 30, 1997, all inter-com-pany ac-count
----
bal-ances (in-clud-ing ac-counts pay-able and ac-counts receiv-able) then
out-stand-ing between the Pro-tein Subsid-iary being acquired by Du Pont on
such date (and such Protein Subsidiary's Subsid-iar-ies), on the one hand, and
▇▇▇▇▇▇▇, Stock-holder or any of their re-spec-tive Subsid-iar-ies (other than
such Protein Subsid-iary and its Sub-sid-iar-ies), on the other hand, shall be
can-celled with-out pay-ment being made with re-spect there-to; provided that
-------- ----
all intercompany accounts from 11:59 PM on November 30, 1997 until Closing
shall be subject to and arise only pursu-ant to the provisions of Section
6.14(e), and pro-vid-ed, however, that $155 mil-lion of exist-ing
---------- -------
inter-compa-ny debt (constitut-ing all inter-company debt) owed to ▇▇▇▇▇▇▇ and
its Sub-sid-iar-ies (other than Pro-tein Subsid-iar-ies) by PTI and Fiber
Sales will be re-paid, prior to the Ini-tial Comple-tion Date, from the
pro-ceeds of new exter-nal borrowings of the Protein Sub-sid-iaries (the terms
of which shall pro-vide that such borrowings can be repaid in accor-dance with
Sec-tion 4.18 hereof and shall other-wise be rea-son-ably ac-cept-able to Du
Pont). No ad-just-ment shall be made to any number of shares of Du Pont
Common Stock to be deliv-ered pursuant to Section 2.4(a) hereof or any Merger
Con-ver-sion Ratio as a result of any can-cel-la-tion pursuant to this Section
3.1.
ARTICLE IVSection .2 Payment or Defeasance of Indebt-▇▇-▇▇▇▇
---------------------------------------
Payment or Defeasance of Indebt-▇▇-▇▇▇▇ Payment or Defeasance of
--------------------------------------- -------------------------
Indebt-▇▇-▇▇▇▇ Payment or Defeasance of Indebt-▇▇-▇▇▇▇. Prior to the
---------- ---------------------------------------
Initial Completion Date, ▇▇▇▇▇▇▇ shall, or shall cause, all out-stand-ing
Indebtedness of all Foreign Protein Subsidiaries (includ-ing the commer-cial
paper obliga-tions of PTIM) to be defeased or re-paid or, in the alterna-tive,
▇▇▇▇▇▇▇ shall cause PTIM to enter into an agreement with Banque Brussels
▇▇▇▇▇▇▇ (the "Banque Brussels Agree-ment") sub-▇▇▇▇-tially in the form
----------------------------
attached as Exhibit C hereto and shall cause to be depos-it-ed with Banque
Brussels the amount neces-sary to redeem or defease such debt in full. For
pur-pos-es of this Agree-ment, the calcu-la-tion of the Net Debt Amount shall
not include such Indebt-▇▇-▇▇▇▇ that has been repaid or defeased nor shall the
calcu-la-tion of the Net Debt Amount in-clude or take into account any amounts
depos-it-ed for such ▇▇▇▇▇-▇▇▇▇▇.
ARTICLE IVSection .3 Transfer of Certain Shares Transfer of
-------------------------- -----------
Certain Shares Transfer of Certain Shares Transfer of Certain Shares.
---------- -------------------------- --------------------------
Prior to the Initial Completion Date, ▇▇▇▇▇▇▇ shall purchase all of the
issued and outstanding capital stock of each of the Trans-ferred Subsidiaries
from the Subsid-iaries of ▇▇▇▇▇▇▇ that are the registered and beneficial
owners of such capi-tal stock and shall cause such capital stock to be
con-trib-ut-ed to Point-er, free and clear of all liens, claims, op-tions,
charg-es, securi-ty interests, encumbranc-es and re-strictions of any kind.
For all pur-poses of this Agreement other than this Article III, the
Trans-ferred Subsidiaries and their respective Subsidiar-ies shall be deemed
to be Subsidiar-ies of U.S. Protein Sub-sidiar-ies as of the date of this
Agreement and there-af-ter.
ARTICLE IVSection .4 Certain Asset Transfers Certain Asset
----------------------- -------------
Transfers Certain Asset Transfers Certain Asset Transfers.
--- ------------------------- -----------------------
(a) ▇▇▇▇▇▇▇ shall form two new Subsidiaries of Pointer (respectively,
"PTI Argentina" and "PTI Brazil" and collec-tively, the "New Pointer
------------- ----------- ------------
Subsidiaries") which shall each ac-quire, as soon as prac-tica-ble follow-ing
----------
execution and deliv-ery of this Agree-ment, the assets primarily asso-ci-ated
with or used in the Busi-ness (the "Assets") that are cur-rent-ly held by each
------
of RP Argentina and RP Bra-zil (col-lec-tive-ly, "Transferor
----------
Subsid-iar-ies") (such acqui-si-tions, col-lec-tive-ly, the "Asset
-- -----
Trans-fers"). If the closing of the Asset Transfers cannot be com-pleted by
the Initial Comple-tion Date, the New Pointer Subsidiaries shall enter into
agreements with RP Argentina and RP Brazil (in the form of Exhib-its A-3 and
A-4 hereto) to ac-quire the Assets as soon as prac-ti-ca-ble there-af-ter, in
accordance with the provisions of Section 3.5 here-of. Prior to the Initial
Completion Date, ▇▇▇▇▇▇▇ shall cause to be contributed to PTI Argentina the
sum of $872,000 and to PTI Brazil, or, in the alterna-tive, to Pointer, the
sum of $2,800,000. If contributed to Pointer, Pointer shall, as soon as
practicable following the Initial Completion Date, contribute such sum to PTI
Brazil. PTI Argentina and PTI Brazil shall thereafter pay such amounts for
the Assets in accordance with the terms of Exhibits A-3 and A-4. To the
extent the amounts so con-trib-uted by ▇▇▇▇▇▇▇ are insufficient to pay for the
Assets in accordance with the terms of Exhibits A-3 and ▇-▇, ▇▇▇▇▇▇▇ shall
pay, or cause to be paid, the amount of such deficien-cies to Pointer. The
Trans-feror Sub-sid-iar-ies shall not be deemed to be Pro-tein Subsid-iar-ies
for pur-poses of this Agreement, except for purposes of Article IV hereof, for
which they shall be deemed to be Protein Subsidiaries. In the event that the
Asset Trans-fers in fact occur, for all pur-poses of this Agree-ment other
than this Article III, the New Pointer Sub-sidiar-ies shall be deemed to be
U.S. Protein Subsid-iaries as of the date of this Agree-ment and there-after.
(b) The closing of each of the Asset Transfers shall take place as soon
as practicable following the satis-faction or waiver of the following
conditions by the party for whose benefit the condition exists; provided that
-------- ----
the New Pointer Subsidiaries may not waive any such condi-tion without the
prior written consent of Du Pont. The obli-gation of the respective
Transferor Subsid-iar-ies and New Pointer Sub-sidiar-ies to effect such Asset
Trans-fers shall be condi-tioned on the re-ceipt of such licenses, permits,
con-sents, ap-prov-als, autho-ri-zations, qualifica-tions and orders of
Govern-mental Entities and other third parties as are necessary in connection
with the Asset Transfers, except where the failure to obtain such li-censes,
permits, con-sents, ap-prov-als, authorizations, quali-fica-tions and orders
would not, individually or in the aggre-gate with all other failures,
reasonably be expected to have a Mate-rial Ad-verse Effect (as defined in
Section 4.1(b) hereof) on the Busi-ness conducted by RP Argentina and RP
Brazil, as the case may be.
ARTICLE IVSection .5 Beneficial Ownership of the Foreign Protein
-------------------------------------------
Subsidiaries following the Initial Com-pletion Date. Beneficial Ownership
------------------------------------------------ --------------------
of the Foreign Protein Subsidiaries following the Initial Com-pletion Date.
-----------------------------------------------------------------------------
Beneficial Ownership of the Foreign Protein Subsidiaries following the
-------------------------------------------------------------------------
Initial Com-pletion Date. Beneficial Ownership of the Foreign Protein
------------------------ -------------------------------------------
Subsidiaries following the Initial Com-pletion Date.
------------------------------------------------------
(a) Subject to Section 2.5(a)(iv) hereof, at the Ini-tial Com-ple-tion
Date, the entire econom-ic benefi-cial inter-est in and to, and the risk of
loss with re-spect to, the Assets and the Foreign Protein Subsid-iaries shall
(re-gard-less of when legal title there-to is trans-ferred, in the case of the
Assets, to one of the New Pointer Sub-sid-iar-ies or, in the case of a
Foreign Protein Subsid-iary, to Du Pont) pass to PTI Argenti-na, PTI Brazil or
Du Pont, as the case may be; provided that proper recordings shall be made to
-------- ----
evidence such beneficial owner-ship and risk of loss with the appropriate
Governmental Entities, as required by applica-ble law. From and after the
Ini-tial Com-ple-tion Date, ▇▇▇▇▇▇▇ shall cause such Assets and Foreign
Protein Subsid-iaries to be man-aged at Du Pont's direc-tion pursu-ant to an
Operating Agree-ment (as defined in Section 6.12 hereof) until such Assets and
For-eign Pro-tein Sub-sid-iaries are actu-ally legally trans-ferred and
con-veyed or if not so trans-ferred or con-veyed, until the Final Termi-nation
Date (as defined in Section 8.1(b) here-of). Without limit-ing the foregoing,
all reve-nues, earn-ings and cash flows associat-ed with the Assets or of such
Foreign Protein Sub-sidiaries fol-lowing 12:01 AM (local time) on December 3,
1997 shall, subject to Section 2.5(a)(iv) hereof, be for the ac-count of Du
Pont but shall be re-tained by the respec-tive Foreign Protein Subsid-iaries
(or, in the case of ▇▇▇▇▇-▇▇▇▇ and Brazil, by RP Argentina and RP Brazil)
until the re-spec-tive For-eign Closings are con-sum-mat-ed and, in the case
of the Assets until the closing of the Asset Transfers. Fol-lowing the
Ini-tial Com-ple-tion Date, nei-ther ▇▇▇▇▇▇▇ nor any of its Subsid-iaries
shall be re-quired to lend, advance, contrib-ute or use any of its own funds
in connec-tion with the opera-tions of such Foreign Protein Subsidiar-ies.
(b) In the event that any Foreign Exchange-- does not occur on the
Initial Completion Date, ▇▇▇▇▇▇▇ shall use its reasonable best efforts to take
such action as Du Pont shall rea-son-ably re-quest, in order to mini-▇▇▇▇
Du Pont's admin-is-tra-tive burden with re-spect to the Foreign Protein
Sub-sid-iaries relat-ing to such delayed Foreign Exchanges including with
respect to Du Pont's inter-nal ▇▇▇▇▇-cial reporting proce-dures so that Du
Pont may in-clude such For-eign Protein Sub-sidiaries enti-ties in their
financial re-port-ing.
ARTICLE IVSection .6 PTIFS Liquidation. Prior to the Ini-tial
-----------------
Completion Date, ▇▇▇▇▇▇▇ shall, at its sole expense, cause Pro-tein
Tech-▇▇▇-▇-▇▇▇▇ Inter-na-tion-▇▇ ▇▇▇▇▇-cial Servic-es, N.V. Belgium ("PTIFS")
-----
to liqui-date and distrib-ute all of its assets and lia-bili-ties to PTIM (the
"PTIFS Liqui-da-tion").
--------------------
ARTICLE IVSection .7 Net Debt Amount Net Debt Amount Net Debt
--------------- --------------- --------
Amount Net Debt Amount. Except as set forth in Section 3.7 of the
------ ---------------
▇▇▇▇▇▇▇ Disclosure Schedule, the Net Debt Amount of each Protein Subsidiary
shall be equal to zero on the Initial Completion Date. ▇▇▇▇▇▇▇ shall
indemni-fy Du Pont on a dollar-for-dollar basis to the extent the Net Debt
Amount of any Protein Subsidiary is greater than as set forth pursuant to the
foregoing.
ARTICLE V REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ AND STOCK-HOLDER
▇▇▇▇▇▇▇ and Stockholder, jointly and ▇▇▇▇▇-▇▇-▇▇, repre-sent
and war-rant to Du Pont and each of the Du Pont Merger Subsidiaries, except
that no representation and ▇▇▇▇▇▇-▇▇ is made with respect to (a) the assets,
liabilities and operations of Qualcepts Nutrients, Inc. except as set forth in
the letter agreement, dated October 21, 1997, between Du Pont and ▇▇▇▇▇▇▇ (the
"Qualcepts Letter"), (b) the as-sets, lia-bil-i-ties and opera-tions of the
-----------------
industrial polymer busi-ness of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Midland Company ("ADM") that is
- ---
subject to that certain Purchase Agreement, dated September 26, 1997, be-tween
PTI and ADM and (c) the Tech-nol-o-gy li-cense ▇▇▇▇▇-▇▇ by Novogen Limited, as
fol-lows:
ARTICLE VSection .1 Organization Organization Organization
------------ ------------ ------------
Organization.
------------
(a) Each of the U.S. Protein Subsidiaries and the Foreign Protein
Subsidiaries is a corpo-ra-tion duly orga-nized, validly exist-ing and in good
stand-ing under the laws of the jurisdic-tion of its incor-pora-tion or
organi-zation and has all requi-site corporate power and authori-ty and all
necessary govern-men-tal ap-provals to own, lease and oper-ate its proper-ties
and to carry on its business as now being conducted. The U.S. Protein
Sub-sidiaries and the Foreign Protein Subsidiaries are duly quali-fied or
li-censed to do business and, for juris-dic-tions recog-niz-ing such concept,
in good stand-ing, in each juris-dic-tion in which the prop-erty owned, leased
or operated by it or the nature of the busi-ness conducted by it makes such
quali-fication or licens-ing necessary, except where the failure to be so duly
quali-fied or licensed and in good standing would not in the aggregate have a
Material Adverse Effect on the Business, taken as a whole. Stock-holder has
deliv-ered to Du Pont, prior to the execu-tion of this Agree-ment, a com-plete
and cor-rect copy of the cer-tificate of incor-pora-tion and by-laws, each as
amend-ed to date, of each of the U.S. Protein Subsid-iaries and the Foreign
Protein Subsid-iar-ies. Such orga-ni-za-tion-al docu-ments are in full force
and effect and no U.S. Protein Subsidiary or Foreign Protein Subsidiary is in
▇▇▇▇▇-tion of any provi-sion of such orga-ni-za-tional docu-ments.
(b) As used in this Agree-ment, any refer-ence to any event, change or
effect having a "Mate-rial Adverse Effect" on or with respect to any entity
------------------------
(or group of enti-ties, taken as a whole) or to the "Business," taken as a
whole, means such event, change or effect (i) is mate-ri-ally adverse to the
condi-tion (▇▇▇▇▇-cial or other-wise), as-sets, busi-ness-es or re-sults of
opera-tions of such entity (or, if used with respect thereto, of such group of
entities, taken as a whole) or of the Busi-ness, taken as a whole, as the
case may be, or (ii) will mate-ri-ally impair the abili-ty of such entity or
group of entities, taken as a whole (or, in the case of the Busi-ness, the
ability of the Protein Subsid-iaries, taken as a whole) to per-form its or
their obli-ga-tions here-un-der or con-sum-mate the transac-tions
contem-plated hereby. "Mate-rial Adverse Effect" when used with refer-ence to
------------------------
the Business, taken as a whole, shall include an event, change or effect which
materially im-pairs the ability of ▇▇▇▇▇▇▇ or Stock-holder to perform their
re-spective obli-gations hereunder or consummate the trans-ac-tions
con-templat-ed hereby.
(c) Each of ▇▇▇▇▇▇▇ and Stockholder is a duly orga-nized, valid-ly
existing corporation and in good stand-ing, under the laws of the jurisdiction
of its incorporation and has all requisite corporate power and authori-ty
and all neces-sary governmental approvals to own, lease and oper-ate its
properties and to carry on its business as now being conducted by it.
(d) Sec-tion 4.1(d) of the disclo-sure sched-ule of ▇▇▇▇▇▇▇
deliv-ered concur-rently with the execu-tion and deliv-ery by the parties
hereto of this Agreement (the "Ral-st-on Dis-clo-sure Sched-ule") sets forth a
--------------------------------
com-plete list and owner-ship chart of Stockholder and its Subsidiaries
and any other direct or indirect Subsidiaries of ▇▇▇▇▇▇▇ engaged in the
Business in-clud-ing (x) the juris-dic-tion of incor-po-ra-tion or
orga-ni-zation of such Subsid-iary and (y) the percentage of the capi-tal
stock or other owner-ship inter-est of such Sub-sid-iary. Except for (i)
marketable securities having an aggre-gate cost and fair market value on the
date hereof of less than $1 million each, (ii) a 25% interest (the "Fuji
----
Shares") in Fuji-Purina Protein Ltd. (the "Fuji Joint Ven-ture"), and (iii)
- -------------------
3.5% inter-est in Jilin Fuji Pro-tein Compa-ny, Ltd. nei-ther Stock-holder nor
any of the Pro-tein Subsid-iaries owns any equity inter-est in any
corpo-ra-tion or other entity other than its Subsid-iar-ies.
ARTICLE VSection .2 Capitalization; Subsidiaries; Fuji Joint Venture
------------------------------------------------
Capitalization; Subsidiaries; Fuji Joint Venture Capitalization;
---------------------------------------------------- ---------------
Subsidiaries; Fuji Joint Venture Capitalization; Subsidiaries; Fuji Joint
----------------------------- ----------------------------------------
Venture.
-------
(a) The autho-rized capital stock, and the number of shares that are
issued and outstanding, of each of the Protein Subsidiaries is set forth in
Section 4.2(a) of the ▇▇▇▇▇▇▇ Disclosure Schedule. Shares that are issued and
held in the trea-sury of any of the Pro-tein Subsidiaries are set forth
in Section 4.2(a) of the ▇▇▇▇▇▇▇ Disclosure Sched-ule. All the issued and
out-stand-ing shares of capital stock of each Protein Subsid-iary are duly
autho-rized, validly is-sued, fully paid and nonas-sess-able and were not
issued in violation of statu-to-ry or contrac-tual preemp-tive or similar
rights.
(b) There are no bonds, deben-tures, notes or other In-debt-▇▇-▇▇▇▇
having general voting rights (or con-vertible into securi-ties having such
rights) ("Voting Debt") of any Protein Subsidiary issued and out-stand-ing.
------------
Except as set forth above, (i) there are no shares of capital stock or other
voting securities of any Protein Subsidiary autho-rized, issued or
out-stand-ing, (ii) there are no exist-ing op-tions, war-rants, calls,
preemp-tive rights, sub-scrip-tions or other rights, agree-ments,
ar-range-ments or com-mitments of any character, relat-ing to the issued or
unissued capital stock of any Pro-tein Subsidiary, obligat-ing any Protein
Sub-sid-iary, ▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇▇ to issue, trans-fer or sell
or cause to be is-sued, trans-ferred or sold any shares of capital stock
or Voting Debt of, or other equity interest in, any Protein Subsid-iary or
securities convert-ible into or ex-change-able for such shares or equity
inter-ests, or obli-ga-ting any Pro-tein Sub-sidiary to grant, extend or enter
into any such op-tion, warrant, call, subscrip-tion or other right,
agree-ment, ar-rangement or commit-ment and (iii) except as set forth in
Section 4.2(b) of the ▇▇▇▇▇▇▇ Disclosure Schedule, none of the Pro-tein
Sub-sid-iar-ies has agreed to or is obli-gated to pro-vide funds to, or make
any in-vestment (in the form of a loan, capital contri-bu-tion or other-wise)
in, any other Pro-tein Sub-sidiary or any other enti-ty.
(c) Except as set forth in Section 4.2(c) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, all of the out-stand-ing shares of capi-tal stock of each of the
Protein Sub-sidiar-ies (i) except for the out-stand-ing shares of capital
stock of the Trans-ferred Subsid-iar-ies, are, and (ii) as of the Ini-tial
Com-ple-tion Date will be, owned of record and bene-ficial-ly by
Stock-hold-er, directly or indi-rect-ly, and all such Shares have been validly
issued and are fully paid and nonas-sess-able and are owned by either
Stock-hold-er or one of the Protein Subsid-iar-ies free and clear of all Liens
(as defined below), preemptive rights and similar rights and claims of third
parties. As used in this Agree-ment, "Lien" means, with re-spect to any
----
asset, any lia-bility (wheth-er ac-crued, abso-lute, con-tin-gent or
other-wise, includ-ing, without limi-ta-tion, and spe-cial Tax as-sess-ments),
▇▇▇▇-▇▇▇▇, deed to secure debt, lien, pledge, charge, claim, secu-rity
inter-est or encum-brance of any kind in re-spect of such asset. ▇▇▇▇▇▇▇ owns
beneficially and of record, free and clear of all Liens, preemp-tive rights
and simi-lar rights and claims of third par-ties, all of the issued and
out-stand-ing shares of capital stock of Stockholder. At the Closings, except
as noted in Section 4.2(c) of the ▇▇▇▇▇▇▇ Disclosure Schedule, Du Pont will
re-ceive valid title to all of the issued and out-standing shares of capital
stock of each of the Pro-tein Sub-sidiar-ies, free and clear of all Liens,
pre-emp-tive rights and simi-lar rights and claims of third par-ties.
(d) All of the Fuji Shares are owned of record and beneficially, free
and clear of all Liens, preemptive rights and similar rights and claims by
third parties, by ▇▇▇▇▇▇▇ or a wholly owned Sub-sid-iary of ▇▇▇▇▇▇▇ and as of
the Initial Completion Date will be owned of record and beneficially, free and
clear of all Liens, preemptive rights and similar rights and claims of
third parties, by PTI and all such shares have been validly issued and are
fully paid and nonassessable. Neither the execution and delivery and
performance of this Agreement nor any transfers of the Fuji Shares to PTI (to
the extent not currently owned by it) will result in a ▇▇▇▇▇-tion or breach
of, or con-sti-tute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termina-tion, amendment or
can-▇▇▇▇▇-tion) under, any of the terms, condi-tions or provi-sions of any of
the agreements relating to the Fuji Joint Venture.
(e) There are no voting trusts or other agree-ments or understandings
to which any of the Protein Subsid-iaries is a party with respect to the
voting of the capital stock of any of the Protein Subsidiaries.
(f) None of the Protein Subsidiaries is re-quired to redeem,
repur-chase or other-▇▇▇▇ ▇▇-▇▇▇▇▇ shares of capital stock of any Protein
Subsidiary, including as a result of the con-summation of the trans-ac-tions
con-templat-ed by this Agree-ment or by the Foreign Exchange Agreements, if
any.
ARTICLE VSection .3 Authorization; Binding Effect Authorization;
----------------------------- --------------
Binding Effect Authorization; Binding Effect Authorization; Binding
--------------- ----------------------------- ----------------------
Effect. Each of ▇▇▇▇▇▇▇, Stockholder and the U.S. Protein Subsid-iaries has
------
the requi-site corpo-rate power and au-thor-ity to exe-cute and deliv-er this
Agreement and to perform its re-spective obli-gations hereun-der. The
execu-tion and deliv-ery of this Agree-ment and the perfor-▇▇▇▇▇ of its
respective obliga-tions hereun-der have been duly and valid-ly autho-rized by
the Board of Direc-tors of each of ▇▇▇▇▇▇▇, Stock-holder and the U.S. Protein
Subsidiaries; the Board of Direc-tors of each U.S Protein Subsidiary has
recommended to Stockholder as the owner of the outstand-ing shares of such
U.S. Protein Subsidiary that it adopt this Agree-ment in accordance with the
DGCL; the Board of Directors of Stockholder has autho-rized it to adopt this
Agreement in its capacity as the sole stockholder of each of the U.S. Protein
Subsidiaries of which it is the sole stock-holder in accordance with the DGCL;
and concur-rently with the execution here-of, Stockhold-er is adopting
this Agreement as the sole stock-holder of such U.S. Protein Subsidiary in
accor-dance with the DGCL. No other pro-ceed-ings on the part of ▇▇▇▇▇▇▇, any
Subsidiary of ▇▇▇▇▇▇▇ or any Protein Sub-sid-iary are neces-sary to autho-rize
the execu-tion, deliv-ery and per-formance of this Agree-ment. This
Agree-ment has been duly exe-cuted and deliv-ered by ▇▇▇▇▇▇▇, Stock-holder and
each of the U.S. Protein Subsid-iaries and consti-tutes, assum-ing due and
valid autho-ri-za-tion, execu-tion and delivery of this Agreement by Du Pont
and each of the Du Pont Merger Subsidiaries, a valid and bind-ing obli-ga-tion
of each of ▇▇▇▇▇▇▇, Stock-hold-er and the U.S. Protein Subsidiaries,
en-force-able against each of them in accor-dance with its terms.
ARTICLE VSection .4 Consents and Approvals; No ▇▇▇▇▇-tions
--------------------------------------
Consents and Approvals; No ▇▇▇▇▇-tions Consents and Approvals; No
------------------------------------ --------------------------
▇▇▇▇▇-tions Consents and Approvals; No ▇▇▇▇▇-tions. Except (a) as
----- -----------------------------------------
disclosed in Section 4.4 of the ▇▇▇▇▇▇▇ Disclosure Schedule, (b) for the
-
requisite fil-ings under the DGCL, (c) for the requisite filings and wait-ing
peri-ods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-trust Im-prove-ments Act of 1976, as
amended (the "HSR Act") and (d) in the case of the Registra-tion Rights
-------
Agree-ment (as defined in Section 6.12 hereof), for the fil-ings, per-mits,
autho-ri-za-tions, con-sents and ap-prov-als as may be required under, and
other appli-cable re-quire-ments of, the Secu-rities Act of 1933 and the rules
and regulations thereunder (the "Secu-ri-ties Act") and state secu-ri-ties or
----------------
blue sky laws, nei-ther the execu-tion and deliv-ery of this Agree-ment nor
the perfor-▇▇▇▇▇ by any of ▇▇▇▇▇▇▇, Stock-holder or the U.S. Protein
Subsidiaries of their respec-tive obli-ga-tions hereunder nor com-pli-ance by
any of ▇▇▇▇▇▇▇, Stock-holder or the U.S. Protein Subsidiaries with any of the
provi-sions hereof will (i) con-flict with or result in any breach of any
provi-sion of the corporate documents including the certif-i-cate of
incor-po-ra-tion or the by-laws of ▇▇▇▇▇▇▇, Stock-hold-er or any of the
Protein Sub-sid-iaries, (ii) re-quire any filing with, or per-mit,
autho-ri-za-tion, con-sent or approv-al of, any government or any agen-cy,
court, tribu-nal, commis-sion, board, bureau, depart-ment, polit-i-cal
subdivi-sion, or other instrumen-tal-ity of any govern-ment (includ-ing any
regulatory or admin-istrative agen-cy), whether federal, state, multinational
(including, but not limited to, the European Community), pro-vincial,
munici-pal or local, domes-tic or for-eign (each, a "Gov-ern-men-tal Enti-ty")
-----------------------
(other than such of the foregoing as are required because of the legal or
regulato-ry status of Du Pont or any Sub-sid-iary thereof or any facts
pertaining to such Per-sons), (iii) result in a ▇▇▇▇▇-tion or breach of, or
con-sti-tute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termina-tion, amend-ment, cancella-tion or
accel-er-ation) under, any of the terms, condi-tions or provi-sions of any
note, bond, ▇▇▇▇-▇▇▇▇, inden-ture, lease, license, con-tract, agree-ment,
commit-ment, understanding or other in-strument or obliga-tion to which any
Pro-tein Subsid-iary is a party or by which any of them or any of their
re-spec-tive prop-erties, assets or rights may be bound (col-lec-tively, the
"Protein Subsidiary Con-tracts"), including Li-cense Agree-ments (as defined
-------------------------------
in Section 4.11(a) hereof) or (iv) vio-late any order, writ, in-junc-tion,
judg-ment, ▇▇-▇▇▇▇, set-tle-ment, law, ordi-▇▇▇▇▇, stat-ute, rule,
regu-la-tion or other gov-ern-men-tal approv-al or autho-riza-tion (▇▇▇▇▇-al,
state, local or foreign) appli-ca-ble to ▇▇▇▇▇▇▇, Stock-holder or any Protein
Sub-sid-iary or any of their re-spec-tive prop-er-ties, as-sets or rights
(col-lective-ly, "Appli-cable Laws"), ex-clud-ing from the fore-go-ing
-----------------
claus-es (ii), (iii) and, inso-far as laws, stat-utes, rules and regu-la-tions
are con-cerned, (iv) such ▇▇▇▇▇-tions, breach-es or de-faults (other than with
re-spect to License Agree-ments) which would not, indi-vidu-ally or in the
aggre-gate, have a Material Adverse Effect on the Business, taken as a whole.
ARTICLE VSection .5 SEC Reports and Financial State-ments SEC
------------------------------------- ---
Reports and Financial State-ments SEC Reports and Financial State-ments
--------------------------------- -------------------------------------
SEC Reports and Financial State-ments.
-----------------------------------------
(a) As of their re-spec-tive dates or, if amend-ed, as of the date of
the last such amend-ment, none of the forms, reports, schedules, statements
and other documents re-quired to be filed by ▇▇▇▇▇▇▇ since September 30, 1995
under the Securi-ties Exchange Act of 1934, as amend-ed and the rules and
regu-lations thereunder (the "Ex-change Act") or the Secu-ri-ties Act
--------------
(excluding, howev-er, any ▇▇▇▇▇-cial state-ments or schedules includ-ed
there-in) con-tained any untrue state-ment of a material fact relat-ing to the
Business or omit-▇▇▇ to state a mate-ri-al fact relating to the Business
re-quired to be stated there-in or neces-sary in order to make the state-ments
therein, in light of the circum-stanc-es under which they were made, not
mis-leading. None of the Protein Subsid-iaries is re-quired to file any
forms, re-ports or other docu-ments with the Securities and Exchange
Commission (the "SEC"). None of the Pro-tein Sub-sid-iar-ies has any debt
---
that, immediate-ly after giving effect to the trans-actions contem-plated
hereby, would require it to file any forms, reports or other documents with
the SEC.
(b) ▇▇▇▇▇▇▇ has delivered to Du Pont the unaudit-ed balance sheets
(including the notes thereto) of the Busi-ness as of Sep-tem-ber 30, 1994 to
1996, and as of July 31, 1997 (the "Balance Sheets") and unaudited income
--------------
state-ments (in-cluding the notes there-to) for the Busi-ness for the years
ended Sep-tember 30, 1994 to 1996, and for the ten-month period ended July 31,
1997 (the "In-come State-ments"), copies of which are set forth in
--------------------
Sec-tion 4.5 of the ▇▇▇▇▇▇▇ Dis-clo-sure Sched-ule. The Bal-ance Sheets and
Income State-ments (col-lec-tive-ly, the "Fi-nan-cial State-ments") have been
-----------------------
derived from the books and records of the Business, and except as set forth in
Sec-tion 4.5 of the ▇▇▇▇▇▇▇ Dis-closure Sched-ule, were pre-pared in
accor-dance with gener-ally accept-ed account-ing princi-ples ("GAAP") on a
----
consis-tent basis, and present fully and fairly the financial posi-tion and
re-sults of opera-tions of the Busi-ness at the dates and for the periods
indicat-ed. In addition, ▇▇▇▇▇▇▇ has delivered to Du Pont operating cash flow
schedules relating to the Income State-ments and prepared from the Balance
Sheets and Income State-ments. Such schedules are also set forth in Section
4.5 of the ▇▇▇▇▇▇▇ Disclosure Schedule and include depreciation and capital
expenditure amounts determined in accordance with GAAP.
