STOCKHOLDER AGREEMENT
between
ULTRAMAR DIAMOND SHAMROCK CORPORATION
and
TOTAL
Dated as of April 15, 1997
TABLE OF CONTENTS
1. Definitions
2. Restricted Period
3. Standstill Period
4. Competition
5. Topna Tradename License
6. Topna Technology License
7. Insurance
8. Representations and Warranties of TOTAL
8.1. Organization and Good Standing
8.2. Authorization, Validity and Effect of Agreement
8.3. No Conflict; Required Filings and Consents
8.4. Ownership of Owned Shares
8.5. No Brokers
9. Representations and Warranties of UDS
9.1. Organization and Good Standing
9.2. Authorization, Validity and Effect of Agreement
9.3. No Conflict; Required Filings and Consents
9.4. No Brokers
10. Registration Rights
11. SEC Reports and Other Information
12. Nondisclosure of Information
13. Foreign Shares
14. Nonsurvival of Representations and Warranties
15. Notices
16. Interpretation
17. Counterparts
18. Entire Agreement; No Third-Party Beneficiaries
19. Governing Law
20. Assignment
21. Enforcement
SCHEDULES
Schedule Title
4(a) Covered Territory
5 Tradename License
6(a) Technology License
10 Registration Rights
STOCKHOLDER AGREEMENT
Stockholder Agreement ("Agreement"), dated as of April 15, 1997,
between Ultramar Diamond Shamrock Corporation, a Delaware corporation
("UDS"), and Total, a French societe anonyme ("Total").
RECITALS
A. Simultaneously herewith, certain of the parties are entering into
an agreement (the "Arrangement Agreement") pursuant to which a wholly owned
Canadian Subsidiary of UDS has agreed, on the terms and subject to the
conditions set forth therein, to acquire Topna.
B. Total, or a wholly owned Subsidiary of Total, is the sole record
and beneficial owner of, and has the sole right to vote and dispose of,
21,741,626 Topna Shares (together with any Topna Shares acquired by Total
or wholly owned Subsidiaries of Total after the date hereof, the "Owned
Shares").
C. As a condition to its willingness to enter into the Arrangement
Agreement, UDS has required that Total agree to the matters set forth
herein, and Total is willing to agree to such matters.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants herein contained, the parties
agree as follows:
1. Definitions. Terms used herein with initial capital letters that
are not otherwise defined herein but are defined in the Arrangement
Agreement have the meanings ascribed to them in the Arrangement Agreement.
2. Restricted Period. The "Restricted Period" will commence on the
date hereof and continue until the first to occur of (i) the Effective Time
and (ii) the termination of the Arrangement Agreement in accordance with
the terms thereof (the "Termination Date").
(b) During the Restricted Period, (i) Total will not, nor will it
permit any of its Subsidiaries or Affiliates controlled by it to, nor will
it authorize or permit any of its or any such other Person's officers,
directors, employees or Representatives to, directly or indirectly through
another Person, sell, assign, transfer, grant a participation in, pledge,
hypothecate or otherwise dispose of ("Transfer") any Owned Shares or any
interest therein to any other Person, other than an assignment of Owned
Shares to a wholly owned Subsidiary of Total, provided that Total will
cause such Subsidiary to become a party to this Agreement pursuant to an
instrument reasonably satisfactory to UDS prior to a Transfer of any of the
capital stock of such Subsidiary to any Person other than a wholly owned
Subsidiary of Total, and (ii) Total will not, nor will it permit any of its
Subsidiaries or Affiliates controlled by it to, nor will it authorize or
permit any of its or any such other Person's officers, directors, employees
or Representatives to, directly or indirectly through another Person, (A)
solicit, initiate or encourage, or take any other action designed to
facilitate, any inquiries or the making of any proposal which constitutes
any Topna Takeover Proposal, (B) furnish any confidential information to
any Person, or participate in any discussions or negotiations, in any such
case regarding any Topna Takeover Proposal, or (C) otherwise take or fail
to take any action which would constitute or reasonably be expected to
result in a breach by Topna of any of its covenants under the Arrangement
Agreement, including without limitation Sections 3.01 and 3.02 thereof,
except for such actions with respect to the foregoing which Topna is
permitted to take pursuant to the Arrangement Agreement. Total will not
request that Topna register the Transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any Topna Shares during
the Restricted Period, other than an assignment of Owned Shares to a wholly
owned Subsidiary of Total in accordance with this Agreement.
(c) Total will deliver to UDS, prior to the Closing, a written
agreement substantially in the form attached as Exhibit B to the
Arrangement Agreement.
(d) During the Restricted Period, at any meeting (whether annual or
special and whether or not adjourned or postponed) of the holders of Topna
Shares, including without limitation the Topna Shareholders Meeting, Total
will appear at the meeting or otherwise cause the Owned Shares to be
counted as present thereat for purposes of establishing a quorum and vote
(or cause to be voted) the Owned Shares (i) in favor of the adoption of the
Arrangement Agreement and the approval of the Arrangement Transactions and
any actions in furtherance thereof, (ii) against any action or agreement
that would result in a breach of any representation, warranty, covenant or
any other obligation or agreement of Topna under the Arrangement Agreement
or of Total under this Agreement, and (iii) against any Topna Takeover
Proposal or Topna Superior Proposal or any other action which is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone
or adversely affect the Arrangement and the transactions contemplated by
this Agreement or the Arrangement Agreement. During the Restricted Period,
in connection with any solicitation of the written consent of Topna Shares,
Total will consent or withhold consent (or cause the consent or withholding
of the consent), as the case may be, in accordance with clauses (i), (ii)
and (iii) of the preceding sentence.
(e) Total will not enter into any agreement or understanding with any
Person the effect of which would be inconsistent with or violative of any
provision contained in this Agreement or grant a proxy to any Person (other
than to UDS or solely in furtherance of any matter referred to in Section
2(b)) with respect to any of the Owned Shares or deposit any Owned Shares
in a voting trust or enter into any other agreement, arrangement or
understanding (other than this Agreement) with respect to the foregoing.
3. Standstill Period. The "Standstill Period" will commence on the
date hereof and extend until the first to occur of (a) the fifth
anniversary of the Effective Date, (b) if the Termination Date has
occurred, January 6, 2000, and (c) the date on which the Board of Directors
of UDS (the "UDS Board") recommends a merger or other transaction which
would result in a third party (together with its Affiliates) beneficially
owning, in the aggregate, 50% or more of the UDS Shares then outstanding
(after giving effect to such transaction), or a third party (together with
its Affiliates) acquires beneficial ownership of 50% or more of the then-
outstanding UDS Shares (after giving effect to such transaction) through
merger, purchase or otherwise. During the Standstill Period, except with
the prior written consent of UDS, Total will not, and will not permit any
of its Subsidiaries or Affiliates to, (i) in any manner acquire, agree to
acquire or make any offer or other proposal to acquire, directly or
indirectly, any securities, any business or any material asset of UDS or
any of its Subsidiaries, except (A) securities issued pursuant to a stock
split, stock dividend, rights offering or recapitalization approved by the
UDS Board, provided that such transactions would not otherwise violate the
provisions of this Section 3, and (B) for the acquisition of not more than
1% in the aggregate of the then-outstanding UDS Shares in open-market
purchases over any two-year period, (ii) make any proposal to enter into,
directly or indirectly, any merger or business combination involving UDS or
any of its Subsidiaries, (iii) participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are used in the proxy rules of
the SEC) to vote, or seek to advise or influence any person with respect to
the voting of, any voting securities of UDS or any of its Subsidiaries, in
any manner which has not been recommended by the UDS Board, (iv) form, join
or in any way participate in a "group" (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any voting securities of UDS
or any of its Subsidiaries, other than a "group" composed solely of Total
and wholly owned Subsidiaries thereof, (v) otherwise act, alone or in
concert with others, to seek to control or influence the management
policies or actions of UDS, including without limitation any proposal to
effect any recapitalization, disposition of assets, dividend, distribution
or liquidation, (vi) disclose any intention, plan or arrangement
inconsistent with the foregoing clauses (i) through (v), (vii) advise,
assist or encourage any other Persons to take any action described in any
of the foregoing clauses (i) through (v), or (viii) Transfer any UDS
Shares, other voting stock of UDS or securities exercisable or exchangeable
for UDS Shares or other voting shares (collectively, "UDS Stock") other
than (A) pursuant to an underwritten public offering in accordance with
Section 10, (B) after the period ending 180 days after the Effective Time
(the "180-Day Period"), pursuant to a private sale to a "Person" (within
the meaning of Section 13(d) of the Exchange Act) who, after giving effect
to such sale, would not beneficially own (within the meaning of Rule 13d-3
under the Exchange Act), 4% or more of the outstanding UDS Shares, (C) any
Transfer pursuant to Rule 144 or 145, if applicable, or any similar rule
under the Securities Act, provided that, during the 180-Day Period, such
Transfer has been previously approved by UDS (such approval not to be
unreasonably withheld or delayed in respect of open-market sales or
privately negotiated sales to an institutional investor), (D) pursuant to a
tender offer or other transaction recommended by the UDS Board, or (E) any
Transfer to any wholly owned Subsidiary of Total (each such Subsidiary or
third party transferee, a "Permitted Transferee"), which Permitted
Transferee becomes a party to this Agreement pursuant to an instrument
reasonably satisfactory to UDS. In addition, during the Standstill Period,
Total will not, and will cause its Subsidiaries and Affiliates not to,
directly or indirectly, except with the prior written consent of UDS in its
sole discretion, (1) request that UDS (or its Representatives) amend or
waive any provisions of this Section 3 (including this sentence), other
than any approval relating to the provisions of clause (viii) above and not
involving any event referred to in any other provision hereof, or (2) take
any action which is calculated to or might reasonably be expected to
require UDS to make a public announcement regarding the possibility of a
tender offer, merger or other business combination or acquisition
transaction.
