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Distribution Agreement
Distribution Agreement (83K)
Doc #147962: Click preview link for longer preview.
AMD DISTRIBUTION AGREEMENT
JUNE 30, 2003
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of the exhibit has been filed separately with the securities and Exchange Commission.
AMD DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this Agreement) is made and entered into as of June 30, 2003 (the Effective Date), by and between FASL LLC, a Delaware limited liability company (FASL), and Advanced Micro Devices, Inc., a Delaware corporation (AMD). FASL and AMD are hereinafter also referred to as the Parties and individually as a Party.
RECITALS
WHEREAS, pursuant to the Amended and Restated Limited Liability Company Operating Agreement, dated June 30, 2003 (the LLC Operating Agreement), among AMD, AMD Investments, Inc., a Delaware corporation (AMDI), Fujitsu Limited, a Japanese corporation (Fujitsu), and Fujitsu Microelectronics Holding, Inc., a Delaware corporation (FMH), and the Contribution and Assumption Agreement (the Contribution Agreement), among AMD, AMDI, Fujitsu, FMH and FASL, AMD and Fujitsu have formed FASL for the purpose of designing, manufacturing and marketing flash memory products; and
WHEREAS, as part of such joint venture arrangement, AMD and Fujitsu have agreed that FASL will appoint AMD and Fujitsu as FASLs sole initial distributors of Products (as defined below).
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and other terms and conditions contained herein, FASL and AMD agree as follows:
AGREEMENT
1. DEFINITIONS; INTERPRETATION
1.1 Capitalized but Undefined Terms. Capitalized terms used in this Agreement but not defined herein shall have the meaning ascribed to such terms in the LLC Operating Agreement.
1.2 Terms Defined in this Agreement. The following terms when used in this Agreement shall have the following definitions:
1.2.1 Action Plan has the meaning set forth in Section 14.2.1.
1.2.2 Affiliate is defined in the LLC Operating Agreement.
1.2.3 **** means a Customer listed as such on Schedule 2.1.
1.2.4 AMD ****Customer means a Customer listed as such on Schedule 2.1.
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of the exhibit has been filed separately with the securities and Exchange Commission.
147962
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AMD
As referenced in this Distribution Agreement:
Advanced Micro Devices, Inc. – THIS DISTRIBUTION AGREEMENT (this Agreement) is made and entered into as of June 30, 2003 (the Effective Date), by and between FASL LLC, a Delaware limited liability company (FASL), and Advanced Micro Devices, Inc. , a Delaware corporation (AMD). FASL and AMD are hereinafter also referred to as the Parties and individually as a Party.
RECITALS
WHEREAS, pursuant to the Amended and Restated Limited
_____________
ADVANCED MICRO DEVICES, INC. – be executed and delivered by their respective duly authorized representatives as of the date first above written.
FASL LLC:
By:
/s/ THOMAS M. MCCOY
Name:
Thomas M. McCoy
Title:
Manager
ADVANCED MICRO DEVICES, INC. :
By:
/s/ THOMAS M. MCCOY
Name:
Thomas M. McCoy
Title:
Senior Vice President, General Counsel
29
Confidential treatment has been requested for portions of this exhibit. The copy filed
_____________
dt 1469421
;
AMD
As referenced in this Distribution Agreement:
Advanced Micro Devices, Inc. – THIS DISTRIBUTION AGREEMENT (this Agreement) is made and entered into as of June 30, 2003 (the Effective Date), by and between FASL LLC, a Delaware limited liability company (FASL), and Advanced Micro Devices, Inc. , a Delaware corporation (AMD). FASL and AMD are hereinafter also referred to as the Parties and individually as a Party.
RECITALS
WHEREAS, pursuant to the Amended and Restated Limited
_____________
ADVANCED MICRO DEVICES, INC. – be executed and delivered by their respective duly authorized representatives as of the date first above written.
FASL LLC:
By:
/s/ THOMAS M. MCCOY
Name:
Thomas M. McCoy
Title:
Manager
ADVANCED MICRO DEVICES, INC. :
By:
/s/ THOMAS M. MCCOY
Name:
Thomas M. McCoy
Title:
Senior Vice President, General Counsel
29
Confidential treatment has been requested for portions of this exhibit. The copy filed
_____________
dt 1465676
;
| FASL LLC
|
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| 2003 |
Distribution Agreement
Distribution Agreement (65K)
Doc #149936: Click preview link for longer preview.
FSI / METRON DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into on February 28, 2003, by and between FSI INTERNATIONAL, INC. (Company or FSI) organized and existing under the laws of the State of Minnesota, United States of America, and METRON TECHNOLOGY N.V., organized and existing under the laws of The Netherlands (Distributor).
WHEREAS, Company designs, manufactures and sells products for use in the microelectronics industry;
WHEREAS, Distributor distributes and sells products in the microelectronics industry and desires to serve as Companys distributor of the Products in Israel upon the terms and conditions set forth herein; and
WHEREAS, Distributor and FSI entered into a Distribution Agreement effective as of March 31, 1998, which Distribution Agreement was amended and restated by a Distribution Agreement dated July 10, 2000;
WHEREAS, Company and Distributor entered into a Transition Agreement, which, among other things, provides for the termination of the March 31, 1998 Distribution Agreement, as amended and restated; and
WHEREAS, FSI and Distributor wish to enter into a separate distribution agreement with respect to the distribution of FSIs products in Israel.