ARTICLE VSection .6 Absence of Certain Changes Absence of Certain
-------------------------- ------------------
Changes Absence of Certain Changes Absence of Certain Changes.
------- -------------------------- --------------------------
Except as disclosed in Sec-tion 4.6 of the ▇▇▇▇▇▇▇ Disclo-sure Sched-ule,
since July 31, 1997, (i) the Protein Sub-sid-iaries have con-duct-ed their
respec-tive busi-nesses only in the ordi-nary course of business con-sistent
with past prac-▇▇▇▇, (ii) there has not occurred any event having, and there
has not been a, Mate-ri-al Ad-verse Effect with respect to the Busi-ness,
taken as a whole, and there have not oc-curred any events or ▇▇▇▇▇-es
(in-cluding the incurrence of any lia-bili-ties of any nature, whether or not
accrued or con-tin-gent) in or to the Busi-ness which could rea-son-ably be
expected to have, indi-vid-ually or in the aggre-gate, a Mate-ri-al Ad-verse
Effect on the Busi-ness, taken as a whole, and (iii) except as de-scribed in
Section 3.1 or 6.14(c) here-of, none of the Pro-tein Sub-sid-iaries has taken
any of the ac-tions set forth in Sec-tion 6.1 hereof.
ARTICLE VSection .7 No Undisclosed Liabilities No Undisclosed
-------------------------- --------------
Liabilities No Undisclosed Liabilities No Undisclosed Liabilities.
-------- -------------------------- --------------------------
Except as reflected on the Balance Sheet dated as of July 31, 1997 or as
disclosed in Sec-tion 4.7 of the Ralst-on Dis-clo-sure Sched-ule, at July 31,
1997, none of the Protein Subsid-iaries had incurred any lia-bil-i-ties or
obli-ga-tions (whether di-rect, indirect, ac-crued, con-tin-gent or absolute,
and whether due or to become due, nor, to the knowledge of ▇▇▇▇▇▇▇, have any
facts arisen or oc-curred which could reason-ably form a basis there-for), and
since such date, none of the Protein Sub-sidiar-ies has incurred any such
liabil-ities or obliga-tions, except for such as are in-curred in the ordinary
course of business consis-tent with past practice and which could not
reason-ably be expected to have, individu-ally or in the aggre-gate, a
Material Adverse Effect on the Business, taken as a whole.
ARTICLE VSection .8 Litigation Litigation Litigation
---------- ---------- ----------
Litigation. Section 4.8 of the Ralst-on Dis-closure Schedule sets forth all
------
(i) pending suits, ac-tions and pro-ceed-ings ("Proceedings") and (ii) to the
-----------
knowl-edge of ▇▇▇▇▇▇▇, all threatened suits, actions, investiga-tions or
reviews against any of the Pro-tein Sub-sid-iar-ies. Except as set forth in
Section 4.8 of the ▇▇▇▇▇▇▇ Dis-clo-sure Sched-ule, there are no pend-ing or,
to the knowl-edge- of ▇▇▇▇▇▇▇, threat-ened Pro-ceed-ings or pending or
threatened investigations or reviews, against any of the Pro-tein
Sub-sid-iar-ies or any of their re-spec-tive prop-er-ties, assets or rights,
or any of their offi-cers or direc-tors in their capacity as such, or against
▇▇▇▇▇▇▇ or Stockholder in their capacity as direct or indirect owners of the
capi-tal stock of any of the Pro-tein Subsid-iar-ies, which, indi-vid-u-al-ly
or in the aggre-gate, is rea-son-ably likely to have a Mate-ri-al Ad-verse
Effect on the Business, taken as a whole. Except as dis-closed in Section 4.8
of the Ralst-on Dis-clo-sure Sched-ule, none of the Protein Subsidiaries
is sub-ject to any out-standing order, writ, in-junc-tion, settle-ment or
decree which in any respect re-stricts or limits any activi-ties of any of the
Protein Subsid-iaries or is otherwise mate-rial to any such entity. ▇▇▇▇▇▇▇
has pro-vided to Du Pont true, com-plete and cor-rect copies of all
com-plaints, mo-tions, re-spons-es and other docu-men-ta-tion and
corre-spon-dence relat-ing to any pending Proceed-ing.
ARTICLE VSection .9 Employee Benefit Plans. Employee Benefit
------------------------ ----------------
Plans.Employee Benefit Plans.Employee Benefit Plans.
------------------- ------------------------
(a) (i) Domestic Benefit Plans. Section 4.9(a)(i) of the ▇▇▇▇▇▇▇
----------------------
Disclo-sure Sched-ule con-tains a true and complete list of each de-ferred
compensation and each incen-tive com-pensa-tion, stock purchase, stock option
and other equity compensa-tion plan, program, agree-ment or ar-range-ment;
each sever-ance or termination pay, medical, surgical, hospi-tal-iza-tion,
life insurance and other "wel-fare" plan, fund or pro-gram (within the meaning
of section 3(1) of the Em-ployee Retire-ment Income Security Act of 1974,
as amended ("ERISA")); each profit-sharing, stock bonus or other "pen-sion"
-----
plan, fund or program (within the meaning of section 3(2) of ERISA); and each
other employee benefit plan, fund, program, agreement or arrangement, in each
case, that is sponsored, main-tained or contributed to or required to be
contrib-uted to by any U.S. Protein Subsid-iary or by any trade or business,
whether or not incorpo-rated (an "ERISA Affil-iate"), that together with any
----------------
one or more U.S. Protein Subsidiaries would be deemed a "single employer"
within the meaning of sec-tion 4001(b) of ERISA, or to which any U.S. Protein
Subsidiary or an ERISA Affiliate is a party, whether written or oral, for the
benefit of any employee or former employee of any U.S. Protein Subsid-iary
(collec-tively, the "Domestic Benefit Plans"). Each of the Domestic Benefit
----------------------
Plans that is subject to section 302 of Title IV of ERISA or section 412 of
the Code is hereinafter referred to in this Sec-tion 4.9 as a "Title IV Plan".
-------------
Except as disclosed in Section 4.9(a)(i) of the ▇▇▇▇▇▇▇ Disclosure Sched-ule,
none of the U.S. Protein Subsidiaries or any ERISA Affil-iate has any
commitment or formal plan, whether legally bind-ing or not, to create any
addi-tional Domestic Benefit Plan or modify or change any exist-ing Domes-tic
Benefit Plan that would affect any employee or former employee of any U.S.
Protein Subsidiary.
(i) Foreign Benefit Plans. Section 4.9(a)(ii) of the ▇▇▇▇▇▇▇
---------------------
Dis-clo-sure Schedule con-tains, to the knowl-edge of ▇▇▇▇▇▇▇, a true and
complete list of each deferred compensa-tion and each incentive
com-pensa-tion, plan, program, agree-ment or arrangement; each severance or
termi-na-tion pay, medical, surgical, hospitaliza-tion, life insur-ance
disabili-ty and accident plan, fund or program; each pension and
profit-sharing plan, fund or program; each employment, termina-tion or
sever-ance agreement; and each other employee benefit plan, fund, program,
agree-ment or arrangement, in each case, that is sponsored, maintained or
contrib-uted to or required to be contrib-uted to by any Foreign Pro-tein
Subsidiary or by any trade or busi-ness, or to which any Foreign Protein
Subsidiary is a party, whether writ-ten or oral, for the benefit of any
employee or former employees of any Foreign Protein subsidiary
(collec-tive-ly, the "Foreign Benefit Plans"). Except as dis-closed in
-----------------------
Section 4.9(a)(ii) of the ▇▇▇▇▇▇▇ Disclosure Schedule, to the knowl-edge of
▇▇▇▇▇▇▇, none of the Foreign Pro-tein Subsid-iaries has any commitment or
formal plan, whether legally binding or not, to create any addi-tional
For-eign Benefit Plan or modify or change any exist-ing Foreign Benefit Plan
that would affect any employee or former employee of any Foreign Protein
Subsidiary.
(b) With respect to each Domestic Benefit Plan, ▇▇▇▇▇▇▇ or a
Subsidiary of ▇▇▇▇▇▇▇ has prior to the Initial Completion Date delivered to Du
Pont true and complete copies of the Domestic Benefit Plan, includ-ing
any amend-ments thereto (or if the Domestic Benefit Plan is not a written
Domestic Benefit Plan, a descrip-tion thereof), any related trust or other
funding vehi-cle, the most recent reports or summaries required under ERISA or
the Code, if any, and the most recent determina-tion letter received from the
IRS with respect to each Domes-tic Benefit Plan in-tended to qualify under
section 401 of the Code. With respect to each Foreign Benefit Plan set forth
in Sec-tion 4.9(a)(ii) of the ▇▇▇▇▇▇▇ Disclosure Schedule, ▇▇▇▇▇▇▇ or a
Sub-sidiary of ▇▇▇▇▇▇▇, has prior to the applicable Foreign Closing Date
deliv-ered to Du Pont true and complete copies of such For-eign Benefit Plan
and any amendments thereto (or if the For-eign Bene-fit Plan is not a written
Foreign Benefit Plan, a de-scription there-of), any related trust or other
fund-ing vehicle and the most recent reports or summaries required under local
law.
(c) No liability under Title IV or section 302 of ERISA has been
incurred by any U.S. Protein Subsidiary or any ERISA Affiliate that has not
been satisfied in full, and no condition exists that presents a material risk
to any U.S. Protein Subsidiary or any ERISA Affili-ate of incurring any such
liability, other than liability for premiums due the Pension Benefit Guaranty
Corporation ("PBGC") (which premiums have been paid when due). Insofar as the
----
represen-tation made in this Section 4.9(c) applies to sections 4064,
4069 or 4204 of Title IV of ERISA, it is made with respect to any employee
benefit plan, program, agreement or arrange-ment subject to Title IV of ERISA
to which any U.S. Protein Subsidiary or any ERISA Affiliate made, or was
required to make, contribu-tions during the five (5)-year period ending on the
last day of the most recent plan year ended prior to the Initial Completion
Date.
(d) The PBGC has not instituted proceedings to terminate any Title IV
Plan and to the knowledge of ▇▇▇▇▇▇▇, no condition exists that presents a
material risk that such proceedings will be instituted.
(e) No Title IV Plan is a "multiemployer pension plan," as defined in
section 3(37) of ERISA, nor is any Title IV Plan a plan described in
section 4063(a) of ERISA. None of the U.S. Protein Subsidiaries or any ERISA
Affiliate has made or suffered a "complete with-drawal" or a "partial
withdrawal", as such terms are respectively defined in sections 4203 and 4205
of ERISA (or any liability resulting therefrom has been satisfied in full).
(f) To the knowledge of ▇▇▇▇▇▇▇, none of the U.S. Protein
Subsidiaries, any Benefit Plan, any trust created thereunder, or any
administrator thereof has engaged in a transaction in connection with which
any U.S. Protein Sub-sidiary, any Domestic Benefit Plan, any such trust, or
administrator thereof, or any party deal-ing with any Domes-tic Benefit Plan
or any such trust could be subject to either a civil penalty assessed pursuant
to section 409 or 502(i) of ERISA or a Tax imposed pursuant to sec-tion
4975 or 4976 of the Code.
(g) Each Domestic Benefit Plan has been oper-ated and administered in
all material respect in accor-dance with its terms and applicable law,
including but not limited to ERISA and the Code. To the knowledge of ▇▇▇▇▇▇▇,
each Foreign Benefit Plan has been operated and administered in all material
respects in accordance with its terms and applicable local law.
(h) Each Domestic Benefit Plan intended to be "qual-i-fied" within
the meaning of section 401(a) of the Code is so qualified and the trusts
maintained thereunder are exempt from taxation under section 501(a) of the
Code. Each Domestic Benefit Plan intended to satisfy the re-quirements of
section 501(c)(9) of the Code has satis-fied such require-ments.
(i) Except as set forth in Section 4.9(i) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, no Domestic Benefit Plan pro-vides medical, surgical,
hospitalization, death or similar benefits (whether or not insured) for
employees or former employees of any U.S. Protein Subsidiary for periods
extend-ing beyond their retirement or other termi-nation of service, other
than (i) coverage mandated by applicable law, (ii) death benefits under any
"pension plan", or (iii) benefits the full cost of which is borne by the
current or former employee (or his beneficiary).
(j) Except as disclosed in Section 4.9(j) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, the consummation of the trans-actions contemplated by this Agreement
will not (i) entitle any current employee of any Domestic Protein
Subsidiary, and to the knowledge of ▇▇▇▇▇▇▇, entitle any current or former
employee or officer of any Foreign Protein Subsidiary, to severance pay,
unemployment com-pensation or any other pay-ment, except as expressly provided
in this Agreement, or (ii) accelerate the time of payment or vesting, or
increase the amount of compen-sation due any such current employee of any
Domestic Protein Subsidiary or, to the knowledge of ▇▇▇▇▇▇▇, any current or
former employee or officer of any Foreign Protein Subsidiary.
(k) Except as disclosed in Section 4.9(k) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, there are no pend-ing, or, to ▇▇▇▇▇▇▇'▇ knowledge, threatened or
anticipat-ed claims against any Domestic Benefit Plan, or, to the knowledge of
▇▇▇▇▇▇▇, pending or threatened against any Foreign Benefit Plan, by any
employee or former employee of any Protein Subsidiary covered under any such
Domestic or Foreign Bene-fit Plan, or otherwise involving any such Domestic or
For-eign Benefit Plan (other than routine claims for benefits).
(l) To the knowledge of ▇▇▇▇▇▇▇, all Foreign Bene-fit Plans that are
subject to the laws of any juris-dic-tion outside the United States are in
material compli-ance with such applicable laws, including relevant Tax laws,
and the requirements of any trust deed under which they are established. To
the knowledge of ▇▇▇▇▇▇▇, all re-quired contributions payable to such Foreign
Benefit Plans have been made, and all such Foreign Benefit Plans are in
materi-al compliance with any applicable funding require-ments.
(m)
ARTICLE VSection .10 No Default; Compliance with Appli-ca-ble Laws,
----------------------------------------------
etc. No Default; Compliance with Appli-ca-ble Laws, etc. No Default;
--- --------------------------------------------------- -----------
Compliance with Appli-ca-ble Laws, etc. No Default; Compliance with
------------------------------------------ ---------------------------
Appli-ca-ble Laws, etc.
------------------------
(a) Except as disclosed in Sec-tion 4.10(a) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, none of the Protein Subsidiar-ies is in de-fault or ▇▇▇▇▇-tion of
any term, condition or provi-sion of its respective Cer-tificate of
Incorpora-tion or By-laws or any Applica-ble Law, excluding de-faults or
▇▇▇▇▇-tions of Applicable Laws (other than orders, writs, in-junc-tions,
judg-ments, ▇▇-▇▇▇▇▇ and set-tle-ments) which would not, indi-vidu-al-ly or in
the aggre-gate, have a Material Adverse Effect on the Business, taken as
a whole.
(b) Except as dis-closed in Sec-tion 4.10(b) of the ▇▇▇▇▇▇▇
Disclosure Sched-ule, the Protein Subsidiaries hold, and are in compliance
with the terms of, all per-mits, li-cens-es, vari-anc-es, or-ders, ap-prov-als
and autho-rizations of all Gov-ern-mental Entities required for the
lawful conduct of the Business (the "Permits"), other than those Permits, the
-------
fail-ure to hold or comply with which would not, in the aggregate, have a
Material Adverse Effect on the Business, taken as a whole.
(c) Section 4.10(c) of the ▇▇▇▇▇▇▇ Disclosure Schedule sets forth a
complete and correct list, as of the date of this Agreement, of all of the
fol-low-ing types of Con-tracts:
(i) employment agreements be-tween ▇▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇▇,
or any of the Pro-tein Sub-sid-iaries, on the one hand, and an em-ployee of
any of the Protein Subsidiaries, on the other hand; provided that the
-------- ----
foregoing shall be limited, except with re-spect to employees with the title
of "vice president" and above, to those employ-ment agree-ments that are
either (x) writ-ten or (y) known to ▇▇▇▇▇▇▇;
(ii) Contracts involving an amount in excess of $100,000 and which
obligate any Pro-tein Sub-sid-iary to fur-nish sup-plies or servic-es to any
Govern-mental Entity;
(iii) Contracts between ▇▇▇▇▇▇▇, any Subsid-iary of ▇▇▇▇▇▇▇, or any of
the Protein Subsid-iar-ies, on the one hand, and any direc-tor or offi-cer of
any of the Protein Subsidiaries, on the other hand;
(iv) Contracts between any of the Protein Subsidiaries, on the one hand,
and ▇▇▇▇▇▇▇, any Subsid-iary of ▇▇▇▇▇▇▇ or any of their respec-tive
affil-i-ates, on the other hand;
(v) Contracts of any of the Protein Subsid-iaries for the future
purchase of, or payment for, supplies, products or services that in-volve an
amount in excess of $100,000 or have a term of six (6) months or more;
(vi) Contracts of any of the Protein Subsid-iaries to sell or supply
prod-ucts or to per-form ser-vices that in-volve an amount in excess of
$100,000 or have a term of six (6) months or more;
(vii) partnership or joint venture agree-ments to which any of the
Protein Subsidiaries is a party;
(viii) Contracts limiting or re-strain-ing any of the Protein
Subsidiaries from engaging or com-pet-ing in any lines or busi-ness with any
Person;
(ix) Contracts other than sales of prod-ucts in the ordinary course of
business pro-viding for rights of indem-ni-fica-tion or excul-pa-tion by any
of the Protein Subsid-iar-ies in favor of any offi-cer, direc-tor, employ-ee
or financial advisor of any of the Protein Subsid-iaries or, to the extent
involving an amount in excess of $100,000 on an annual basis, any other
Per-son;
(x) loan agreements, notes, mortgag-es, inden-tures, security
agreements, letters of credit or other contracts for the borrowing or lending
of money by any of the Protein Subsidiaries; and
(xi) any Contract of any of the Protein Subsidiaries not entered into in
the ordi-nary course of business which require the payment or receipt of
$100,000 or more by or from any of the Protein Sub-sid-iaries, or which is
otherwise material to any of the Protein Subsid-iaries, and which, in any
case, is not other-wise dis-closed pursuant to the forego-ing clauses (i)
through (x).
(d) Each Contract required to be listed in the ▇▇▇▇▇▇▇ Disclosure
Schedule or which is otherwise materi-al to the Business, taken as a whole, is
in full force and ef-fect, has not been modi-fied or amend-ed and
consti-tutes the legal, valid and binding obliga-tion of the Protein
Subsid-iaries, in accor-dance with the terms of such Con-tract. No event or
condi-tion exists which will result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default by any of the
Protein Subsidiaries (or, to the knowledge of ▇▇▇▇▇▇▇, a default by any other
party there-to) under any Con-tract, except those violations, breaches and
de-faults that would not, individu-ally or in the aggregate, have a Mate-rial
Ad-verse Effect on the Busi-ness, taken as a whole. ▇▇▇▇▇▇▇, Stock-holder and
the Protein Sub-sidiaries have provid-ed true, com-plete and cor-rect copies
to Du Pont of all Con-tracts.
ARTICLE VSection .11 Intellectual Prop-erty Intellectual
---------------------- ------------
Prop-erty Intellectual Prop-erty Intellectual Prop-erty.
- ----------------------- -----------------------
(a) Except as set forth in Section 4.11(a) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, each Pro-tein Sub-sid-iary owns (and has the valid and
en-force-able right to make, use, and, to the knowledge of ▇▇▇▇▇▇▇, sell,
offer to sell and import) all Intel-lec-tu-al Prop-▇▇-▇▇ to the extent used in
or neces-sary for the con-duct of its re-spec-tive busi-ness-es, free and
clear of all Liens and, except for the Li-cense Agree-ments set forth in
Sec-tion 4.11(b) of the Ralst-on Dis-clo-sure Sched-ule, free and clear of all
li-cens-es to third par-ties. As used in this Agreement, the term
"In-tel-lectu-al Proper-ty" shall mean: (i) regis-tered and unreg-istered
----------------
trade-marks, ser-vice marks (includ-ing regis-trations, recordings and
applica-tions in the United States Patent and Trademark Office, any state of
the United States or any other Governmen-tal Entity worldwide), slo-▇▇▇▇,
trade names, logos and trade dress (col-lec-tive-ly, to-geth-er with the good
will symbol-ized thereby or associ-ated with each, "Trade-marks"); (ii) all
-----------
national (in-cluding, but not limited to, the United States) and
multina-tional statu-to-ry inven-tion registra-tions, patents, patent
registra-tions and patent appli-ca-tions (includ-ing, but not limited to, all
▇▇▇▇-sues, divi-sions, continua-tions, con-tinua-tions-in-part, exten-sions
and reexami-na-tions, and all rights therein pro-vided by law, multi-na-tional
treaties or con-ven-tions) (col-lec-tive-ly, "▇▇▇-ents"); (iii) all national
--------
and multinational regis-tered and unreg-is-tered copy-rights, in-clud-ing, but
not limited to, copy-rights in software programs and databas-es
(col-lec-tively, "Copy-rights"); (iv) soft-▇▇▇▇ programs docu-mentation and
-----------
manu-als used in connection therewith and data-bases (to-geth-er,
"Soft-▇▇▇▇"); (v) rights in names, like-ness-es, images and other attrib-utes
of individu-als; (vi) all (A) inventions, whether patentable or not
▇▇▇-ent-able, whether or not reduced to prac-▇▇▇▇, and not yet made the
subject of a pending patent appli-cation or appli-cations, (B) ideas and
concep-tions of poten-tially patentable subject mat-ter, in-clud-ing, without
limita-tion, any patent disclosures, whether or not reduced to prac-▇▇▇▇ and
not yet made the sub-ject of a patent applica-tion, (C) trade secrets and
confiden-tial, tech-nical information (includ-ing ideas, formulas,
compo-sitions, inventions and con-cep-tions of inventions wheth-er patent-able
or not patentable and whether or not re-duced to practice), (D) technology
(in-clud-ing, with-out limita-tion, know-how and show-how), manufac-turing and
produc-tion pro-cesses and techniques, service and repair manu-als, research
and development information, draw-ings, specifi-ca-tions, de-signs, plans,
proposals, technical data and copy-rightable works, wheth-er secret or
confidential or not, (E) all rights to obtain and rights to apply for patents,
and to register trade-marks and copyrights and (F) all records (in-clud-ing,
but not limited to, research and testing notebooks) in any acces-sible format
(includ-ing, but not limit-ed to, paper records, photo-graphs, audio and
visual tape record-ings and computer storage media and other information
storage media) pertaining to patentable or potentially patent-able subject
matter (col-lec-tive-ly, "Tech-nolo-gy"); and (vii) agree-ments pursu-ant to
------------
which any Protein Sub-sidiary has ob-tained or ▇▇▇▇▇-▇▇ the right to use any
of the fore-go-ing (col-lec-tively, and together with other agree-ments to
which any Protein Sub-sidiary is a party relat-ing to the devel-op-ment,
acqui-si-tion, use, sale, offer for sale or importation of Intel-lec-tual
Prop-▇▇-▇▇, "Li-cense Agree-ments").
---------------------
(b) Section 4.11(b) of the ▇▇▇▇▇▇▇ Disclo-sure Sched-ule sets forth, to
the knowledge of ▇▇▇▇▇▇▇, a true, com-plete and accu-rate list of the
fol-low-ing Intellectual Property items owned by or under obli-gation of
assignment to any Pro-tein Subsid-iary: (i) all regis-tra-tions of and
appli-ca-tions to regis-ter Trade-marks; (ii) all unregis-tered Trade-marks
which are mate-ri-al to the Busi-ness; (iii) all Patents; (iv) all
regis-tra-tions of and appli-ca-tions to regis-ter any Copy-rights; (v) all
Soft-▇▇▇▇; and (vi) all Li-cense Agree-ments, other than off-the-shelf
Software licenses.
(c) Except as set forth in Section 4.11(c) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, one or another Pro-tein Sub-sid-iary is the sole and exclu-sive
owner of the Intel-lec-tu-al Prop-▇▇-▇▇ items set forth in Section 4.11(b) of
the ▇▇▇▇▇▇▇ Dis-clo-sure Sched-ule as speci-fied in such sched-ule and each
owner listed in Section 4.11(b) of the ▇▇▇▇▇▇▇ Disclosure Schedule is listed
in the records of the appropri-ate Govern-mental Entity as the sole owner of
re-cord. Except as set forth in Section 4.11(c) of the ▇▇▇▇▇▇▇ Disclo-sure
Schedule, there is no Lien on the right of ▇▇▇▇▇▇▇ to trans-fer to a Surviving
Corpora-tion any of the Intellectual Prop-▇▇-▇▇, as con-tem-plated by
this Agree-ment. Ex-cept as other-wise indi-cated in Sec-tion 4.11(b) of the
▇▇▇▇▇▇▇ Disclo-sure Sched-ule, to the knowledge of ▇▇▇▇▇▇▇, (i) all issued
patents set forth there-on are valid and en-forceable and (ii) no such
trade-▇▇▇▇ ▇▇▇▇▇-tra-tions, trade-▇▇▇▇ appli-ca-tions or issued patents set
forth in Sec-tion 4.11(b) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule are sub-ject to
any pend-ing oppo-si-tion, can-cel-la-tion, inter-fer-ence or simi-lar
ad-versarial pro-ceed-ing by or before any Gov-ern-men-tal Enti-ty and no such
proceed-ings are threat-ened.
(d) There are no royalties, honoraria, fees or other payments payable
by any Protein Subsidiary to any Person or Governmental Entity (excluding
prosecution fees and other governmental or attorneys' fees re-quired in the
normal course of obtaining patent, trademark or copy-right rights and
exclud-ing governmental maintenance fees) in con-nec-tion with the owner-ship,
licen-sure, use, sale, offer for sale or importa-tion under any
Intel-lec-tu-al Prop-▇▇-▇▇, except as set forth in the Li-cens-e Agree-ments
listed in Sec-tion 4.11(b) of the Ralst-on Dis-closure Schedule and pursuant
to off-the-shelf Soft-▇▇▇▇ licenses. The Li-cens-e Agree-ments set forth in
Section 4.11(b) of the ▇▇▇▇▇▇▇ Disclosure Sched-ule are valid and bind-ing
obli-ga-tions of the parties thereto, en-force-able in ac-cor-dance with their
terms, and there exists no event or condi-tion which will result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default by any Protein Subsidiary (or, to the knowl-edge of
▇▇▇▇▇▇▇, any other party there-to) under any Li-cense Agreement. Except as
set forth in Section 4.11(d) of the ▇▇▇▇▇▇▇ Disclosure Schedule, no consent is
required to be obtained in connection with the right of ▇▇▇▇▇▇▇ to transfer
any License Agreement, if necessary.
(e) Except as disclosed in Section 4.11(e) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, (i) to the knowledge of ▇▇▇▇▇▇▇, none of the use by any Pro-tein
Sub-sidiary of any Intel-lec-tual Prop-erty, the exer-cise of rights relating
to ▇▇▇-ents, Trade-marks and Copy-rights con-tained within the Intel-lectual
Property or the con-duct of the Busi-ness in-fring-es or other-wise vio-lates
any Intel-lec-tu-al Prop-▇▇-▇▇ rights (ei-ther di-rectly or indi-rectly, such
as through con-tribu-tory in-fringe-ment or induce-ment to in-fringe) of any
third party except for such in-fringements and ▇▇▇▇▇-tions which would not in
the aggregate have a Material Adverse Effect on the Business, taken as a
whole, and (ii) no such claims have been asserted or, to the knowledge of
▇▇▇▇▇▇▇, threat-ened against any Pro-tein Sub-sid-iary which have not been
re-solved. Except as dis-closed in Sec-tion 4.11(e) of the ▇▇▇▇▇▇▇
Dis-clo-sure Sched-ule, (i) to the knowledge- of ▇▇▇▇▇▇▇, no third party is
in-fring-ing or other-wise vio-lat-ing any Intel-lec-tu-al Prop-erty rights of
any Pro-tein Subsidiary and (ii) no such claims are pend-ing or
threat-ened by any Protein Subsid-iary against any third party.
(f) Except as disclosed in Section 4.11(f) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, there are no suits or any other pro-ceed-ings pend-ing or, to the
knowl-edge of ▇▇▇▇▇▇▇, threat-ened before any Govern-mental Entity to which
any Protein Subsidiary is a party chal-leng-ing (i) any such Person's rights
to own or use any In-tel-lec-tual Prop-▇▇-▇▇ or (ii) the valid-ity or
en-force-abil-i-ty of any such Person's Intel-lec-tu-al Prop-erty. Other than
those listed in Sec-tion 4.11(f) of the Ralst-on Dis-closure Sched-ule,
there are no settle-ment agree-ments, con-sents, judg-ments, or-ders,
forebearances to ▇▇▇ or similar obli-ga-tions which re-strict any rights of
any Protein Subsid-iary to (i) make, use, sell, offer for sale, import or
li-cense under any Intel-lectu-al Prop-▇▇-▇▇ or (ii) conduct its busi-ness in
order to accom-modate a third party's Intel-lectu-al Proper-ty rights.
(g) Each Protein Subsidiary employs rea-son-able mea-sures to protect
the confi-dentiali-ty of its Tech-nolo-gy. Each Protein Subsidiary requires
employees with access to the Technology of such Protein Subsidiary to
exe-cut-e a non-dis-clo-sure agree-ment sub-▇▇▇▇-tially in accor-dance with
the form(s) previous-ly provid-ed by the Protein Subsidiaries to Du Pont.
Except as set forth in Section 4.11(g) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule, to
the knowl-edge- of ▇▇▇▇▇▇▇, none of the cur-rent or former em-ploy-ees,
offi-cers or direc-tors of any Protein Subsid-iary (i) is suspected to be in
▇▇▇▇▇-tion of any such agree-ment or (ii) is suspected of having dis-closed
any Tech-nolo-gy to any third party except sub-ject to an appro-priate
confi-den-tiality agree-ment or as required by a Govern-men-tal Enti-ty;
provided that the mere fact that an employee of a Protein Subsidiary becomes
--- ----
an em-ploy-ee of, or a con-sul-tant to, a competitor of the Business shall not
con-sti-tute "knowl-edge" that clause (i) or (ii) has occurred.