4. Competition. (a) For a period of three years from the Effective
Time, Total will not and will not permit any of its Affiliates to, directly
or indirectly, individually or as a part of a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act), own, lease, operate, manage,
acquire or maintain any economic interest in any Person engaged in the
business of petroleum refining or marketing petroleum products or the
operation of retail gasoline or convenience stores (the "Covered Activity")
in any of the jurisdictions listed in Schedule 4(a) (collectively, the
"Covered Territory"). Notwithstanding the foregoing, Total will not be
restricted from (i) acquiring a Person, or interest therein, which,
directly or through a Subsidiary, engages in the Covered Activity in the
Covered Territory or (ii) engaging in hydrocarbon trading, chemical
manufacturing or other activities that do not constitute the Covered
Activity.
(b) Total acknowledges and agrees that (i) the covenants set forth in
this Section 4 are reasonable in scope, duration, area restrictions and in
all other respects, (ii) UDS would not have entered into this Agreement or
the Arrangement Agreement but for the covenants contained in this Section 4
(and the remaining covenants herein), and (iii) the covenants contained in
this Section 4 have been made in order to induce UDS to enter into this
Agreement and the Arrangement Agreement.
(c) If, at the time of enforcement of this Section 4, a court shall
hold that the scope, duration or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum scope, duration or area restrictions determined by such court to be
reasonable under such circumstances will be substituted for the stated
duration, scope or area restrictions.
(d) In the event of any breach of any provisions of this Section 4,
UDS will have the right, in addition to any other rights and remedies
existing in its favor, to enforce specifically its rights against Total
under this Section 4 and/or injunctive or other equitable relief in order
to enforce or prevent any violations of the provisions of this Section 4.
5. Topna Tradename License. As an inducement to UDS to enter into
the Arrangement Agreement and in partial consideration therefor, at or
prior to the Effective Time, Total will enter into the license with UDS in
the form attached as Schedule 5.
6. Topna Technology License. (a) Total hereby confirms that (i) TPI
will be entitled to continue to use after the Effective Time technology and
software pursuant to licenses in the form of Schedule 6(a) and (ii) it will
enter into a royalty-free technology license relating to solvent technology
and plant design on terms substantially the same as Schedule 6(a) in
respect of Topna's Ardmore, Oklahoma refinery.
(b) Total will inform UDS of the development of new technology which
has application to the Covered Activity reasonably promptly after the
development thereof, and if requested by UDS, will discuss in good faith
with UDS the entry into a technology license in respect thereof on terms
not less satisfactory to UDS as those made available to any nonaffiliated
party. The parties hereby acknowledge that neither UDS nor Total will have
any legal liabilities in respect thereof except as set forth in any such
license.
7. Insurance. Total will fully cooperate with and assist UDS and
Topna and its Affiliates with respect to claims that may be pursued by UDS
or Topna under any insurance policies now or previously owned, issued or
available to Total, Topna or any of their past or current Affiliates. Such
cooperation will include, without limitation, (a) making all claims and
demands against the insurance companies, including providing access to
documents and witnesses and making witnesses available for testimony at
UDS's cost, and pursuing such claims and demands in a commercially diligent
manner and (b) providing UDS, Topna and their Affiliates with all
information reasonably requested or required by them with respect to such
insurance policies or claims, including without limitation all documents
relating or referring to such policies or claims. Until the Effective
Time, Total will take all steps necessary to ensure the continuation and/or
extension of all insurance policies maintained by Total or any of its
Affiliates in order to permit UDS to recover under such policies for losses
arising out of or relating to the past and present businesses of, or assets
owned by or formerly owned by, any of the Topna Companies or for which they
may be held liable or have liability under federal or state laws. In the
event that UDS, Topna or their Affiliates are unable fully to satisfy or
recover under any insurance policy because the aggregate limits or coverage
under such policy have been potentially or wholly impaired as a result of
claims made by Persons other than UDS, Topna and their Affiliates
(excluding Total or its Affiliates), Total will, promptly after UDS
notifies Total of such inability to fully recover under such policy, (i)
take all actions necessary to cause such coverage or aggregate limits to be
reinstated or replenished to the extent necessary to permit UDS, Topna or
such Affiliate thereof to recover the amount under such policy that it
would have been entitled to recover thereunder but for such impairment or
(ii) at the option of Total and without limiting the parties' relative
rights and obligations under clause (i) above, Total may pay or cause
another Person to pay such amount directly to UDS, provided that in no
event will any of UDS, Topna or any of their respective Affiliates have any
reimbursement, indemnity or other obligation in respect of any insurance
payment or claim and Total will indemnify, defend and hold harmless UDS,
Topna and their respective Affiliates with respect to any claim made by any
Person, including any third-party or captive insurance company, which
relates to or arises out of any insurance claim made by UDS, Topna or any
of their Affiliates under any policy of insurance owned or issued to Topna,
Total or their Affiliates.
8. Representations and Warranties of Total. Total hereby represents
and warrants to UDS as follows:
8.1 Organization and Good Standing. Total is a societe anonyme duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
8.2 Authorization, Validity and Effect of Agreement. Total has all
requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Total and the consummation by Total of the
transactions contemplated hereby have been authorized by all necessary
action on the part of Total This Agreement has been duly executed and
delivered by Total and constitutes the valid and binding obligation of
Total, enforceable against Total in accordance with its terms.
8.3 No Conflict; Required Filings and Consents. The execution and
delivery of this Agreement by Total do not, and the consummation by Total
of the transactions contemplated hereby will not, (a) conflict with or
violate the charter or bylaws (or similar governing documents) of Total,
(b) conflict with or violate any Law or Order applicable to Total or by
which Total is bound or affected, or (c) result in any breach of or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or result in the creation of a lien or
other encumbrance on any Owned Shares pursuant to any contract, agreement
or other instrument or obligation to which Total is a party or by which
Total or any property or asset of Total is bound or affected.
8.4 Ownership of Owned Shares. As of the date hereof, Total, or a
wholly owned Subsidiary of Total, is, and as of the Effective Time will be,
the sole record and beneficial owner of the Owned Shares, free and clear of
any security interests, Liens, charges, encumbrances, equities, claims,
options, proxies, stockholder agreements or limitations of whatever nature
and free of any other limitation or restriction (including without
limitation any restriction on the right to Transfer the Owned Shares or any
interest therein) except pursuant to this Agreement and except for
Transfers to wholly owned Subsidiaries or Transfers to third parties in
accordance with this Agreement. The Owned Shares constitute all of the
Topna Shares owned of record or beneficially (within the meaning of Rule
13d-3 under the Exchange Act) by Total and its Subsidiaries as of the date
hereof.
8.5 No Brokers. Total has not entered into any contract, arrangement
or understanding with any Person, other than Credit Suisse First Boston
Corporation, which may result in the obligation of UDS or Topna to pay any
finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby.
9. Representations and Warranties of UDS. UDS hereby represents and
warrants to Total as follows:
9.1 Organization and Good Standing. UDS is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
9.2 Authorization, Validity and Effect of Agreement. UDS has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by UDS and the consummation by UDS of the
transactions contemplated hereby have been authorized by all necessary
corporate actions on the part of UDS. This Agreement has been duly
executed and delivered by UDS and constitutes the valid and binding
obligation of UDS, enforceable against UDS in accordance with its terms.
9.3 No Conflict; Required Filings and Consents. The execution and
delivery of this Agreement by UDS, and the consummation by UDS of the
transactions contemplated hereby, will not (a) conflict with or violate the
charter or bylaws of UDS, (b) conflict with or violate any Law or Order
applicable to UDS or by which UDS is bound or affected, or (c) result in
any breach of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under any contract, agreement
or instrument or obligation to which UDS is a party or by which UDS or any
property or asset of UDS is bound or affected.