NOW, THEREFORE, FSI and Distributor hereby agree as follows:
1. GENERAL CONDITIONS
1.1 Appointment and Acceptance. Subject to terms and conditions contained in this Agreement, Company hereby hires and appoints, and Distributor hereby undertakes and accepts, an appointment as the Distributor of those FSI products described in Exhibit A (Products) and spare parts related thereto (described below) (Spare Parts) (collectively Equipment) for Israel (the Territory) for the period commencing on March 1, 2003 (the Effective Date) for the term set forth in Section 1.4 hereof. Distributor agrees to sell Equipment to all customers within the Territory (Customers).
1.2 Distributor Is Not the Companys Agent. Distributor is not an agent, servant, employee, co-partner, or joint venture of or for the Company for any purpose whatsoever. Distributor shall not have any right or authority to assume or create any obligation or responsibility, expressed or implied, on behalf of or in the name of the Company, or to bind the Company in any manner or way whatsoever. Distributor shall perform its duties and obligations under this Agreement as an independent contractor.
1.3 Product Registration. If required by local law, registration of Products shall be in the name of the Company whenever possible. A copy of registration documents are to be provided to the Company within ten (10) days of receiving registration by Distributor if the registration is granted after the effective date of this Agreement. If this Agreement is terminated, then said registrations shall belong solely to the Company, and Distributor shall execute any assignments, modifications or changes necessary to immediately transfer such registration(s) to the Company.
1.4 Term and Scope. This Agreement shall take effect as of the Effective Date and shall continue until the second anniversary of the Effective Date (the Initial Term), unless sooner terminated as provided in Article 5. This Agreement shall as of the Effective Date replace the terms of the Distribution Agreement of March 31, 1998, as amended and restated as of July 10, 2000.
1.5 Customer Sales. Attached as Part II of Exhibit A is the Companys standard form of terms and conditions for direct sales by the Company to its customers. For new sales of Products to be made within the Territory, to the extent applicable, Distributor will use commercially reasonable efforts to substantially conform in all material respects its terms and conditions of sales of Products to be made by Distributor within the Territory to its customers to those standard terms set forth in Part II of Exhibit A. Within thirty (30) days after the date of execution of this Agreement, Company and Distributor will agree upon the specific pass-through terms for which Metron will be required to use reasonable efforts to conform its terms and conditions for new sales relationships for Products within the Territory to.
149936
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FSI Int'l
As referenced in this Distribution Agreement:
FSI INTERNATIONAL, INC. – Confidentiality Agreement
42
Exhibit E
Detailed List of Inventory as of August 31, 2002
FSI / METRON DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into on February 28, 2003, by and between FSI INTERNATIONAL, INC. (Company or FSI) organized and existing under the laws of the State of Minnesota, United States of America, and METRON TECHNOLOGY N.V., organized and existing under the laws
_____________
FSI International, Inc. – its address set forth below, or at such other address as such party may hereafter designate as the appropriate address for the receipt of such notice:
To the Company at:
FSI International, Inc.
With a copy to:
Attention: Dean Duffy
Benno Sand
3455 Lyman Blvd.
3455 Lyman Blvd.
Chaska, MN 55318
Chaska, MN 55318
U.S.A.
U.S.A.
To the
_____________
FSI International, Inc. – in counterparts and facsimile signatures are considered originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
Metron Technology B.V.
FSI International, Inc.
By:
/s/ Peter V. Leigh
Peter V. Leigh
By:
/s/ Benno Sand
Benno Sand
Its:
Chief Financial Officer
Its:
Executive Vice President, Business
Development and Investor Services
_____________
dt 1459410
;
FSI Int'l
As referenced in this Distribution Agreement:
FSI INTERNATIONAL, INC. – Confidentiality Agreement
42
Exhibit E
Detailed List of Inventory as of August 31, 2002
FSI / METRON DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into on February 28, 2003, by and between FSI INTERNATIONAL, INC. (Company or FSI) organized and existing under the laws of the State of Minnesota, United States of America, and METRON TECHNOLOGY N.V., organized and existing under the laws
_____________
FSI International, Inc. – its address set forth below, or at such other address as such party may hereafter designate as the appropriate address for the receipt of such notice:
To the Company at:
FSI International, Inc.
With a copy to:
Attention: Dean Duffy
Benno Sand
3455 Lyman Blvd.
3455 Lyman Blvd.
Chaska, MN 55318
Chaska, MN 55318
U.S.A.
U.S.A.
To the
_____________
FSI International, Inc. – in counterparts and facsimile signatures are considered originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
Metron Technology B.V.
FSI International, Inc.
By:
/s/ Peter V. Leigh
Peter V. Leigh
By:
/s/ Benno Sand
Benno Sand
Its:
Chief Financial Officer
Its:
Executive Vice President, Business
Development and Investor Services
_____________
dt 1473485
;
|
Metron
As referenced in this Distribution Agreement:
METRON TECHNOLOGY N – into on February 28, 2003, by and between FSI INTERNATIONAL, INC. (Company or FSI) organized and existing under the laws of the State of Minnesota, United States of America, and METRON TECHNOLOGY N .V., organized and existing under the laws of The Netherlands (Distributor).
WHEREAS, Company designs, manufactures and sells products for use in the microelectronics industry;
WHEREAS, Distributor distributes and sells
_____________
Metron Technology N – a copy to:
Attention: Dean Duffy
Benno Sand
3455 Lyman Blvd.
3455 Lyman Blvd.
Chaska, MN 55318
Chaska, MN 55318
U.S.A.
U.S.A.
To the Distributor at:
Metron Technology N .V.
With a copy to: Metron Technology Ltd.
Attention: Ed Segal
Attention: Peter V. Leigh
1350 Old Bayshore Highway
1350 Old Bayshore Highway
Suite 360
Suite 360
Burlingame, CA
_____________
dt 1460051
;
Metron Technology, N.V.
|
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| 2001 |
Distribution Agreement
Distribution Agreement (299K)
Doc #409942: Click preview link for longer preview.