(h) Except as set forth in Section 4.11(h) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, there is no Intel-lec-tu-al Prop-▇▇-▇▇ that is sub-ject to an
agree-ment or arrange-ment pursu-ant to which such Intel-lectu-al Prop-erty is
licensed to or used by ▇▇▇▇▇▇▇ or any of its Subsid-iaries (other than
any Pro-tein Subsid-iary).
(i) Except as set forth in Section 4.11(i) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, the con-sum-ma-tion of the trans-ac-tion con-tem-plat-ed by this
Agree-ment will not result in the loss or im-pair-ment of any rights of any
Protein Subsid-iary to own, use or license any Intel-lectu-al Prop-erty.
(j) Except as set forth in Section 4.11(j) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, since June 30, 1997, neither ▇▇▇▇▇▇▇ nor any Pro-tein Sub-sid-iary
has dis-posed of or per-mit-▇▇▇ to lapse any rights to the use of any
Business-relat-ed Intel-lectu-al Proper-ty, or dis-posed of or dis-closed to
any Person other than repre-sen-ta-tives of Du Pont any Business-related trade
secret, formu-la, pro-cess or know-how not there-tofore a matter of
public knowl-edge other than in the ordi-nary course of busi-ness or pursu-ant
to secrecy agree-ment.
ARTICLE VSection .12 [Intentionally Omitted.] [Intentionally
Omitted.] [Intentionally Omitted.] [Intentionally Omitted.]
ARTICLE VSection .13 Insurance Insurance Insurance
--------- --------- ---------
Insurance. Each Protein Subsid-iary is insured in such amounts as are
---
custom-ary in the busi-nesses in which they are en-gaged by insurers of
-
recog-nized ▇▇▇▇▇-cial re-sponsi-bili-ty and solven-cy, except in areas in
which such Pro-tein Sub-sid-iary is self-insured, against losses and risks.
True, com-plete and cor-rect copies of all poli-cies of insur-ance and
▇▇▇▇▇-i-ty or surety bonds insur-ing any Protein Subsid-iary or their
respec-tive busi-ness-es, as-sets, employ-ees, offi-cers or direc-tors in
their capaci-ty as such (to-geth-er with all riders and amend-ments there-to
and if com-pleted, the applications for each of such policies or bonds) will
be provided to Du -Pont as requested. Such poli-cies, as are cur-rent, are in
full force and effect, and such Protein Subsidiary has com-plied in all
materi-al re-spects with the provi-sions of such poli-cies. Except as set
forth in Section 4.13(a) of the ▇▇▇▇▇▇▇ Dis-closure Sched-ule and as set forth
in Section 6.19 hereof, all such poli-cies will, after the Ini-tial
Com-ple-tion Date, cease to cover claims arising out of the opera-tion of the
Busi-ness, other than covered claims in-curred prior to the Ini-tial
Comple-tion Date. Except as set forth in Sec-tion 4.13(b) of the ▇▇▇▇▇▇▇
Dis-closure Sched-ule, each Protein Subsidiary has complied with all mandatory
recom-men-da-tions for the pre-vention of loss made by all insur-ance
▇▇▇▇▇-ers. There are no claims by any Protein Subsidiary under any such
policy or in-stru-ment as to which any insur-ance company is deny-ing
liabil-ity or de-fend-ing under a ▇▇▇▇▇-va-tion of rights clause, which, if
not cov-ered, would in the aggregate have a Material Adverse Effect on the
Business, taken as a whole. All neces-sary noti-fi-ca-tions of claims have
been made to insur-ance carriers other than those which will not have a
Materi-al Adverse Effect on the Busi-ness, taken as a whole. No policy
cover-ing ▇▇▇▇▇▇▇ or any of its Subsid-iaries (other than poli-cies limited in
cover-age to the Protein Sub-sid-iaries) requires Du Pont or any of it
Subsid-iar-ies (in-clud-ing the Surviv-ing Corpora-tions) to assume such
policy or pay any premi-ums there-under follow-ing the Domestic Closings or
the Foreign Closings here-under. Sec-tion 4.13(c) of the Ralst-on
Dis-clo-sure Sched-ule de-scribes all workers' compensa-tion self-insur-ance
arrange-ments af-fecting the Pro-tein Sub-sid-iaries and the aggre-gate amount
of all claims made under such ar-range-ments since Octo-ber 1, 1994. No
proceeding is pending or, to the knowledge of ▇▇▇▇▇▇▇, threatened, to revoke,
cancel or limit such policies and no notice of cancellation of any of such
policies has been received by Stockholder or any Protein Subsidiary.
ARTICLE VSection .14 Related Party Transac-tions; Inter-com-pany
-------------------------------------------
Matters Related Party Transac-tions; Inter-com-pany Matters Related
--- --------------------------------------------------- -------
Party Transac-tions; Inter-com-pany Matters Related Party Transac-tions;
------------------------------------------- ----------------------------
Inter-com-pany Matters.
----------------------
(a) Except as disclosed in Section 4.14 of the ▇▇▇▇▇▇▇ Dis-clo-sure
Schedule, no direc-tor, offi-cer or part-ner of any Pro-tein Subsidiary (i)
has bor-rowed money from or has out-stand-ing any In-debted-ness or other
similar obliga-tions to any Protein Subsidiary, ▇▇▇▇▇▇▇ or any Subsidiary
there-of other than for travel ex-penses in the ordinary course of business
consistent with past practice and other than obli-ga-tions incurred in the
ordinary course of business, in the case of any single individual, in an
amount less than $5,000; (ii) to the knowl-edge of ▇▇▇▇▇▇▇, owns any direct or
indi-rect inter-est of any kind in, or is a direc-tor, offi-cer,
employ-ee, party, affiliate or associ-ate of, or con-sultant or lender to, or
borrower from, or has the right to partici-▇▇▇▇ in the man-age-ment,
opera-tions or profits of, any Person which is (x) a com-pet-i-tor, sup-plier,
cus-▇▇▇-▇▇, dis-trib-u-tor, les-sor, tenant, creditor or debtor of any Protein
Sub-sid-iary, (y) engaged in a busi-ness relat-ed to the business of any
Protein Subsidiary or (z) partic-i-pating in any transac-tion to which any
Protein Subsidiary is a party or (iii) is other-wise a party to any binding
agree-ment with any Protein Subsid-iary.
(b) Except as set forth in Section 4.14(b) of the ▇▇▇▇▇▇▇ Disclosure
Schedule or as contemplated in Section 3.1 or 6.14 hereof or otherwise herein,
there are no pay-ments other than in the ordi-nary course of busi-ness
consis-tent with past prac-▇▇▇▇, (in-clud-ing divi-dends, dis-tri-bu-tions,
loans, ser-vice or trade pay-ments, sala-ry, bonuses, payments under any
manage-ment, con-sulting, moni-toring or financial advisory agreements,
advances or other-wise) to be made to or received from any Protein Subsidiary,
on the one hand, and ▇▇▇▇▇▇▇ or Stockhold-er or any of their respective
affiliates, on the other.
ARTICLE VSection .15 Products Liability Products Liability
------------------ ------------------
Products Liability Products Liability. Except as set forth in Section
----------------- ------------------
4.15 of the ▇▇▇▇▇▇▇ Dis-closure Schedule, (a) there is no Proceeding by or
-
before any Governmental Entity, pending or, to the knowledge of ▇▇▇▇▇▇▇,
-
threatened against or involving any Protein Subsidiary concern-ing any product
-
relat-ing to the busi-ness of any Protein Subsidiary which is alleged to
have been manufactured, shipped, sold, marketed, distrib-uted, processed or
mer-chandised by any Protein Sub-sidiary (collectively, "Products") and
--------
alleged to have a defect or impu-ri-ty of any kind, in manufac-ture,
process-ing, design or other-wise, includ-ing with-out limi-tation any
fail-ure to warn of the defect or impu-rity, nor to the knowledge of ▇▇▇▇▇▇▇
is there any valid basis for any such Proceeding specifi-cal-ly relating to
the busi-ness of any Pro-tein Subsid-iary that, in the case of a Pro-ceeding
before a Govern-mental Entity, if adversely deter-mined would have a Mate-rial
Ad-verse Effect on the Business, taken as a whole; (b) since Sep-tem-ber 30,
1994, there has not been any prod-uct recall or post-sale warn-ing by any
Pro-tein Subsid-iary con-cerning any product relating to the busi-ness of any
Protein Subsid-iary that was manufac-tured, shipped, sold, mar-keted,
distrib-uted, processed or mer-chan-dised by any Pro-tein Sub-sid-iary; and
(c) none of the Products manu-factured, shipped, sold, marketed, distributed,
processed or merchandised by any Protein Subsidiary at or prior to the Initial
Completion Date are or were Defective Products. As used herein, "De-fec-tive
-----------
Products" shall mean Products which have impurities and Products which satisfy
--------
any of the following (i), (ii) or (iii): (i) are defec-tive be-cause of a
fail-ure to comply with inter-nal or governmentally required proce-dures and
condi-tions; (ii) cause personal injury, harm to health or death when used in
accordance with dis-closed instructions of any Pro-tein Sub-sidiary as to the
use of such Product; (provided that there shall be excluded from clause (ii)
-------- ----
Products which have such effects because one or more of the ingredients or the
pro-cess used in their manu-fac-ture, wheth-er consid-ered separate-ly or
together, are inher-ently unknow-ingly unsafe and such fact was not known to
▇▇▇▇▇▇▇ or generally in the indus-try at or prior to the Initial Comple-tion
Date; provid-ed further that (1) a pro-cess shall not be deemed "inherent-ly
--------- ------- ----
unknow-ingly unsafe" (and accordingly not subject to the preceding proviso) if
as of the Initial Completion Date, (A) it was not generally used in the
indus-try, (B) there was a reason-able basis to con-clude that it was unsafe
or (C) if ▇▇▇▇▇▇▇ knew that it was unsafe, and (2) the fact that Prod-ucts or
ingredients which are permitted to be used in cer-tain juris-dictions but not
others does not con-stitute an admission that such Products or ingredients
were known to ▇▇▇▇▇▇▇ to be "inherently un-knowingly unsafe") or (iii) cause
personal injury, harm to health, death or other damage to the extent, but only
to the extent, in the case of this clause (iii), ▇▇▇▇▇▇▇ is enti-tled to
insur-ance cover-age with re-spect thereto, includ-ing by reason of the
indem-nifi-cation provi-sions of this Agree-ment.
ARTICLE VSection .16 Title; Real Properties Title; Real
---------------------- -----------
Properties Title; Real Properties Title; Real Properties.
- ------------------------ -----------------------
(a) Except as set forth in Section 4.16(a) of the ▇▇▇▇▇▇▇ Disclosure
Schedule, the Pro-tein Sub-sid-iar-ies have mar-ket-able fee simple title to,
or a valid lease-hold inter-est enti-tling them to the sole and unen-cumbered
right to posses-sion and use of, all of their re-spec-tive Real Prop-er-ties
(as de-fined in Section 4.16(c) here-of) and mar-ket-able title to all of
their respec-tive non-real property (tangi-ble and intan-gi-ble), free and
clear of all Liens of any kind or char-acter, except: (i) those Liens set
forth in Sec-tion 4.16(a) of the Ralst-on Dis-clo-sure Sched-ule, (ii) Liens
for cur-rent Taxes not yet due and pay-able as set forth in Sec-tion 4.12(a)
of the Ralst-on Disclo-sure Sched-ule; and (iii) Liens (in-clud-ing
mechanics', carriers', workers' and other simi-lar Liens aris-ing or in-curred
in the ordi-nary course of business consistent with past practice) and
imper-fec-tions of title, includ-ing re-stric-tive cove-nants or ease-ments,
which do not, in the aggre-gate, mate-rially detract from the value of, or
interfere with the present use of, the properties sub-ject there-to or
affect-ed there-by, or other-wise materi-ally impair the opera-tions of the
entity which owns or leases such prop-erty.
(b) Except for sales operations in the countries of Canada, Japan, the
Philippines, Thailand, Malaysia and Singa-pore, which are currently conducted
by employees who are technically employed by other ▇▇▇▇▇▇▇ Subsidiaries, the
Pro-tein Sub-sid-iar-ies set forth in Sec-tion 4.1(e) of the ▇▇▇▇▇▇▇
Dis-clo-sure Schedule are the only Subsid-iaries of ▇▇▇▇▇▇▇ engaged in any
aspect of the Business. The assets (i) that will be owned by the Pro-tein
Subsidiaries at the Domestic Closings and the For-eign Closings, and (ii)
except as set forth in Section 4.16(b) of the ▇▇▇▇▇▇▇ Disclo-sure Sched-ule,
and except for the assets of the Trans-ferred Subsidiaries and the As-sets,
that are owned as of the date of this Agree-ment, con-sti-tute all of the
assets the prima-ry use of which is in the Business as conducted by the
Protein Sub-sidiar-ies, and except as set forth in Section 4.16(b) of the
▇▇▇▇▇▇▇ Disclo-sure Sched-ule, there are no other assets neces-sary for the
Business to contin-ue to be con-ducted sub-▇▇▇▇-tially iden-tically as
hereto-fore con-duct-ed by any Pro-tein Subsid-iary (other than, as of the
date of this Agree-ment, the Trans-ferred Subsidiar-ies and As-sets).
(c) Section 4.16(c)(i) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule sets
forth a true and com-plete list of all real prop-erty (i) in which any Protein
Subsidiary holds legal or equi-table title or (ii) leased by any Protein
Subsidiary (to-geth-er, the "Real Prop-er-ties"). To the knowledge of
------------------
▇▇▇▇▇▇▇, except as set forth in Sec-tion 4.16(c)(ii) of the ▇▇▇▇▇▇▇
Disclo-sure Sched-ule, none of the Protein Subsidiar-ies has any future right
to acquire or lease, pursuant to any out-standing con-tract, option to
pur-chase or lease, any real proper-ty. Except as set forth on Sec-tion
4.16(c)(iii) of the Ralst-on Disclosure Sched-ule, there are no leas-es,
ground leas-es, li-cens-es or other occupan-cy agree-ments af-fecting any of
the Real Prop-er-ties or to which any Protein Subsidiary is a party or bound
with re-spect to the Real Prop-er-ties (other than such of the foregoing in
respect of any sales office or warehouse as would not in the aggregate have a
Mate-ri-al Ad-verse Effect on the Business, taken as a whole). Except as set
forth in Sec-tion 4.16(c)(iv) of the Ralst-on Disclosure Sched-ule, there are
no leas-es, ground leas-es, li-cens-es or other occu-pan-cy agree-ments to
which ▇▇▇▇▇▇▇ is a party or bound with re-spect to real property that is
neces-sary for the Business to contin-ue to be con-ducted substan-tial-ly
identically as here-to-fore con-ducted. Each such lease re-ferred to in this
subsection (c) is a valid and bind-ing obli-ga-tion of the parties there-to,
en-force-able in ac-cor-dance with its terms, and none of ▇▇▇▇▇▇▇, any
Subsid-iary of ▇▇▇▇▇▇▇, or any Protein Subsid-iary has re-ceived or given
notice of a default under any lease to which any Real Prop-erty is sub-ject,
and no event or condi-tion exists which is reasonably likely to result in a
▇▇▇▇▇-tion or breach of, or con-stitute (with or without due notice or lapse
of time or both) a de-fault by any Protein Subsid-iary (or, to the knowl-edge
of ▇▇▇▇▇▇▇, any other party there-to) under any such lease, except for such
breaches, violations and de-faults which would not in the aggregate have a
Materi-al Adverse Effect on the Business, taken as a whole. True and
com-plete copies of all such leas-es, in-clud-ing all modi-fi-ca-tions and
amendments there-to, have been previ-ously supplied to Du Pont. There are (i)
to the knowledge of ▇▇▇▇▇▇▇, no plans by any Gov-ern-men-tal Entity which are
reason-ably likely to result in the impo-sition of any gener-al or special
as-sess-ment relat-ing to any of the Real Proper-ties; (ii) no
non-con-form-ing uses, vari-anc-es, spe-cial excep-tions, condi-tions, permits
or agree-ments per-tain-ing to any of the Real Proper-ties imposed on or
granted by or entered into by any Protein Sub-sidiary, which are en-force-able
by any Govern-men-tal Enti-ty; and (iii) no written notices from any
Gov-ern-men-tal Entity which have been re-ceived by any Protein Sub-sid-iary
alleg-ing a violation of any applica-ble building, land use, zoning, fire,
health or safety laws, codes, ordi-nances or rules, or re-quir-ing or call-ing
atten-tion to the need for any work, re-pair, con-struc-tion, alter-ation or
instal-la-tion on, or in con-nection with, any of the Real Prop-er-ties,
except in the case of clauses (ii) and (iii) hereof for such nonconforming
uses, variances, special exceptions, condi-tions, permits and agreements and
fail-ures to per-form such work, re-pair, con-struc-tion, alter-ation or
instal-la-tion which would not, indi-vidu-ally or in the aggre-gate, result in
a Mate-ri-al Ad-verse Ef-fect on the Busi-ness, taken as a whole. There is no
pending or, to the knowl-edge of ▇▇▇▇▇▇▇, threat-ened change in the zoning
clas-si-fi-ca-tion of any parcel of the Real Property and no con-dem-na-tion
or emi-nent domain pro-ceed-ing against any Real Prop-erty is pending or, to
the knowledge- of ▇▇▇▇▇▇▇, threat-ened, except for such of the foregoing as
would not in the aggregate have a Material Ad-verse Effect on the Business,
taken as a whole. Except as set forth in Sec-tion 4.16(c)(ii) of the ▇▇▇▇▇▇▇
Disclosure Sched-ule all of such Pro-tein Sub-sid-iary prop-er-ties and assets
con-sist-ing of real estate, build-ings, and equip-ment (whether owned or
leased) cur-rently used in the normal opera-tions of the busi-ness of such
Protein Subsid-iary have been main-tained in good oper-at-ing condi-tion by
such Protein Subsid-iary in a manner consis-tent with the normal main-te-▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇ of such Protein Subsid-iary and of the indus-try and are free from
material de-fects and comply with all appli-ca-ble laws, build-ing, land use,
fire, health and safety codes, ordi-nances and zoning rules and zoning
ordi-nanc-es, except for such failures to be in compli-ance that would not,
individually or in the aggre-gate, have a Material Adverse Effect on the
Busi-ness, taken as a whole. The Pro-tein Sub-sid-iar-ies have rights of
access to public roads adja-cent to the Real Proper-ties. There are no
unre-corded ease-ments relat-ing to the Real Prop-er-ties and no Person or
Governmental Entity is encroach-ing upon any of the Real Proper-ties, except
for such exceptions to the foregoing as would not in the aggre-gate have a
Material Adverse Effect on the Business taken as a whole. Except as set forth
in Section 4.16(c)(v) of the ▇▇▇▇▇▇▇ Disclosure Schedule, (i) to the knowledge
of ▇▇▇▇▇▇▇, no Person or Gov-ern-men-tal Entity has notified any of the
Pro-tein Subsid-iar-ies of a claim that any activities of the Business are
en-croach-ing upon the prop-er-ties, ease-ments or rights of way of oth-ers,
(ii) no activi-ties of the Protein Subsidiaries are encroach-ing on any Person
or Gov-ernmental Entity, except for such as would not have (and if such
activity ceased there would not be) in the aggregate a Material Adverse Effect
on the Busi-ness, taken as a whole and (iii) there are no third par-ties in
pos-ses-sion having or, to the knowl-edge of ▇▇▇▇▇▇▇, claim-ing rights to
pos-ses-sion of any of the Real Proper-ties. ▇▇▇▇▇▇▇ has ordered sur-veys and
title poli-cies relat-ing to each of the manufac-turing facili-ties located in
the United States and appropri-ate evidence of ownership of the manufac-turing
facility in Belgium.
ARTICLE VSection .17 Environmental Matters Environmental Matters
--------------------- ---------------------
Environmental Matters Environmental Matters.
---------------------- ----------------------
(a) For purposes of this Agree-ment, "Environ-mental Claim" means any
--------------------
written notice by any Person or Governmen-tal Entity alleg-ing poten-tial
liabil-i-ty (in-clud-ing, with-out limita-tion, poten-tial liability for
inves-tiga-tory costs, clean-up costs, govern-mental response costs, natu-ral
resourc-es damages, proper-ty damages, personal inju-▇▇▇▇, or penal-ties)
arising out of, based on or result-ing from (a) the presence, or release into
the environment, of any Mate-ri-al of Environ-mental Concern (as defined
below) at any loca-tion, wheth-er or not owned by any Protein Subsid-iary or
(b) cir-cum-stances forming the basis of any ▇▇▇▇▇-tion, or alleged violation,
of any Environmental Law (as defined below).
For purposes of this Agreement, "Environmental Laws" means all
------------------
▇▇▇▇▇-al, state, local and foreign laws and regula-tions relat-ing to
pollu-tion or protection of human safety and health within or without the
workplace or the envi-▇▇▇-ment (in-clud-ing, with-out limitation, ambi-ent
air, surface water, ground water, land surface or subsur-face strata),
includ-ing, without limitation, laws and regula-tions relating to emis-sions,
discharges, re-leases or threatened releases of Materi-als of Environmen-tal
Con-cern (as defined below), or other-wise relat-ing to the manufacture,
pro-cess-ing, distribu-tion, use, treat-ment, stor-age, dis-posal, trans-port
or handling of Materi-als of Environ-men-tal Concern.
For purposes of this Agreement, "Materials of Envi-▇▇▇-men-tal
-----------------------------
Con-cern" means chemicals, pollutants, contami-nants, wastes, toxic
--------
sub-stances, petroleum and petroleum prod-ucts.
--------
(b) Except as set forth in Section 4.17(b)(i) of the ▇▇▇▇▇▇▇
Dis-closure Sched-ule, each Protein Subsidiary is in com-pli-ance with all
applica-ble Environ-mental Laws except such failures to be in compliance which
would not, indi-vidually or in the aggre-gate, have a Material Adverse
Effect on the Busi-ness, taken as a whole. Except as set forth in Section
4.17(b)(ii) of the Ralst-on Dis-closure Sched-ule, none of ▇▇▇▇▇▇▇, any of the
Subsidiar-ies of ▇▇▇▇▇▇▇ or the Prote-in Sub-sid-iaries has re-ceived any
written commu-nica-tion, whether from a Govern-mental Entity, citizens' group,
employ-ee or other-wise, that alleges that any Protein Subsid-iary is not in
material com-pli-ance, and, to the knowledge- of ▇▇▇▇▇▇▇, there are no
cir-cum-stanc-es that may prevent or inter-fere with material compliance in
the future. All per-mits and other govern-mental autho-riza-tions cur-rently
held by any Protein Subsid-iary pursu-ant to the Envi-▇▇▇-mental Laws are
iden-ti-fied in Section 4.17(b)(iii) of the Ralst-on Dis-clo-sure Sched-ule.
(c) Except as set forth in Section 4.17(c) of the ▇▇▇▇▇▇▇ Disclo-sure
Schedule, there is no Environmen-tal Claim pending or, to the knowledge of
▇▇▇▇▇▇▇, threatened against any Pro-tein Sub-sid-iary or against any Person or
Govern-mental Entity whose liabili-ty for any Envi-ronmen-tal Claim any
Protein Subsidiary has or may have re-tained or as-sumed either
con-trac-tu-al-ly or by operation of law.
(d) Except as set forth in Section 4.17(d) of the ▇▇▇▇▇▇▇ Disclo-sure
Schedule, to the knowledge of ▇▇▇▇▇▇▇, there are no past or pres-ent ac-tions,
activi-ties, circum-stances, condi-tions, events or inci-dents,
including, without limita-tion, the release, emis-sion, discharge or disposal
of any Material of Envi-▇▇▇-mental Con-cern which have occurred within the
last three (3) years, that could form the basis of any Envi-▇▇▇-mental Claim
against any Pro-tein Subsid-iary or against any Person or Govern-mental Entity
whose liability for any Envi-▇▇▇-men-tal Claim any Protein Subsid-iary has or
may have re-tained or assumed either con-trac-tually or by operation of law
except for such actions, activities, cir-cumstances, events or inci-dents
which would not, individ-ually or in the aggre-gate, have a Material Adverse
Effect on the Business, taken as a whole.
(e) Without in any way limiting the generality of the forego-ing, to
▇▇▇▇▇▇▇'▇ knowledge, (i) all on-site loca-tions where any Protein Subsidiary
has within the last three (3) years stored, dis-posed or ar-ranged for the
dis-posal of Mate-ri-als of Envi-ronmen-tal Concern are iden-tified in Section
4.17(e)(i) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule, (ii) all under-ground
stor-age tanks, and the capacity and contents of such tanks, located on
property owned or leased by any Protein Sub-sid-iary are iden-ti-fied in
Section 4.17(e)(ii) of the ▇▇▇▇▇▇▇ Dis-clo-sure Sched-ule, (iii) except as set
forth in Section 4.17(e)(iii) of the ▇▇▇▇▇▇▇ Dis-clo-sure Sched-ule, there is
no asbestos con-tained in or forming part of any building struc-ture or office
space owned or leased by any Protein Subsid-iary, and (iv) except as set forth
in Section 4.17(e)(iv) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule, no polychlorinated
biphenyls (PCB's) are used or stored at any proper-ty owned or leased by any
Protein Subsid-iary.
ARTICLE VSection .18 Indebtedness Indebtedness Indebtedness
------------ ------------ ------------
Indebtedness. Section 4.18(a) of the ▇▇▇▇▇▇▇ Disclosure Schedule sets
------------
forth as of the date of this Agreement and, such section of the ▇▇▇▇▇▇▇
Disclosure Schedule as updated immediately prior to the Domestic Closings,
sets forth as of the Ini-tial Com-ple-tion Date, the In-debt-▇▇-▇▇▇▇ of Fiber
Sales and PTI. Except as described in Section 3.1 hereof or as set forth in
Section 4.18(a) of the ▇▇▇▇▇▇▇ Disclosure Schedule, no other Pro-tein
Sub-sid-iary has any out-stand-ing In-debt-▇▇-▇▇▇▇. Except as set forth in
Sec-tion 4.18(b) of the ▇▇▇▇▇▇▇ Disclo-sure Sched-ule or as de-scribed in
Section 3.1 hereof, since July 31, 1997, none of the Prote-in Sub-sid-iaries
has in-curred any In-debt-▇▇-▇▇▇▇, issued any debt secu-ri-ties, expand-ed any
exist-ing credit facili-ties or, except for amounts in the aggregate not
exceeding $200,000, as-sumed, guar-an-▇▇▇▇ or en-dorsed the obli-ga-tions of
any other Person. Except as set forth in Sec-tion 4.18(c) of the ▇▇▇▇▇▇▇
Dis-closure Sched-ule, all In-debted-ness of any Protein Subsid-iary can be
repaid at any time without prepay-ment penal-ty, premium or ex-pense other
than normal breakage costs relat-ing to LIBOR, CD or Euro-dollar loans.
Schedule 4.18(d) of the ▇▇▇▇▇▇▇ Disclo-sure Schedule sets forth all of the
capitalized leases of the Protein Sub-sid-iaries.
ARTICLE VSection .19 Labor and Employment Matters; Col-lec-tive
------------------------------------------
Bar-gain-ing Agreements Labor and Employment Matters; Col-lec-tive
------------------- --------------------------------------------
Bar-gain-ing Agreements Labor and Employment Matters; Col-lec-tive
------------------- --------------------------------------------
Bar-gain-ing Agreements Labor and Employment Matters; Col-lec-tive
------------------- --------------------------------------------
Bar-gain-ing Agreements. Except as set forth in Section 4.19(a) of the
-------------------
▇▇▇▇▇▇▇ Disclosure Schedule, none of the Prote-in Subsidiaries is a party to,
-
or bound by, any collec-tive bar-gaining agree-ment, contract or other
agree-ment or under-standing with a labor union or labor organi-zation or
other repre-sentative of employees. Except as set forth in Sec-tion 4.19(b)
of the Ralst-on Dis-closure Schedule, there is no unfair labor practice charge
and no charge, claim or complaint or other pro-ceed-ing pend-ing which
▇▇▇▇▇▇▇ or any Protein Subsid-iary has been served with or otherwise has
knowledge of or, to the knowl-edge of ▇▇▇▇▇▇▇, threat-ened against any Protein
Subsid-iary before the Nation-al Labor Rela-tions Board, the U.S. Equal
Employment Opportu-nity Commis-sion, the U.S. Department of Labor or any other
state or federal Gov-ern-mental Enti-ty re-sponsible for investigating and/or
adjudicat-ing employment discrim-ination or wage and hour claims. There is no
labor strike, slow-down or stop-page pend-ing or, to the knowledge of ▇▇▇▇▇▇▇,
threat-ened against or affecting any Protein Subsid-iary, nor has there been
any such activity within the past three years. Except as set forth in Section
4.19(c) of the ▇▇▇▇▇▇▇ Disclosure Sched-ule, there are cur-rent-ly no on-going
col-lec-tive bar-gain-ing nego-tia-tions relat-ing to the em-ployees of any
Protein Subsid-iary.
ARTICLE VSection .20 Acquisition for Investment Acquisition for
-------------------------- ---------------
Investment Acquisition for Investment Acquisition for Investment.
--------- -------------------------- --------------------------
Each of ▇▇▇▇▇▇▇ and Stockholder acknowledge that the Du Pont Shares have not
--
been registered under the Secu-rities Act, or under any state securities laws.
Stock-holder is acquir-ing the Du Pont Shares solely for its own ac-count
and not with a view to any distribution or other disposi-tion of such Du Pont
Shares or any part thereof, or inter-est therein, except in accordance with
the Securi-ties Act. Each of ▇▇▇▇▇▇▇ and Stockholder is an "accred-ited
inves-tor" (as defined in Rule 501 of Regulation D under the Securities Act).
ARTICLE VSection .21 PTIFS Liquidation PTIFS Liquidation
----------------- -----------------
PTIFS Liquidation PTIFS Liquidation. ▇▇▇▇▇▇▇ has, or has caused to be,
-------------- -----------------
taken the actions set forth in Section 4.21 of the ▇▇▇▇▇▇▇ Disclosure
Schedule.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF DU PONT
AND THE DU PONT MERGER SUBSIDIARIES
Du Pont and the Du Pont Merger Subsidiaries, jointly and
severally, repre-sent and war-rant to Stock-holder and ▇▇▇▇▇▇▇ as follows:
ARTICLE VISection .10 Organization Organization Organization
------------ ------------ ------------
Organization. Each of Du Pont and the Du Pont Merger Subsidiaries is a
------------
corpo-ra-tion duly orga-nized, validly existing and in good standing under the
laws of the State of Delaware and has all requi-site corporate or other power
and au-thority and all necessary governmen-tal approvals to own, lease and
oper-ate its properties and to carry on its business in all material respects
as now being conducted.