9.4 No Brokers. UDS has not entered into any contract, arrangement
or understanding with any Person, other than Merrill Lynch & Co., which may
result in the obligation of UDS or Total to pay any finder's fees,
brokerage or agent's commission or other like payments in connection with
the negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby.
10. Registration Rights. UDS will register for resale UDS Shares
owned by Total (or any Subsidiary thereof that acquires UDS Shares in
transactions permitted by this Agreement or any purchaser of all UDS Shares
beneficially owned by Total and its Subsidiaries at the time of such
purchase and enter into an agreement or instrument reasonably satisfactory
to UDS by which it agrees to be bound by the covenants of Total hereunder
(any such Subsidiary or purchaser, a "Permitted Reg. Rights Assignee"),
pursuant to and in accordance with the terms and conditions set forth on
Schedule 10.
11. SEC Reports and Other Information. So long as Total (or any of
its wholly owned Subsidiaries) owns beneficially or of record 3% or more of
the then-outstanding UDS Shares, UDS will:
(a) Deliver to Total copies of all financial statements, proxy
statements, reports and other general written communications which UDS
sends to its stockholders at the same time as such information is sent to
UDS's stockholders generally and copies of all special or periodic reports
which UDS files with the SEC within 10 days after the filing thereof.
(b) Provide Total with notice of any and all meetings, by means of
telephone conference or otherwise, among members of UDS's senior management
and securities analysts (other than meetings with analysts from a single
firm or meetings the participation in which is otherwise restricted) no
later than 24 hours prior to any such meeting and permit Total to
participate in such meetings.
(c) From time to time upon the request of Total, UDS will cause a
member of its senior management at the Executive Vice President or higher
level to meet (a "Meeting") with members of senior management of Total for
the purpose of informing Total as to the operations and financial condition
of UDS; provided that the number of Meetings per calendar year pursuant to
this Section 11(c) will not exceed three. During any calendar year, the
first Meeting will be held in San Antonio, Texas, the second Meeting will
be held in Paris, France and any additional Meeting will be held at a
location to be agreed upon by UDS and Total (or, absent such agreement, in
New York, New York).
12. Nondisclosure of Information. (a) Total will (i) keep
confidential any information which has been furnished to it by any of the
parties to the Arrangement Agreement or any of their respective
Representatives in connection with the Arrangement Transactions or
otherwise ("Information") and (ii) not use any such Information other than
in connection with the Arrangement Transactions.
(b) If Total or any of its Representatives is requested to disclose
any of the Information, Total will promptly notify UDS to permit UDS to
seek a protective order or take other appropriate action. Total will also
cooperate in such other party's efforts to obtain a protective order or
other reasonable assurance that confidential treatment will be accorded
such Information. If, in the absence of a protective order, Total or any
of its Representatives is, in the written opinion of its counsel, compelled
as a matter of law to disclose any such Information to a third party, such
party may disclose to the third party compelling disclosure only the part
of such Information as is required by law to be disclosed (in which case,
prior to such disclosure, such party will use reasonable efforts to advise
and consult with UDS and its counsel as to such disclosure and the nature
and wording of such disclosure) and will use its reasonable efforts to
obtain confidential treatment therefor.
(c) This Section 12 will not apply to such portions of Information
furnished by any other party or its Representatives which (i) are or become
generally available to the public through no action of the party to which
such Information was furnished and its Representatives or (ii) are or
become available to the party to which it was furnished on a
nonconfidential basis from a source, other than from the other parties or
their respective Representatives, which the receiving party believes, after
reasonable inquiry, was not prohibited from so disclosing such portions by
a contractual, legal or fiduciary obligation.
13. Foreign Shares. Total agrees to take commercially reasonable
actions to the extent necessary so that no registration or qualification of
UDS Shares issued pursuant to the Arrangement will be required by any
Governmental Entity in France or pursuant to any French Law.
14. Nonsurvival of Representations and Warranties. The
representations and warranties contained in Sections 8.1 through 8.5 and
9.1 through 9.4 will survive the Effective Time until 90 days following the
expiration of the applicable statute of limitations. This Section 14 will
not limit any covenant or agreement of the parties hereunder or any
provision of any of the Arrangement Agreements.
15. Notices. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as will be
specified by like notice):
(a) If to Total, to:
Total
Total Refining and Marketing
51, Esplanade du General deGaulle
CEDEX 97
La Defense 10
92907 Paris, France
Telecopy: 1 41 35 42 91
Attention: Jean-Paul Vettier
with a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
Telecopy: (212) 969-2900
Attention: Stanley Komaroff, Esq.
If to UDS, to:
Ultramar Diamond Shamrock Corporation
9830 Colonnade Boulevard
San Antonio, Texas 78230
Telecopy: (210) 691-6492
Attention: Patrick J. Guarino, Esq.
with a copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Telecopy: (212) 755-7306
Attention: Robert A. Profusek, Esq.
16. Interpretation. When a reference is made in this Agreement to a
Section or Schedule, such reference will be to a Section of, or a Schedule
to, this Agreement unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and will not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they will
be deemed to be followed by the words "without limitation." The words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement will refer to this Agreement as a whole and not to any
particular provision of this Agreement. The terms used in this Agreement
are applicable to the singular as well as the plural forms of such terms
and to the masculine as well as to the feminine and neuter genders of such
term. Any agreement, instrument or statute defined or referred to herein
or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
17. Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement
and will become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
18. Entire Agreement; No Third-Party Beneficiaries. This Agreement
and the other Arrangement Documents (a) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement and
(b) are not intended to confer upon any Person other than the parties (or
Permitted Transferees that are holders of Owned Shares in accordance with
this Agreement) any rights or remedies.
19. Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflict of laws thereof.
20. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned, in whole or
in part, by operation of Law or otherwise by any of the parties hereto
without the prior written consent of the other parties. Any assignment in
violation of the preceding sentence will be void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and
be enforceable by, the parties and their respective successors and assigns.
Without limiting the generality or effect of any other provision hereof,
(a) Total agrees that this Agreement and the obligations hereunder will
attach to all Owned Shares, whenever acquired, and will be binding upon any
Person to which legal or beneficial ownership of such Owned Shares passes,
whether by operation of Law or otherwise and (b) Permitted Reg. Rights
Assignees will have the rights specified in Section 10.
21. Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at Law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any federal
court located in Delaware, this being in addition to any other remedy to
which they are entitled at Law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction
of any federal court located in Delaware in the event any dispute arises
out of this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such
court, and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any
court other than in Delaware. The parties agree that service of process on
Total in any proceeding will be deemed effective if made by delivery to
Proskauer Rose Goetz & Mendelsohn LLP in the manner provided pursuant to
Section 15.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of
the date first written above.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ Roger R. Hemminghaus
Roger R. Hemminghaus
Chairman and Chief Executive Officer
By: /s/ Jean Gaulin
Jean Gaulin
President and Chief Operating Officer
TOTAL
By: /s/ Jean Paul Vettier
Jean-Paul Vettier
Executive Vice President
SCHEDULE 4(a)
COVERED TERRITORY
Arkansas
Colorado
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Michigan
Minnesota
Mississippi
Missouri
Nebraska
New Mexico
North Dakota
Ohio
Oklahoma
South Dakota
Tennessee
Texas
Wisconsin
Wyoming
Schedule 5
LICENSE AGREEMENT
License Agreement, dated as of , 1997, between Total, a French
societe anomyme ("Licensor"), and Ultramar Diamond Shamrock Corporation, a
Delaware corporation ("Licensee").
WITNESSETH
WHEREAS, Licensee, 3007152 Nova Scotia Company, a Nova Scotia
unlimited liability company and wholly-owned subsidiary of Licensee, and
Total Petroleum (North America) Ltd., a Canadian corporation ("Bronco") and
majority-owned subsidiary of Licensor, entered into an Arrangement
Agreement, dated as of April 15, 1997 (the "Arrangement Agreement"),
pursuant to which Licensee will acquire Bronco, and Licensor entered into a
Stockholder Agreement, dated as of April 15, 1997 (the "Stockholder
Agreement") with Licensee.
WHEREAS, Licensor owns the Trademarks (as defined herein) used by
Bronco in its business.
WHEREAS, Licensee, in connection with its acquisition of Bronco,
desires to use the Trademarks referred to above in connection with the
Petroleum Business (as defined herein) of Licensee and its subsidiaries
(including all Bronco-operated or jobber retail facilities) in the
Territories.
WHEREAS, Licensee desires to have Licensor grant Licensee a license,
and Licensor desires to grant Licensee a license, to enable Licensee and
its subsidiaries to use the Trademarks referred to above in the Petroleum
Business in the Territories, upon the terms and conditions contained in
this Agreement.