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
ROCKWELL COLLINS, INC.
and
ROCKWELL SCIENTIFIC COMPANY LLC
June 29, 2001
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I DEFINITIONS.......................................................................... 1
SECTION 1.01 General.............................................................................. 1
ARTICLE II THE DISTRIBUTION..................................................................... 35
SECTION 2.01 The Distribution..................................................................... 35
SECTION 2.02 Cooperation Prior to the Distribution................................................ 35
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution................................ 36
SECTION 2.04 Waiver of Conditions................................................................. 37
SECTION 2.05 Disclosure........................................................................... 37
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION............................................ 37
SECTION 3.01 Intercorporate Reorganization........................................................ 37
SECTION 3.02 Financial Instruments................................................................ 40
SECTION 3.03 Shared Agreements.................................................................... 41
SECTION 3.04 Intercompany Accounts and Arrangements............................................... 42
SECTION 3.05 Cash Management...................................................................... 44
SECTION 3.06 The Rockwell Collins Board and the Rockwell Science Center Board..................... 46
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee...................................... 47
SECTION 3.08 Rockwell Collins Certificate of Incorporation and By-Laws; Rights Plan............... 48
SECTION 3.09 Insurance............................................................................ 48
SECTION 3.10 Use of Names, Trademarks, etc........................................................ 52
SECTION 3.11 Consents............................................................................. 58
SECTION 3.12 Intellectual Property................................................................ 59
SECTION 3.13 Software and Other License Agreements................................................ 66
SECTION 3.14 Charitable Entities.................................................................. 66
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION...................................................... 67
SECTION 4.01 Mutual Release....................................................................... 67
SECTION 4.02 Indemnification by Rockwell.......................................................... 67
SECTION 4.03 Indemnification by Rockwell Collins.................................................. 68
SECTION 4.04 Indemnification by Rockwell Science Center........................................... 69
SECTION 4.05 Limitations on Indemnification Obligations........................................... 69
SECTION 4.06 Procedures Relating to Indemnification............................................... 70
SECTION 4.07 Remedies Cumulative.................................................................. 72
SECTION 4.08 Survival of Indemnities.............................................................. 72
SECTION 4.09 Exclusivity of Tax Allocation Agreement and Science Center Tax Allocation Agreement.. 72
{/TABLE}
i
{PAGE} 3
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE V ACCESS TO INFORMATION................................................................ 73
SECTION 5.01 Access to Information................................................................ 73
SECTION 5.02 Production of Witnesses.............................................................. 75
SECTION 5.03 Retention of Records................................................................. 75
SECTION 5.04 Confidentiality...................................................................... 76
ARTICLE VI MISCELLANEOUS........................................................................ 76
SECTION 6.01 Entire Agreement; Construction....................................................... 76
SECTION 6.02 Survival of Agreements............................................................... 77
SECTION 6.03 Expenses............................................................................. 77
SECTION 6.04 Governing Law........................................................................ 78
SECTION 6.05 Notices.............................................................................. 78
SECTION 6.06 Dispute Resolution................................................................... 80
SECTION 6.07 Consent to Jurisdiction.............................................................. 80
SECTION 6.08 Amendments........................................................................... 81
SECTION 6.09 Assignment........................................................................... 81
SECTION 6.10 Captions; Currency................................................................... 81
SECTION 6.11 Severability......................................................................... 81
SECTION 6.12 Parties in Interest.................................................................. 81
SECTION 6.13 Schedules............................................................................ 81
SECTION 6.14 Termination.......................................................................... 81
SECTION 6.15 Waivers; Remedies.................................................................... 82
SECTION 6.16 Further Assurances................................................................... 82
SECTION 6.17 Counterparts......................................................................... 82
SECTION 6.18 Performance.......................................................................... 82
SECTION 6.19 Currency Calculations................................................................ 82
SECTION 6.20 Interpretation....................................................................... 82
{/TABLE}
ii
{PAGE} 4
ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
{TABLE}
{S} {C}
Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Collins Securities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Science Center Securities
Schedule 1.01(l) - Former Businesses of Rockwell Collins
Schedule 1.01(m) - Rockwell Collins Financial Instruments
Schedule 1.01(n) - Rockwell Collins Litigation
Schedule 1.01(o) - Rockwell Collins Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell Collins Subsidiaries
Schedule 1.01(q) - Rockwell Collins U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell Collins Credit Facilities
Schedule 1.01(y) - Rockwell Science Center Credit Facilities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell Collins Charitable Commitments
Schedule 4.02(b) - Certain Form 10 Sections
{/TABLE}
iii
{PAGE} 5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June
29, 2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) ROCKWELL COLLINS, INC., a Delaware corporation
and, as of the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell
Collins"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware limited
liability company and, as of the date hereof, a wholly-owned subsidiary of
Rockwell ("Rockwell Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined
that it is appropriate and desirable to distribute all outstanding shares of
Rockwell Collins Common Stock (as defined herein) on a pro rata basis to the
holders of Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell Collins and Rockwell Science
Center have determined that it is appropriate and desirable to set forth the
principal corporate transactions required to effect such distribution and
certain other agreements that will govern certain matters relating to such
distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ACTION" means, with respect to any Person, any actual or
threatened or future action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Entity or any claims or other legal
matters that have been or may be asserted by or against, or otherwise affect,
such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning
ascribed thereto in Section 3.12(g)(i)(B).
{PAGE} 6
"AFFILIATE" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of the Transaction Agreements,
following the Time of Distribution no member of any Group shall be deemed to be
an Affiliate of any member of any other Group. For purposes of the immediately
preceding sentence, the term "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through ownership of voting securities, by contract or otherwise.