ARTICLE VISection .11 Capitalization Capitalization
-------------- --------------
Capitalization Capitalization. The autho-rized capital stock of Du Pont
----- --------------
consists of (i) 1,800,000,000 shares of Du Pont Common Stock, par value $0.30
per share, of which, as of June 30, 1997, 1,155,282,028 shares of Du Pont
Common Stock were issued and out-stand-ing (in-clud-ing shares held by the Du
Pont Flexitrust) and no shares of Du Pont Common Stock were issued and held in
the trea-sury of Du Pont; and (ii) 23,000,000 Du Pont Pre-ferred Shares,
of which as of June 30, 1997, 1,672,594 shares of the $4.50 series were issued
and out-stand-ing and 700,000 shares of the $3.50 series were issued and
outstanding. All the issued and out-stand-ing shares of Du Pont's capi-tal
stock are, and all Du Pont Shares to be issued pursu-ant to this Agree-ment
will be, when issued in accor-dance with the terms hereof, duly autho-rized,
valid-ly is-sued, fully paid and nonas-sessable and not issued in violation of
statu-tory or contrac-tual preemp-tive or similar rights.
ARTICLE VISection .12 Authorization Authorization
------------- -------------
Authorization Authorization. Each of Du Pont and the Du Pont Merger
-- -------------
Subsidiaries has the requisite corpo-rate power and authority to exe-cute and
deliv-er this Agreement to per-form its respective obligations hereun-der.
The execu-tion and deliv-ery of this Agree-ment and the perfor-▇▇▇▇▇ of its
respective obliga-tions hereun-der have been duly and valid-ly autho-rized by
the Board of Direc-tors of each of Du Pont and the Du Pont Merger
Subsidiaries; each of the Boards of Direc-tors of the Du Pont Merger
Subsidiaries has recom-mended to Du Pont that it adopt this Agreement in
accor-dance with the DGCL; and concur-rently with the execution here-of, Du
Pont is adopt-ing this Agreement as the sole stock-holder of each of the Du
Pont Merger Subsidiaries in accor-dance with the DGCL. No other pro-ceed-ings
on the part of either Du Pont or the Du Pont Merger Subsidiaries are
neces-sary to autho-rize the execu-tion, deliv-ery and per-formance of this
Agree-ment and the con-summa-tion of the trans-ac-tions con-tem-plated hereby.
This Agree-ment has been duly exe-cuted and deliv-ered by Du Pont and the Du
Pont Merger Subsidiaries, as the case may be, and consti-tutes, assum-ing due
and valid authori-za-tion, execu-tion and delivery of this Agreement by
▇▇▇▇▇▇▇, Stockhold-er and the Protein Subsidiaries, a valid and bind-ing
obli-ga-tion of each of Du Pont and the Du Pont Merger Subsidiaries
en-force-able against such Persons in accor-dance with its terms.
ARTICLE VISection .13 Consents and Approvals; No ▇▇▇▇▇-tions
--------------------------------------
Consents and Approvals; No ▇▇▇▇▇-tions Consents and Approvals; No
-------------------------------------- --------------------------
▇▇▇▇▇-tions Consents and Approvals; No ▇▇▇▇▇-tions. Except (a) as
------- -----------------------------------------
disclosed in Section 5.4 of the dis-clo-sure schedule of Du Pont delivered
---
concurrently -with the execution and delivery by Du Pont and the Du Pont
Merger Subsidiaries of this Agree-ment, (b) for the requisite fil-ings under
the DGCL, (c) for the requisite filings and wait-ing periods under the HSR Act
and (d) in the case of the Regis-tra-tion Rights Agree-ment, for the
fil-ings, per-mits, autho-ri-za-tions, con-sents and ap-prov-als as may be
required under, and other appli-cable re-quire-ments of, the Securities Act
and state secu-ri-ties or blue sky laws, nei-ther the execu-tion and deliv-ery
nor the per-for-▇▇▇▇▇ by either Du Pont or the Du Pont Merger Subsid-iaries of
their respective obliga-tions hereun-der nor com-pli-ance by Du Pont or the Du
Pont Merger Subsidiaries with any of the provi-sions hereof will (i) con-flict
with or result in any breach of any provi-sion of the certifi-cate of
incorpora-tion or by-laws of either Du Pont or the Du Pont Merger
Subsidiaries, (ii) re-quire any filing with, or per-mit, authori-za-tion,
con-sent or approv-al of, any Gov-ern-mental Enti-ty (other than such of the
foregoing as are required because of the legal or regulato-ry status of
▇▇▇▇▇▇▇ or any Subsidiary thereof, including any Protein Subsidiary, or any
facts pertaining to such Per-sons), (iii) result in a ▇▇▇▇▇-tion or breach of,
or con-sti-tute (with or without due notice or lapse of time or both) a
de-fault (or give rise to any right of termi-na-tion, can-▇▇▇▇▇-tion or
accel-era-tion) under, any of the terms, conditions or provi-sions of any
note, bond, ▇▇▇▇-▇▇▇▇, inden-ture, lease, li-cense, con-tract, agree-ment,
com-mit-ment, understanding or other in-strument or obliga-tion to which Du
Pont or any of its Subsid-iaries is a party or by which any of them or any of
their re-spective prop-er-ties, assets or rights may be bound or (iv) vio-late
any order, writ, injunc-tion, judg-ment, ▇▇-▇▇▇▇, settle-ment, law,
ordi-▇▇▇▇▇, stat-ute, rule, regu-la-tion or other gov-ern-men-tal approval or
autho-riza-tion (▇▇▇▇▇-al, state, local or foreign) appli-ca-ble to Du -Pont,
any of its Sub-sid-iar-ies or any of their re-spec-tive prop-er-ties, assets
or rights, ex-cluding from the fore-go-ing claus-es (ii), (iii) and, insofar
as laws, statutes, rules and regula-tions are concerned, (iv) such
▇▇▇▇▇-tions, breach-es or de-faults which would not, indi-vidually or in the
aggre-gate, have a Material Adverse Effect on Du Pont and its Subsid-iaries
taken as a whole.
ARTICLE VISection .14 SEC Reports and Financial State-ments SEC
------------------------------------- ---
Reports and Financial State-ments SEC Reports and Financial State-ments
----------------------------------- -------------------------------------
SEC Reports and Financial State-ments. As of their re-spec-tive dates
----------------------------------------
or, if amend-ed, as of the date of the last such amend-ment, none of the
forms, re-ports, sched-ules, state-ments and other documents required to be
filed by Du Pont since December 31, 1995 under the Ex-change Act (ex-cluding,
however, any ▇▇▇▇▇-cial state-ments or sched-ules in-clud-ed therein) did not
contain any untrue state-ment of a material fact or omit to state a material
fact required to be stated therein or neces-sary in order to make the
state-ments therein, in light of the circum-stanc-es under which they were
made, not mis-leading. The ▇▇▇▇▇-cial state-ments of Du Pont in-clud-ed in
the Du Pont SEC Docu-ments have been pre-pared from, and are in accor-dance
with, the books and records of Du Pont and its Subsid-iaries, comply in all
mate-rial re-spects with appli-ca-ble ac-count-ing require-ments and with the
published rules and regula-tions of the SEC with respect thereto, have been
prepared in accor-dance with GAAP ap-plied on a consistent basis during the
peri-ods involved (except as may be indicat-ed in the notes there-to) and
fairly pres-ent the con-sol-i-dat-▇▇ ▇▇▇▇▇-cial posi-tion, re-sults of
opera-tions, cash flows and changes in ▇▇▇▇▇-cial position of Du Pont and its
Sub-sid-iaries as of the re-spec-tive dates and for the respec-tive peri-ods
set forth therein.
ARTICLE VISection .15 No Prior Activities No Prior Activities
------------------- -------------------
No Prior Activities No Prior Activities. None of the Du Pont Merger
-------------------- -------------------
Subsidiaries has incurred any liabili-ties or obligations or engaged in any
transactions, except those incurred in connection with its organization or
with the negotiation and consum-mation of this Agree-ment and the
trans-actions contem-plated hereby.
ARTICLE VISection .16 Compliance with Securities Laws; Absence of
-------------------------------------------
Changes Compliance with Securities Laws; Absence of Changes Compliance
---- --------------------------------------------------- ----------
with Securities Laws; Absence of Changes Compliance with Securities
------------------------------------------ --------------------------
Laws; Absence of Changes. Since Decem-ber 31, 1996, Du Pont has filed, and
--------------------------
until the Initial Comple-tion Date will continue to file, all materi-al
-
reports required by the Exchange Act to be filed by it and such re-ports
-
com-plied in all material respects with the appli-cable disclosure
-
re-quirements of the securities laws. Since December 31, 1996, to Du Pont's
-
knowledge, there have not occurred any events or changes (including the
occur-rence of any liabilities of any nature) whether or not ac-crued or
contingent, which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Du Pont and its Subsidiaries, taken as
a whole.
ARTICLE VISection .17 Acquisition for Investment Acquisition for
-------------------------- ---------------
Investment Acquisition for Investment Acquisition for Investment.
---------- -------------------------- --------------------------
Each of Du Pont and the Du Pont Merger Subsidiaries acknowledge that the
---
Shares have not been registered under the Securi-ties Act, or under any state
---
securities laws. Du Pont is acquiring the Shares solely for its own account
and not with a view to any distribution or other disposition of such Shares or
any part thereof, or inter-est therein, except in accordance with the
Securities Act.
ARTICLE VII COVENANTS COVENANTS COVENANTS
COVENANTS
ARTICLE VIISection .10 Interim Operations of the Pro-tein
----------------------------------
Subsidiaries Interim Operations of the Pro-tein Subsidiaries Interim
- ----------------------------------------------- -------
Operations of the Pro-tein Subsidiaries Interim Operations of the Pro-tein
-------------------------------------- ----------------------------------
Subsidiaries. Each of ▇▇▇▇▇▇▇, Stockhold-er and the U.S. Protein
------------
Subsidiaries cove-nant and agree that, except (i) as ex-press-ly contemplated
--
by this Agree-ment or as described in Sections 3.1 through 3.6 or 6.14 of this
Agreement, (ii) as set forth in Sec-tion 6.1 of the Ralst-on Dis-clo-sure
Sched-ule or (iii) as con-sented to by Du -Pont in writ-ing, after the date
here-of, and until the acquisi-tion of all of the Protein Sub-sidiaries or any
termina-tion of this Agree-ment pursuant to Section 8.1 hereof; provid-ed that
--------- ----
the follow-ing restric-tions shall cease to apply with respect to any
particu-lar Protein Subsidiary after its acqui-sition by Du Pont:
(a) the business of the Protein Subsidiaries shall be conducted only
in the ordinary and usual course of business and, to the extent
consistent there-with, each Protein Subsid-iary shall use its reasonable best
efforts to preserve its business orga-ni-zation intact and maintain its
existing rela-tions with custom-ers, suppliers, employ-ees, creditors and
business part-ners;
(b) none of the Protein Subsidiaries shall amend their respective
certificates of incorporation or by-laws;
(c) none of the Protein Subsidiaries shall: (i) ▇▇-▇▇▇▇▇, set aside
or pay any divi-dend or other distribu-tion pay-able in stock or property
(other than in cash) with re-spect to its capital stock or (ii) re-deem,
pur-chase or other-▇▇▇▇ ▇▇-▇▇▇▇▇ di-rectly or indi-rectly any of its shares of
capital stock;
(d) none of the Protein Subsidiaries shall: (i) issue, sell,
pledge, dispose of or encumber any addition-al shares of, or securities
convert-ible into or exchange-able for, or options, war-rants, calls,
commit-ments or rights of any kind to ac-quire any shares of, capital stock of
any class or any other secu-rities (in-cluding Voting Debt) of any
Prote-in Sub-sidiary; (ii) amend the terms of any such secu-rities or
agree-ments outstanding on the date hereof; or (iii) split, combine or
reclassify any of its shares of capital stock;
(e) none of the Protein Subsidiaries shall trans-fer, lease,
li-cense, sell, ▇▇▇▇-▇▇▇▇, pledge, dispose of, or encumber any material assets
or fail to maintain such assets in such operating condi-tion as they were
at the date hereof, ordinary wear and tear excepted;
(f) none of the Protein Subsidiaries or ▇▇▇▇▇▇▇ shall: (i) grant
any increase in the com-pen-sation payable or to become payable by any Protein
Sub-sidiary to any of its executive officers or vice presidents except in
accordance with existing written policies; (ii) (A) adopt any new, (B) amend
or other-wise in-crease, or (C) accel-erate the pay-ment or vest-ing of the
amounts pay-able or to become payable under, any exist-ing, bonus, incen-tive
com-pensa-tion, de-ferred compen-sa-tion, sever-ance, profit shar-ing, stock
op-tion, stock pur-chase, insurance, pen-sion, retire-ment or other employ-▇▇
▇▇▇▇-fit plan agree-ment or ar-range-ment; or (iii) enter into any
em-ploy-ment or sever-ance agreement with or, except in accor-dance with the
existing written policies of any Protein Sub-sidiary or applicable law, grant
any sever-ance or termi-na-tion pay to any offi-cer, direc-tor or employee of
any Protein Subsid-iary;
(g) none of the Protein Subsidiaries shall modi-fy, amend or
terminate any of its mate-rial Company Contracts or waive, release or assign
any mate-rial rights or claims;
(h) none of the Protein Subsidiaries shall permit any material
insurance policy naming it as a beneficiary or a loss payable payee to be
cancel-led or terminated without notice to Du Pont;
(i) none of the Protein Subsidiaries shall: (i) incur or assume any
long-term Indebted-ness (other than for amounts owed to any other Protein
Subsid-iary), or incur or assume any short-term In-debted-ness in amounts not
in the ordi-nary course of business consis-tent with past prac-▇▇▇▇ (other
than for amounts owed to any other Protein Subsid-iary) the proceeds of which
will be used to repay exist-ing inter-company Indebtedness of the Busi-ness;
(ii) as-sume, guar-an-tee, en-▇▇▇▇▇ or other-wise become liable or
respon-sible (wheth-er di-rectly, contin-gently or otherwise) for the
obli-ga-tions of any other Person other than any wholly owned Protein
Subsid-iary; (iii) enter into any capitalized leases; or (iv) make any loans,
ad-vanc-es or capi-tal con-tribu-tions to, or invest-ments in, any other
Person (other than to any other Protein Subsidiary) except for travel and
expense ad-vances to employees in the ordinary course of busi-ness consis-tent
with past prac-▇▇▇▇; provided that PTI and Fiber Sales may incur third party
-------- ----
In-debt-edness in an amount equal to their respective existing Indebt-edness
owed to Stock-holder the proceeds of which are used to repay such
inter-com-pa-ny In-debt-edness, so long as any such third party In-debted-ness
so in-curred (A) shall not breach the repre-senta-tion and war-ran-ty set
forth in Sec-tion 4.18 hereof and (B) shall be on terms, and all
docu-menta-tion relat-ing thereto shall be, rea-son-ably acceptable to Du
Pont;
(j) none of the Protein Subsidiaries shall ac-quire or agree to
acquire by merg-ing or ▇▇▇▇▇▇▇-dating with, or by purchasing any material
portion of the stock or assets of, or by any other man-ner, any busi-ness or
any corpo-ra-tion, partner-ship, asso-ciation or other busi-ness orga-nization
or division there-of;
(k) none of the Protein Subsidiaries shall change any of the
accounting methods used by it, unless required by GAAP;
(l) none of the Protein Subsidiaries shall adopt a plan of complete
or partial liquida-tion, dissolu-tion, merger, consolidation, restruc-turing,
recapitaliza-tion or other reor-ganization of any Protein Subsidiary (other
than the Merg-ers, the Foreign Exchanges and the PTIFS Liqui-d-ati-on-);
(m) none of the Protein Subsidiaries shall take, omit to take, agree
to take, or agree not to take, any action that would: (i) make any
repre-sen-ta-tion or ▇▇▇▇▇▇-▇▇ of ▇▇▇▇▇▇▇, Stockholder or the Protein
Subsid-iaries con-tained herein inac-cu-rate in any respect at, or as of any
time prior to, the Effective Time or (ii) cause or be rea-son-ably likely to
result in any of the condi-tions set forth in Article VII hereof not being
satisfied or materi-ally impair the ability of ▇▇▇▇▇▇▇, Stockholder, the
Protein Subsidiaries, Du Pont or the Du Pont Merger Subsidiaries to
con-sum-mate the trans-ac-tions contemplat-ed by this Agree-ment or by the
Foreign Exchange Agreements;
(n) none of the Protein Subsidiaries shall effec-tu-ate (i) a "plant
closing" as defined in the Worker Adjust-ment and Retraining Notification Act
(the "WARN Act") af-fecting any site of employment or one or more facilities
---------
or operating units within any site of employ-ment or facility of any Protein
Subsidiary or ii) a "mass layoff" as defined in the WARN Act affecting any
site of employment or one or more facilities of any Protein Subsidiary, except
in either case, after complying fully with the notice and other
requirements of the WARN Act;
(o) none of the Protein Subsidiaries shall set-tle, compromise or waive
any claim for Taxes or make any material Tax election which could
adversely affect the liability for Taxes of any Protein Subsidiary follow-ing
the applicable Domestic Closing or Foreign Closing, as the case may be;
(p) other than for transfers of cash, cash equiv-a-▇▇▇▇▇ and inventory
in the ordinary course consis-tent with past practice, no assets shall be
transferred by any U.S. Protein Subsidiary to any Foreign Protein Subsid-iary
or by any Foreign Protein Subsidiary to any other For-eign Protein Sub-sidiary
and no liabilities of any Foreign Protein Subsid-iary shall be assumed by
any U.S. Protein Subsid-iary or any other Foreign Protein Subsidiary except by
opera-tion of law in the ordinary course; and
(q) none of the Protein Subsidiaries shall enter into an agreement,
contract, commitment or arrange-ment to do any of the foregoing, or to
autho-rize, recom-mend, propose or announce an inten-tion to do any of the
foregoing;
provided, however, that the foregoing shall not prohibit the transfer by
-------- -------
any Protein Subsidiary to ▇▇▇▇▇▇▇ or any of its Subsidiaries (other than any
Prote-in Subsid-iary) of the Ex-cluded Assets in a manner reasonably
acceptable to Du Pont after at least five (5) business days' notice prior
thereto.
ARTICLE VIISection .11 Access; Confidentiality Access;
----------------------- -------
Confidentiality Access; Confidentiality Access; Confidentiality.
----- ------------------------ -----------------------
(a) Upon reasonable notice, ▇▇▇▇▇▇▇ shall, and shall cause each Protein
Subsidiary to, afford to the offi-cers, em-ploy-ees, accountants,
counsel, financing sources and other repre-sentatives of Du Pont, reasonable
access, during normal business hours, to all of the properties, books,
con-tracts, com-mit-ments and records of such Protein Subsidiary and, during
such peri-od, ▇▇▇▇▇▇▇ shall, and shall cause each Protein Sub-sidiary to,
fur-nish prompt-ly to Du Pont all infor-ma-tion con-cern-ing the busi-ness,
prop-er-ties and person-nel of such Protein Sub-sidiary as Du Pont may
reasonably re-quest (includ-ing, without limitation, any information relat-ing
to Taxes and Tax Returns of such Protein Subsidiary). Unless other-wise
re-quired by law and until the Effec-tive Time, Du Pont will hold any such
informa-tion which is nonpublic in confi-dence in accor-dance with the
provi-sions of a letter agreement dated July 18, 1997 (the
"Con-▇▇▇▇▇-ti-al-ity Agree-ment") between ▇▇▇▇▇▇▇ and Du Pont.
-------------
(b) Following the Effec-tive Time, ▇▇▇▇▇▇▇ and Stockholder shall, and
shall cause their respective Sub-sid-iar-ies to, hold in confi-dence all
infor-mation relating to the Protein Subsidiar-ies, other than information
relating to the Excluded Assets, to the same extent as cur-rently is
appli-ca-ble to Du Pont pursu-ant to the Confi-den-ti-al-i-ty Agree-ment;
provid-ed that the foregoing obligations of ▇▇▇▇▇▇▇ and Stockholder shall
----- ----
terminate (except with respect to techni-cal information and/or results
obtained, directly or indi-rectly, pursuant to the Confidentiality and
Evalu-a-tion Agreement, dated August 9, 1994, between PTI and Du Pont, and any
Intellectual Property relating thereto, including that Intellectual
Property relat-ing to new soy bean variet-ies developed by Du Pont for use in
iso-lated soy protein and fiber products, with re-spect to which they shall
continue indefi-nite-ly without limi-tation) two years following Effec-tive
Time.
ARTICLE VIISection .12 Consents and Approvals Consents and
---------------------- ------------
Approvals Consents and Approvals Consents and Approvals.
--- ------------------------ ------------------------
(a) Upon the terms and subject to the condi-tions of this Agree-ment,
each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇'▇ Subsidiaries, the Pro-tein Subsidiaries, Du Pont
and the Du Pont Merger Subsid-iaries shall use its reasonable best ef-forts to
take, or cause to be taken, all ac-tions, and to do, or cause to be done,
all things neces-sary, proper or advis-able under appli-ca-ble laws and
regulations to con-summate and make effective the transac-tions contem-plated
by this Agree-ment, includ-ing with respect to the Asset Transfers, as
promptly as practi-cable including, but not limited to, (i) the prepa-ration
and filing of all appli-cable forms under the HSR Act, re-quired in
connec-tion with the per-formance of this Agree-ment and the transac-tions
contem-plated hereby, (ii) the prepa-ra-tion and filing of all other forms,
registra-tions and notices re-quired to be filed to consum-mate the
trans-ac-tions contem-plated hereby and the taking of such ac-tions as are
neces-sary to obtain any requisite approv-als, consents, orders, exemp-tions
or waivers by any third party or Governmental Entity and (iii) causing the
satis-fac-tion of all condi-tions set forth in Article VII here-of; provided,
--------
howev-er, that the forego-ing will not re-quire (x) Du Pont or the Du Pont
--------
Merger Subsidiaries or any other Sub-sidiary of Du Pont to accept or offer to
---
accept an order pro-vid-ing for the dives-titure by Du Pont, the Du Pont
Merger Subsid-iar-ies, any other Subsidiary of Du Pont or any Protein
Sub-sid-iary of any por-tion of the busi-ness-es, as-sets, opera-tions or
prop-er-ties of Du Pont, any Subsidiary of Du Pont or any Protein Subsid-iary
other than an immaterial portion of the Business owned by the Protein
Subsidiaries, or (y) Du Pont or the Du Pont Merger Subsid-iaries to be willing
to accept any other condi-tions, re-stric-tions, limita-tions or agree-ments
materi-ally affecting Du Pont's or any Du Pont Merger Subsidiary's full rights
of owner-ship of the Business and of the Protein Subsidiaries (except as
permitted by clause (x) above), and none of the Protein Subsid-iaries shall
accept any such order, condi-tion, restriction, limita-tion or agree-ment
without Du Pont's prior written approval. ▇▇▇▇▇▇▇ and Du Pont shall prompt-ly
con-▇▇▇▇ with the other with re-spect to, provide any neces-sary informa-tion
with re-spect to and pro-vide the other (or its coun-sel) copies of, all
fil-ings made by such party with any Gov-ernmental Entity in con-nection with
this Agree-ment, the Foreign Exchange Agree-ments and the trans-ac-tions
contem-plated hereby and there-by.
(b) Each of the parties hereto fur-ther agree, with respect to a
threat-ened or pending pre-limi-nary or perma-nent injunction or other order,
decree or ruling or statute, rule, regu-lation or execu-tive order that would
adversely affect the ability of the parties hereto to per-form their
respective obliga-tions hereunder and con-sum-mate the trans-ac-tions
con-tem-plat-ed here-by, to use their re-spec-tive rea-son-able best ef-forts
to pre-vent the entry, enactment or promul-ga-tion thereof, as the case may
be.
(c) Each of the parties hereto shall prompt-ly inform the other
parties hereto of any material communi-cation from any Govern-mental Entity
regarding any of the trans-actions con-tem-plat-ed here-by. If any of the
parties hereto re-ceives a re-quest for addi-tional infor-ma-tion or
documen-ta-▇▇ ▇▇▇▇▇▇-al from any Governmental Entity with respect to the
trans-ac-tions contemplated hereby, then such party will endeav-or in good
faith to make, or cause to be made, as soon as reasonably practi-cable and
after consulta-tion with Du Pont (in the case of ▇▇▇▇▇▇▇, Stock-holder or the
Protein Subsidiaries) or ▇▇▇▇▇▇▇ (in the case of Du Pont or the Du Pont Merger
Subsid-iaries), an appro-pri-ate re-sponse in com-pli-ance with such
request.
ARTICLE VIISection .13 No Solicitation No Solicitation No
--------------- --------------- --
Solicitation No Solicitation. None of ▇▇▇▇▇▇▇, Stock-holder, the Protein
--------- ---------------
Subsidiaries or any of their re-spec-tive affil-i-ates, or any of their
respec-tive offi-cers, direc-tors, employ-ees, repre-senta-tives and agents,
includ-ing, but not limited to, ▇▇▇▇▇-cial advi-sors, attor-neys and
ac-coun-tants, shall, di-rect-ly or indirect-ly, encour-age, solic-it,
partici-▇▇▇▇ in or initi-ate dis-cus-sions or nego-tiations with, or provide
any information to, any Person (other than Du Pont, any of its affiliates or
representa-tives) con-cern-ing any Acqui-sition Proposal (as defined below).
For pur-poses of this Agree-ment, "Acquisi-tion Proposal" means any offer or
---------------------
proposal for a merger, con-sol-i-da-tion, recap-i-tal-iza-tion, liqui-da-tion,
tender offer, ex-change offer, sale of as-sets outside the ordinary
course of business, sale of shares of capi-tal stock or debt secu-ri-ties or
similar transac-tions involv-ing any Protein Subsid-iary, division or
operat-ing or principal busi-ness unit of the Business, other than the
transactions contem-plated by this Agree-ment. Stock-holder will
imme-di-ately cease any exist-ing activ-ities, dis-cus-sions or negotia-tions
with any Person conducted hereto-fore with respect to any Acquisi-tion
Propos-al.
ARTICLE VIISection .14 Brokers or Finders Brokers or Finders
------------------ ------------------
Brokers or Finders Brokers or Finders.
-------------------- --------------------
(a) Each of Du Pont and ▇▇▇▇▇▇▇ represents, as to itself, its
Sub-sid-iaries and its affiliates, that no agent, broker, invest-ment banker,
financial advisor or other firm or Person is or will be entitled to any
brokers' or finder's fee or any other commis-sion or similar fee in connection
with any of the transac-tions contemplated by this Agree-ment except for
financial advisory fees payable to ▇.▇. ▇▇▇▇▇▇ & Co. by ▇▇▇▇▇▇▇ and to ▇▇
▇▇▇▇▇▇▇▇▇▇ by Du Pont; and
(b) Each of Du Pont and ▇▇▇▇▇▇▇ agrees to indem-nify and hold the other
harm-less from and against any and all claims, liabilities or
obliga-tions with respect to any other fees, commis-sions or expenses
as-serted by any Person on the basis of any act or state-ment alleged to have
been made by such party or its affili-ates.
ARTICLE VIISection .15 Further Assurances Further Assurances
------------------ ------------------
Further Assurances Further Assurances. If at any time after the
------------------- -------------------
Effec-tive Time any further action is necessary or ▇▇▇▇▇-able to carry out the
---------
purpos-es of this Agreement, the proper officers and directors of the
parties hereto shall use all rea-son-able ef-forts to take, or cause to be
taken, all such necessary ac-tions.
ARTICLE VIISection .16 Publicity Publicity Publicity
--------- --------- ---------
Publicity. The initial press release with respect to the execution of this
-----
Agreement shall be a joint press release accept-able to Du Pont and ▇▇▇▇▇▇▇.
There-after, so long as this Agreement is in ef-fect, neither ▇▇▇▇▇▇▇, Du Pont
nor any of their re-spec-tive affil-iates shall issue or cause the
publica-tion of any press release or other announcement with respect to this
Agree-ment and the trans-actions con-tem-plated hereby with-out the prior
consulta-tion of the other party, except as may be required by law or by any
list-ing agree-ment with a na-tional secu-ri-ties exchange or trading market;
provid-ed, however, that nothing con-tained in the forego-ing shall limit the
--------- -------
contents of any meet-ings or dis-cus-sions with ▇▇▇-lysts, industry
partici-pants, members of the press or interview-ers.
ARTICLE VIISection .17 Notification of Certain Matters
----------------------------------
Notification of Certain Matters Notification of Certain Matters
------------------------ ----------------------------------
Notification of Certain Matters. ▇▇▇▇▇▇▇ shall give prompt notice to Du Pont
--------------------------
and Du Pont shall give prompt notice to ▇▇▇▇▇▇▇, of (i) the occur-rence or
non-occurrence of any event of which such notifying party has knowledge the
occur-rence or non-occur-rence of which would cause any repre-senta-tion or
warranty contained in this Agreement to be untrue or inaccu-rate in any
material respect at or prior to the Effec-tive Time and (ii) any mate-rial
failure of ▇▇▇▇▇▇▇, Stockhold-er or the Protein Subsidiar-ies (on the one
hand) or Du Pont or the Du Pont Merger Subsid-iaries (on the other hand), as
the case may be, to comply with or satis-fy any cove-nant, condition or
agree-ment to be com-plied with or satisfied by it hereun-der; provided,
--------
howev-er, that the delivery of any notice pursu-ant to this Section 6.8 shall
---
not limit or other-wise affect the reme-dies avail-able hereunder to the party
receiving such notice.
ARTICLE VIISection .18 Employee Matters Employee Matters
---------------- ----------------
Employee Matters Employee Matters.
------------- -----------------
(a) Continuation of Employ-ment.
-----------------------------
(i) Effec-tive as of the Initial Comple-tion Date, Du Pont will
contin-ue the em-ploy-ment with any U.S. Pro-tein Sub-sid-iary of all
employees of such U.S. Pro-tein Sub-sid-iary (A) who are en-gaged in the
operation of the Busi-ness and who are active-ly at work as of the Initial
Comple-tion Date, or (B) who are on an approved leave of absence from ac-tive
em-ployment, in-cluding, but not limit-ed to, leave due to a short-term
dis-ability or sick-ness, leave under the Family and Medi-cal Leave Act (FMLA)
or a leave or layoff with re-call rights under a collec-tive bar-gain-ing
agreement but (C) excluding those em-ployees who, as of the Initial Completion
Date, are receiving long-term disabil-ity bene-fits pursu-ant to any em-ployee
pension or wel-fare benefit plan and program of ▇▇▇▇▇▇▇ or any of its
Subsid-iar-ies which provides disabili-▇▇ ▇▇▇▇-fits and further (D)
ex-clud-ing those em-ployees listed in Section 6.9(a) of the ▇▇▇▇▇▇▇
Dis-closure Schedule (the "Dairy Food Em-ploy-ees"). All em-ploy-ees of a
-----------------------
U.S. Pro-tein Sub-sid-iary whose employ-ment is con-tin-ued immedi-ately
follow-ing the Ini-tial Comple-tion Date are here-inaf-ter re-ferred to as
"Trans-ferred Employ-ees". Du Pont and the U.S. Pro-tein Subsid-iaries shall
----------------------
retain and be solely re-sponsi-ble for any rein-statement or reem-ploy-ment
claims made by any Trans-ferred Employee pursu-ant to any collec-tive
bar-gain-ing agree-ment, or employment agree-ment or applicable law.