NOW, THEREFORE, Licensor and Licensee hereby agree as follows:
ARTICLE 1 - Definitions
As used in this Agreement, the following terms have the meanings
specified or referred to in this Article 1:
"Licensee" is defined in the first paragraph of this Agreement.
"Licensor" is defined in the first paragraph of this Agreement.
"Petroleum Business" shall mean the manufacture, processing,
packaging, advertising, promotion, distribution and/or sale of Petroleum
Products (as defined herein) and Related Services (as defined herein) and
the operation of Retail Facilities (as defined herein), excluding
hydrocarbon trading, chemical manufacturing and other activities that do
not constitute the Petroleum Business.
"Petroleum Products" shall mean (i) petroleum and products derived
from petroleum, (ii) natural gas, liquefied natural gas and natural gas
liquids, and (iii) goods and merchandise customarily sold or offered in
conjunction with the foregoing items, which shall include, automobile parts
and accessories, engine lubricants and automobile fluids of all types.
"Retail Facilities" shall mean retail gasoline and convenience stores.
"Related Services" shall mean repairs and related services customarily
offered in conjunction with Petroleum Products.
"Territories" shall mean the states listed on Schedule 1 hereto.
"Trademarks" shall mean the trademarks, trade names, word marks,
service marks, designs and emblems listed on Schedule 2 hereto.
ARTICLE 2 - Grant
2.1 Subject to the terms and conditions of this Agreement, Licensor
hereby grants to Licensee, and Licensee hereby accepts, a license, during
the term of this Agreement, to use the Trademarks in connection with the
Petroleum Business of Licensee and its subsidiaries in the Territories for
substantially and exclusively the same purposes that the Trademarks are
used for the businesses conducted by Bronco and its subsidiaries on the
date hereof. The license granted in this Agreement is not intended to be,
and shall not be construed as, an assignment, in whole or in part, of any
trademark rights of Licensor.
2.2 Licensor agrees that during the term of this Agreement it will
not license to any third party (other than to Licensor's subsidiaries) the
right to use the Trademarks in connection with the Petroleum Business in
the Territories. Notwithstanding the foregoing, Licensor (and any of its
subsidiaries) may use the Trademarks, within or outside of the Territories
(other than the State of Michigan during the term hereof), for any purpose,
subject to the Stockholder Agreement; provided that, in the event that
Licensor (or any of its subsidiaries) acquires a person in the Petroleum
Business and such acquisition is permitted by the terms of the Stockholder
Agreement, Licensor (or any of its subsidiaries) may use the Trademarks
with respect to such acquired Petroleum Business in the Territories (other
than the State of Michigan during the term hereof) at any time after the
earlier of the fourth anniversary of the date of this Agreement and the
termination of this Agreement with respect to such Territories.
2.3 Licensee shall not sell of distribute in the Territories any
Petroleum Products the packaging of which bears any Trademarks to any
person if the Licensee knows that such Petroleum Products will be shipped
or sold or distributed outside of the Territories, either by the person
acquiring such Petroleum Products from Licensee of by any other person.
ARTICLE 3 - Use of Trademark
3.1 Licensee shall use the trademarks only in the form in which they
are registered and currently used in the Territories and shall not use, or
authorize the use of, an abbreviated form of any Trademark. Licensee shall
comply with Licensor's general specifications and standards of trademark
usage set forth in the Total Trademark Graphic Standards, revised and
expanded, second edition May 1996, previously delivered to Licensee (the
"Specifications"), including, as applicable, in connection with all
advertisements and promotional materials.
3.2 Licensee shall not use any Trademark in the packaging material or
on signage at Licensee's Retail Facilities unless Licensee has submitted to
Licensor at a designated location in the United States for approval
reasonably in advance of such use, and Licensor has approved (or has not
objected within 5 business days after such submission for approval), the
use of such Trademarks and the quality, style and taste of such packaging
materials or signage.
3.3 Bronco may continue to use its name, which contains the Trademark
"TOTAL", in the Territories during the term of this agreement, but Licensee
and its subsidiaries (other than Bronco) may not use any of the Trademarks
(or any part of any Trademark) in their names or in the name of any other
business. Licensee hereby agrees that as soon as possible after the
termination of this Agreement Licensee shall take all actions necessary to
change the name of Bronco so that it does not contain the Trademark "TOTAL"
or any other Trademark (or part thereof).
3.4 No other name, trademark (except the Trademarks), inscription or
design ("Other Marks") shall (a) be affixed to packaging for Licensee's
Petroleum Products bearing the Trademarks or (b) appear on signage or other
displays at Licensee's Retail Facilities bearing the Trademarks.
Notwithstanding the foregoing, during the term of this Agreement, Licensee
may use Other Marks owned by Licensee on Licensee's Retail Facilities
bearing the Trademarks when Licensee is rebranding such Retail Facilities,
if Licensee clearly indicates at such Retail Facilities that the Trademarks
are owned by Licensor. Other Marks owned by Licensee may be displayed on
credit cards bearing the Trademarks, to the extent permitted by the
Specifications.
ARTICLE 4 - Quality Standards
4.1 So as to protect the goodwill associated with the Trademarks,
Licensee shall maintain the quality of the Petroleum Products and Related
Services sold or distributed, and the Retail Facilities operated, under the
Trademarks, at a level at least equal to the quality level at which such
Petroleum Products, Related Services and Retail Facilities are maintained
by Bronco as of the date hereof and from time to time in effect for Retail
Facilities generally. Upon request of Licensor, Licensee shall (i) furnish
to Licensor samples of the Petroleum Products, or otherwise provide a means
for sampling Petroleum Products, within five days after such request, and
(ii) upon five days notice and during normal business hours permit Licensor
to inspect any of its Retail Facilities, in each case for the purpose of
allowing Licensor to verify proper trademark usage and that the quality of
the Petroleum Products, Related Services and Retail Facilities meet the
Licensor's quality standards. If Licensor determines that any Petroleum
Products, Related Services or Retail Facilities do not meet such quality
standards, then Licensor shall notify Licensee of such failure and shall
specifically identify the areas and extent of such non-compliance.
Promptly following such notice, Licensee shall take all reasonable action
required to bring the Petroleum Products, Related Services and Retail
Facilities in compliance with such quality standards or discontinue the use
of the Trademarks in connection with the particular Petroleum Products,
Related Services or Retail Facilities which have failed to meet such
quality standards.
4.2 Licensee shall, upon at least five days notice and during normal
business hours, permit Licensor or its representatives full access to
inspect the facilities of Licensee and its subsidiaries where the Petroleum
Products bearing the Trademarks are located in order to enable Licensor to
determine whether the Petroleum Products comply with the quality standards,
trademark usage and other terms and conditions set forth in or promulgated
pursuant to this Agreement.
4.3 Licensor shall maintain the quality of the Petroleum Products and
Related Services sold or distributed, and the Retail Facilities operated,
by Licensor under the Trademarks, both within and outside the Territories,
so as to protect the goodwill associated therewith.
ARTICLE 5 - Consideration
The license granted hereby is a royalty-free license.
ARTICLE 6 - Trademark Rights - Infringement
6.1 During the term of this Agreement, to the extent required,
Licensor shall take all action necessary to register the Trademarks for
Petroleum Products, Related Services and Retail Facilities in the
Territories and to maintain such Trademarks in effect in the Territories.
Licensee agrees not to seek to register the Trademarks (in any form) or any
other marks confusingly similar thereto.
6.2 If an action is commenced against Licensee alleging that its use
of the Trademarks infringe any party's trademarks, Licensee shall promptly
inform the Licensor of such Action. Upon notice to Licensee, Licensor,
with the cooperation of Licensee, may assume the defense of such action if
Licensor agrees to indemnify and hold harmless Licensee against any
monetary liability Licensee may incur from such action; provided, that
Licensor shall not be required to indemnify and hold harmless Licensee with
respect to Licensee's use of Trademarks other than as provided in this
Agreement. If Licensor assumes the defense of such action, Licensor shall
select counsel to conduct such defense and shall control such defense and
the settlement thereof. If Licensor does not assume such defense, then
Licensee, with the cooperation of Licensor, may control such defense but
shall not enter into any settlement thereof without the prior consent of
Licensor.
6.3 If Licensee shall become aware that any Trademark is being
disputed or infringed by any party, Licensee shall inform Licensor thereof
and, upon Licensor's request, shall give Licensor all necessary information
to protect its rights to the Trademarks, including all evidence, material
and data relating to such dispute or infringement. Licensor, with the
cooperation of Licensee, shall take, at its sole expense, such action as
Licensor deems appropriate to protect its rights to the Trademarks,
including commencing legal action in its own name or in Licensee's name or
joining Licensee as a party thereto (provided that if Licensor joins
Licensee as a party it shall indemnify and hold harmless Licensee against
any monetary liability Licensee may incur from being joined as a party).