"AGENCY LICENSING AGREEMENTS" means (a) the agency licensing
agreement among Rockwell, Rockwell Science Center and ITL pursuant to which,
among other things, ITL will act as exclusive agent for the Rockwell Automation
Group in connection with the licensing of certain intellectual property to third
parties in fields other than the Rockwell Automation Group's businesses and (b)
the agency licensing agreement by and among Rockwell Collins, Rockwell Science
Center and ITL pursuant to which, among other things, ITL will act as exclusive
agent for the Rockwell Collins Group in connection with the licensing of certain
intellectual property to third parties in fields other than the Rockwell Collins
Group's businesses.
"AGREEMENT" shall have the meaning ascribed thereto in the
preamble.
"ANCILLARY AGREEMENTS" means, collectively, the Employee
Matters Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement, the Continuing Services Agreements, the Rockwell Science
Center Services Agreements, the Agency Licensing Agreements, the Transition
Agreement and the Conveyance and Assumption Instruments.
"ASSETS" means any and all assets, properties and rights,
whether tangible or intangible, real, personal or mixed, fixed, contingent or
otherwise, and wherever located (other than ownership interests in
Subsidiaries), including the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and
fixtures, leasehold improvements, repair parts, tools, plant,
laboratory and office equipment and supplies, computer hardware and
software, computer networking equipment, engineering and design
equipment, test equipment and other tangible personal property,
together with any rights or claims arising out of maintenance or
service contracts relating thereto or the breach of any express or
implied warranty by the manufacturers or sellers of any of such assets
or any component part thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
2
{PAGE} 7
(e) cash, cash on hand, cash equivalents, funds, certificates
of deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or
not current), performance and surety bonds and interests as beneficiary
under letters of credit and other similar instruments and all proceeds
thereof;
(g) Securities;
(h) swaps, collars, caps and other hedging arrangements of any
kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in
whatever form or medium, including electronic media), including books,
records, notes, sales and sales promotional material and data,
advertising materials, credit information, cost and pricing
information, customer and supplier lists, business plans, reference
catalogs, payroll and personnel records and procedures, blue-prints,
research and development files, data and laboratory books, sales order
files, litigation files, minute books, stock ledgers, stock transfer
records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by
third parties;
(m) claims, causes of action, choses in action, rights under
express or implied warranties, guarantees and indemnities and similar
rights, rights of recovery, rights of set-off, rights of subrogation
and all other rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in
Section 3.11.
"AUTOMATION PRODUCTS" means (a) industrial automation
products, systems and software, including controllers, electrical and electronic
controls, I/O (input/output) systems, drives (including electronic drives for
electric motors), sensors, power devices, packaged control products, operator
interface devices, computer software and hardware products, gears, gear
reducers, bearings, shaft supports, shaft hangers, shaft couplings, collars,
clutches, sheaves, sprockets, pulleys, elevating and conveying machinery, power
transmission machinery and components thereof, network monitoring products and
409942
|
ArvinMeritor
As referenced in this Distribution Agreement:
ArvinMeritor, Inc – April 15, 1994 between Rockwell and Center West under which office space located
at 10877 Wilshire Boulevard, Los Angeles, California is leased for the benefit
of Robert Anderson.
"MERITOR" means ArvinMeritor, Inc ., an Indiana corporation,
successor by merger to Meritor Automotive, Inc., a Delaware corporation, and any
successor thereto.
"MERITOR DISTRIBUTION AGREEMENT" means the Distribution
Agreement dated as of September 30,
_____________
dt 1423147
;
Conexant
As referenced in this Distribution Agreement:
Conexant Systems, Inc. – thereto
in Section 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"CONEXANT" means Conexant Systems, Inc. , a Delaware
corporation, and any successor thereto.
4
{PAGE} 9
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution
Agreement dated as of December 31, 1998 by and between Rockwell and Conexant,
_____________
dt 1458857
;
Conexant
As referenced in this Distribution Agreement:
Conexant Systems, Inc. – thereto
in Section 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"CONEXANT" means Conexant Systems, Inc. , a Delaware
corporation, and any successor thereto.
4
{PAGE} 9
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution
Agreement dated as of December 31, 1998 by and between Rockwell and Conexant,
_____________
dt 1458932
;
|
Rockwell
As referenced in this Distribution Agreement:
Rockwell Automation – Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Collins Securities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) -
_____________
Rockwell Automation – Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Collins Securities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins
_____________
Rockwell Automation
– Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Collins Securities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Science
_____________
Rockwell Automation
– AGENCY LICENSING AGREEMENTS" means (a) the agency licensing
agreement among Rockwell, Rockwell Science Center and ITL pursuant to which,
among other things, ITL will act as exclusive agent for the Rockwell Automation
Group in connection with the licensing of certain intellectual property to third
parties in fields other than the Rockwell Automation Group's businesses and (b)
the agency licensing agreement
_____________
Rockwell Automation – other things, ITL will act as exclusive agent for the Rockwell Automation
Group in connection with the licensing of certain intellectual property to third
parties in fields other than the Rockwell Automation Group's businesses and (b)
the agency licensing agreement by and among Rockwell Collins, Rockwell Science
Center and ITL pursuant to which, among other things, ITL will act as exclusive
_____________
dt 1465451
;
Rockwell Collins
As referenced in this Distribution Agreement:
ROCKWELL COLLINS, INC – {DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}2
{FILENAME}y51136ex2-1.txt
{DESCRIPTION}DISTRIBUTION AGREEMENT
{TEXT}
{PAGE} 1
Exhibit 2.1
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
ROCKWELL COLLINS, INC .