Notwithstanding the forego-ing, except as may be re-quired by applica-ble law,
employment agreement or collective bar-gaining agree-ment, Du Pont may cause a
U.S. Protein Subsid-iary to terminate the employ-ment of any Trans-ferred
Employee at any time on or after the Initial Comple-tion Date.
(ii) Effective as of the Foreign Closing Date appli-cable with respect
to each Foreign Protein Subsid-iary, Du Pont will continue the employment with
each such For-eign Protein Subsidiary of all employees of such For-eign
Protein Subsid-iary and will cause the Foreign Protein Subsidiary to con-tinue
to satisfy any obliga-tions of such Foreign Protein Subsidiary to its former
employ-ees. Such current and former employees shall be defined as "Foreign
-------
Employees". Notwith-stand-ing the foregoing, except as may be required by
-------
appli-cable law, employment agreement or collective bargain-ing agree-ment, Du
-
Pont may cause a Foreign Protein Subsidiary to terminate the employment of any
Foreign Employee at any time on or after the applica-ble Foreign Closing Date.
(iii) ▇▇▇▇▇▇▇ and Du Pont shall cooperate in trans-fer-ring, as soon as
practicable following the appli-cable Foreign Closing Date, the employment of
each em-ployee of a ▇▇▇▇▇▇▇ Subsid-iary who is engaged in con-duct-ing the
Business to a Foreign Protein Subsidiary ("Trans-ferred Foreign Employees").
------------------------------
The effective date of transfer of such employees shall be de-fined, with
respect to each such employee, as the "Foreign Transfer Date".
-----------------------
(iv) The Transferred Employees, Foreign Em-ploy-ees and Trans-ferred
Foreign Employees shall be collec-tively herein-after referred to as "Protein
-------
Em-ployees". The Initial Completion Date with respect to Transferred
----------
Employees, the applicable Foreign Closing Date with respect to each Foreign
--------
Employee and the applicable Transfer Date with respect to each Trans-ferred
--
Foreign Employee shall be hereinafter referred to as the "Trans-fer Date".
-- --------------
(v) Prior to the Initial Completion Date, ▇▇▇▇▇▇▇ shall cause ▇▇▇▇▇▇▇ or
a ▇▇▇▇▇▇▇ Subsidiary which is not a Protein Subsidiary to hire each Dairy
Food Em-ployee and to offer com-pen-sa-tion (includ-ing base salary or wage
rate, vari-able com-pen-sation and long-term compen-sa-tion) and bene-fits to
the Dairy Food Em-ployees sub-▇▇▇▇-tially similar, in the aggre-gate, to those
provided to such Dairy Food Em-ploy-ees immedi-ately prior to the Ini-tial
Completion Date.
(b) Com-pensation and Benefits. As of the appli-cable Trans-fer Date,
--------------------------
Du Pont shall or shall cause, as appli-ca-ble, the Protein Subsid-iaries or a
Subsidiary of Du Pont to offer com-pen-sa-tion (includ-ing base salary or wage
rate, vari-able com-pen-sation and long-term compen-sa-tion) and
bene-fits to the Protein Em-ployees sub-▇▇▇▇-tially similar, in the
aggre-gate, to those provid-ed to such Protein Em-ploy-ees immedi-ately prior
to the appli-ca-ble Transfer Date; pro-vided that any employee or retir-ee
--------- ----
bene-fits provid-ed to Protein Em-ploy-ees may be pro-vided under exist-ing or
newly estab-lished employee bene-fit plans which may, in ei-ther case, be
em-ploy-ee benefit plans of Du Pont, a Subsidiary of Du Pont or a Protein
Subsidiary (any such em-ployee benefit plan in which Protein Employ-ees
partici-▇▇▇▇, the "Appli-ca-ble Du Pont Plan") and which may be modi-fied at
-------------------------
any time. Du Pont shall indemnify and hold harmless ▇▇▇▇▇▇▇ and its
Subsid-iaries, their direc-tors, officers, employees and agents, and all
fiduciaries of employee benefit plans of such entities, for any claims
relating to or arising out of changes or modifi-ca-tions, on or after the
applicable Closing or effective Foreign Trans-fer Dates, to compensa-tion or
benefits avail-able (pursuant to the Benefit Plans or de-scriptions thereof
which have been delivered to Du Pont pursuant to Section 4.9(a) hereof) to the
Protein Employees prior to the appli-cable Closing or effective Foreign
Trans-fer Dates. Such claims shall in-clude, but are not limited to, the cost
of paying claims by Trans-ferred Employees for post-retirement welfare
benefits and for group health plan continua-tion cover-age pursu-ant to Code
sec-tion 4980B and ERISA sec-tions 601 through 609 ("CO-BRA Coverage") under
---------------
▇▇▇▇▇▇▇'▇ Com-pre-hen-sive Health Plan or Executive Medical Plan; provid-ed,
---------
however, that Du Pont shall not have any liability pursuant to this subsection
------
(b) with respect to the Management ▇▇▇▇▇-nuity Agreements between ▇▇▇▇▇▇▇ and
those employees of the Protein Subsidiaries named therein and any claims
thereun-der, except that if Du Pont, a Subsid-iary of Du Pont or a Protein
Subsidiary fails to maintain, for such employees subject to the Management
Continuity Agreements, compensa-tion and benefits that are substantially
similar in the aggregate to those in effect prior to the Initial Comple-tion
Date as required hereunder, Du Pont shall have liability pursuant to the
foregoing indemnification with respect to the Management Continuity
Agreements. Changes announced or planned by ▇▇▇▇▇▇▇ to any employee benefit
or to any Bene-fit Plan which are not in effect on the Initial Completion
Date, including changes to the ▇▇▇▇▇▇▇ Pen-sion Plan in the future, shall not
be deemed to be part of any employ-ee benefit or any Benefit Plan and shall
not be taken into account for purposes of determining Du Pont's obligations
under this subsection (b), nor shall this ESOP feature of the ▇▇▇▇▇▇▇ Savings
Plan be deemed to be a part of the ▇▇▇▇▇▇▇ Savings Plan for purposes of
determining Du Pont's obligation under this subsection (b) after it ceases to
be a feature of the ▇▇▇▇▇▇▇ Savings Plan. Du Pont's indemnifi-cation
obli-gations pursuant to this Section 6.9(b) shall be subject to the
provisions of Section 9.2(g) hereof, for which purpose ▇▇▇▇▇▇▇ shall be deemed
to be the Indemnified Party and Du Pont shall be deemed to be the Indemnifying
Party.
(c) Certain Liabilities.
--------------------
(i) On and after the applicable Trans-fer Date, Du Pont and the Pro-tein
Subsidiar-ies shall retain and be solely re-spon-sible for all em-ployee
lia-bilities or obli-ga-tions not otherwise pro-vided for in this Agree-ment,
in-clud-ing, without limi-ta-tion, wag-es, ac-crued holi-day, ▇▇▇▇-tion and
sick day bene-fits, whether aris-ing prior to or after the applicable Transfer
Date, which re-late to any Pro-tein Employee.
(ii) Du Pont and the Protein Subsidiaries shall retain or assume
responsibility for all bonus plans and liabilities associated therewith with
re-spect to all Protein Employees.
(iii) ▇▇▇▇▇▇▇ shall be re-spon-sible for all liabili-ties in con-nection
with claims incurred by any Trans-ferred Em-ploy-ee or Transferred
Foreign Employee prior to the appli-ca-ble Trans-fer Date under any em-ploy-▇▇
▇▇▇▇-fit plans of ▇▇▇▇▇▇▇ or its Subsid-iaries that provide health, life or
acci-dent bene-fits. Du Pont and the Protein Subsid-iaries shall be
re-spon-sible for all lia-bili-ties in con-nection with claims for health,
life, accident or long-term disability benefits by any Trans-ferred Em-ploy-ee
or any Transferred Foreign Employee under any Appli-cable Du Pont Plan which
are in-curred on or after the applicable Trans-fer Date. For pur-poses of
this Section 6.9, a claim for health benefits shall be consid-ered in-curred
on the date treat-ment is ren-dered or a ser-vice per-formed and a claim for
life or accident benefits shall be consid-ered in-curred on the date the
inci-dent occurred which gave rise to the claim. A claim for long-term
disability bene-fits shall be con-sid-ered incurred at the time the claim for
long-term disability benefits is approved. ▇▇▇▇▇▇▇ and its Subsid-iaries
shall retain liability for retiree medical cover-age and the group health plan
con-tinua-tion cover-age pursuant to Code sec-tion 4980B and ERISA sec-tions
601 through 609 for all former employ-ees and their depen-dents. Du Pont and
the U.S. Protein Subsidiaries shall be responsi-ble for main-taining the group
health plan coverage for Trans-ferred Employees and their depen-dents with
respect to active employee medical cover-age, includ-ing but not limited to
health ▇▇▇▇-▇▇▇▇▇-ment account benefits pursuant to Code section 125.
(iv) The Transferred Employees who partic-ipated in ▇▇▇▇▇▇▇'▇
Partnership Life Plan and Volun-tary Enriched Life Plan may, subject to the
terms and condi-tions of such plans, continue to partici-▇▇▇▇ in such plans
after the appli-cable Transfer Date. Du Pont shall have no rights or
obligations with respect to such plans.
(v) ▇▇▇▇▇▇▇ shall be responsible for all liabili-ty in connec-tion with
any workers' compensa-tion claims for which a claim was filed prior to the
appli-ca-ble Trans-fer Date. Du Pont and the U.S. Protein Subsid-iaries shall
be responsible for all liabilities in con-nection with any workers'
compen-sation claims for which a claim was filed on or after the applica-ble
Transfer Date.
(vi) Notwithstanding anything herein to the con-trary, ▇▇▇▇▇▇▇ shall be
responsible for all lia-bili-ties with respect to employee benefit plans of
▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary regarding employees who are not Protein
Em-ploy-ees, regard-less of when such claims are incurred.
(d) Participation and Service Credit.
-----------------------------------
(i) On and after the applicable Transfer Date, Du Pont and Protein
Subsidiaries shall give Protein Em-ploy-ees service credit for pur-pos-es of
eligi-bili-ty, vest-ing, deter-mi-na-tion of the level of benefits and benefit
accru-al under any Appli-ca-ble Du Pont Plan, for service with any
Protein Sub-sidiary prior to the appli-ca-ble Transfer Date, to the extent
such ser-vice was recog-nized under the corre-spond-ing employee benefit plans
of ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇ Subsidiary or Protein Subsidiary.
(ii) Du Pont shall cause any pre-existing condi-tion restric-tions or
wait-ing periods under Appli-ca-ble Du Pont Plans to be waived to the extent
neces-sary to pro-vide immedi-ate cover-age to each Protein Employ-ee as of
the appli-ca-ble Transfer Date. Du Pont's medi-cal plan will apply any
amounts paid under ▇▇▇▇▇▇▇'▇ medical plan by a Protein Em-ployee or
deduct-ibles and copayments during the year in which such Transfer Date falls
toward deduct-ible, out-of-pocket limits and the orthodontia bene-fits of Du
Pont's medi-cal plan for the plan year in which the Initial Comple-tion Date
occurs, unless the cover-age option selected by the Protein Em-ployee does not
have deductibles or out-of-pocket or similar lim-its.
(iii) An Applicable Du Pont Plan which pro-vides health and depen-dent
care reimbursement accounts estab-lished under Code section 125 ("Du Pont's
---------
▇▇▇▇-bursement Plan") will credit the account of each Trans-ferred Em-ployee
------------------
cur-rently participating in ▇▇▇▇▇▇▇'▇ comparable ▇▇▇▇-▇▇▇▇▇-ment plan
("▇▇▇▇▇▇▇'▇ Reimbursement Plan") with an amount equal to the aggregate pre-tax
----------------------
contribu-tions made to such Trans-ferred Employee's account in ▇▇▇▇▇▇▇'▇
Reimbursement Plan during the 1997 calendar year through the applicable
Transfer Date, reduced by any reimbursements during such period to the
Trans-ferred Employee by ▇▇▇▇▇▇▇'▇ ▇▇▇▇-bursement Plan. Such resulting
account shall be applied to any health bene-fit and dependent care claims
incurred by the Trans-ferred Employee, or his or her covered depen-dents,
through December 31, 1997 in accor-dance with the terms of the Du Pont
Reimbursement Plan.
(e) United States Defined Benefit Pen-sion Plan.
------------------------------------------------
(i) Effective as of the Initial Comple-tion Date, ▇▇▇▇▇▇▇ shall cause
the Transferred Employees to cease pension benefit accruals under the ▇▇▇▇▇▇▇
Purina Retire-ment Plan ("▇▇▇▇▇▇▇'▇ Pension Plan") and Du Pont shall establish
----------------------
or desig-nate a de-fined benefit pension plan and trust in-tended to
quali-fy under section 401(a) and sec-tion 501(a) of the Code, respectively
(the "Du Pont's Pen-sion Plan"). No later than the date speci-fied below,
--------------------------
▇▇▇▇▇▇▇ shall cause the trustee of ▇▇▇▇▇▇▇'▇ Pension Plan to transfer to the
trustee of Du Pont's Pension Plan an amount in cash equal to the Project-ed
Benefit Obli-gation ("PBO"), as defined in ▇▇▇▇▇-cial Accounting Standards 87,
---
attrib-utable to pen-sion bene-fits accrued as of the Ini-tial Completion Date
by the Trans-ferred Employees (in-cluding those with less than one year of
service as of the Ini-tial Completion Date) under ▇▇▇▇▇▇▇'▇ Pension Plan,
excluding, however, those who have retired under ▇▇▇▇▇▇▇'▇ Pension Plan as of
the Initial Completion Date (the "Transfer Amount"). For purposes of this
---------------
Agree-ment, the PBO for the Trans-ferred Employees shall be deter-mined in
accordance with ▇▇▇▇▇▇▇'▇ Pension Plan documents and established
admin-is-tra-tive procedures for ▇▇▇▇▇▇▇'▇ Pension Plan as of the Initial
Completion Date. The follow-ing assumptions shall apply for purposes of
deter-mining the PBO:
(A) the rate used to discount plan liabili-ties shall be
equal to the greater of 7.25% per annum or the discount rate used by Du Pont
as of December 31, 1997 with respect to Du Pont's Pen-sion Plan pursuant to
Statement No. 87 of the Financial Accounting Standards Board (such great-er
rate, the "Appli-ca-ble Dis-count Rate");
------------------------------
(B) the mortality table used shall be the 1983 Group
annuity Mortality Table for Males, with no setback for males and a six-year
setback for fe-males;
(C) the rates of retirement shall be the rates for normal
and early retirements as-sumed for pur-poses of the Schedule B to the 1995
Form 5500 for ▇▇▇▇▇▇▇'▇ Pension Plan;
(D) the rates of turnover for Transferred Em-ploy-ees
shall be the rates of turnover assumed or employees of the U.S. Protein
Subsidiaries for purposes of the Sched-ule B to the 1995 Form 5500 for
▇▇▇▇▇▇▇'▇ Pension Plan;
(E) the rates of disability for Transferred Em-ploy-ees
shall be the disability rates assumed for pur-poses of the Schedule B to the
1995 Form 5500 for ▇▇▇▇▇▇▇'▇ Pension Plan;
(F) all Transferred Employees shall be pre-sumed to elect
a single life annuity at retirement with a guar-▇▇▇▇▇ of sixty (60) monthly
payments;
(G) for purposes of determining the portion of the PBO
attributable to pre-retirement death bene-fits, ninety (90) per-cent of
Transferred Em-ployees shall be presumed to be married and males shall be
pre-sumed to be three years older than females;
(H) employee contributions without interest shall be
assumed to be refunded to Transferred Employees on the earlier of their death
or retire-ment;
(I) salary increases shall be presumed to be 5.5% per
annum;
(J) maximum Social Security Wage base shall be assumed to
increase 5.5% per annum, and limita-tions under Code sections 415 and
401(a)(17) shall be assumed to in-crease 5.0% per annum; and
(K) all other assumptions shall be those set forth in
Schedule B to the 1995 Form 5500 for ▇▇▇▇▇▇▇'▇ Pension Plan.
No changes in the status of any Transferred Employee between the
Initial Completion Date and the date funds are actually transferred pursuant
to this paragraph shall affect the Transfer Amount to be calculated
hereun-der. The Initial Trans-fer Amount (as defined below) and the remainder
of the Transfer Amount (the "Second Pay-ment") shall each be in-creased with
---------------
interest at an effec-tive annual rate equal to the Applicable Discount Rate
from the Initial Completion Date, to the actual date of each such transfer.
The trans-fer of the Transfer Amount shall be condi-tioned upon comple-tion of
the fol-lowing items: (1) the exchange of an opinion of each party's legal
counsel stating that such party's respec-tive pen-sion plan is qualified under
sec-tion 401(a) of the Code and the trust established under such pension plan
is exempt from taxa-tion under section 501(a) of the Code; (2) the ex-change
of a certification from the plan admin-istrator of each party's respective
pen-sion plan that such plan has, in all material re-spects, been
admin-is-tered and operated in a manner to preserve the plan's qualified
status under the Code and the trust's exempt status under the Code; and (3)
each party's filing, with the IRS, of the notice required by sec-tion 6058(b)
of the Code. The parties agree that such notices required by section 6058(b)
of the Code will be filed within three (3) days of the Initial Comple-tion
Date and the opinions and certifications in (1) and (2) above will be
exchanged within thirty (30) days after the Initial Completion Date. An
ini-tial por-tion of the Trans-fer Amount (the "Initial Transfer Amount")
-----------------------
shall be trans-ferred to the trustee of Du Pont's Pen-sion Plan by no later
than three (3) busi-ness days after the expira-tion of the thirty (30) day
wait-ing period re-quired by section 6058(b) of the Code. Unless other-wise
agreed to by the parties, the Second Payment shall be trans-ferred no later
than ninety (90) days after the last to occur of items (1) or (2) above.
(ii) In no event will the Transfer Amount be less than the amount of the
present value of ac-crued bene-fits of the Transferred Employees who did
not retire under ▇▇▇▇▇▇▇'▇ Pension Plan, as deter-mined based on the
actu-arial assump-tions of ▇▇▇▇▇▇▇'▇ Pension Plan which amount satisfies
sec-tion 414(l) of the Code.
(iii) The Transfer Amount will be deter-mined by agree-ment of ▇▇▇▇▇▇▇
and Du Pont. The Initial Transfer Amount shall be Twenty Five Million Dollars
($25,000,000). ▇▇▇▇▇▇▇'▇ actu-ary shall then calcu-late and shall
pro-vide to Du Pont's actuary, at least thirty (30) days prior to the proposed
transfer of the Second Pay-ment, a schedule of the Trans-fer Amount and
suffi-cient detail regarding such calcula-tions to allow Du Pont to make an
appropriate re-view. Upon transfer of the Second Pay-ment, ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇'▇ Pension Plan shall cease to have any liability or obligation
whatso-ever with re-spect to those assets and liabili-ties for accrued
benefits of Transferred Employees transferred to Du Pont's Pension Plan or any
obliga-tion for bene-fits which may be accrued after the Initial Completion
Date by the Transferred Employ-ees, and Du Pont and the U.S. Protein
Subsidiaries and Du Pont's Pension Plan shall assume and be responsible for
all assets and liabili-ties for accrued benefits which were so trans-ferred.
▇▇▇▇▇▇▇, the U.S. Protein Subsidiaries and Du Pont shall pro-vide each other
with such re-cords and infor-ma-tion as may be neces-sary or appropri-ate to
carry out their obli-ga-tions under this Section 6.9(e) or for the purpos-es
of admin-istra-tion of Du Pont's Pension Plan, and they shall coop-er-ate in
the filing of docu-ments required by the transfer of assets and liabil-ities
de-scribed herein.
(iv) Notwithstanding anything herein to the con-trary, with respect to
any Trans-ferred Em-ploy-ee who has re-tired under ▇▇▇▇▇▇▇'▇ Pen-sion Plan
prior to or coin-ci-dent with the Initial Completion Date, the ser-vice of
such Trans-ferred Employ-ee shall not be credit-ed for benefit accrual
pur-poses under Du Pont's Pension Plan but shall be cred-ited for pur-pos-es
of vest-ing and eligibility for early re-tire-ment, or dis-abil-ity
retire-ment benefits, if any, under Du Pont's Pension Plan.
(f) U.S. Savings Plan. After the Initial Com-ple-tion Date, to the
-----------------
extent elected by a Transferred Employ-ee, Du Pont's Savings Plan shall accept
a direct rollover from ▇▇▇▇▇▇▇'▇ Savings Plan of an amount equal to each
Trans-ferred Employee's account balance, as directed by the Trans-ferred
Em-ploy-ee, in cash and/or notes associated with the outstand-ing balance of
any loans to Transferred Employ-ees made pursuant to ERISA section 408(b)(1)
and Code sec-tion 4975(d)(1), in accor-dance with appli-ca-ble law.
(g) Post-Retirement Welfare Bene-fits. Du Pont and the U.S. Protein
---------------------------------
Subsidiaries will be respon-si-ble for pro-viding post-retirement welfare
bene-fits to Transferred Employees who were eligible for such benefits under
the ▇▇▇▇▇▇▇ health plans at the Initial Completion Date and who retire from
any U.S. Protein Subsid-iary fol-low-ing the Ini-tial Completion Date with the
requi-site years of age and ser-vice. With re-spect to each Trans-ferred
Em-ploy-ee who has not re-tired under ▇▇▇▇▇▇▇'▇ Pension Plan based on the
terms and conditions of ▇▇▇▇▇▇▇'▇ Pension Plan as of the Initial Completion
Date, the service of such Trans-ferred Employee with any U.S. Protein
Subsidiary shall be recog-nized for the pur-pose of deter-mining eligi-bility
and level of benefits so provid-ed; pro-vided, howev-er, that such ser-vice
--------- --------
will not be so recog-nized unless ▇▇▇▇▇▇▇, within ninety (90) days fol-lowing
such Initial Completion Date, pays to the U.S. Pro-tein Subsidiaries in full
an amount equal to sixty-two per-cent (62%) of the Accu-mu-lat-ed
Post-retirement Bene-fit Obli-ga-tion as de-fined in ▇▇▇▇▇-cial Accounting
▇▇▇▇-dards 106 with re-spect to the Trans-ferred Employees as of the Initial
Comple-tion Date under the ▇▇▇▇▇▇▇ post-re-tire-ment wel-fare benefit plans
based on assump-tions used in ▇▇▇▇▇▇▇'▇ calcu-lations of liabili-ties under
▇▇▇▇▇-cial Ac-counting ▇▇▇▇-dards 106 as of September 30, 1997. The
post-retire-ment welfare bene-fits for Trans-ferred Employ-ees who retire
under ▇▇▇▇▇▇▇'▇ Pension Plan on or prior to such Initial Comple-tion Date
shall be the sole re-spon-sibil-ity of ▇▇▇▇▇▇▇. The parties to this Agreement
hereby ac-knowledge and agree that the amounts paid by ▇▇▇▇▇▇▇ to Du Pont
pursu-ant to this Section 6.9(g) shall be treated for all Tax purposes as if
such amounts were con-tributed by Stock-holder to the U.S. Protein Subsid-iary
immediate-ly prior to the relevant Initial Completion Date and, according-ly,
acknowl-edge and agree that such payment will not result in a cur-rent Tax
deduc-tion to ▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇▇ and will not result in the
current recognition of income by Du Pont or any Sub-sid-iary of Du Pont. The
par-ties to this Agreement fur-ther agree to take no posi-tion on any Tax
Re-turn, or in any audit or ▇▇▇▇-cial or admin-is-trative proceed-ing or
other-wise that is incon-sis-tent with the imme-diately preceding sentence.
(h) Executive Benefit Plans.
-------------------------
(i) ▇▇▇▇▇▇▇ and its Sub-sidiar-ies shall retain all lia-bility for
benefits accrued or award-ed or claims in-curred as of the Initial Comple-tion
Date under the Incentive Stock Plan, the Executive Long Term Disabili-ty
Plan, the Execu-tive Health Plan, the Execu-tive Life Plan, the Manage-ment
Continuity Agree-ments with certain executives of the Protein Subsid-iaries
(except as otherwise agreed in Section 6.9(b) hereof) and the 1991 Split
Dollar Second to Die Plan with re-spect to those Trans-ferred Employees who
partici-pated in such programs immediately prior to the Initial Comple-tion
Date.
(ii) Effective as of the Initial Completion Date, ▇▇▇▇▇▇▇ shall cause
the ▇▇▇▇▇▇▇ Purina Company Deferred Compen-sa-tion Plan for Key Employees, the
▇▇▇▇▇▇▇ Purina Supple-mental Retire-ment Plan and the ▇▇▇▇▇▇▇ Purina
Executive Savings Invest-ment Plan (the "Executive Plans") to be amended to
---------------
transfer to the applicable Protein Sub-sidiary a portion of each such plan
related to the lia-bilities for certain benefits accrued by the Protein
Employees as of the Initial Completion Date (the "Trans-ferred Execu-tive
-----------------------
Plans"); and to provide that on and after the Ini-tial Completion Date, the
-
applicable Protein Subsidiary shall be the plan spon-sor and plan
admin-is-trator of such plans. The lia-bili-ties to be trans-ferred pursuant
to this Section 6.9(h)(ii) shall be the ac-count balanc-es of Protein
Employees in the Equity and Variable Interest Options of the ▇▇▇▇▇▇▇ Purina
De-ferred Compen-sation Plan for Key Employees, the account balances of
Protein Em-ploy-ees in the ▇▇▇▇▇▇▇ Purina Company Execu-tive Savings
Invest-ment Plan and the accrued benefits under the Sup-ple-mental Execu-tive
Re-tire-ment Plan valued as of the Initial Comple-tion Date. Accrued benefits
under the ▇▇▇▇▇▇▇ Purina Sup-plemen-tal Retirement Plan shall be equal to the
pres-ent value of the pro-jected benefit obligation (deter-mined in the same
manner as with respect to the ▇▇▇▇▇▇▇ Purina Re-tire-ment Plan as set forth in
Section 6.9(e)(i) hereof) accrued by the Protein Employees as of the Ini-tial
Com-pletion Date. ▇▇▇▇▇▇▇ shall assign to the appli-cable Protein Subsid-iary
the portion of any contracts between ▇▇▇▇▇▇▇ and the Protein Employees
pursuant to which compensa-tion of such employees was deferred under the
Equity Option and Variable Interest Option of the De-ferred Com-pen-sation
Plan for Key Em-ploy-ees and any predecessor plans.
(iii) After the Initial Completion Date, ▇▇▇▇▇▇▇ and its Sub-sidiaries
shall have no further au-thority or liabil-ity with respect to the Transferred
Executive Plans and Du Pont and its Subsidiaries shall assume all
authority for such Plans and shall be solely responsi-ble for all lia-bilities
and obligations whatso-ev-er relating to benefits and claims for benefits
thereun-der, whether such claim arose before or after the Ini-tial Completion
Date. Du Pont and its Subsid-iaries shall indemnify and hold harm-less
▇▇▇▇▇▇▇ and its Subsidiaries, and their officers, directors, em-ployees,
agents and fiduciaries, against any and all claims arising out of any Protein
Subsidiary's or Du Pont's spon-sor-ship of the such Plans, includ-ing but not
limit-ed to claims arising out of the adminis-tration or amendment of such
Plans or any registra-tion statement filed in connec-tion with any such Plan,
includ-ing but not limit-ed to claims by employees or any govern-mental
agencies.
(iv) On or promptly following the Initial Com-ple-tion Date, ▇▇▇▇▇▇▇
shall pay to the U.S. Protein Sub-sidiar-ies an amount in cash equal to
sixty-two per-cent (62%) of the aggregate lia-bil-i-ties of the Trans-ferred
Execu-tive Plans to be trans-ferred as of that date.
(v) ▇▇▇▇▇▇▇ shall retain all liability for all unpaid bene-fits,
obligations and liabilities with respect to account balances of Protein
Employees in the Fixed Bene-fit Option of the ▇▇▇▇▇▇▇ Purina Compa-ny Deferred
Compen-sation Plan for Key Employees.
(vi) The par-ties to this Agree-ment hereby ac-knowl-edge and agree that
the amounts paid by ▇▇▇▇▇▇▇ to U.S. Pro-tein Subsid-iaries pursu-ant to
this Section 6.9(h) shall be treated for all Tax purposes as if such amounts
were contributed by Stock-holder to the relevant U.S. Protein Subsidiary
immediate-ly prior to the Ini-tial Completion Date and, according-ly,
acknowl-edge and agree that such payment will not result in a current Tax
deduc-tion to ▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇▇ and will not result in the
current recognition of income by Du Pont or any Sub-sid-iary of Du Pont. The
par-ties to this Agreement fur-ther agree to take no posi-tion on any Tax
Re-turn, or in any audit or ▇▇▇▇-cial or admin-is-trative proceeding or
other-wise that is incon-sis-tent with the imme-diately preceding sentence.
(vii) Effective as of the Initial Com-pletion Date, all of ▇▇▇▇▇▇▇'▇
obligations under the 1996 Split Dollar Second-To-Die Plan (the "Survivor Life
-------------
Insurance Plan") including, but not limited to, the obligation to pay any
---------------
premiums on life insurance policies subject to such Plan (the "Poli-cies"),
---- ---------
shall cease with respect to the Transferred Employees who participated in the
--
Plan immediately prior to the Initial Completion Date ("Sur-vi-vor Life
---------------
Participants"). Promptly following the Initial Completion Date, ▇▇▇▇▇▇▇ shall
------
be ▇▇▇▇-bursed for all premi-ums paid with respect to such Policies in
accor-dance with the terms of the 1996 Split Dollar Agree-ments and
Collater-al Assignments between ▇▇▇▇▇▇▇ and the Survi-vor Life Participants,
or the trustee of a trust created by the Survivor Life Partic-ipants for the
purpose of holding such Policies (the "Trustees"). Upon ▇▇▇▇-▇▇▇▇▇-ment of
--------
such premiums, ▇▇▇▇▇▇▇ shall release all of its rights under such Collateral
Assign-ments in accordance with their terms, vesting full ownership rights in
the Policies to the Survivor Life Partici-pants or the Trust-ees, as
appro-priate. Du Pont shall cause the appropriate U.S. Protein Subsidiary to
adopt a substan-tially identi-cal Survivor Life Insurance Plan with respect to
all Survi-vor Life Participants, and shall enter into substan-tially identical
Split Dollar Agree-ments and Collateral Assignments with the Survivor Life
Participants, or the Trustees, in accor-dance with such Plan effective
immedi-ately after the Initial Completion Date.