Any such legal action, including the settlement thereof, shall be
controlled by Licensor. Any proceeds recovered as a result of such legal
action shall be the sole property Licensor.
6.4 Licensee acknowledges that Licensor owns the Trademarks.
Licensee shall never dispute the validity of the Trademarks or take, or
cause to be taken, any action that would invalidate the Trademarks or
otherwise diminish the Licensor's proprietary rights to the Trademarks. It
is understood that Licensee shall not acquire or claim any right or title
to the Trademarks adverse to Licensor by virtue of the license granted to
Licensee, it being the intention of the parties that any rights resulting
from the use of the Trademarks by Licensee shall at all times inure to the
benefit of Licensor.
6.5 Licensee hereby indemnifies and holds harmless Licensor from and
against any claims (including product liability claims) which may be made
or brought against Licensor and/or which it may suffer or incur as a result
of, or in respect of, or arising out of (i) the advertisement, promotion,
sale, offering for sale, and/or distribution of Petroleum Products and
Related Services by Licensee or its sublicensees, (ii) the operation of
Retail Facilities by Licensee or its sublicensees, or (iii) otherwise in
connection herewith, in each case after the date hereof.
ARTICLE 7 - Confidentiality
7.1 Each of Licensor and Licensee agrees that it shall not disclose,
reveal or make available to any third party any confidential or proprietary
information, whether of a technical, financial, commercial or other nature,
received directly or indirectly from the other party ("Confidential
Information"), except as authorized in writing by such other party and
except that either party may disclose such information:
(a) to its employees to whom, and to the extent that, such disclosure
is necessary in furtherance of the purposes of this Agreement; provided,
however, that the disclosing party shall be responsible for ensuring that
such employees comply with the confidentiality and non-use provisions of
this Article 7, and shall take the steps necessary to ensure such
compliance, whether by agreement, establishment of internal regulations, or
otherwise;
(b) to the extent required by applicable law or by judicial or
administrative process; and
(c) to the extent that the disclosing party can establish that the
information: (i) has fallen into the public domain through no unauthorized
act of the disclosing party; (ii) was received from a third party not under
any obligation to refrain from revealing such information; or (iii) was in
the disclosing party's possession prior to the receipt from the other
party.
7.2 Each party (in Section 7.2, the "disclosing party") agrees that
it shall not use any Confidential Information received from the other
party, except (i) as specifically provided in this Agreement, (ii) as
otherwise expressly authorized in writing by the other party or (iii) to
the extent that the disclosing party can establish that the Confidential
Information (x) has fallen into the public domain through no unauthorized
act of the disclosing party, (y) was received from a third party not under
any obligation to refrain from revealing such information or (z) was in the
disclosing party's possession prior to the receipt from the other party.
ARTICLE 8 - Term and Termination
8.1 Subject to the terms and conditions of this Article 8, this
Agreement will initially have a term commencing at the Effective Time (as
defined in the Arrangement Agreement) through (i) in the State of Michigan,
the fifth anniversary of the Effective Time, and (ii) in each state in the
Territories other than Michigan, through one year after the term of the
longest jobber contract (without giving effect to any renewals, automatic
or otherwise) to which any Bronco Company (as defined in the Arrangement
Agreement) is a party in effect in the relevant jurisdiction at the
Effective Time, but in no event less than four years.
8.2 As to the State of Michigan, subject to the terms and conditions
of this Article 8, this Agreement will automatically be renewed for two
additional successive five-year periods (each, a "Renewal Period"), unless
Licensee provides Licensor with written notice at least 180 days prior to
the expiration of the Prior License Period (as defined herein) of its
intention not to renew. Each Renewal Period, if any, will commence upon
the end of the immediately preceding initial term or Renewal Period, as the
case may be ("Prior License Period"), and, subject to this Article 8, will
end on the fifth anniversary of the end of the Prior License Period. No
renewals or extensions hereunder shall affect the right of either party to
terminate this Agreement pursuant to the provisions hereof.
8.3 As to each state in the Territories other than Michigan, if
jobber/distributor agreements in effect in such state at the Effective Time
as listed on Schedule 3 which accounted for at least 90% of all
jobber/distributor volume for jobber/distributor agreements in effect in
such state at the Effective Time have expired prior to the fourth
anniversary of the Effective Time, Licensor shall have the right to
terminate this Agreement with respect to such state; provided, however,
that with respect to Retail Facilities which are now owned or operated by
Licensee, this Agreement shall continue with respect to such Retail
Facilities for such time as Licensee shall require to terminate the rights
under this Agreement granted to the operators of such Retail Facilities,
and Licensee shall be obligated to make commercially reasonable efforts
(other than incurring expenses) to terminate any sublicenses or rights
granted to such operators and to cause such operators to discontinue the
use of the Trademarks, in each case as promptly as practicable.
8.4 Either party may terminate this Agreement on 90 days' prior
notice to the other party, if the other party is in breach of any of its
obligations under this Agreement (other than breach of quality standards as
set forth in Article IV with respect to a particular Retail Facility) and
such breach remains unremedied for 90 days after written notice thereof
shall have been given to such party or, if such breach is one which
requires more than 90 days to remedy, the remedying of which shall not have
commenced within such 90-day period, or if such remedying has commenced
during such 90-day period, such remedying shall not thereafter have been
diligently pursued through completion.
8.5 If during the term of this Agreement Licensee or any of its
sublicensees or Authorized Users (as defined herein) has permitted the
quality of any Retail Facility to decline below the quality standards
applicable to such Retail Facility as set forth in Article IV, Licensor
shall have the right to terminate Licensee's rights hereunder with respect
to such Retail Facility if Licensee or its sublicensees or Authorized Users
fails to remedy for 90 days after written notice of such decline shall have
been given by Licensor or, if such decline is one which requires more than
90 days to remedy, the remedying of which shall not have commenced within
such 90-day period, or if such remedying has commenced during such 90-day
period, such remedying shall not thereafter have been diligently pursued
through completion.
8.6 This Agreement shall terminate upon a change of control (or two
years thereafter if Licensee exercises its right to sublicense under
Section 10.4) of any subsidiary of Licensee who has been sublicensed rights
or delegated duties pursuant to Section 10.1 or the sale or other
disposition of all or a material portion of Licensee's or of any of its
subsidiary's (which subsidiary has been sublicensed rights or delegated
duties pursuant to Section 10.1) Petroleum Business in the Territories, in
any case, which is not approved in writing by Licensor prior thereto. A
"change of control" shall be deemed to have occurred upon a transfer of
record or beneficial ownership of any class of capital stock of a person
constituting 50% or more of the outstanding shares of any such class.
8.7(a) This Agreement shall terminate automatically in the event of
bankruptcy of Licensee or Bronco, whether voluntary or involuntary, or in
the event that Licensee or Bronco makes an assignment for the benefit of
creditors.
(b) Licensee shall be entitled to terminate this Agreement on notice
to Licensor in the event of bankruptcy of Licensor, whether voluntary or
involuntary, or in the event that Licensor makes an assignment for the
benefit of creditors.
8.8(a) The termination of this Agreement shall be without prejudice
to any rights or obligations which may have arisen between the parties
hereto prior to the date of such termination.
(b) Upon the effective date of termination, Licensee shall cease
using the Trademarks, including in packaging materials, advertisements or
promotional materials for Petroleum Products, as well as the color schemes
and designs identifying the Retail Facilities.
ARTICLE 9 - Notice
All notices, requests, claims, demands and other communications under
this Agreement will be in writing and will be deemed given if delivered
personally, telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the other parties at the following
addresses (or at such other address for a party as will be specified to the
other parties by like notice:)
(a) If to Licensor, to:
Total
Total Refining and Marketing
51, Esplanade de General deGaulle
CEDEX 97
La Defense 10
92907 Paris, France
Telecopy: 1 41 35 42 91
Attention: Jean-Paul Vettier
With a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036-8299
Telecopy: (212) 969-2900
Attention: Stanley Komaroff, Esq.
(b) If to Licensee, to:
Ultramar Diamond Shamrock Corporation
9830 Colonnade Boulevard
San Antonio, Texas 78230
Telecopy: (210) 691-6492
Attention: Patrick J. Guarino, Esq.
With a copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Telecopy: (212) 755-7306
Attention: Robert A. Profusek, Esq.
ARTICLE 10 - Assignability/Rights to Use
10.1 This Agreement is not assignable by Licensee, except as provided
below, but is assignable by Licensor. Licensee may assign any of its
rights and delegate any of its duties under any provision hereof to any
wholly-owned subsidiary of Licensee that executes an instrument in writing
reasonably acceptable to Licensor becoming a party to this Agreement to the
extent of such assignment or delegation.