and
ROCKWELL SCIENTIFIC COMPANY LLC
June 29, 2001
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I DEFINITIONS.......................................................................... 1
SECTION 1.01 General.............................................................................. 1
ARTICLE II
_____________
ROCKWELL COLLINS, INC – 10 Sections
{/TABLE}
iii
{PAGE} 5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June
29, 2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) ROCKWELL COLLINS, INC ., a Delaware corporation
and, as of the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell
Collins"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware limited
liability company and,
_____________
Rockwell Collins), inc – manufacturing, building, selling,
distributing, installing, modifying, repairing, servicing and
supporting aviation electronics and airborne and mobile communications
products and systems for commercial and military applications (marketed
primarily under the name Rockwell Collins), inc luding (i) flight deck
electronic products and systems, including communications, navigation,
display and automatic flight control systems, as well as in-flight
entertainment and information management systems, and (ii) defense
_____________
Rockwell Collins, Inc – William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and Secretary
Telecopy: (414) 212-5357
E-mail: wjcalise@corp.rockwell.com
78
{PAGE} 83
(b) If to Rockwell Collins:
Rockwell Collins, Inc .
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laericks@rockwellcollins.com
_____________
Rockwell Collins, Inc – Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laericks@rockwellcollins.com
with a copy to:
Rockwell Collins, Inc .
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention:
Senior Vice President,
General Counsel and Secretary
Telecopy: (319) 295-3599
(c) If to Rockwell Science Center:
Rockwell Scientific
_____________
dt 1430621
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FORM OF
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
NEW ROCKWELL COLLINS, INC.
and
ROCKWELL SCIENTIFIC COMPANY LLC
================================================================================
June 29, 2001
================================================================================
{PAGE} 2
Page
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
Page
----
{S} {C} {C}
ARTICLE I DEFINITIONS..............................................................................1
SECTION 1.01 General..................................................................................1
ARTICLE II THE DISTRIBUTION........................................................................33
SECTION 2.01 The Distribution........................................................................33
SECTION 2.02 Cooperation Prior to the Distribution...................................................33
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution...................................34
SECTION 2.04 Waiver of Conditions....................................................................35
SECTION 2.05 Disclosure..............................................................................35
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION...............................................35
SECTION 3.01 Intercorporate Reorganization...........................................................35
SECTION 3.02 Financial Instruments...................................................................38
SECTION 3.03 Shared Agreements.......................................................................39
SECTION 3.04 Intercompany Accounts and Arrangements..................................................40
SECTION 3.05 Cash Management.........................................................................41
SECTION 3.06 The Rockwell Collins Board and the Rockwell Science Center Board........................44
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee.........................................44
SECTION 3.08 Rockwell Collins Certificate of Incorporation and By-Laws; Rights
Plan....................................................................................46
SECTION 3.09 Insurance...............................................................................46
SECTION 3.10 Use of Names, Trademarks, etc...........................................................51
SECTION 3.11 Consents................................................................................57
SECTION 3.12 Intellectual Property...................................................................58
SECTION 3.13 Software and Other License Agreements...................................................63
SECTION 3.14 Charitable Entities.....................................................................64
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION.........................................................64
SECTION 4.01 Mutual Release..........................................................................64
SECTION 4.02 Indemnification by Rockwell.............................................................65
SECTION 4.03 Indemnification by Rockwell Collins.....................................................65
SECTION 4.04 Indemnification by Rockwell Science Center..............................................66
SECTION 4.05 Limitations on Indemnification Obligations..............................................67
SECTION 4.06 Procedures Relating to Indemnification..................................................68
SECTION 4.07 Remedies Cumulative.....................................................................69
SECTION 4.08 Survival of Indemnities.................................................................69
SECTION 4.09 Exclusivity of Tax Allocation Agreement.................................................69
ARTICLE V ACCESS TO INFORMATION...................................................................70
SECTION 5.01 Access to Information...................................................................70
{/TABLE}
i
{PAGE} 3
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
SECTION 5.02 Production of Witnesses.................................................................72
SECTION 5.03 Retention of Records....................................................................72
SECTION 5.04 Confidentiality.........................................................................73
ARTICLE VI MISCELLANEOUS...........................................................................73
SECTION 6.01 Entire Agreement; Construction..........................................................73
SECTION 6.02 Survival of Agreements..................................................................74
SECTION 6.03 Expenses................................................................................74
SECTION 6.04 Governing Law...........................................................................75
SECTION 6.05 Notices.................................................................................75
SECTION 6.06 Dispute Resolution......................................................................77
SECTION 6.07 Consent to Jurisdiction.................................................................77
SECTION 6.08 Amendments..............................................................................78
SECTION 6.09 Assignment..............................................................................78
SECTION 6.10 Captions; Currency......................................................................78
SECTION 6.11 Severability............................................................................78
SECTION 6.12 Parties in Interest.....................................................................79
SECTION 6.13 Schedules...............................................................................79
SECTION 6.14 Termination.............................................................................79
SECTION 6.15 Waivers; Remedies.......................................................................79
SECTION 6.16 Further Assurances......................................................................79
SECTION 6.17 Counterparts............................................................................79
SECTION 6.18 Performance.............................................................................79
SECTION 6.19 Currency Calculations...................................................................80
SECTION 6.20 Interpretation..........................................................................80
{/TABLE}
ii
{PAGE} 4
ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
{TABLE}
{S} {C}
Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Collins Shared Facilities
Schedule 1.01(l) - Former Businesses of Rockwell Collins
Schedule 1.01(m) - Rockwell Collins Financial Instruments
Schedule 1.01(n) - Rockwell Collins Litigation
Schedule 1.01(o) - Rockwell Collins Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell Collins Subsidiaries
Schedule 1.01(q) - Rockwell Collins U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell Collins Securities
Schedule 1.01(y) - Rockwell Science Center Securities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell Collins Charitable Corporation Commitments
Schedule 4.02(b) - Certain Form 10 Sections
{/TABLE}
iii
{PAGE} 5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June 29,
2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) NEW ROCKWELL COLLINS, INC., a Delaware
corporation and, as of the date hereof, a wholly-owned subsidiary of Rockwell
("Rockwell Collins"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware
limited liability company and, as of the date hereof, a wholly-owned subsidiary
of Rockwell ("Rockwell Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined
that it is appropriate and desirable to distribute all outstanding shares of
Rockwell Collins Common Stock (as defined herein) on a pro rata basis to the
holders of Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell Collins and Rockwell Science Center
have determined that it is appropriate and desirable to set forth the principal
corporate transactions required to effect such distribution and certain other
agreements that will govern certain matters relating to such distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ACTION" means, with respect to any Person, any actual or
threatened or future action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Entity or any claims or other legal
matters that have been or may be asserted by or against, or otherwise affect,
such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed thereto
in Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(B).