(i) Paid Time Off. As of the Ini-tial Com-pletion Date, Du Pont shall
-------------
cause the U.S. Pro-tein Subsid-iaries to contin-ue to provide paid time off
("PTO") entitlements to the Trans-ferred Employ-ees that are sub-▇▇▇▇-tially
---
equiva-lent to the PTO entitlements of the Trans-ferred Employees under the
PTO policy of the U.S. Protein Subsid-iaries immediately prior to the Ini-tial
Completion Date. Du Pont and the U.S. Subsidiaries shall be responsible
for all PTO benefit obli-gations with respect to the Trans-ferred Em-ploy-ees
that are accrued but unpaid as of the Initial Com-pletion Date, in-cluding but
not limited to PTO days that were "banked" for use during a future sabbatical
leave.
As of the applicable Transfer Date, Du Pont shall cause the
Foreign Protein Subsidiaries to continue to pro-vide vacation entitlements to
the Transferred Foreign Em-ployees that are substantially equivalent to the
vacation entitlement of the Transferred Foreign Employees under the vacation
plans, policies and practic-es applicable to such employees immediately prior
to the applicable Transfer Date. Du Pont and the Foreign Pro-tein
Subsidiaries shall be re-sponsible for all vacation benefit entitlements with
re-spect to the Transferred Foreign Employees that are accrued but unpaid as
of the applicable Transfer Date including, but not limited to vacation days
that were "banked" for future use.
(j) Actions by Du Pont. Any action required to be taken under this
------------------
Section 6.9 by Du Pont, may be taken by a Subsidiary of Du Pont or a Pro-tein
Subsidiary.
(k) Canadian Foreign Funded Employee Benefit Plans. With respect to
----------------------------------------------
any ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ Subsidiary funded Canadian pension plan in which
Foreign Employees or Trans-ferred Foreign Employees participate (the
"Cana-di-an Foreign Funded Benefit Plan"), the Foreign Protein Sub-sid-iaries
-------------------------------
shall make available to the Foreign Employ-ees or Transferred Foreign
Employees who are participants in such Canadian Foreign Funded Benefit Plan a
comparable plan upon the transfer from the Canadian Foreign Funded Bene-fit
Plan to such comparable plan of the Foreign Protein Subsidiary of an amount of
assets sufficient to cover the greater of the ongoing lia-bility or
solvency in respect of all Protein Employees who participate in such Funded
Canadian Foreign Benefit Plan; provided that the trans-fer does not violate
-------- ----
applicable laws, contracts or the terms of the Canadian Foreign Funded
Bene-fit Plan.
(l) Protein Foreign Funded Benefit Plans. With re-spect to any ▇▇▇▇▇▇▇,
------------------------------------
▇▇▇▇▇▇▇ Subsidiary or Pro-tein Sub-sidiary funded pension plan in which
only Foreign Employ-ees or Transferred Foreign Employees participate (each, a
"Pro-tein Foreign Funded Benefit Plan"), Du Pont and the Protein Subsidiaries
-------------------------------------
shall assume or retain sole responsi-bility for each such Protein Foreign
Funded Bene-fit Plan. No addition-al assets shall be transferred by ▇▇▇▇▇▇▇
or any ▇▇▇▇▇▇▇ Subsidiary to Du Pont or the Pro-tein Subsidiaries, or to any
Protein Foreign Funded Benefit Plan, with respect to each such Protein Foreign
Funded Benefit Plan.
(m) Other ▇▇▇▇▇▇▇ Foreign Funded Employee Benefit Plans. Except as
---------------------------------------------------
provided in Section 6.9(l) hereof, with respect to any ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇
Sub-▇▇▇-iary funded pension plan in which Foreign Employees or Trans-ferred
Foreign Employees and other ▇▇▇▇▇▇▇ ▇▇-ployees participate (each, a "▇▇▇▇▇▇▇
-------
Foreign Funded Benefit Plan"), the Foreign Protein Subsidiaries shall make
-----------------------------
available to the Foreign Employees of Transferred Foreign Employees who are
--
participants in such ▇▇▇▇▇▇▇ Foreign Funded Benefit Plan a comparable plan
-
upon the transfer from the ▇▇▇▇▇▇▇ Foreign Funded Benefit Plan to such
-
comparable plan of the Foreign Protein Subsid-iary of an amount of assets
-
sufficient to cover the foreign equiva-lent of the pro-jected benefit
-
obligations in re-spect of all Foreign Employees or Transferred Foreign
-
Employees who partici-▇▇▇▇ in such ▇▇▇▇▇▇▇ Foreign Funded Benefit Plan as
-
determined by the mutual agreement of Du Pont's and ▇▇▇▇▇▇▇'▇ actu-ar-ies or
-
such lesser amount as necessary to prevent the ▇▇▇▇▇▇▇ Foreign Funded Bene-fit
Plan from being funded on less than such projected bene-fit obli-gation
basis with respect to the remaining Plan partici-pants; pro-vided that the
--------- ----
trans-fer of assets does not violate appli-ca-ble laws, con-tracts or the
terms of such Plan.
(n) Foreign Governmental or Quasi-Governmental Employ-ee Benefit Plans.
------------------------------------------------------------------
With respect to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary, or any Protein
Subsidiary governmen-tal, quasi-governmental or insured plan employee benefit
plan in which Foreign Employees or Transferred Foreign Employees partici-▇▇▇▇
(each, a "Foreign Book Accrual Benefit Plan"), the Foreign Protein
-------------------------------------
Subsidiaries shall make available to the Foreign Employees or Transferred
-
Foreign Employees a compa-rable plan, or continue to sponsor such Foreign Book
Accrual Benefit Plan on behalf of such employees as applicable, and shall be
responsible for payment of the respective contribu-tions and premiums for each
such Foreign Book Accrual Bene-fit Plan effective as of the Foreign Completion
Date appli-cable with respect to each Foreign Protein Subsidiary, in
accordance with applicable law and any governing documents.
(o) Foreign Book Reserve Benefit Plans. With respect to any ▇▇▇▇▇▇▇ or
----------------------------------
▇▇▇▇▇▇▇ Subsidiary employee bene-fit plan for which ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇
Subsidiary, or any Protein Subsidiary, maintains a book reserve and in which
Foreign Employees or Transferred Foreign Employ-ees partici-▇▇▇▇ (each, a
"Foreign Book Reserve Benefit Plan"), the Foreign Protein Subsidiaries shall
--------------------------------
make available to the Foreign Employees or Transferred Foreign Employees, a
compa-rable plan, or continue to sponsor such Foreign Book Reserve Benefit
Plan, on behalf of such em-ploy-ees as appropriate, in accordance with
applicable law.
(p) Severance. As of the applicable Transfer Date, Du Pont and the
---------
Protein Subsid-iaries shall retain and be re-sponsible for any and all
severance costs, whether arising before or after the applicable Transfer Date,
under the severance plans, programs and practices of the Protein
Subsidiaries with respect to the Protein Employees except that ▇▇▇▇▇▇▇ shall
be solely responsible for (a) severance costs incurred upon the termination of
employees of Protein Technologies International Financial Services, N.V. as
set forth in Section 6.9(p) of the ▇▇▇▇▇▇▇ Disclosure Schedule and (b)
severance costs in-curred upon the transfer of the Trans-ferred Foreign
Employees from a ▇▇▇▇▇▇▇ Subsid-iary to a Protein Subsidiary.
ARTICLE VIISection .19 Non-Competition, Etc. Non-Competition,
--------------------- ----------------
Etc. Non-Competition, Etc. Non-Competition, Etc.
- ---------------------- ----------------------
(a) Subject to the provisions of this Section 6.10, ▇▇▇▇▇▇▇ agrees that
for a period of ten (10) years from the Initial Completion Date, ▇▇▇▇▇▇▇ and
its successors (which shall include the pet food division and the animal feed
division of ▇▇▇▇▇▇▇ and any Person that (i) Ralston merges into, (ii) ▇▇▇▇▇▇▇
trans-fers all or any part of its pet food divi-sion or its animal feed
division to (other than any such Person who acquires all or any part of such
divi-sion, unless the voting and equity ownership interest in such Person is
in the aggregate owned directly or indi-rectly fifty percent (50%) or more by
Persons who are in any of the fol-lowing categories: (x) merchant banks,
leveraged buyout organizations, investment banks or other similar buyers who
are commonly known as "▇▇▇▇▇-cial buy-ers"; (y) em-ploy-ees of the divi-sion
or por-tion there-of being trans-ferred or the trans-feror or (z) Persons who
directly or indirectly owned an equity or voting inter-est in such
trans-ferred division or portion thereof immedi-ately prior to such trans-fer;
pro-vided that the exclu-sion in this paren-theti-cal of certain
--------- ----
transferees of such divi-sion shall not apply to Persons acquiring all or any
---
part of either such divi-sion as part of a spin off, split up or similar
transac-tion), (iii) ac-quires ▇▇▇▇▇▇▇ if, after giving effect to such
acquisi-tion, the share-holders of ▇▇▇▇▇▇▇ immedi-ately prior thereto own at
least fifty per-cent (50%) of the voting or common stock of such ongoing
Person or (iv) is a succes-sive successor (de-fined similarly to the
forego-ing) to a Person de-scribed in clauses (i)-(iii) above) and their
re-spec-tive affil-i-ates (collec-tively, the "▇▇▇▇▇▇▇ Group") shall not (A)
-------------
manufac-ture or market, directly or indirectly, any-where in the world,
isolated soy protein, soy milk, soy fiber, soy con-centrate or any product
fifty percent (50%) or more of which (on a dry matter basis) is com-prised of
soy protein (collec-tively, "Soy Competitive Prod-ucts"), except that ▇▇▇▇▇▇▇
-------------------------
may manu-facture or cause to be manufactured any of the Soy Com-peti-tive
Products for use as an ingredient in a different prod-uct manufactured by or
for ▇▇▇▇▇▇▇ for sale to third par-ties, which different product is either (1)
a pet or animal feed or (2) a product less than fifty percent (50%) of which
(on a dry matter basis) is comprised of soy pro-tein; (B) manu-facture in
Europe for sale to others, directly or indi-rect-ly, baby pig, dairy calf or
veal calf soy protein feed ingre-dients, it being understood that the
alter-ation or modifica-tion of such ingredients, or the procurement of
toll-milled or custom-milled products, for use as an ingre-dient in such
feeds, shall not constitute the direct or indirect manufac-ture thereof; or
(C) manufac-ture for sale to others, any-where in the world, any powdered soy
protein product or extract there-of for human consump-tion (each of clauses
(A), (B) and (C) shall consti-tute a "Pro-tein Com-peti-tive Busi-ness") or
--------------------------------
(D) di-rectly or indi-rect-ly own a voting or equity inter-est of ten percent
or more in, man-age, oper-ate, join or con-trol in any manner a Protein
Competitive Busi-ness; pro-vid-ed that it shall not be deemed to be a
---------- ----
▇▇▇▇▇-tion of clause (D) above for ▇▇▇▇▇▇▇ or any of its Subsid-iaries to own
a voting or equity inter-est of less than fifty percent (50%) in any Person
whose gross reve-nues de-rived from Protein Compet-i-tive Business-es are both
less than $50 mil-lion and less than twenty-five percent (25%) of such
Person's total gross reve-nues. Each in-vest-ment made by ▇▇▇▇▇▇▇,
Stock-holder or any of their re-spective Sub-sid-iaries which is sub-ject to
the provi-sions of this Section 6.10 must be permis-sible hereun-der at the
time of such invest-ment and, except in the case of Novogen Limit-ed,
there-after; provided further that each member of the ▇▇▇▇▇▇▇ Group shall have
-------- -------
twenty-four (24) months to divest itself of any in-vest-ment that com-plied
with this section when made but which at any time there-after failed to so
com-ply, such twenty-four (24) months to be mea-sured from the date of such
non-compli-ance.
(b) For a period of three years (except with re-spect to non-exempt
persons for whom it shall be one year) after the Ini-tial Com-ple-tion Date,
▇▇▇▇▇▇▇ and the other members of the ▇▇▇▇▇▇▇ Group shall not, di-rect-ly or
indi-rect-ly, (i) in-duce, en-cour-age or attempt to induce any offi-cer,
em-ploy-ee, repre-sen-ta-tive or agent of Du Pont or any of its affil-iates,
in-cluding any Protein Sub-sid-iary, engaged pri-▇▇▇▇▇▇ in the Busi-ness to
leave the employ of Du Pont or any such affili-ate, or vio-late the terms of
any such Person's con-tracts, or any em-ploy-ment ar-range-ments, with Du Pont
or any such affil-i-ate or (ii) hire any such officer, em-ployee,
repre-senta-tive or agent of Du Pont or any of its affiliates except with the
prior approval of Du Pont (which will not be unreasonably withheld);
pro-vid-ed that the fore-go-ing re-stric-tion con-tained in clause (ii) above
- ----
shall not apply with respect to any Person from and after such time as such
Person's employ-ment with Du Pont and all of its affili-ates shall have been
termi-nated by Du Pont and its affil-iates.
(c) Notwithstanding anything to the contrary con-tained in subsection
(a) of this Section 6.10, neither ▇▇▇▇▇▇▇ nor any member of the ▇▇▇▇▇▇▇ Group
shall be deemed to have violat-ed the restric-tions con-tained in this Section
6.10 in the event that ▇▇▇▇▇▇▇ or any member of the ▇▇▇▇▇▇▇ Group should
as part of an acqui-si-tion, by joint ven-ture, merger, asset pur-chase, stock
purchase or other busi-ness combi-na-tion acquire a voting or equity interest
greater than that permitted by subsec-tion (a) of this Sec-tion 6.10 in any
Person engaged in a Protein Competi-tive Business if (i) the revenue derived
from such Pro-tein Com-petitive Busi-ness is less than 50% of the gross
reve-nues of the Per-son, and (ii) ▇▇▇▇▇▇▇ or such member of the ▇▇▇▇▇▇▇ Group
divests such por-tion of the Pro-tein Com-peti-tive Busi-ness to comply with
the restric-tions con-tained in subsection (a) of this Section 6.10 within
twenty-four (24) months from the date of such acqui-si-tion.
(d) The parties covenant and agree that no por-tion of the shares of Du
Pont Common Stock to be received in the Mergers and Foreign Exchanges is
attributable to the provi-sions of this Section 6.10. The parties further
cove-nant and agree to take all financial and Tax report-ing positions
con-sistent with such allocation.
(e) ▇▇▇▇▇▇▇ and Du Pont acknowledge that this Sec-tion 6.10 constitutes
an independent covenant and shall not be affected by performance or
nonperformance of any other provi-sion of this Agreement. Each of ▇▇▇▇▇▇▇ and
Du Pont repre-sents that it believes that the cove-nants set forth in
this Sec-tion 6.10 are reason-able and proper. It is the desire and intent of
the parties that the provi-sions of this Section 6.10 shall be en-forced to
the full-est extent permis-sible under applica-ble law. If all or part of
this Section 6.10 is held inval-id, illegal or incapable of being enforced by
any law or public policy, all other terms and provisions of this Agree-ment
shall nevertheless remain in full force and effect. If any part of this
Section 6.10 is held to be excessively broad as to dura-tion, scope, activity
or sub-ject, such part will be construed by limiting and reducing it so as to
be en-forceable to the maximum extent compatible with appli-cable law.
ARTICLE VIISection .20 Use of Names and Marks Use of Names and
---------------------- ----------------
Marks Use of Names and Marks Use of Names and Marks.
--- -------------------------- --------------------------
(a) Anything in this Agreement to the contrary notwithstanding, Du Pont
agrees that, except with respect to the Fuji Joint Venture, it shall, and
shall cause its Sub-sid-iar-ies to, as soon as practi-ca-ble after the
Ini-tial Comple-tion Date and in any event within six months thereaf-ter,
cease to (i) make any use of the names "▇▇▇▇▇▇▇," "Purina," "▇▇▇▇▇▇▇ Purina,"
"Checkerboard Square," the Checkerboard logo and any ser-vice marks,
trade-marks, trade names, iden-tifying sym-bols, logos, emblems, signs or
insig-nia owned by or li-censed to ▇▇▇▇▇▇▇ or its Subsidiaries relat-ed
there-to or con-tain-ing or com-pris-ing the fore-go-ing, includ-ing any name
or ▇▇▇▇ con-fus-ingly similar thereto (the "▇▇▇▇▇▇▇ ▇▇▇▇▇"), and (ii) hold
-------------
itself out as having any affili-ation with ▇▇▇▇▇▇▇ or any of its
Subsid-iar-ies other than as suc-cessor to the Busi-ness. In fur-ther-ance
there-of, as prompt-ly as prac-ti-ca-ble but in no event later than six months
fol-lowing the Effec-tive Time, Du Pont shall, and shall cause its
Subsid-iar-ies to, re-move, strike over or other-wise oblit-erate or replace
all ▇▇▇▇▇▇▇ ▇▇▇▇▇ from all mate-rials owned by any Protein Sub-sid-iary,
in-clud-ing, with-out limi-ta-tion, any vehi-cles, busi-ness cards,
sched-ules, statio-▇▇▇▇, containers, packag-ing materi-als, dis-plays, signs,
previ-ously prepared advertising and promo-tion-al mate-ri-als, manu-als,
forms, com-put-er soft-▇▇▇▇ and other mate-ri-als. Anything in this
Agree-ment to the contrary notwith-standing, Du Pont acknowledges that the
rights in and/or related to the Fuji Joint Venture assigned to Du Pont or to
one or more of its Subsidiaries, do not include rights in the "Purina"
trademark or trade name except to the extent necessary to require Fuji Oil
Company, the Fuji Joint Ven-ture or other Person in which Fuji Oil Company has
an inter-est, permanently to discontinue the use and registration of any
trademark or trade name consisting of or containing the word "Purina." Du
Pont agrees to exert its reasonable best efforts to obtain such discontinuance
within twenty-four (24) months following the Initial Completion Date. ▇▇▇▇▇▇▇
agrees to refrain from exer-cis-ing such right for a period of twenty-four
(24) months following the Ini-tial Completion Date in the interest of
facilitating the said joint venture's successful transi-tion from use of the
name "Purina" so long as the Fuji Purina joint venture continues as now
structured.
(b) Anything in this Agreement to the contrary notwithstanding, ▇▇▇▇▇▇▇
agrees that it shall, and shall cause its Subsid-iaries to, as soon as
practica-ble after the Ini-tial Completion Date and in any event within six
months fol-low-ing the last Foreign Closing Date, cease to (i) make any use of
the Trade-marks included within the Intel-lec-tu-al Prop-▇▇-▇▇ to be owned by
Du Pont or any Protein Subsidiary pursu-ant to this Agreement or any names or
marks con-fus-ing-ly simi-lar there-to, and (ii) hold itself out as having any
affil-i-ation with Du Pont or any Surviving Corpo-ration. In fur-ther-ance
there-of, as prompt-ly as prac-ti-ca-ble, but in no event later than six
months fol-lowing the Initial Comple-tion Date, ▇▇▇▇▇▇▇ shall, and shall cause
its Sub-sidiar-ies to, re-move, strike over or other-wise oblit-erate or
replace all Trade-marks included in such Intel-lec-tual Prop-▇▇-▇▇ from all
mate-ri-als not owned by any Protein Subsid-iary, in-clud-ing, with-out
limi-ta-tion, any vehi-cles, busi-ness cards, sched-ules, statio-▇▇▇▇,
containers, packag-ing materi-als, dis-plays, signs, previously prepared
advertising and promo-tion-al mate-ri-als, manu-als, forms, com-puter
soft-▇▇▇▇ and other mate-ri-als.
ARTICLE VIISection .21 Related Agreements Related Agreements
------------------ ------------------
Related Agreements Related Agreements. At the Domes-tic Clos-ings,
------------------- -------------------
▇▇▇▇▇▇▇ and Du Pont shall enter into, execute and deliver (a) a transi-tion-al
------
services agreement sub-▇▇▇▇-tially in the form attached hereto as Exhibit
D (the "Bridg-ing Services Agree-ment"), (b) a registra-tion rights agree-ment
-----------------------------
substan-tially in the form at-tached hereto as Exhibit E (the "Reg-istration
-------------
Rights Agree-ment"), (c) a tax sharing and indemnification agree-ment
-----------------
substantially in the form attached hereto as Exhibit F (the "Tax Sharing
------- -----------
Agreement"), (d) agree-ments providing for the operations after the Initial
--------
Comple-tion Date of the For-eign PTI Sub-sidiar-ies which are not being
-
transferred on the Initial Completion Date, in-clud-ing to the extent
-
appli-cable the operations to be ac-quired by the New Point-er Sub-sid-iar-ies
-
after the Ini-tial Com-ple-tion Date, on terms con-sis-tent with this
Agree-ment or as the par-ties hereto other-wise agree (the "Operat-ing
----------
Agree-ment(s)"), and agreements dealing with employees conducting sales
------
operations in Canada, Japan, the ▇▇▇▇▇▇-pines, Thai-land, Malaysia and
Singapore substantially in the form attached hereto as Exhibit N (the "Sales
-----
Office Employees Agree-ments"), (f) a lease agree-ment relat-ing to the
-----------------------------
head-quar-ters of the Busi-ness in St. Louis, Mis-souri substan-tially in the
-----
form at-tached hereto as Exhib-it I (the "Head-quar-ters Lease"), (g) lease
--------------------
agree-ments related to the space current-ly used by the Busi-ness in the
research facili-ty in St. Louis, Missouri sub-▇▇▇▇-tially in the form attached
hereto as Exhibits J-1 and J-2 (the "R&D Lease") and (h) a com-mod-i-ties
---------
purchasing agreement substantially in the form at-tached hereto as Exhibit M
(the "Commodities Purchas-ing Agree-ment"). At or prior to the Domes-tic
------------------------------------
Closings, ▇▇▇▇▇▇▇ and the Pro-tein Subsidiar-ies shall enter into, execute and
deliver a li-cense-back of cer-tain Intel-lec-tu-al Prop-▇▇-▇▇ sub-▇▇▇▇-tially
in the form at-tached hereto as Exhib-it K (the "Intel-lectual Proper-ty
-----------------------
Assignment").
-----
ARTICLE VIISection .22 Reorganization Reorganization
-------------- --------------
Reorganization Reorganization. The parties hereto intend each of the
------ --------------
Mergers and each of the Foreign Exchanges to qualify as a reorganiza-tion
under section 368(a) of the Code. Each party and its affili-ates shall use
all reason-able efforts to cause the Merg-ers and the Foreign Exchanges to so
qualify. The parties hereto and their respective Subsidiaries and other
affiliates shall not (a) take any ac-tion, including any trans-fer or other
dispo-si-tion of assets or any inter-est in the Protein Subsidiaries before or
after the Domestic Clos-ings and the Foreign Closings, that would cause
any Merger or any Foreign Exchange not to qualify as a reor-gani-zation within
the mean-ing of section 368(a) of the Code and any comparable state or local
tax stat-ute or (b) enter into any contract, agree-ment, com-mitment or
arrange-ment to take any such action; provided that the parties hereto
-------- ----
expressly agree that Du Pont shall be permitted to transfer the stock of any
or all of the Protein Subsidiaries to a controlled (within the meaning of
Section 368(c) of the Code) Subsid-iary of Du Pont at any time following the
rele-vant Domestic Closing or Foreign Closing, as the case may be.
ARTICLE VIISection .23 Cash and Bank Accounts. Cash and Bank
---------------------- -------------
Accounts. Cash and Bank Accounts. Cash and Bank Accounts.
---- ------------------------- ----------------------
(a) With respect to U.S. Protein Subsidiaries, until the Initial
Com-pletion Date, ▇▇▇▇▇▇▇ shall continue to employ cash management practices
consistent with those em-ployed immediately prior to the date of this
Agreement, in-cluding (i) continuing to col-lect funds generated from the
Business from bank accounts of ▇▇▇▇▇▇▇ and the U.S. Protein Subsidiaries and
through ▇▇▇▇▇▇▇'▇ standard cash management transfer system; and (ii)
continuing to fund the bank ac-counts of ▇▇▇▇▇▇▇ and the U.S. Protein
Subsidiaries in connection with cash dis-bursements related to the Business.
(b) The following provisions of this subsection (b) are subject to
Section 6.14(e) hereof. All col-lec-tion and dis-▇▇▇▇▇-ment bank ac-counts of
the U.S. Pro-tein Subsid-iaries existing as of the Initial Comple-tion
Date, including the balances therein, shall be retained at Closing by such
U.S. Protein Subsidiar-ies, which shall retain lia-bility with respect to all
checks or other drafts or with-drawals written on all such accounts prior to
the Closing. Notwithstanding the foregoing, it is the inten-tion of the
parties that the book cash balance of the U.S. Pro-tein Subsid-iaries, in the
aggre-gate, as of 11:59 PM on November 30, 1997 shall be zero, and to the
extent that the actual bal-ance, determined in the ordi-nary course
con-sis-tent with past practices, is negative, ▇▇▇▇▇▇▇ shall pay to Du Pont an
amount equal to such short-fall. To the extent that the actual book cash
balance is positive, Du Pont shall remit to ▇▇▇▇▇▇▇ the amount of such excess
over zero. Prior to any such payment, ▇▇▇▇▇▇▇ shall have the opportunity to
review the books and records of the U.S. Pro-tein Subsidiar-ies and to confirm
transactions with banks utilized by them in order to verify amounts to be
paid. All disbursement bank ac-counts of ▇▇▇▇▇▇▇ which are utilized by the
Business prior to the Ini-tial Completion Date shall be retained at Closing by
▇▇▇▇▇▇▇, which shall retain liability with re-spect to all checks or other
drafts or withdrawals written on all such accounts prior to 11:59 PM on
November 30, 1997. At Clos-ing, no other checks or other drafts or
with-drawals of the Busi-ness shall be made against such ac-counts, except as
may be pro-vided in the Bridging Services Agree-ment. All bona fide checks
and other instru-ments depos-ited in ▇▇▇▇▇▇▇ accounts or accounts of the U.S.
Protein Subsid-iaries prior to the Initial Com-pletion Date and related to the
operations of the Business which are returned to such accounts thereaf-ter
shall be assigned to and shall become the responsibility of Du Pont, and Du
Pont shall reimburse ▇▇▇▇▇▇▇ as soon as practicable for all such items
re-turned to ▇▇▇▇▇▇▇ accounts upon the transfer to Du Pont of all rights
relating to such checks or instruments and the re-ceipt by Du Pont or a
Pro-tein Subsid-iary of pay-ment in cash in respect of such re-turned items;
pro-vid-ed that such ▇▇▇▇-▇▇▇▇▇-ment shall be limit-ed to the amount actually
--------- ----
re-ceived by Du Pont or a Protein Subsid-iary and Du Pont shall use reasonable
best efforts to collect such checks in full.
(c) The following provisions of this subsection (c) are subject to
Section 6.14(e) hereof. With respect to Foreign Protein Subsidiaries, until
11:59 PM on November 30, 1997, ▇▇▇▇▇▇▇ shall employ cash manage-ment
practices, through capital contribu-tions, divi-dends or other distribu-tions,
or other-wise as appropri-ate, in a manner designed to provide that as of
such time the aggregate book cash balance of the Foreign Protein Subsid-iaries
(other than amounts placed in escrow accounts in defeasance of outstand-ing
Indebtedness of any of the Foreign Protein Subsidiaries) will be One Million
Eight Hundred Thousand Dollars ($1,800,000), and that such aggre-gate amount
will be allo-cated among the various Foreign Protein Subsidiaries as necessary
to provide for their respec-tive ordinary cash requirements. To the extent
that the actual aggregate book cash balance is less than One Million Eight
Hundred Thousand Dollars ($1,800,000), ▇▇▇▇▇▇▇ shall pay to Du Pont an amount
equal to such shortfall. To the extent that the actual aggregate book cash
balance is in excess of Two Million Dollars ($2,000,000), Du Pont shall issue
shares of Du Pont Common Stock to ▇▇▇▇▇▇▇ which are equal in value, based on
the closing sale price of Du Pont Common Stock at the time of issuance, to the
amount of the excess over One Mil-lion Eight Hun-dred Thousand Dol-lars
($1,800,000). Prior to any such payment or issu-ance, ▇▇▇▇▇▇▇ shall have the
oppor-tunity to review the books and records of the Foreign Pro-tein
Subsid-iaries and to confirm transactions with banks utilized by them in order
to verify amounts to be paid or issued. On and following the Initial
Completion Date, even if the Closings with respect to any Foreign Protein
Subsid-iaries have not occurred, ▇▇▇▇▇▇▇ shall no longer authorize divi-dends
or other distri-butions to be made by, or capital contributions to be made to,
any Foreign Protein Subsidiar-ies, and any funding of cash needs of such
Subsidiaries for which Closings have not occurred shall be made by Du Pont
pursuant to the terms of the re-spective Operating Agree-ments. In addition
to the foregoing, PTI Argentina shall have an aggregate book cash balance of
Eight Hun-dred Sev-enty Two Hundred Thousand Dol-lars ($872,000) and Pointer
shall have an aggregate book cash balance of Two Mil-lion Eight Hun-dred
Thousand Dol-lars ($2,800,000), which amounts shall be excluded from the
calculation of the $1,800,000 and the $2,000,000 amounts set forth above.
(d) Separate from and without otherwise limiting or affecting the
provisions of Section 6.14(b) hereof, (i) Fiber Sales shall have at the
Effective Time an addition-al amount of Nine Million Dollars ($9,000,000) in
cash (the "Excess Cash") and (ii) ▇▇▇▇▇▇▇ shall pay an additional $1,850,080
-----------
to PTI on or promptly following the Initial Com-ple-tion Date.
(e) The parties have determined, in accor-dance with and subject to
Section 2.5(a)(iv) hereof, that the eco-nom-ics of the Closings shall be such
as to transfer economic owner-ship of cash flows of the Busi-ness to Du Pont
as of 11:59 PM (local time) on November 30, 1997 rather than the Initial
Completion Date. According-ly, the calculations set forth above in
subsections (b) and (c) of this Section 6.14 shall be subject to further
adjust-ment, as set forth below. ▇▇▇▇▇▇▇ shall keep track of (x) all cash
receipts of the Protein Subsidiaries, minus (y) the sum of all cash
dis-bursements of, and cash con-tributions by ▇▇▇▇▇▇▇ or a Sub-sidiary thereof
(other than a Protein Sub-sidiary) to, the Protein Subsidiaries during
the period from 11:59 PM on November 30, 1997 to 12:01 AM on December 3, 1997
(such amount, the "Ad-just-ment Amount") and shall inform Du Pont promptly
--------------------
upon calcu-lating the Adjust-ment Amount. Cash receipts shall include checks
received. Du Pont shall have the right to review ▇▇▇▇▇▇▇'▇ calcu-la-tion of
the Ad-justment Amount and the back-up there-for. In the event of any
dis-pute between the par-ties, they shall use their best efforts to resolve
it. In the event the parties agree, or it is otherwise conclu-sively
deter-mined, that (i) the Ad-justment Amount is nega-tive, Du Pont shall
deliver addition-al shares of Du Pont Common Stock, or (ii) the Adjustment
Amount is positive, ▇▇▇▇▇▇▇ shall deliver shares of Du Pont Common Stock back
to Du Pont, in each case with an aggregate value (based on the market price of
Du Pont Common Stock at the time of delivery or redelivery) equal to such
Adjustment Amount. Such shares of Du Pont Common Stock shall be deliv-ered
for the benefit of, or redelivered on behalf of, the appropriate Protein
Subsidiar-ies, based on what the calcula-tion of such Adjust-ment Amount would
be for such Protein Subsidiary separately.