10.2 Licensor does hereby grant to Licensee the right to authorize
during the term of this Agreement, the use of one or more of the Trademarks
to its wholesale customers and their customers and dealers ("Authorized
Users") for the purpose of selling Petroleum Products at Retail Facilities
in the Territories; provided, however, that all such Authorized Users are
subject to the quality control provisions provided herein and such
standards are enforced by Licensee. Licensor retains the right to revoke
any Authorized User's rights if the quality control standards in its
reasonable opinion are not adequately maintained.
10.3 In connection with the transfer of any Retail Facility in the
Territory bearing the Trademarks and owned by Licensee to any person,
Licensee (or its assignee hereunder) may sublicense any of its rights
hereunder to use the Trademark to such person if such person, as of the
time of such transfer is entitled to use any of the Trademarks in the
Petroleum Business in the Territories. Licensor retains the right to
revoke any sublicenses if the quality control provisions contained therein
(which shall be no less than the quality control provisions provided
herein) in its reasonable opinion are not adequately maintained.
10.4 At Licensee's option, in connection with the transfer of all or
substantially all of the Retail Facilities in Michigan using the Trademarks
and owned by Licensee to a person (other than a wholly-owned subsidiary of
Licensee), Licensee may sublicense the right to use the Trademarks in
Michigan for a period of up to two years (of if shorter, the remaining term
of this Agreement) after such transfer, subject to Article 8. Licensor
retains the right to revoke any sublicenses if the quality control
provisions contained therein (which shall be no less than the quality
control provisions provided herein) in its reasonable opinion are not
adequately maintained.
ARTICLE 11 - Miscellaneous
11.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
11.2 This Agreement constitutes the entire agreement between the
parties hereto relating to the subject matter hereof and supersedes all
previous agreements between the parties.
11.3 This Agreement, or any provision hereof, may not be waived,
modified or terminated orally but only by an agreement in writing, signed
by all the parties hereto. The failure at any time of any party hereto to
insist on strict performance of any provision of this Agreement shall not
limit the ability of the party to insist at any future time on strict
performance of the same or any provision (except insofar as that party may
have given a valid and effective waiver).
11.4 Each party hereby acknowledges that a breach or attempted breach
of any material provisions of this agreement would cause the other party
irreparable injury not compensable in money damages. Therefore, each party
agrees that, in addition to any of the other party's other rights and
remedies, in the event of any such breach or attempted or threatened breach
by it, the other party shall be entitled to obtain temporary and permanent
injunctive relief against such party and a decree for specific performance
of this provisions of this agreement without being required to prove
damages or post any bond or other securities.
11.5 The captions contained in this Agreement are for convenience and
reference only, and shall not be deemed part of this Agreement.
11.6 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which shall
constitute one and the same agreement.
11.7 If any term or provision of this Agreement or the application
thereof to any party or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.8 The word "person" shall mean a natural person, a partnership, a
corporation and any other form of business or legal entity.
11.9 The provisions of Articles 6, 7 and 9 shall survive termination
of this Agreement.
11.10 Each of the parties shall, without further consideration,
execute and deliver to the other party such documents and instruments, and
take such other action, as the other party may reasonably request to carry
out the license of the Trademarks and other transactions contemplated by
this Agreement.
IN WITNESS THEREOF, the parties have caused this document to be
executed as of the date and year first above written.
By:
Name:
Title:
By:
Name:
Title:
TERMINATION AGREEMENT
Termination Agreement, dated as of , 1997, between Total, a
French societe anomyme ("Licensor"), and Total Petroleum, Inc., a Michigan
corporation ("Licensee").
Licensor and Licensee hereby agree that effective as of the date
hereof the United States Trademark License Agreement, dated as of November
1, 1985, between Licensor and Licensee is hereby terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
TOTAL
By:
Name:
Title:
TOTAL PETROLEUM INC.
By:
Name:
Title:
Schedule 6(a)
Paris, 15.12.95
Re: TOTAL FCC Technologies
Dear Sirs,
In connection with the implementation of certain TOTAL FCC Technologies
(hereafter the "TF Technologies") among which:
the manufacture of feed injectors,
the counter-current feed injection,
and the use of static mixors in the catalyst stripping chambers, in
the FCC units of the refineries of Alma and Ardmore (hereafter the
"Refineries"), you have or will have access to certain proprietary and
confidential information and technical results (hereafter the
"Information") on said TF Technologies.
The purpose of this Letter-Agreement is to set forth the basis upon which
said Information is to be used and held in confidence by the Refineries.
1) Right-to-use:
As a subsidiary of the TOTAL group, the Refineries are granted by TOTAL a
free-of-charge and non-exclusive right-to-use the Information in the
corresponding FCC unit, with an immunity from suit of TOTAL's patent
rights, provided the Refineries use said rights solely in accordance with
the terms of this Letter-agreement.
Said rights do not include the right to sublicense the TF Technologies to
third parties.
2) Grant-back:
It is expressly agreed that all rights title, estate and interest in and to
the TF Technologies shall remain the property of TOTAL.
If requested by TOTAL, the Refineries agree to
permit representatives and clients or prospective clients of TOTAL to
visit the FCC unit of the Refineries in which the TF Technologies are
used, during normal working hours and subject to the Refineries
standard conditions of such visits;
make available to TOTAL and TOTAL's representatives, design and
operating data which will be acquired by the Refineries during the
term of this Letter-Agreement by the practice of the TF Technologies.
3) Confidentiality:
1) the Information will be used solely for the purpose of operating
the unit of the Refineries,
2) the Refineries shall take due measures to keep secret and
confidential any Information received in connection with this
Letter-Agreement,
3) the Information will not be disclosed to third Parties except if
said parties have first entered into an agreement with TOTAL as
least as stringent as hereunder,
4) the Information will not be duplicated or reproduced except for
such copies or reproductions as may be reasonably required to
effect the purpose of this agreement,
5) the Refineries shall use all precautions insofar as legally
possible, to impose the same secrecy obligations upon its
employees, both during and after the period of their employment,
for as long as and to the same extent that the Refineries remains
under these obligations,
6) In any case, the obligation with respect to the unintentional
disclosure of Information furnished hereunder shall terminate ten
(10) years after the end of the present Agreement.
It is understood that for the purpose of this Letter-Agreement, the term
"Information" shall mean any confidential information and data such as
research programs, specifications provided either directly (for instance as
a written document, or as a drawing, or as electronic data) or indirectly
(for instance during discussions between specialists during a visit of our
to the extent that the foregoing obligations of secrecy and non-use shall
not apply with respect to:
a) information which is, or which subsequently becomes, public
knowledge through no fault of the receiving Party,
b) information which was in possession of the receiving Party prior
to the disclosure thereof to the receiving Party,
c) information disclosed in writing to the receiving Party by a third
party who did not acquire such information directly or indirectly
from the disclosing Party under a similar obligation of secrecy
and non-use;
and to the extent that:
d) a specific piece of Information shall not be deemed to be within
the exceptions a), b), c), of the preceding sentence merely
because it is embraced by more general information,
c) nor shall a combination of features be deemed to be within such
exceptions merely because the individual features of said
combination are within such exceptions.
4) Assignment:
This Agreement with the rights and obligations relating thereto may not be
assigned to a third party unless this agreement shall have been assumed by
the assignee, and when duly assigned in accordance with the foregoing, this
Agreement shall be binding upon and inure to the benefit of the assignee.
5) Duration:
The present Letter-Agreement shall be effective from the date of the last
signature below and shall be in full force as long as the Refineries use
the TF Technology in their FCC units, being understood that the termination
of this Letter-Agreement, whatever the cause, will not release the
Refineries from their obligations of confidentiality.
****
If you agree to the foregoing terms, will you please so indicate by having
both copies of this Letter-Agreement executed by an authorized
representative of the Refinery and one exemplary returned to us. In the
meantime, we remain,
Yours faithfully
TOTAL RAFFINAGE DISTRIBUTION S.A.
By : Jean-Beanard SIGAUD
"Accepted and Agreed" Title: Research General Manager
By : /s/ James N. MacCoy
Title: Sr. V.P. REFINING
/s/
Paris, 15,12.95
Re: TOTAL Software
Dear Sirs,
In connection with the internal exchanges of technical information within
the TOTAL group, certain softwares of simulation (hereafter the
"Softwares") respectively called <<REFOSIM>>, <<ISOSIM>> AND <<MOLIERE>>,
were provided to TPI for the needs of the operation and of the units of its
refineries (hereinafter the "Refineries").
These Softwares including certain proprietary and confidential information
(hereafter the "Information") of great value for TOTAL, this Letter-Agreement
sets forth the basis upon which the Softwares and the Information
are to be used and kept confidential by the Refineries.