{PAGE} 6
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of this Agreement, following the
Time of Distribution no member of any Group shall be deemed to be an Affiliate
of any member of any other Group. For purposes of the immediately preceding
sentence, the term "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise.
"AGENCY LICENSING AGREEMENTS" means (a) the agency licensing
agreement among Rockwell, Rockwell Science Center and ITL pursuant to which,
among other things, ITL will act as exclusive agent for Rockwell and its
Subsidiaries in connection with the licensing of certain intellectual property
to third parties in fields other than the Rockwell Automation Group's businesses
and (b) the agency licensing agreement by and among Rockwell Collins, Rockwell
Science Center and ITL pursuant to which, among other things, ITL will act as
exclusive agent for Rockwell Collins and its Subsidiaries in connection with the
licensing of certain intellectual property to third parties in fields other than
the Rockwell Collins Group's businesses.
"AGREEMENT" shall have the meaning ascribed thereto in the
preamble.
"AMENDED AND RESTATED ROCKWELL SCIENCE CENTER LLC AGREEMENT" means
the Amended and Restated Limited Liability Company Agreement of Rockwell Science
Center dated as of the date hereof by and between Rockwell Automation
Technologies, Inc., a Delaware corporation and a Rockwell Subsidiary, and
Rockwell Collins Technologies, LLC, a Delaware limited liability company and a
Rockwell Collins Subsidiary.
"ANCILLARY AGREEMENTS" means, collectively, the Employee Matters
Agreement, the Tax Allocation Agreement, the Continuing Services Agreements, the
Rockwell Science Center Services Agreements, the Agency Licensing Agreements,
the Amended and Restated Rockwell Science Center LLC Agreement, the Product
Manufacturing Agreement, the Transition Agreement and the Conveyance and
Assumption Instruments.
"ASSETS" means any and all assets, properties and rights, whether
tangible or intangible, real, personal or mixed, fixed, contingent or otherwise,
and wherever located (other than ownership interests in Subsidiaries), including
the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and
fixtures, leasehold improvements, repair parts, tools, plant, laboratory
and office equipment and supplies, computer hardware and software,
computer networking equipment, engineering and design equipment, test
equipment and other tangible personal property, together with any
2
{PAGE} 7
rights or claims arising out of maintenance or service contracts relating
thereto or the breach of any express or implied warranty by the
manufacturers or sellers of any of such assets or any component part
thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
(e) cash, cash on hand, cash equivalents, funds, certificates
of deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or
not current), performance and surety bonds and interests as beneficiary
under letters of credit and other similar instruments and all proceeds
thereof;
(g) Securities;
(h) swaps, collars, caps and other hedging arrangements of any
kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in whatever
form or medium, including electronic media), including books, records,
notes, sales and sales promotional material and data, advertising
materials, credit information, cost and pricing information, customer and
supplier lists, business plans, reference catalogs, payroll and personnel
records and procedures, blue-prints, research and development files, data
and laboratory books, sales order files, litigation files, minute books,
stock ledgers, stock transfer records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by
third parties;
(m) claims, causes of action, choses in action, rights under
express or implied warranties, guarantees and indemnities and similar
rights, rights of recovery, rights of set-off, rights of subrogation and
all other rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in
Section 3.11.
3
{PAGE} 8
"AUTOMATION PRODUCTS" means (a) industrial automation products,
409962
|
ArvinMeritor
As referenced in this Distribution Agreement [Form]:
ArvinMeritor, Inc – April
15, 1994 between Rockwell and Center West under which office space located at
10877 Wilshire Boulevard, Los Angeles, California is leased for the benefit of
Robert Anderson.
"MERITOR" means ArvinMeritor, Inc ., an Indiana corporation,
successor by merger to Meritor Automotive, Inc., a Delaware corporation, and any
successor thereto.
"MERITOR DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of September 30,
_____________
dt 1423151
;
Conexant
As referenced in this Distribution Agreement [Form]:
Conexant Systems, Inc. – 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
4
{PAGE} 9
"CONEXANT" means Conexant Systems, Inc. , a Delaware corporation,
and any successor thereto.
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments
_____________
dt 1458862
;
Conexant
As referenced in this Distribution Agreement [Form]:
Conexant Systems, Inc. – 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
4
{PAGE} 9
"CONEXANT" means Conexant Systems, Inc. , a Delaware corporation,
and any successor thereto.