ARTICLE VIISection .24 Industrial Revenue Bonds and Other Real Estate
----------------------------------------------
Issues Industrial Revenue Bonds and Other Real Estate Issues
------ ---------------------------------------------------------
Industrial Revenue Bonds and Other Real Estate Issues Industrial Revenue
--------------------------------------------------- ------------------
Bonds and Other Real Estate Issues.
--------------------------------------
(a) Certain facilities, equipment and other pro-jects located at Pryor,
Oklahoma (the "Projects") are the subject of various loan agreements (the "IRB
-------- ---
Loan Agree-ments") or lease agree-ments (the "IRB Lease Agreements")
----------------- --------------------
entered into in con-nection with the issuance by the Oklahoma Ordinance Works
Authority (the "Authority") of various tax exempt bond issues (the "Bonds").
--------- -----
The IRB Loan Agreements, the IRB Lease Agree-ments and the Bonds are listed in
Section 6.15 of the ▇▇▇▇▇▇▇ Dis-closure Schedule. ▇▇▇▇▇▇▇ shall remain liable
for all debts, liabili-ties, payments and obli-ga-tions (including financial
re-porting obliga-tions) with respect to the IRB Loan Agreements, the IRB
Lease Agreements and the Bonds, except as otherwise herein agreed, and shall
hold and save Du Pont, and PTI (or any other Protein Subsid-iary operating the
Projects) harmless from the foregoing includ-ing any costs of admin-is-tration
reasonably incurred and any losses sus-tained as a result of ▇▇▇▇▇▇▇'▇ failure
to per-form, comply with or pay such debts, liabilities, pay-ments and
obliga-tions, includ-ing without limitation any and all lia-bility to
bond-holders or any other person in the event any such bonds cease to be
deemed tax-exempt. Except as set forth below, ▇▇▇▇▇▇▇ shall sublease the
Projects which are the subject of the IRB Lease Agree-ments to PTI, which
sub-lease shall be substantially in the form attached hereto as Exhib-it ▇.
▇▇▇▇▇▇▇ cove-nants and agrees that upon the ▇▇▇▇▇-▇▇▇▇▇ or maturity by reason
of accelera-tion, re-demption or other-wise of the bond indebted-ness relating
to the Pro-jects which are the subject of the IRB Lease Agree-ments, or upon
the reason-able request of Du Pont or PTI, ▇▇▇▇▇▇▇ will timely and promptly
acquire fee title there-to and transfer such fee title to PTI or another
desig-nated Protein Subsid-iary. ▇▇▇▇▇▇▇ also cove-nants and agrees that it
will, on the Initial Completion Date, send appropri-ate notice to the
Authority and to each trustee under the inden-tures pursuant to which the
Bonds were issued of the assign-ments, subleases and conveyances pursuant to
the provi-sions hereof, all as may be required by the terms of such Bonds or
inden-tures.
(b) Du Pont agrees to cause PTI, or any other Sub-sidiary operating the
Projects, to permit the respec-tive issuers or trustees with respect to the
Bonds, or their duly authorized agents, to enter its facilities for the
pur-pose of examination and inspection of said Projects, at all reasonable
times during normal business hours, subject to any other rights which ▇▇▇▇▇▇▇
may have under the indentures or other agree-ments related to the Bonds.
ARTICLE VIISection .25 Interim Operations of Du Pont Interim
----------------------------- -------
Operations of Du Pont Interim Operations of Du Pont Interim Operations
----------------- ----------------------------- ------------------
of Du Pont. Du Pont covenants and agrees that, except as set forth in
------------
Section 6.16 of the Du Pont Disclosure Schedule or as con-sented to by ▇▇▇▇▇▇▇
in writing, after the date here-of, and prior to the Effective Time:
(a) the business of Du Pont and its Sub-sidiar-ies shall be conducted in
all material respects only in the ordi-nary and usual course of business;
(b) it shall not declare, set aside or pay any dividend or other
distribution payable in stock or property (other than in cash) with respect to
its capital stock if such action has a materi-al adverse impact on Du
Pont's stock price;
(c) it shall not split, combine or re-classify any of its shares of
capital stock unless appro-priate adjustment is made to the Merger Conversion
Ratios and the number of Du Pont Shares to be issued pursuant to the Foreign
Exchanges;
(d) it shall not adopt, as to itself, a plan of com-plete or par-tial
liquidation, dissolution, merg-er, con-soli-dation, re-struc-tur-ing,
recapitalization or other reorga-niza-tion; and
(e) it shall not take, omit to take, agree to take, or agree not to
take, any action that would: (i) make any representation or warranty of Du
Pont or its Subsidiar-ies contained herein inaccurate in any respect at, or as
of any time prior to, the Effective Time or (ii) cause or be reason-ably
likely to result in any of the condi-tions to the transac-tions contemplated
by this Agreement not being satis-fied or materially impair the ability of Du
Pont or its Subsidiaries to consummate such transactions.
ARTICLE VIISection .26 Delivery of Surveys and Title Poli-cies
---------------------------------------
Delivery of Surveys and Title Poli-cies Delivery of Surveys and Title
------------------------------------------ -----------------------------
Poli-cies Delivery of Surveys and Title Poli-cies. ▇▇▇▇▇▇▇ agrees that it
------- ---------------------------------------
shall, and shall cause its Subsidiaries to, deliver to Du Pont copies of
all sur-veys and title policies relating to each of the manufactur-ing
facil-i-ties of the Business located in the United States and the appropriate
evidence of ownership of the manu-fac-tur-ing facility in Belgium prompt-ly
upon the re-ceipt of such sur-veys, title poli-cies and evidence of ownership.
ARTICLE VIISection .27 Access to Information.
-----------------------
(a) From and after the Initial Completion Date, Du Pont shall cause the
Protein Subsidiaries to afford ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ shall afford to Du Pont,
and their respective agents, employees, accountants, counsel and other
designated representatives, reasonable access and duplicat-ing rights during
normal business hours to all records, books, con-tracts, instru-ments,
computer data and other data and infor-mation (collec-tively, "Information")
-----------
within such Person's possession relating to the Protein Subsidiaries'
busi-ness-es, assets or lia-bil-ities, inso-far as such access is reason-ably
requested by such other party. Without limiting the forego-ing, such
Information may be requested under this Section 6.18 for audit, accounting,
claims, litigation and Tax purposes, as well as for purposes of fulfilling
disclo-sure and reporting obligations.
(b) In connection with any liabilities assumed or retained by either
▇▇▇▇▇▇▇, on the one hand, or Du Pont or any of the Protein Subsidiaries, on
the other hand, each of the parties hereto shall, and shall cause their
respective agents and employees to, aid, cooperate with and assist the other
party or parties in their defense of such assumed or retained litigation or
liabilities, by, among other things, providing such other party or parties
with full access to pertinent records at such times as such other party or
parties may rea-son-ably re-quest, and making avail-able for depo-si-tions,
testimo-ny or other consul-tation, such officers, employees or agents as such
party or parties may reasonably request without cost to such party or parties
except for reimburse-ment by it or them of reasonable out-of-pocket
expenditures incurred in connec-tion with such ▇▇▇▇▇▇-ation and assistance.
ARTICLE VIISection .28 Insurance Insurance Insurance
--------- --------- ---------
Insurance. ▇▇▇▇▇▇▇ agrees to take on a timely basis the following actions
-----
with respect to the insur-ance poli-cies referred to below (the actions
specified in subsections (a) (the second sentence thereof) and (b) shall be
taken prior to the Ini-tial Com-ple-tion Date):
(a) ▇▇▇▇▇▇▇'▇ current and prior liability insur-ance policies that
provide coverage in respect of the opera-tions or activities of the Business
on an occurrence basis shall be maintained by ▇▇▇▇▇▇▇ for all occurrences
which take place prior to the Initial Completion Date. In addi-tion, ▇▇▇▇▇▇▇
shall ob-tain, for a period of six years, Cover-age B Dis-covery Cover-age for
occur-rences prior to the Ini-tial Comple-tion Date under poli-cies
issued by XL (Pol-icy XLUMB-00373, $75MM Limit) and ACE (Policy RAL-5059/5,
$150MM Limit) which are part of the cur-rent ▇▇▇▇▇▇▇ program. When Du Pont
becomes aware of a possible claim, Du Pont shall notify ▇▇▇▇▇▇▇ in a timely
manner and ▇▇▇▇▇▇▇ will re-ceive full coop-er-a-tion from Du Pont in pursuing
such claim under the insur-ance cover-age.
(b) The current ▇▇▇▇▇▇▇ Purina Property and Busi-ness Inter-ruption
coverage provided by Ameri-can Guaran-tee and Liability Insurance Co. (Binder
No. PPR6884311-03) shall be extended to include all of the Business sites that
are cur-rently covered in the global program until August 31, 1999. This
extension will not include coverage for flood or earthquake. Du Pont, an
affil-i-ate of Du Pont or a Pro-tein Sub-sid-iary will be a named in-sured and
sole loss payee for any Busi-ness-relat-ed loss.
(c) Any open claims filed with insurers on behalf of a Protein
Subsidiary, not settled prior to the Initial Completion Date, shall con-tin-ue
to be settled by ▇▇▇▇▇▇▇ and any pro-ceeds shall be payable to a Protein
Subsidiary or Du Pont.
(d) ▇▇▇▇▇▇▇ shall bear the full cost of insur-ance coverages as required
above, as well as any costs asso-ciated with the pursuit of claims
payment from the insurance ▇▇▇▇▇-ers.
(e) Failure of ▇▇▇▇▇▇▇ to complete any of the above requirements shall
not absolve it of the responsibili-ty of indemnifying Du Pont and the Protein
Subsidiaries to the extent provided herein (including pursuant to Section
9.2(a)(vi) hereof). Without limiting the foregoing, ▇▇▇▇▇▇▇ agrees to take
all action necessary to keep the insur-ance coverages described above in full
force and effect and to timely pursue all rights and remedies thereunder.
(f) ▇▇▇▇▇▇▇ hereby assigns to Du Pont any amounts payable to ▇▇▇▇▇▇▇ or
a Subsidiary of ▇▇▇▇▇▇▇ under any insurance policy referred to in this Section
6.19 to the extent that such amounts would constitute Damages (as
de-fined in Section 9.2(a) hereof) in respect of which a Du Pont Indemnified
Party (as defined in Section 9.2(a) hereof) would be entitled to be
indemnified under Section 9.2(a) hereof with-out regard to the limi-ta-tions
set forth in Sec-tion 9.2(c) here-of. To the extent any further
docu-menta-tion or instru-ments are reason-ably request-ed by Du Pont or are
necessary to cause such as-sign-ment to be effec-tive, ▇▇▇▇▇▇▇ agrees to
promptly execute the same.
ARTICLE VIISection .29 Novogen Novogen Novogen Novogen.
------- ------- ------- -------
▇▇▇▇▇▇▇ shall timely make all payments required to be paid by it, and perform
all other obligations to be performed by it, under the equity pur-chase
agree-ment con-tem-plat-ed by the Purchase Agreement, dated November 14, 1997,
between ▇▇▇▇▇▇▇ and Novogen Limit-ed.
ARTICLE VIII CONDITIONS CONDITIONS CONDITIONS CONDITIONS
ARTICLE VIIISection .10 Conditions to Each Party's Obliga-tion to
-----------------------------------------
Effect the Mergers Conditions to Each Party's Obliga-tion to Effect the
----------------- ----------------------------------------------------
Mergers Conditions to Each Party's Obliga-tion to Effect the Mergers
----- -------------------------------------------------------------
Conditions to Each Party's Obliga-tion to Effect the Mergers. The respective
------------------------------------------------------------
obliga-tion of each party to effect the Mergers shall be subject to the
satis-faction or waiver on or prior to the Initial Completion Date of each of
the fol-lowing conditions:
(a) No statute, rule, order, decree or regu-la-tion shall have been
enact-ed or pro-mul-gat-ed by any for-eign or domes-tic Gov-ern-mental Entity
(and be in effect) which pro-hib-its the con-sum-mation of any of the Mergers
or the PTIBV Exchange.
(b) There shall be no order or in-junc-tion of a foreign or United
States ▇▇▇▇▇-al or state court or other Governmental Entity of competent
juris-diction in effect pre-cluding, restrain-ing, enjoining or prohibit-ing
consum-ma-tion of the Mergers.
(c) The expiration or early termi-na-tion of all applicable waiting
periods under the HSR Act shall have oc-curred and all governmental
authorizations or approvals re-quired in connection with the transactions
contemplated by this Agreement shall have been obtained or given, other than
those authorizations and approvals, the fail-ure of which to have been
obtained, would not, in the aggregate, have a Mate-rial Adverse Effect on the
Busi-ness, taken as a whole.
(d) Between the date of this Agreement and the Effec-tive Time, there
shall not have occurred, and then be in effect, any delisting on The New York
Stock Ex-change of the Du Pont Shares.
ARTICLE VIIISection .11 Conditions to Obligation of U.S. Protein
----------------------------------------
Subsidiaries to Effect the Mergers Conditions to Obligation of U.S.
---------------------------------- --------------------------------
Protein Subsidiaries to Effect the Mergers Conditions to Obligation of
------------------------------------------ ---------------------------
U.S. Protein Subsidiaries to Effect the Mergers Conditions to Obligation
---------------------------------------------- ------------------------
of U.S. Protein Subsidiaries to Effect the Mergers. The obli-ga-tions of each
-------------------------------------------------
U.S. Protein Subsidiary to effect the Merg-ers shall be sub-ject to the
satis-fac-tion or waiver on or prior to the Initial Comple-tion Date of the
fol-low-ing addi-tional condi-tions:
(a) Du Pont and the Du Pont Merger Subsidiar-ies shall have each
per-formed or complied in all material re-spects with all obli-ga-tions and
agree-ments required to be performed or com-plied with by it under this
Agreement at or prior to the Effec-tive Time.
(b) The representations and warranties of Du Pont and the Du Pont
Merger Subsidiaries contained in this Agree-ment shall be true and correct in
all material respects at and as of the Effective Time as if made at and as of
such date, and the aggregate effect of all inaccura-cies in the
repre-sen-ta-tions and war-ran-ties of Du Pont and the Du Pont Merger
Subsidiaries con-tained in this Agree-ment (without taking into account any
qualifi-ca-tions, exceptions or limi-tations as to materiality or Material
Adverse Effect con-tained in such repre-sen-ta-tions and war-ran-ties) as if
made at and as of the Effec-tive Time, did not and would not have a Mate-rial
Ad-verse Effect on Du Pont and its Subsid-iaries, taken as a whole.
(c) From the date of this Agreement through the Effective Time, there
shall not have been any event, fact, condition, change or effect that is,
or is reason-ably likely to be, materially adverse to the condi-tion
(fi-nan-cial or other-wise), as-sets, busi-ness-es or re-sults of opera-tions
of Du Pont and its Subsid-iaries, taken as a whole.
(d) Such licenses, permits, con-sents, approv-als, authoriza-tions,
qualifications and orders of Govern-mental Entities and other third par-ties
as are neces-sary in connec-tion with the Mergers shall have been ob-tained,
except where the failure to obtain such licens-es, per-mits, consents,
ap-provals, authoriza-tions, quali-fica-tions and orders would not,
individu-ally or in the aggre-gate with all other fail-ures, reasonably be
expected to have a Material Adverse Effect on ▇▇▇▇▇▇▇ and its Subsid-iaries
(other than the Protein Subsid-iaries, taken as a whole) or Du Pont and its
Subsidiaries, taken as a whole.
(e) Stockholder shall have received a cer-tifi-cate from the Vice
President and General Manager of Du Pont's Agri-cul-tur-al Prod-ucts
Divi-sion, dated the Clos-ing Date, to the effect that the condi-tions set
forth in paragraphs (a), (b), (c) and (d) above have been satis-fied.
(f) Du Pont shall have executed and delivered to ▇▇▇▇▇▇▇ the
Registration Rights Agreement, the Bridging Ser-vices Agreement, the Tax
Sharing Agree-ment, the Head-quar-ters Lease and the R&D Lease.
(g) ▇▇▇▇▇▇▇ shall have received the opinion of tax counsel to ▇▇▇▇▇▇▇
to the effect that (i) the Mergers and the Foreign Ex-changes will each
consti-tute a reorga-niza-tion for United States ▇▇▇▇▇-al income tax purposes
within the meaning of section 368(a) of the Code and (ii) Du Pont, each of the
Du Pont Merger Sub-sid-iaries, each of the U.S. Pro-tein Subsid-iaries and
each of the Foreign Protein Subsid-iaries -will be a party to their
respec-tive reor-gani-za-tions within the mean-ing of sec-tion 368(b) of the
Code. ▇▇▇▇▇▇▇ and Du Pont shall each deliver to ▇▇▇▇▇▇▇'▇ tax counsel
representation letters relat-ing to each of the Merg-ers and each of the
For-eign Ex-▇▇▇▇▇-es quali-fying as a reor-gani-zation for United States
▇▇▇▇▇-al income tax pur-poses within the meaning of section 368(a) of the
Code, substan-tially in the form at-tached hereto as Exhibits G-1 and G-2 (in
the case of Du Pont) and Exhibits H-1 and H-2 (in the case of ▇▇▇▇▇▇▇). Such
representation letters of ▇▇▇▇▇▇▇ and such representa-tion letters of Du Pont
shall con-stitute repre-senta-tions and war-ran-ties of ▇▇▇▇▇▇▇ and Du Pont,
re-spec-tive-ly.
ARTICLE VIIISection .12 Conditions to Obligation of the Du Pont U.S.
--------------------------------------------
Merger Subsidiaries to Effect the Mergers Conditions to Obligation of the
------------------------------------------ -------------------------------
Du Pont U.S. Merger Subsidiaries to Effect the Mergers Conditions to
------------------------------------------------------------ -------------
Obligation of the Du Pont U.S. Merger Subsidiaries to Effect the Mergers
------------------------------------------------------------------------------
Conditions to Obligation of the Du Pont U.S. Merger Subsidiaries to Effect the
------------------------------------------------------------------------------
Mergers. The obligations of the Du Pont Merger Subsidiaries to effect
-------
the Mergers shall be subject to the satis-fac-tion or waiver on or prior to
the Closing Date of the follow-ing addi-tion-al condi-tions:
(a) ▇▇▇▇▇▇▇, Stockholder and the Protein Subsid-iar-ies shall each
have per-formed or com-plied in all mate-ri-al respects with all obligations
and agree-ments re-quired to be per-formed or complied with by it under this
Agreement at or prior to the Effective Time.
(b) The representations and warranties of ▇▇▇▇▇▇▇ and Stockholder
con-tained in this Agree-ment shall be true and cor-rect in all material
respects at and as of the Effec-tive Time as if made at and as of such date,
and the aggre-gate effect of all inaccura-cies in the repre-sen-ta-tions and
war-ran-ties of ▇▇▇▇▇▇▇, Stockholder and the Protein Subsid-iaries con-tained
in this Agree-ment (with-out taking into account any quali-fica-tions,
exceptions or limita-tions as to materi-ality or Material Adverse Effect
con-tained in such repre-senta-tions and war-ran-ties) as if made at and as of
the Effec-tive Time, did not and would not, have a Mate-rial Ad-verse
Effect on the Busi-ness, taken as a whole.
(c) From the date of this Agreement through the Effective Time, there
shall not have been any event, fact, condition, change or effect that is, or
is reason-ably likely to be, materially adverse to the condi-tion (fi-nan-cial
or other-wise), as-sets, busi-ness-es or re-sults of opera-tions of the
Protein Subsidiaries, taken as a whole.
(d) Such licenses, permits, con-sents, approv-als, authoriza-tions,
qualifications and orders of Govern-mental Entities and other third par-ties
as are neces-sary in connec-tion with the Mergers or the transfer of any
assets to be transferred hereunder shall have been ob-tained, except where the
fail-ure to obtain such licens-es, per-mits, con-sents, ap-prov-als,
authori-zations, quali-fica-tions and orders would not, indi-vidu-ally or in
the aggre-gate with all other fail-ures, rea-sonably be expected to have a
Materi-al Adverse Effect on (i) Du Pont and its Sub-sid-iar-ies, taken as
whole or (ii) the U.S. Pro-tein Subsid-iaries, taken as a whole.
(e) Du Pont shall have received a certifi-cate from the Chief Execu-tive
Offi-cer of PTI and the Chief ▇▇▇▇▇-cial Officer of ▇▇▇▇▇▇▇, dated the
Clos-ing Date, to the effect that the condi-tions set forth in paragraphs (a),
(b), (c) and (d) above have been satis-fied.
(f) At the Effective Time, there shall not be any out-stand-ing
op-tions, war-rants, calls, pre-emp-tive rights, sub-scrip-tions or other
rights, agree-ments, ar-rangements or com-mitments of any character of ▇▇▇▇▇▇▇
or any of its Sub-sidiar-ies obligat-ing ▇▇▇▇▇▇▇ or any of its
Subsidiaries to issue, trans-fer or sell or cause to be issued, trans-ferred
or sold any shares of capital stock of, or other equity interest in, the U.S.
Protein Subsid-iar-ies or any Foreign Protein Subsid-iary being acquired
concur-rently with such Closing or any of their respective Subsidiaries or
securi-ties con-vert-ible into or ex-change-able for such shares or equity
interests, or obli-gating ▇▇▇▇▇▇▇ or any of its Sub-sidiaries to grant, extend
or enter into any such option, warrant, call, subscrip-tion or other right,
agreement, arrangement or commit-ment.
(g) ▇▇▇▇▇▇▇ shall have executed and delivered to Du Pont the
Registration Rights Agreement, the Bridg-ing Services Agree-ment, the Tax
Shar-ing Agree-ment, the Headquar-ters Lease, the R&D Lease, the Intel-lectual
Property Assign-ment and the Commodities Purchasing Agree-ment.
(h) Du Pont shall have received the opinion of tax counsel to Du Pont
to the effect that (i) the Mergers and the Foreign Ex-changes will each
consti-tute a reorga-niza-tion for United States ▇▇▇▇▇-al income tax purposes
within the meaning of section 368(a) of the Code and (ii) Du Pont, each of the
Du Pont Merger Sub-sid-iaries, each of the U.S. Pro-tein Sub-sid-iaries and
each of the Foreign Protein Subsid-iaries -will be a party to their
respec-tive reor-gani-za-tions within the mean-ing of sec-tion 368(b) of the
Code. ▇▇▇▇▇▇▇ and Du Pont shall each deliver to Du Pont's tax counsel
representation letters relating to each of the Mergers and each of the
For-eign Ex-▇▇▇▇▇-es qualifying as a reorga-ni-zation for United States
▇▇▇▇▇-al income tax pur-poses within the meaning of section 368(a) of the
Code, sub-▇▇▇▇-tially in the form at-tached hereto as Exhibits G-1 and G-2 (in
the case of Du Pont) and Exhib-its H-1 and H-2 (in the case of ▇▇▇▇▇▇▇). Such
representation letters of ▇▇▇▇▇▇▇ and such representa-tion letters of Du Pont
shall con-stitute representa-tions and war-ran-ties of ▇▇▇▇▇▇▇ and Du Pont,
respectively.
(i) Substantially concurrently with the Merger Closings, the PTIFS
Liquidation and the PTIBV Exchange shall have occurred or be occurring.
ARTICLE VIIISection .13 Conditions to Obligation of Stock-holder to
-------------------------------------------
Effect the Foreign Exchanges Conditions to Obligation of Stock-holder to
----------------------------- -------------------------------------------
Effect the Foreign Exchanges Conditions to Obligation of Stock-holder to
----------------------------- -------------------------------------------
Effect the Foreign Exchanges Conditions to Obligation of Stock-holder to
----------------------------- -------------------------------------------
Effect the Foreign Exchanges. The obliga-tions of Stockholder to effect each
----------------------------
Foreign Exchange shall be subject to the satisfaction or waiver on or prior to
the Foreign Closing Date related thereto of the following additional
conditions insofar as they relate to the Foreign Exchange of applicable
For-eign Protein Shares:
(a) The Domestic Closing shall have oc-curred prior to or simultaneous
with such Foreign Closing.
(b) Such licenses, permits, con-sents, approv-als, authoriza-tions,
qualifications and orders of foreign Govern-mental Entities and other third
par-ties as are neces-sary in connec-tion with such Foreign Closing shall have
been ob-tained, except where the failure to obtain such licens-es,
permits, consents, approvals, authoriza-tions, quali-fications and orders
would not, individu-ally or in the aggregate with all other failures,
reasonably be expected to have a Materi-al Adverse Effect on ▇▇▇▇▇▇▇ and its
Subsidiaries (other than the Protein Subsidiar-ies), taken as a whole, or Du
Pont and its Subsidiar-ies, taken as a whole.
(c) To the extent the following is applicable, if at all, each of the
further conditions set forth in the Sec-tion of the applicable Foreign
Exchange Agreement, if any, entitled "Conditions to Stockholder's
Obli-ga-tions" (all of which may be waived in whole or in part by Stockholder,
which is transferring the shares of stock of such foreign entity) shall
have been satisfied or waived prior to or simultaneous with such Foreign
Closing.
(d) In the case of the PTIBV Exchange, the PTIFS Liqui-d-ati-on--- shall
have occurred no later than immediately prior to such Foreign Clos-ing.
ARTICLE VIIISection .14 Conditions to Obligation of Du Pont to Effect
---------------------------------------------
the Foreign Exchanges Conditions to Obligation of Du Pont to Effect
----------------------- ---------------------------------------------
the Foreign Exchanges Conditions to Obligation of Du Pont to Effect the
---------------------- -------------------------------------------------
Foreign Exchanges Conditions to Obligation of Du Pont to Effect the
----------------- --------------------------------------------------
Foreign Exchanges. The obliga-tion of Du Pont to effect each Foreign Exchange
----------------
shall be sub-ject to the satisfac-tion or waiver on or prior to the Foreign
Closing Date related thereto of the following additional condi-tions insofar
as they relate to the Foreign Exchange of applicable Foreign Protein Shares:
(a) The Domestic Closing shall have oc-curred prior to or simultaneous
with such Foreign Closing.
(b) Such licenses, permits, con-sents, approv-als, authoriza-tions,
qualifications and orders of foreign Govern-mental Entities and other third
par-ties as are neces-sary in connec-tion with such Foreign Closing shall have
been ob-tained, except where the failure to obtain such licens-es,
permits, consents, approvals, authoriza-tions, quali-fications and orders
would not, individu-ally or in the aggregate with all other failures,
reasonably be expected to have a Materi-al Adverse Effect on such Foreign
Protein Subsidiary and its Subsidiar-ies, taken as a whole, or Du Pont and its
Subsid-iaries, taken as a whole.
(c) To the extent the following is applicable, if at all, each of the
further conditions set forth in the Sec-tion of the applicable Foreign
Exchange Agreement, if any, entitled "Conditions to Du Pont's Obli-gations"
(all of which may be waived in whole or in part by Du Pont) shall have been
satisfied or waived prior to or simultaneous with such For-eign Closing.
(d) At such Foreign Closing Date, there shall not be any out-stand-ing
op-tions, war-rants, calls, pre-emp-tive rights, sub-scrip-tions or other
rights, agree-ments, ar-range-ments or com-mitments of any character of such
Foreign Pro-tein Subsidiary being acquired or any of its Subsidiaries
obligat-ing such Foreign Protein Subsidiary or any of its Subsidiaries to
issue, trans-fer or sell or cause to be issued, trans-ferred or sold any
shares of capital stock of, or other equity inter-est in, such Foreign Protein
Subsidiary being acquired concur-rently with such Foreign Closing or any
of its or securi-ties con-vert-ible into or ex-change-able for such shares or
equity interests, or obli-gating such Foreign Protein Subsidiary or any of its
Subsidiaries to grant, extend or enter into any such option, warrant, call,
sub-scrip-tion or other right, agreement, arrangement or commit-ment.
(e) On such Foreign Closing Date, the repre-senta-tion and warranty of
▇▇▇▇▇▇▇ and Stockholder insofar as it relates to the applicable Foreign
Protein Subsidiary and its Subsidiaries set forth in Sec-tion 4.18 hereof
shall be true and cor-rect as of such Closing Date as though such
repre-senta-tion and ▇▇▇▇▇▇-▇▇ had been made on and as of such date.
(f) In the case of the PTIBV Exchange, the PTIFS Liqui-d-ati-on--- shall
have occurred prior to or simul-ta-neous with such Foreign Closing. In
the case of the Closings of the Foreign Exchanges relating to PTI Germany and
PTI Mos-cow, the PTIBV Ex-change shall have occurred prior or simul-taneous
therewith.
ARTICLE IX
TERMINATION
ARTICLE IXSection .10 Termination Termination Termination
----------- ----------- -----------
Termination.
-----------
(a) This Agreement may be terminated and the Merg-ers and Foreign
Exchanges contemplated herein may be aban-doned at any time prior to the
Initial Comple-tion Date:
(i) by the mutual consent of the Board of Directors of Du Pont and
the Board of Direc-tors of ▇▇▇▇▇▇▇; or
(ii) by either Du Pont or ▇▇▇▇▇▇▇:
(A) if the Mergers shall not have oc-curred by the
close of business on December 8, 1997, or such other date, if any, as Du Pont
and ▇▇▇▇▇▇▇ shall agree upon; pro-vid-ed that the right to ter-mi-nate this
---------- ----
Agree-ment under this Section 8.1(b)(i) shall not be avail-able to any party
whose failure to ful-fill any obli-gation under this Agree-ment has been the
cause of or re-▇▇▇▇-ed in the fail-ure of the Merg-ers to occur on or be-fore
such date; or
(B) if any Governmental Entity shall have issued an
order, decree or rul-ing or taken any other action, in each case per-ma-nently
re-strain-ing, en-joining or other-wise pro-hib-iting any of the Mergers or
the PTIBV Exchange contem-plated by this Agree-ment and such order, ▇▇-▇▇▇▇,
ruling or other action shall have become final and nonap-pealable.
(b) This Agreement may be terminated with respect to Foreign Exchanges
not yet consummated and the For-eign Ex-▇▇▇▇▇-es con-tem-plat-ed herein that
have not yet been consum-mated may be aban-doned at any time after the
Ini-tial Comple-tion Date by either Du Pont or ▇▇▇▇▇▇▇ with respect to any
particular Foreign Ex-change if such For-eign Exchange has not occurred by
December 31, 1999, which date may be extend-ed by the mutual agreement of the
parties hereto (the "Final Termi-nation Date").
-------------------------
ARTICLE IXSection .11 Effect of Termination Effect of Termination
--------------------- ---------------------
Effect of Termination Effect of Termination. In the event of the
----------------------- ---------------------
termination of this Agreement as provided in Section 8.1(a) hereof, written
notice thereof shall forth-with be given to the other party or parties
specify-ing the provi-sion hereof pursu-ant to which such termina-tion is
made, and in the case of any termination pursuant to Section 8.1(a) hereof,
this Agree-ment shall forthwith become null and void, and there shall be no
liability on the part of any party hereto to any other party hereto; provided,
--------
however, that no termination pursuant to Sec-tion 8.1(a) or (b) hereof shall
-------
relieve any party hereto for liability for any breach of the provisions hereof
prior to the time of such termina-tion.