1) Right-to-use:
As subsidiaries of the TOTAL group, the Refineries are granted by TOTAL a
free-of-charge and non-exclusive right-to-use the Softwares and the
Information for the needs of their units, provided said Refineries use said
rights solely in accordance with the present agreement.
Said rights do not include the right to sublicense the Softwares to third
parties.
2) Grant-back:
It is expressly agreed that all rights, title, estate and interest in and
to the Software shall remain the property of TOTAL.
If requested by TOTAL, the Refineries agree to make available to TOTAL and
TOTAL's representatives, any updates and/or modifications to the Softwares
during the term of this Letter-Agreement.
3) Confidentiality:
1) the Information will be used solely for the purpose of operating
the unit of the Refineries,
2) the Refineries shall take due measures to keep secret and
confidential the Softwares and the Information,
3) the Softwares and the Information will not be disclosed to third
Parties except if said parties have first entered into an agreement
with TOTAL as least as stringent as hereunder,
4) the Softwares and the Information will not be duplicated or
reproduced except for such copies or reproductions as may be
reasonably required to effect the purpose of this agreement,
5) the Refineries shall use all precautions insofar as legally
possible, to impose the same secrecy obligations upon its
employees, both during and after the period of their employment,
for as long as and to the same extent that the Refineries remains
under these obligations,
6) In any case, the obligation with respect to the unintentional
disclosure of Information furnished hereunder shall terminate ten
(10) years after the end of the present Agreement.
It is understood that for the purposes of this Letter-Agreement, the term
"Information" shall mean any confidential information and data such as
research programs, specifications provided either directly (for instance as
a written document, or as a drawing, or as electronic data), or indirectly
(for instance during discussions between specialists or during a visit of
our labs or facilities),
to the extent that the foregoing obligations of secrecy and non-use shall
not apply with respect to:
a) information which is, or which subsequently becomes, public
knowledge through no fault of the receiving Party,
b) information which was in possession of the receiving Party prior
to the disclosure thereof to the receiving Party,
c) information disclosed in writing to the receiving Party by a third
party who did not acquire such Information directly or indirectly
from the disclosing Party under a similar obligation of secrecy
and non-use;
and to the extent that:
d) a specific piece of Information shall not be deemed to be within
the exceptions a), b), c), of the preceding sentence merely
because it is embraced by more general information,
e) nor shall a combination of features be deemed to be within such
exceptions merely because the individual features of said
combination are within such exceptions.
4) Assignment:
This Agreement with the rights and obligations relating thereto may not be
assigned to a third party unless this agreement shall have been assumed by
the assignee, and when duly assigned in accordance with the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the
assignee.
5) Duration:
The present Letter-Agreement shall be effective from the date of the last
signature below and shall be in full force as long as the Refineries use
the Softwares under the present conditions.
It is furthermore understood that the termination of this Letter-Agreement,
whatever the cause, will not release the Refineries from their obligations
of confidentiality.
***
If you agree to the foregoing terms, will you please so indicate by having
both copies of this Letter-Agreement executed by an authorized
representative of the Refinery and one exemplary returned to us. In the
meantime, we remain,
Yours faithfully
TOTAL RAFFINAGE DISTRIBUTION S.A.
By : Jean-Bernard SIGAUD
"Accepted and Agreed" Title: Research General Manager
By : /s/ James N. MacCoy
Title: SR. V.P. REFINING /s/
Schedule 10
REGISTRATION RIGHTS
UDS will register for resale UDS Shares owned by Total, any wholly
owned Subsidiary of Total or, subject to Section 10, any Permitted Reg.
Rights Assignee pursuant to and in accordance with the terms and provisions
set forth on this Schedule 10.
1. Definitions. For purposes of this Schedule 10, the following
terms will have the following meanings:
"Total" means, collectively, Total, any wholly owned Subsidiaries of
Total and any Permitted Reg. Rights Assignees which may from time to time
be the record holders of Registrable Securities in accordance with the
Agreement of which this Schedule is a part.
"Business Day" means a day, other than a Saturday or Sunday, on which
banking institutions and securities exchanges in New York, New York are
open.
"Counsel to Total" means the single law firm reasonably acceptable to
UDS from time to time representing Total
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by any Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"underwritten registration" or "underwritten offering" means an
underwritten offering in which securities of UDS are sold to an underwriter
for reoffering to the public.
2. Subject Securities. The securities entitled to the benefits of
this Schedule 10 are the UDS Shares acquired by Total in the Arrangement or
other securities issued or issuable with respect thereto by way of a stock
split or stock dividend or in connection with a combination of shares,
exchange offer, recapitalization, merger, consolidation or other
reorganization approved by the UDS Board (the "Registrable Securities").
For the purposes of this Section 10, Registrable Securities will cease to
be Registrable Securities when and to the extent that (a) a registration
statement covering such Registrable Securities (a "Registration Statement")
has been declared effective under the Securities Act and such Registrable
Securities have been disposed of in accordance with the Registration
Statement, (b) such Registrable Securities have been disposed of without
registration under the Securities Act (other than to a Permitted
Transferee), or (c) the Registrable Securities have ceased to be
outstanding.
3. Piggy-Back Registration Rights. (a) Whenever during the period
commencing 180 calendar days after the Effective Time and ending on the
earlier of (i) the first date as of which all Registrable Securities cease
to be Registrable Securities and (ii) the first date as of which Total owns
beneficially less than 1% of the UDS Shares then outstanding, UDS proposes
to file a registration statement under the Securities Act relating to the
public offering of UDS Shares or securities convertible into or exercisable
or exchangeable for UDS Shares ("UDS Securities") for cash pursuant to a
firm commitment underwritten offering (other than pursuant to a
registration statement on Form S-4 or Form S-8 or any successor forms, or
filed in connection with an exchange offer or an offering of securities
solely to existing stockholders or employees of UDS), UDS will (A) give
written notice at least 15 Business Days prior to the filing thereof to
Total, specifying the approximate date on which UDS proposes to file such
registration statement and advising Total of its right to have any or all
of the Registrable Securities then held by Total included among the
securities to be covered thereby, and (B) at the written request of Total
given to UDS at least five Business Days prior to the proposed filing date,
include among the securities covered by such registration statement the
number of Registrable Securities which Total shall have requested be so
included (subject, however, to reduction in accordance with paragraph (b)
of this Section). UDS will use commercially reasonable efforts to cause
the managing underwriter of the proposed underwritten offering to permit
the Registrable Securities so requested to be included in the Registration
Statement for such offering to be included in such offering on the same
terms and conditions as any similar securities of UDS included therein.
(b) In the event Total desires to participate in an offering pursuant
to Section 3(a), Total may include Registrable Securities in any
registration statement relating to such offering; provided that if the lead
managing underwriter selected by UDS for an underwritten offering pursuant
to Section 3(a) determines that marketing factors require a limitation on
the number of UDS Shares to be offered and sold by the stockholders of UDS
in such offering, there will be included in the offering only that number
of UDS Shares (including Registrable Securities), if any, that such lead
managing underwriter determines will not jeopardize the success of the
offering of all UDS Shares that UDS desires to sell for its own account.
In such event and provided the managing underwriter has so notified UDS in
writing, the number of UDS Shares to be offered and sold by stockholders of
UDS, including Total, desiring to participate in such offering will be
allocated pro rata among such holders of the UDS Shares on the basis of the
number of UDS Shares held by each holder and entitled to be registered
(subject to any written agreements entered into prior to the date hereof
between UDS and one or more holders requiring a different priority).
(c) Nothing in this Section 3 will create any liability or obligation
on the part of UDS to Total if UDS for any reason should decide not to file
a registration statement proposed to be filed under Section 3(a) or to
withdraw such registration statement subsequent to its filing, regardless
of any action whatsoever that Total may have taken, whether as a result of
the issuance by UDS of any notice hereunder or otherwise.
(d) A request by Total to include Registrable Securities in a
proposed underwritten offering pursuant to Section 3(a) will not be deemed
to be a request for a demand registration pursuant to Section 4.