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments
_____________
dt 1458937
;
|
Rockwell
As referenced in this Distribution Agreement [Form]:
Rockwell Automation – Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(
_____________
Rockwell Automation – Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell
_____________
Rockwell Automation – of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins
_____________
Rockwell Automation
– 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Collins
_____________
Rockwell Automation – other things, ITL will act as exclusive agent for Rockwell and its
Subsidiaries in connection with the licensing of certain intellectual property
to third parties in fields other than the Rockwell Automation Group's businesses
and (b) the agency licensing agreement by and among Rockwell Collins, Rockwell
Science Center and ITL pursuant to which, among other things, ITL will act as
exclusive
_____________
dt 1465453
;
Rockwell Collins
As referenced in this Distribution Agreement [Form]:
ROCKWELL COLLINS, INC – 2
{SEQUENCE}2
{FILENAME}x46877ex2.txt
{DESCRIPTION}FORM OF DISTRIBUTION AGREEMENT
{TEXT}
{PAGE} 1
Exhibit 2
[5/30/01]
================================================================================
FORM OF
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
NEW ROCKWELL COLLINS, INC .
and
ROCKWELL SCIENTIFIC COMPANY LLC
================================================================================
June 29, 2001
================================================================================
{PAGE} 2
Page
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
Page
----
{S} {C} {C}
ARTICLE I DEFINITIONS..............................................................................1
SECTION 1.01 General..................................................................................1
_____________
ROCKWELL COLLINS, INC – Sections
{/TABLE}
iii
{PAGE} 5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June 29,
2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) NEW ROCKWELL COLLINS, INC ., a Delaware
corporation and, as of the date hereof, a wholly-owned subsidiary of Rockwell
("Rockwell Collins"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware
limited liability company and,
_____________
Rockwell
Collins), inc – manufacturing,
building, selling, distributing, installing, modifying, repairing,
servicing and supporting aviation electronics and airborne and
mobile communications products and systems for commercial and
military applications (marketed primarily under the name Rockwell
Collins), inc luding (i) flight deck electronic products and
systems, including communications, navigation, display and
automatic flight control systems, as well as in-flight
entertainment and information management systems, and (ii) defense
_____________
Rockwell Collins, Inc – 53202
Attention: William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and
Secretary
Telecopy: (414) 212-5357
E-mail: wjcalise@corp.rockwell.com
(b) If to Rockwell Collins:
New Rockwell Collins, Inc .
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laerickson@rockwellcollins.com
_____________
Rockwell Collins, Inc – NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laerickson@rockwellcollins.com
with a copy to:
New Rockwell Collins, Inc .
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: [ ]
Senior Vice President,
General Counsel and
Secretary
Telecopy: (319) [ ]
E-mail: [ ]@rockwellcollins.com
76
{PAGE} 81
(c) If to
_____________
dt 1430628
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More... |
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| 2001 |
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Distribution Agreement (257K)
Doc #409980: Click preview link for longer preview.
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
NEW ROCKWELL COLLINS, INC.
and
ROCKWELL SCIENTIFIC COMPANY, LLC
================================================================================
June , 2001
================================================================================
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I DEFINITIONS................................................ 1
SECTION 1.01 General.................................................... 1
ARTICLE II THE DISTRIBUTION........................................... 30
SECTION 2.01 The Distribution........................................... 30
SECTION 2.02 Cooperation Prior to the Distribution...................... 31
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution...... 31
SECTION 2.04 Waiver of Conditions....................................... 32
SECTION 2.05 Disclosure................................................. 32
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION.................. 32
SECTION 3.01 Intercorporate Reorganization.............................. 32
SECTION 3.02 Financial Instruments...................................... 36
SECTION 3.03 Shared Agreements.......................................... 36
SECTION 3.04 Intercompany Accounts and Arrangements..................... 37
SECTION 3.05 Cash Management............................................ 39
SECTION 3.06 The Rockwell Collins Board and the Rockwell Science Center
Board...................................................... 41
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee............ 42
SECTION 3.08 Rockwell Collins Certificate of Incorporation and By-Laws;
Rights Plan................................................ 43
SECTION 3.09 Insurance.................................................. 43
SECTION 3.10 Use of Names, Trademarks, etc.............................. 46
SECTION 3.11 Consents................................................... 51
SECTION 3.12 Intellectual Property...................................... 52
SECTION 3.13 Software and Other License Agreements...................... 57
SECTION 3.14 Charitable Trusts.......................................... 58
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION............................ 58
SECTION 4.01 Mutual Release............................................. 58
SECTION 4.02 Indemnification by Rockwell................................ 59
SECTION 4.03 Indemnification by Rockwell Collins........................ 59
SECTION 4.04 Indemnification by Rockwell Science Center................. 60
SECTION 4.05 Limitations on Indemnification Obligations................. 61
SECTION 4.06 Procedures Relating to Indemnification..................... 62
SECTION 4.07 Remedies Cumulative........................................ 63
SECTION 4.08 Survival of Indemnities.................................... 63
SECTION 4.09 Exclusivity of Tax Allocation Agreement.................... 64
ARTICLE V ACCESS TO INFORMATION...................................... 64
SECTION 5.01 Access to Information...................................... 64
{/TABLE}
i
{PAGE} 3
{TABLE}
{CAPTION}
Page
----
{S} {C}
SECTION 5.02 Production of Witnesses.................................... 66
SECTION 5.03 Retention of Records....................................... 66
SECTION 5.04 Confidentiality............................................ 67
ARTICLE VI MISCELLANEOUS.............................................. 67
SECTION 6.01 Entire Agreement; Construction............................. 67
SECTION 6.02 Survival of Agreements..................................... 68
SECTION 6.03 Expenses................................................... 68
SECTION 6.04 Governing Law.............................................. 69