ARTICLE X SURVIVAL AND INDEMNIFICATION SURVIVAL AND
INDEMNIFICATION SURVIVAL AND INDEMNIFICATION
SURVIVAL AND INDEMNIFICATION
ARTICLE XSection .10 Survival of Representa-tions, War-ran-ties and
----------------------------------------------
Covenants Survival of Representa-tions, War-ran-ties and Covenants
-------- -----------------------------------------------------------
Survival of Representa-tions, War-ran-ties and Covenants Survival of
------------------------------------------------------------ -----------
Representa-tions, War-ran-ties and Covenants.
----------------------------------------------
(a) The repre-sen-tations and warran-ties con-tained in Section 4.9
hereof shall survive all Clos-ings here-under, as well as the termination of
this Agreement pursu-ant to Section 8.1(b) hereof, and remain in full force
and effect until sixty days following the date on which the appli-ca-ble
stat-ute of limi-ta-tions ex-▇▇▇▇▇. The represen-tations and warranties
con-tained in Section 4.15(c) hereof shall sur-vive all Closings hereunder, as
well as the termi-nation of this Agree-ment pursu-ant to Section 8.1(b)
hereof, and remain in full force and effect until the sixth anniver-sary of
the Initial Compl-etion Date. The repre-sen-ta-tions and war-ran-ties
con-tained in Sec-tions 4.2, 4.3, 5.2 and 5.3 hereof shall sur-vive all
Clos-ings hereunder, as well as the termination of this Agree-ment pursuant to
Sec-tion 8.1(b) hereof, and remain in full force and effect with-out
limita-tion. All other repre-sen-ta-tions and war-ran-ties con-tained in this
Agree-ment shall sur-vive all Clos-ings hereun-der, as well as the termination
of this Agreement pursuant to Section 8.1(b) hereof, and remain in full force
and effect until December 31, 1999, at which time they shall termi-nate.
(b) All cove-nants and agreements con-tained here-in shall survive all
Clos-ings hereunder, as well as the termi-na-tion of this Agreement pursu-ant
to Section 8.1(b) hereof, and remain in full force and effect without
limita-tion.
(c) Except with respect to covenants and agree-ments to be subsequently
performed, the sole remedy follow-ing any Closing for any breach of any
represen-ta-tion, war-ran-ty, cove-nant or agreement shall be pursuant to
Sections 9.2 and 9.3 hereof, except in the case of fraud.
ARTICLE XSection .11 Indemnification Indemnification
--------------- ---------------
Indemnification Indemnification.
------- ---------------
(a) From and after the Initial Completion Date, ▇▇▇▇▇▇▇ shall indem-nify
and hold harm-less Du Pont, the Surviv-ing Corpo-rations, the Foreign
Protein Subsid-iaries and their respective Subsid-iar-ies and all offi-cers
and direc-tors of the foregoing (col-lec-tive-ly, the "Du -Pont Indem-ni-fied
----------------------
Par-ties") from and against all lia-bili-ties or expenses (including
--------
attorneys' fees), judgments, fines, losses, claims, damag-es and amounts paid
--------
in set-tlement, including conse-quen-tial, incidental and punitive damages
("Damag-es") to the extent they are the result of, arise in connection with,
-------
or relate to (i) any inac-cu-racy in or breach of any repre-sen-ta-tion or
warranty con-tained in Article IV of this Agree-ment or in the representation
letters of ▇▇▇▇▇▇▇ refer-enced in Sec-tions 7.2(g) and 7.3(h) hereof, (ii) the
fail-ure of ▇▇▇▇▇▇▇, Stock-holder or any Pro-tein Subsid-iary to duly per-form
or ob-serve any term, provi-sion, cove-nant or agree-ment re-quired to be
per-formed or ob-served by ▇▇▇▇▇▇▇, Stock-holder or such Pro-tein Subsidiary
pursu-ant to this Agree-ment, (iii) any claims by any third party that
▇▇▇▇▇▇▇, any of its Subsid-iar-ies or any Protein Subsid-iary or any Person on
their behalf entered into any agreement or agree-ment-in-princi-ple or made
any binding representation or prom-ise to such third party with re-spect to
the sale of any Protein Subsidiary or any inter-est there-in, (iv) the
Ex-cluded Assets or any opera-tions or busi-ness conducted with or at such
assets or any liabili-ties related thereto includ-ing any liabilities aris-ing
out of the distri-bution or trans-fer of such assets by any Protein
Subsid-iary to Stock-holder or any of its Sub-sid-iar-ies, (v) [clause
intentionally omitted] or (vi) any occur-rence, event or loss with re-spect to
which (but only to the extent to which) ▇▇▇▇▇▇▇ or a Subsid-iary thereof is
enti-tled to recov-ery under the insur-ance coverage which ▇▇▇▇▇▇▇ has or has
agreed to main-tain or continue pursuant to Section 6.19 hereof (it being
acknowl-edged that this clause (vi) should be indepen-dent of, and shall not
limit any rights under, any of the preceding clauses (i)-(v)). For pur-poses
of clause (i) above, the repre-sen-ta-tions and war-ran-ties con-tained in
Article IV hereof shall be deemed to have been made as of the time of the
execu-tion and deliv-ery of this Agree-ment and again as of the Clos-ings
occur-ring on the Ini-tial Comple-tion Date and in the case of Section 4.18
here-of, again as of each subsequent Foreign Closing Date. The
con-sum-ma-tion by the Du Pont Indem-ni-fied Par-ties of the Initial
Comple-tion Date with knowledge of a breach of war-ran-ty or cove-nant or
misrep-resen-tation by any party hereto shall not con-sti-tute a waiver of any
claim for the Du Pont's Indem-nified Parties' Damages with respect to such
breach or misrepre-senta-tion. For pur-pos-es of deter-min-ing wheth-er any
Du Pont Indem-ni-fied Party is entitled to indemni-fi-ca-tion under this
Section 9.2(a), the parties shall ignore (i) any require-ment in any
representation or warranty (other than Section 4.6(ii) here-of) con-tained
herein that an event or fact be mate-rial, have a Mate-rial Ad-verse Effect on
the Busi-ness, taken as a whole, any Protein Sub-sid-iary or the Protein
Sub-sid-iar-ies, taken as a whole, and (ii) any other refer-ence to
materiality con-tained in any such repre-senta-tion or ▇▇▇▇▇▇-▇▇ (other than
Section 4.10(c)(xi) here-of); provid-ed that (other than a
--------- ----
mis-rep-re-sen-ta-tion or breach of the repre-senta-tion and war-ran-ty
con-tained in Section 4.5 or 4.6(ii) here-of) no indem-ni-fi-ca-tion shall be
re-quired in respect of any repre-sen-ta-tion quali-fied or limited by a
reference to Material Adverse Effect (or in respect of any breach there-of)
unless the aggre-gate amount of Damag-es result-ing from, arising out of, or
relating to such rep-resen-ta-tion or breach exceeds $100,000, in which event
the Du Pont Indem-nified Par-ties shall be entitled to be indemni-fied for the
full amount of such Damages without regard to the $100,000 thresh-old,
sub-ject, howev-er, to the provi-sions of Sec-tion 9.2(c) here-of.
(b) From and after the Initial Completion Date, Du Pont shall indemnify
and hold harmless ▇▇▇▇▇▇▇, Stock-holder and each of their respective offi-cers
and directors (col-lec-tive-ly, the "▇▇▇▇▇▇▇ Indem-ni-fied Par-ties")
------------------------------
from and against any Damag-es to the extent they are the result of, arise in
connection with, or relate to (i) any inac-cu-▇▇-▇▇ in or breach of any
repre-sen-ta-tion or warranty con-tained in Arti-cle V of this Agree-ment or
in the representation letters of Du Pont refer-enced in Sections 7.2(g) and
7.3(h) hereof, (ii) the fail-ure of Du Pont or any Du Pont Merger Sub-sid-iary
to duly per-form or ob-serve any term, provi-sion, cove-nant or agree-ment
re-quired to be per-formed or ob-served by Du Pont or such Du Pont Merger
Subsid-iary pursu-ant to this Agreement, (iii) any acts, omis-sions, events,
occur-rences, circumstanc-es or trans-actions of what-soever type or nature
associated with, arising out of or relating to the owner-ship, use or
posses-sion of the assets of the Business, other than the Excluded Assets, or
its con-duct or operation, whether occur-ring prior to or after the Initial
Completion Date, other than those acts, omis-sions, events, occur-rences,
circum-stances or transac-tions for which ▇▇▇▇▇▇▇ is or would be obligated to
indem-nify Du Pont or any other Du Pont Indemni-fied Party pursu-ant to this
Arti-cle IX or (iv) [clause intentionally omitted]. For pur-poses of clause
(i) above, the repre-senta-tions and war-ran-ties con-tained in Article V
hereof shall be deemed to have been made as of the time of the execu-tion and
deliv-ery of this Agree-ment and again as of the Clos-ings occur-ring on the
Ini-tial Completion Date. The con-sum-ma-tion by the ▇▇▇▇▇▇▇ Indem-ni-fied
Par-ties of the Initial Completion Date with knowl-edge of a breach of
war-ranty or covenant or mis-rep-resen-tation by any party hereto shall not
con-sti-tute a waiver of any claim for the ▇▇▇▇▇▇▇'▇ Indemni-fied Parties'
Damages with respect to such breach or misrep-re-sentation.
(c) Notwithstanding anything herein to the con-trary, no indemnification
shall be available under Section 9.2(a)(i) or 9.2(b)(i) hereof unless and
until the aggre-gate amount of Damages that would other-wise be subject to
such indemnifi-cation ex-ceeds Fif-teen Million Dollars ($15,000,000) (the
"Bas-ket Amount"); pro-vid-ed that in the event such Damages exceed the Basket
------------ ---------- ----
Amount, the indem-nify-ing party shall indemnify the Du Pont Indem-nified
Par-ties in the case of Section 9.2(a)(i) hereof or the ▇▇▇▇▇▇▇ Indem-ni-fied
Par-ties in the case of Section 9.2(b)(i) hereof for all such Damages in
excess of the Basket Amount up to an aggre-gate amount of such excess Damages
of Fif-teen Mil-lion Dol-lars ($15,000,000) and there-af-ter for fifty (50)
percent of all such Damag-es (that is, all such Damages exceeding Thirty
Mil-lion Dol-lars ($30,000,000)); pro-vid-ed further that the fore-going
---------- ------- ----
proviso shall not apply to Damag-es that are the result of, arise in
connection with, or relate to any inac-curacy in or breach of any
representa-tion or ▇▇▇▇▇▇-▇▇ con-tained in Sec-tion 4.1, 4.2, 4.3, 5.1, 5.2
and 5.3.
(d) [Intentionally Omitted.]
(e) Any calculation of Damages for pur-poses of this Section 9.2 shall
be (i) net of (A) any Tax benefit to the indemnified party (as determined in
accordance with the meth-odology and procedures described in Section 6(d) of
the Tax Sharing Agreement) and (B) any insur-ance recov-ery made by the
indem-ni-fied party (whether paid directly to such indem-ni-fied party or
assigned by the indemnifying party to such indemni-fied party) and (ii)
grossed up for the actual in-crease in income, franchise or other similar
Taxes paid by the indemni-fied party as a result of receiving or accruing such
indemnity payments for Tax purposes. The limitations on Damages set
forth in subsection (c) of this Section 9.2 shall only apply to Damages with
respect to which the party entitled to indemnification (including by reason of
Section 9.2(a)(vi) hereof) but without giving effect to the limi-ta-tions
contained in Section 9.2(c) hereof is not enti-tled to recov-ery there-for
from any third-party insur-er.
(f) No action, claim or set-off for Damag-es subject to
indemnification under Sec-tion 9.2(a)(i) or 9.2(b)(i) hereof shall be brought
or made with re-spect to claims for Damag-es re-▇▇▇▇-ing from a breach of any
repre-sen-ta-tion or warranty con-tained in this Agree-ment after the date, if
any, on which such repre-senta-tion or war-ranty shall termi-nate
pur-su-ant to Sec-tion 9.1 here-of; provided, however, that any claim made
-------- -------
with rea-sonable speci-ficity by the party seeking indemni-fica-tion (the
"Indem-nified Party") to the party from which indem-nifica-tion is sought (the
---------------
"Indemni-fying Party") within the time periods set forth in Section 9.1 hereof
-------------------
shall survive (and be subject to indem-ni-fi-ca-tion) until it is finally and
fully re-solved.
(g) Upon receipt by the Indemnified Party of notice of any action,
suit, proceeding, claim, demand or as-sess-ment against such Indemnified Party
which might give rise to a claim for Damages, the Indemnified Party shall
give prompt written notice thereof to the Indemni-fy-ing Party indicat-ing the
nature of such claim and the basis there-for, provided that the failure to
-------- ----
give such prompt notice shall not relieve the Indemnifying Party of its
obligations here-under except to the extent the Indem-nifying Party or the
defense of any such claim is preju-diced thereby. A claim to indem-ni-ty
here-un-der may, at the option of the Indemni-fied Party, be asserted as soon
as Damages have been threat-ened by a third party orally or in writ-ing,
regard-less of whether actual harm has been suffered or out-of-pocket expenses
incurred, provided the Indemni-fied Party shall reasonably determine that it
may be liable or otherwise incur such Damages. However, pay-ments for Damages
by the Indemnifying Party in respect of third party claims against the
Indemni-fied Party shall not be re-quired except to the extent that the
Indemnified Party has expended out-of-pocket sums. The Indemnifying Party
shall have the right, at its option, to assume the de-fense of, at its own
expense and by its own counsel, any such matter involving the assert-ed
liability of the Indemnified Party so long as the Indemnify-ing Party has
ac-knowledged and agreed in writing that if the same is adversely deter-mined,
the Indemnify-ing Party will have an obligation to provide indemnifica-tion to
the Indemni-fied Party in respect thereof. If any Indem-ni-fy-ing Party shall
under-take to com-pro-mise or defend any such assert-ed liabili-ty, it shall
promptly notify the Indemni-fied Party of its inten-tion to do so, and the
Indemnified Party agrees to coop-erate fully with the Indemnifying Party and
its counsel in the compromise of, or defense against, any such as-serted
liability; provid-ed, however, that the Indemnify-ing Party shall not settle
--------- -------
any such asserted liability without the written consent of the Indemnified
Party (which consent will not be unreasonably withheld). No Indemnified Party
shall have any right to settle or compromise any asserted liabili-ty in
respect of any claim or proceeding of which the Indem-nify-ing Party has
as-sumed the defense as set forth above. Not-with-stand-ing an elec-tion by
the Indemnifying Party to assume the de-fense of such action or pro-ceed-ing
as set forth above, such Indem-ni-fied Party shall have the right to employ
separate coun-sel and to partici-▇▇▇▇ in the defense of such action or
proceed-ing, and the Indem-nify-ing Party shall bear the reason-able fees,
costs and expenses of such separate counsel (and shall pay such fees, costs
and expenses at least quarter-ly), if (A) the use of counsel chosen by the
Indemnifying Party to repre-sent such Indem-nified Party would present such
counsel with a conflict of interest; (B) the defen-dants in, or targets of,
any such action or proceeding include both an Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have reasonably concluded
that there may be legal de-fenses available to it or to other Indemnified
Parties which are different from or addition-al to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action or proceeding on behalf of the
Indemnified Party); (C) the Indem-nifying Party shall not have employed
coun-sel rea-sonably satisfactory to such Indemnified Party to repre-sent such
Indemnified Party within a reasonable time after notice of the insti-tution of
such action or pro-ceeding; or (D) the Indemni-fying Party shall authorize
such Indemnified Party to employ separate counsel at the Indemnifying Party's
expense. In any event, the Indemni-fied Party and its counsel shall cooperate
with the Indemnifying Party and its counsel and shall not assert any position
in any proceeding materially inconsis-tent with that asserted by the
Indem-nifying Party. Notwithstanding any-thing to the contrary contained in
this subsection (g), in those circumstances where ▇▇▇▇▇▇▇'▇ liability pursuant
to subsection (c) above is 50% or less of the Damages, then (i) any Du Pont
Indemnified Party shall have the right to assume the defense of any action,
suit, proceeding, claim, demand or as-sess-ment and expenses incurred in
connection therewith shall be deemed to be Damages and (ii) such Du Pont
Indem-ni-fied Party may settle any asserted liability without the written
consent of any ▇▇▇▇▇▇▇ Indemnified Party.
(h) Environmental Indemnification. Notwithstand-ing anything herein to
-----------------------------
the contrary, ▇▇▇▇▇▇▇ agrees to indem-ni-fy and hold harmless each Du Pont
Indem-nified Party from and against all Damag-es (including consultants' fees,
dis-▇▇▇▇▇-ments and expens-es) asserted against, re-sulting to, imposed
on, or incurred by such Du Pont Indemnified Party, di-rect-ly or indi-rect-ly,
in con-nec-tion with any of the fol-lowing:
(A) all lia-bil-i-ties, costs and ex-pens-es which
re-late to Materi-als of Environ-mental Concern which were trans-ported
off-site on or prior to the Initial Comple-tion Date, when-ev-er the claim for
indem-nifica-tion is made by a Du Pont Indem-ni-fied Party ("Off-Site
--------
Mate-ri-als"). Off-Site Mate-rials shall not in-▇▇▇▇▇ ▇▇▇▇▇▇-als of
---
Envi-▇▇▇-mental Con-cern which mi-grated from the Real Proper-ties to an
-
adja-cent site; and
(B) any Environmental Claim against any Person or
Governmental Entity whose liabil-ity for such Envi-ronmen-tal Claim ▇▇▇▇▇▇▇,
Stockholder or any Protein Subsid-iary has or may have as-sumed or re-tained
either con-tractu-al-ly or by oper-ation of law, except for Envi-ronmental
Claims disclosed in Sec-tion 9.2(h) of the Ralst-on Disclo-sure Sched-ule.
(i) All indemnification payments made pursu-ant to this Section 9.2
shall be made in the form of cash; provid-ed, however, in the case of
--------- -------
indemnifica-tion payments to be made to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ may elect to receive
such payment in addi-tional shares of Du Pont Common Stock if ▇▇▇▇▇▇▇
reason-ably believes that the receipt of such payment in Du Pont Common Stock
is necessary to preserve the status of the Mergers and Foreign Exchanges, as
the case may be, as a reorganiza-tion within the meaning of Section 368 of the
Code. For purpos-es of this Section 9.2(i), the shares of Du Pont Common
Stock shall be valued at the time of making such indemnifi-cation payments at
the then current market price of Du Pont Common Stock.
(j) Except with respect to any breach of the covenants set forth in
Section 6.13 hereof, or with respect to the representation letters required by
Sections 7.2(g) and 7.3(h) hereof, all indem-ni-fi-ca-tion obligations
and proce-dures relating to Taxes shall be as set forth in the Tax Shar-ing
Agree-ment.
ARTICLE XI MISCELLANEOUS MISCELLANEOUS MISCELLANEOUS
MISCELLANEOUS
ARTICLE XISection .10 Fees and Expenses Fees and Expenses
----------------- -----------------
Fees and Expenses Fees and Expenses. Except as contem-plated by this
---------------- -----------------
Agreement, all costs and expenses incurred in con-nec-tion with this Agreement
-
and the con-summa-tion of the transactions contemplated hereby shall be
paid by the party incurring such expens-es.
ARTICLE XISection .11 Amendment Amendment Amendment
--------- --------- ---------
Amendment. Any provision of this Agreement may be amended if, and only if,
----
such amendment is in writing and signed by the parties hereto; provided that
-------- ----
the consent of no ▇▇▇▇▇▇▇ Party not affect-ed by an amendment shall be
required to effect such amendment so long as ▇▇▇▇▇▇▇ shall have consented
there-to.
ARTICLE XISection .12 Extension; Waiver Extension; Waiver
----------------- -----------------
Extension; Waiver Extension; Waiver.
--------------- ------------------
(a) At any time prior to the Effective Time, Du Pont on behalf of itself
or any Du Pont Party may (i) extend the time for the perfor-▇▇▇▇▇ of any
of the obliga-tions or other acts of any ▇▇▇▇▇▇▇ Party or any Protein
Subsidiary, (ii) waive any inaccuracies in the repre-senta-tions and
warran-ties of any ▇▇▇▇▇▇▇ Party or any Pro-tein Subsidiary con-tained herein
or in any docu-ment, certifi-cate or writing deliv-ered by any ▇▇▇▇▇▇▇ Party
or any Protein Subsidiary pursu-ant hereto or (iii) waive com-pli-ance with
any of the agree-ments of any ▇▇▇▇▇▇▇ Party or any Protein Subsidiary or
condi-tions to any Du Pont Merger Subsidiary's obligations con-tained here-in.
(b) At any time prior to the Effective Time, ▇▇▇▇▇▇▇ on behalf of itself
or any ▇▇▇▇▇▇▇ Party, may (i) extend the time for the per-for-▇▇▇▇▇ of
any of the obliga-tions or other acts of any Du Pont Party, (ii) waive any
inac-cura-cies in the repre-senta-tions and warran-ties of any Du Pont Party
con-tained herein or in any docu-ment, cer-tifi-cate or writing deliv-ered by
any Du Pont party pursu-ant hereto or (iii) waive com-pli-ance with any of the
agree-ments of any Du Pont Party or condi-tions to any Protein Subsidiary's
obliga-tions con-tained here-in.
(c) Any agree-ment on the part of any party to any such exten-sion or
waiver shall be valid only if set forth in an instru-ment in writing signed on
behalf of such party. Nei-ther the fail-ure or the delay on the part of
any party to exercise any right, remedy, power or privi-lege under this
Agree-ment shall operate as a waiver thereof.
(d)
XI.13 Notices Notices Notices Notices. All notices and
------- ------- ------- -------
other commu-nications hereunder shall be in writing and shall be deemed given
if delivered personally, telecopied (which is con-firmed) or sent by an
overnight courier service, to the parties at the follow-ing ad-dress-es (or at
such other address for a party as shall be specified by like no-▇▇▇▇):
(a) if to Du Pont or any Du Pont Merger Sub-sid-iary, to:
E.I. du Pont de Nemours and Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Atten-tion: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
E.I. du Pont de Nemours and Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Atten-tion: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
(b) if to ▇▇▇▇▇▇▇, Stockholder or, prior to the Initial Closing Date, any
Pro-tein Sub-sid-iary, to:
▇▇▇▇▇▇▇ Purina Company
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Protein Technologies International, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
XI.14 Interpretation Interpretation Interpretation
-------------- -------------- --------------
Interpretation. When a refer-ence is made in this Agreement to Sections, such
--------
refer-ence shall be to a Section of this Agreement unless otherwise
indi-cated. Whenever the words "include", "includes" or "including" are used
in this Agreement they shall be deemed to be followed by the words "with-out
limitation". As used in this Agree-ment, the term "af-fil-i-ate(s)" and
"associates" shall have the meaning set forth in Rule l2b-2 of the Exchange
Act. As used in this Agreement, the term "to the knowledge of ▇▇▇▇▇▇▇" or "to
▇▇▇▇▇▇▇'▇ knowledge" with respect to a fact or other matter shall mean that
any indi-vid-u-al serv-ing as a direc-to-r, offi-cer or attorney of ▇▇▇▇▇▇▇ or
any indi-vid-ual who is a member of the Senior Manage-ment Group (as defined
be-low) (i) is aware of such fact or other matter or (ii) should have known of
such fact or other matter in the course of con-ducting a rea-sonably
compre-hensive investi-gation concern-ing the truth or existence of such fact
or other mat-ter. For purposes of this definition, a "rea-sonably
comprehen-sive investi-ga-tion" shall mean an inqui-ry di-rected to execu-tive
offi-cers, division vice presi-dents, country managing direc-tors, plant
managers and attorneys of the Business, as well as any other employee of the
Business headquar-tered in St. Louis, Missouri who has primary responsibil-ity
for the substan-tive area in ques-tion. No refer-ence in this Agreement
(other than in Section 6.1(a) hereof) to "rea-son-able best ef-forts" shall
re-quire a Person obli-gated to use its reasonable best efforts to incur
out-of-pocket expenses or Indebt-edness. As used herein, "Senior Man-agement
------------------
Group" means ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
XI.15 Counterparts Counterparts Counterparts
------------ ------------ ------------
Counterparts. This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement.
XI.16 Entire Agreement; No Third Party Beneficiaries Entire
---------------------------------------------- ------
Agreement; No Third Party Beneficiaries Entire Agreement; No Third Party
------------------------------------ --------------------------------
Beneficiaries Entire Agreement; No Third Party Beneficiaries. This
------------ ------------------------------------------------
Agreement, the Confiden-tiali-ty Agreement, the Registration Rights Agreement,
-----
the Bridg-ing Services Agreement, the Tax Shar-ing Agree-ment, the
Operating Agreement(s), the For-eign Ex-change Agree-ments, the Qualcepts
Letter, the Headquarters Lease, the R&D Lease, the Intel-lectual Prop-erty
Assignment, the Com-modi-ties Pur-chasing Agree-ment and the Sales Office
Em-ployees Agree-ments (in-clud-ing the docu-ments and the in-stru-ments
re-ferred to herein and there-in) con-sti-tute the entire agree-ment among the
par-ties hereto with re-spect to the subject matter hereof and super-sede all
prior and con-tem-po-ra-ne-ous agree-ments and under-stand-ings, both written
and oral, among the parties with respect to the subject matter hereof.
XI.17 Severability Severability Severability
------------ ------------ ------------
Severability. This Agreement shall be deemed severable; if any term,
provi-sion, cove-nant or re-stric-tion of this Agree-ment is held by a court
of compe-tent juris-dic-tion or other au-thority to be inval-id, void,
unen-forceable or against its regula-tory policy, the remainder of the terms,
provi-sions, cove-nants and re-stric-tions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
XI.18 Governing Law; Forum Governing Law; Forum Governing
-------------------- -------------------- ---------
Law; Forum Governing Law; Forum.
-------- ----------------------
(a) This Agree-ment shall be governed by and con-strued in accor-dance
with the laws of the State of Delaware, without giving effect to the
prin-ci-ples of conflicts of law thereof.
(b) By execution and delivery of this Agree-ment, the parties hereto
submit to the personal juris-diction of any state or federal court in the
State of Delaware in any suit or proceeding arising out of or relating to this
Agreement.
(c) To the extent that any of the parties hereto has or hereafter may
acquire any immunity from jurisdiction of any Delaware court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execu-tion or otherwise) with respect to
itself or its proper-ty, such Person hereby irrevocably waives such immunity
in respect of its obligations with respect to this Agree-ment.
(d) The parties hereto agree that the appro-priate and exclusive forum
for any disputes between any of the parties hereto arising out of this
Agreement or the transactions contemplated hereby shall be in any state or
federal court in the State of Delaware. The par-ties hereto further agree
that the parties will not bring suit with respect to any disputes arising out
of this Agreement or the transactions contemplated hereby in any court or
jurisdiction other than the above speci-fied courts; provided, however, that
-------- -------
the foregoing shall not limit the rights of the parties to obtain execution of
judgment in any other jurisdiction. Notwithstanding the foregoing, the
parties hereto agree that if a third party brings a claim against a party
hereto and, in connection therewith, such party or one of its affili-ates
wishes to make a claim for indemnification against another party here-to, such
latter party shall not object to the juris-dic-tion or forum of such
proceed-ing without the prior consent of the party seeking to make such claim
for indemnification. The par-ties hereto fur-ther agree, to the extent
per-mit-▇▇▇ by law, that final and unappeal-able judgment against a party in
any action or proceed-ing contemplated above shall be conclu-sive and may be
en-forced in any jurisdic-tion within or outside the United States by suit on
the judgment, a certified or exempli-fied copy of which shall be conclu-sive
evi-dence of the fact and amount of such judgment.
XI.19 Release Release Release Release. ▇▇▇▇▇▇▇
------- ------- ------- -------
uncondi-tion-ally releases, on behalf of itself and its Subsid-iaries, the
Protein Subsidiaries and their respective offi-cers and directors from any
claims of whatever kind or na-ture, wheth-er contin-gent or absolute, that
▇▇▇▇▇▇▇ may have against such Persons aris-ing out of, or relat-ing to,
ac-tions taken or events occur-ring prior to the Effective Time, including,
with-out limitation, all claims with respect to any prod-ucts sold or
manufactured by any Protein Subsid-iary prior to the Initial Comple-tion Date;
provided, however, that the foregoing shall not apply to the release of
-------- -------
any claims against any officer or director relat-ing to (i) the willful
misconduct of any such Person if such claim is asserted after such Person is
no longer employed by Du Pont or a Subsidiary thereof including any Protein
Subsidiary or (ii) regardless of when such claim is asserted, the ▇▇▇▇▇-nal or
illegal con-duct of such offi-cer or direc-tor.
XI.20 Assignment Assignment Assignment Assignment.
---------- ---------- ---------- ----------
Neither this Agree-ment nor any of the rights, interests or obliga-tions
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) with-out the prior written consent of the other
parties, except that any Du Pont Merger Subsidiary may as-sign, in its sole
discre-tion, any or all of its rights, interests and obligations hereun-der to
Du Pont or to any direct or indirect wholly owned Subsid-iary of Du Pont.
Sub-ject to the preceding sen-tence, this Agree-ment will be bind-ing upon,
inure to the benefit of and be enforce-able by the parties and their
respective succes-sors and assigns.
IN WITNESS WHEREOF, Du Pont, the Du Pont Merger Subsidiaries,
▇▇▇▇▇▇▇, Stockholder and the U.S. Protein Subsidiaries have caused this
Agree-ment to be signed by their respec-tive officers thereunto duly
authorized as of the date first written above.
E.I. DU PONT DE NEMOURS AND COMPANY
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice Pre-sident
AG Enterprise
DUPONT PTI 1 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 2 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 3 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 4 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 5 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 6 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 7 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 8 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
DUPONT PTI 9 CO.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ PURINA COMPANY
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General Counselor
PROTEIN TECHNOLOGIES INTER-NA-TIONAL HOLD-INGS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
FIBER SALES & DEVELOPMENT CORPO-RATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
IMPERIAL BIOTECHNOLOGY, U.S., INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
NUTRITIOUS FOODS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
POINTER SPECIALTY CHEMI-CALS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
PROTEIN TECHNOLOGIES INTER-NA-TIONAL ASIA PACIFIC COR-PORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
PROTEIN TECHNOLOGIES INTER-NA-TIONAL EUROPE, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
PROTEIN TECHNOLOGY INTERNA-TIONAL SALES, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
PROTEIN TECHNOLOGIES INTER-NA-TIONAL, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
PROTEIN TECHNOLOGIES INTER-NA-TION-AL DE-VEL-OP-MENT CORPO-RA-TION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
ex10xiii.doc