SECTION 6.05 Notices.................................................... 69
SECTION 6.06 Dispute Resolution......................................... 71
SECTION 6.07 Consent to Jurisdiction.................................... 71
SECTION 6.08 Amendments................................................. 72
SECTION 6.09 Assignment................................................. 72
SECTION 6.10 Captions; Currency......................................... 72
SECTION 6.11 Severability............................................... 72
SECTION 6.12 Parties in Interest........................................ 73
SECTION 6.13 Schedules.................................................. 73
SECTION 6.14 Termination................................................ 73
SECTION 6.15 Waivers; Remedies.......................................... 73
SECTION 6.16 Further Assurances......................................... 73
SECTION 6.17 Counterparts............................................... 73
SECTION 6.18 Performance................................................ 73
SECTION 6.19 Currency Calculations...................................... 73
SECTION 6.20 Interpretation............................................. 74
{/TABLE}
ii
{PAGE} 4
ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Collins Shared Facilities
Schedule 1.01(l) - Former Businesses of Rockwell Collins
Schedule 1.01(m) - Rockwell Collins Financial Instruments
Schedule 1.01(n) - Rockwell Collins Litigation
Schedule 1.01(o) - Rockwell Collins Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell Collins Subsidiaries
Schedule 1.01(q) - Rockwell Collins U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell Collins Securities
Schedule 1.01(y) - Rockwell Science Center Securities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell Collins Charitable Trust Commitments
Schedule 4.02(b) - Certain Form 10 Sections
iii
{PAGE} 5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June , 2001,
by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation
("Rockwell"), (ii) NEW ROCKWELL COLLINS, INC., a Delaware corporation and, as of
the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell Collins"), and
(iii) ROCKWELL SCIENTIFIC COMPANY, LLC, a Delaware limited liability company
and, as of the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell
Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined that
it is appropriate and desirable to distribute all outstanding shares of Rockwell
Collins Common Stock (as defined herein) on a pro rata basis to the holders of
Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell Collins and Rockwell Science Center have
determined that it is appropriate and desirable to set forth the principal
corporate transactions required to effect such distribution and certain other
agreements that will govern certain matters relating to such distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACTION" means, with respect to any Person, any actual or threatened
or future action, suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Entity or any claims or other legal matters that have
been or may be asserted by or against, or otherwise affect, such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed thereto in
Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(B).
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"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of this Agreement, following the
Time of Distribution no member of any Group shall be deemed to be an Affiliate
of any member of any other Group. For purposes of the immediately preceding
sentence, the term "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise.
"AGREEMENT" shall have the meaning ascribed thereto in the preamble.
"ANCILLARY AGREEMENTS" means, collectively, the Employee Matters
Agreement, the Tax Allocation Agreement, the Continuing Services Agreements, the
Rockwell Science Center Services Agreements, the Product Manufacturing
Agreement, the Transition Agreement and the Conveyance and Assumption
Instruments.
"ASSETS" means any and all assets, properties and rights, whether
tangible or intangible, real, personal or mixed, fixed, contingent or otherwise,
and wherever located (other than ownership interests in Subsidiaries), including
the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and fixtures,
leasehold improvements, repair parts, tools, plant, laboratory and office
equipment and supplies, computer hardware and software, computer
networking equipment, engineering and design equipment, test equipment and
other tangible personal property, together with any rights or claims
arising out of maintenance or service contracts relating thereto or the
breach of any express or implied warranty by the manufacturers or sellers
of any of such assets or any component part thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
(e) cash, cash on hand, cash equivalents, funds, certificates of
deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or not
current), performance and surety bonds and interests as beneficiary under
letters of credit and other similar instruments and all proceeds thereof;
(g) Securities;
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(h) swaps, collars, caps and other hedging arrangements of any kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in whatever
form or medium, including electronic media), including books, records,
notes, sales and sales promotional material and data, advertising
materials, credit information, cost and pricing information, customer and
supplier lists, business plans, reference catalogs, payroll and personnel
records and procedures, blue-prints, research and development files, data
and laboratory books, sales order files, litigation files, minute books,
stock ledgers, stock transfer records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by third
parties;
(m) claims, causes of action, choses in action, rights under express
or implied warranties, guarantees and indemnities and similar rights,
rights of recovery, rights of set-off, rights of subrogation and all other
rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in Section
3.11.
"AUTOMATION PRODUCTS" means (a) industrial automation products,
systems and software, including controllers, electrical and electronic controls,
I/O (input/output) systems, drives (including electronic drives for electric
motors), sensors, power devices, packaged control products, operator interface
devices, computer software and hardware products, gears, gear reducers,
bearings, shaft supports, shaft hangers, shaft couplings, collars, clutches,
sheaves, sprockets, pulleys, elevating and conveying machinery, power
transmission machinery and components thereof, network monitoring products and
motors and (b) training, installation, repair, maintenance, consulting, computer
programming, designing, engineering, technical support and other services for
use in the field of industrial automation.
"BNA" means Boeing North American, Inc., a Delaware corporation
formerly named Rockwell International Corporation, and any successor thereto.
"BOEING" means The Boeing Company, a Delaware corporation.
"BOEING POST-CLOSING COVENANTS AGREEMENT" means the Post-Closing
Covenants Agreement dated as of December 6, 1996 among Rockwell, Boeing, Boeing
NA, Inc. and BNA, including all amendments thereto.
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"BOEING TRANSITION AGREEMENT" means the Transition Agreement dated
as of December 6, 1996 by and among Rockwell, Boeing and BNA, including all
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