4. Demand Registration Rights. (a) Upon the written request by
Total during the period commencing 180 calendar days after the Effective
Time and ending on the earlier of (i) the first date as of which all
Registrable Securities cease to be Registrable Securities and (ii) the
first date as of which the Registrable Securities may be disposed of
without registration under the Securities Act without compliance with the
volume limitations under Rule 144 or 145 under the Securities Act (or any
comparable requirements) (the "Effective Period") that UDS effect the
registration with the SEC under and in accordance with the provisions of
the Securities Act of all or part of the Registrable Securities (which
written request will specify the aggregate number of shares of Registrable
Securities requested to be registered and the means of distribution), UDS
will file a Registration Statement covering Registrable Securities
requested to be registered as expeditiously as possible after receipt of
such request; provided, however, that UDS will not be required to take any
action pursuant to this Section 4:
(A) if prior to the date of such request UDS shall have effected
two registrations pursuant to this Section 4;
(B) if UDS has effected a registration pursuant to Section 3
within the 180-day period preceding such request;
(C) if UDS shall at the time have effective a shelf registration
statement pursuant to Rule 415 under the Securities Act (a "Shelf
Registration Statement") pursuant to which Total could effect the
disposition of Registrable Securities in the manner requested;
(D) if the Registrable Securities which UDS shall have been
requested to register shall have a then-current market value of less than
U.S. $50,000,000, unless such registration request is for all remaining
Registrable Securities; or
(E) during the pendency of any Section 6(a) Period or Section 6(b)
Period (each, a "Blackout Period").
provided further, however, that UDS will be permitted to satisfy its
obligations under this Section 4(a) by amending (to the extent permitted by
applicable Law) any registration statement previously filed by UDS under
the Securities Act so that such registration statement (as amended) will
permit the disposition (in accordance with the intended methods of
disposition specified as aforesaid) of all of the Registrable Securities
for which a demand for registration has been made under this Section 4(a).
If UDS so amends a previously filed registration statement, it will be
deemed to have effected a registration for purposes of this Section 4.
(b) Total may distribute the Registrable Securities covered by such
request by means of an underwritten offering or any other lawful means, as
determined by Total.
(c) A registration requested pursuant to this Section 4 will not be
deemed to be effected for purposes of this Section 4 if it has not been
declared effective by the SEC or become effective in accordance with the
Securities Act and the rules and regulations thereunder.
(d) Total may, at any time prior to the effective date of the
Registration Statement relating to such registration, revoke such request
by providing a written notice to UDS revoking such request. In such event,
Total will reimburse UDS for all its out-of-pocket expenses incurred in the
preparation, filing and processing of the Registration Statement; provided,
however, that, if such revocation was based on (i) UDS's failure to comply
in any material respect with its obligations hereunder or (ii) the
occurrence of a Blackout Period, such reimbursement will not be required.
5. Selection of Underwriters. In connection with any underwritten
offering pursuant to a Registration Statement filed pursuant to a demand
made by Total under Section 4, Total will have the right to select a
managing underwriter or underwriters to administer the offering, which
managing underwriter or underwriters will be reasonably satisfactory to
UDS.
6. Blackout Periods. (a) If (i) during the Effective Period, UDS
files or proposes to file a registration statement (other than in
connection with the registration of securities issuable pursuant to a
continuous "at the market offering" pursuant to Rule 415(a)(4) under the
Securities Act, an employee stock option, stock purchase, dividend
reinvestment plan or similar plan or pursuant to a merger, exchange offer
or a transaction of the type specified in Rule 145(a) under the Securities
Act) with respect to any securities of UDS, and (ii) with prior notice, (A)
UDS (in the case of a non-underwritten offering pursuant to such
registration statement) advises Total in writing that a sale or
distribution of Registrable Securities would adversely affect such offering
or (B) the managing underwriter or underwriters (in the case of an
underwritten offering) advise UDS in writing (in which case UDS will notify
Total) that a sale or distribution of Registrable Securities would
adversely affect such offering, then UDS will not be obligated to effect
the filing of a Registration Statement pursuant to Section 4 during the
period commencing on the date that is 30 calendar days prior to the date
UDS estimates (as certified in writing by an officer of UDS to Total
following a request for registration pursuant to Section 4(a)) will be the
date of the filing of, and ending on the date which is 120 calendar days
following the effective date of, such Registration Statement (a "Section
6(a) Period").
(b) If UDS determines in good faith that the registration and
distribution of Registrable Securities (i) would materially impede, delay
or interfere with any pending financing (other than a financing of the type
described in Section 6(a)), acquisition, corporate reorganization or other
significant transaction involving UDS or (ii) would require disclosure of
non-public material information, the disclosure of which would materially
and adversely affect UDS, UDS will promptly give Total written notice of
such determination and will be entitled to postpone the filing or
effectiveness of a Registration Statement for a reasonable period of time
not to exceed 120 calendar days (a "Section 6(b) Period"); provided,
however, that in connection therewith UDS will be required to deliver to
Counsel to Total (as identified at such time to UDS) a general statement,
signed by an officer of UDS, summarizing the reasons for such postponement
and an estimate of the anticipated delay. UDS will promptly notify Total
of the expiration or earlier termination of a Section 6(b) Period.
(c) Notwithstanding anything in this Section 6 to the contrary, (i)
the beginning of any Blackout Period will be at least 60 calendar days
after the end of the prior Blackout Period and (ii) the aggregate number of
days included in all Blackout Periods and all Section 7(e) Periods and
Section 7(m) Periods (collectively, "Registration Hold Periods") during any
consecutive 12-month period during the Effective Period will not exceed 180
calendar days.
7. Registration Procedures. If and whenever UDS is required to use
commercially reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this
Agreement, UDS will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities on any form for which UDS then
qualifies or which counsel for UDS deems appropriate, and which form is
available for the sale of the Registrable Securities in accordance with the
intended methods of distribution thereof (including, if so requested by
Total, distributions under Rule 415 under the Securities Act pursuant to a
Shelf Registration Statement), and use commercially reasonable efforts to
cause such Registration Statement to become and remain effective;
(b) prepare and file with the SEC amendments and post-effective
amendments to such Registration Statement and such amendments to the
Prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration or as may be required by the rules,
regulations or instructions applicable to the registration form utilized by
UDS or by the Securities Act or rules and regulations thereunder necessary
to keep such Registration Statement effective for up to 90 calendar days,
in the case of an underwritten offering, or 180 calendar days, in any other
case (or longer period in the event of a Registration Hold Period during
such 90 or 180 calendar days, as provided in this Section 7) and cause the
Prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to otherwise comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement until the earlier of (i) such 90th or 180th
calendar day (or longer period) and (ii) such time as all Registrable
Securities covered by such Registration Statement have ceased to be
Registrable Securities; provided that a reasonable time before filing a
Registration Statement or Prospectus, or any amendments or supplements
thereto, UDS will furnish to Total, the managing underwriter and their
respective counsel for review and comment copies of all documents proposed
to be filed and will not file any such documents to which any of them
reasonably object prior to the filing thereof;
(c) furnish to Total such number of copies of such Registration
Statement and of each amendment and post-effective amendment thereto (in
each case including all exhibits), any Prospectus or Prospectus supplement
and such other documents as Total may reasonably request in order to
facilitate the disposition of the Registrable Securities by Total (UDS
hereby consenting to the use (subject to the limitations set forth in the
last paragraph of this Section 7) of the Prospectus or any amendment or
supplement thereto in connection with such disposition);
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions within the United
States as Total reasonably requests, and do any and all other acts and
things which may be reasonably necessary or advisable to enable Total to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by Total, except that UDS will not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction where, but for the requirements of this Section 7(d), it
would not be obligated to be so qualified, to subject itself to taxation in
any such jurisdiction or to consent to general service of process in any
such jurisdiction;
(e) notify Total at any time when a Prospectus relating to any such
Registrable Securities is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b) or UDS's becoming
aware that the Prospectus included in any Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing (the period during which Total is required to refrain from
effective public sales or distributions in such case being referred to as a
"Section 7(e) Period"), and prepare and furnish to Total a reasonable
number of copies of an amendment to such Registration Statement or related
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and the
time during which such Registration Statement is required to remain
effective pursuant to Section 7(b) will be extended by the number of days
in the Section 7(e) Period;
(f) notify Total at any time,
(i) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when
the same has become effective;
(ii) of any request by the SEC for amendments or supplements to
the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the SEC of any stop order of which UDS or
its counsel is aware suspending the effectiveness of the
Registration Statement or any order preventing the use of a
related Prospectus, or the initiation or any threats of any
proceedings for such purposes;
(iv) of the receipt by UDS of any written notification of the
suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
any threats of any proceeding for that purpose; and
(v) if at any time the representations and warranties of UDS
contemplated by Section 7(i)(i) cease to be true and correct
in any material respect;
(g) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to Total an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act, provided that UDS will be deemed to have complied with
this Section 7(g) if it has satisfied the provisions of Rule 158 under the
Securities Act;
(h) use commercially reasonable efforts to cause all such Registrable
Securities to be listed on any securities exchange or automated quotation
system on which UDS Shares are then listed, if such Registrable Securities
are not already so listed and if such listing is then permitted under the
rules of such exchange or automated quotation system, and to provide a
transfer agent and registrar for such Registrable Securities covered by
such Registration Statement no later than the effective date of such
Registration Statement;
(i) enter into agreements (including underwriting agreements) and
take all other appropriate and reasonable actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i) make such representations and warranties to Total and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in comparable
underwritten offerings;
(ii) obtain opinions of counsel to UDS thereof (which counsel and
opinions (in form, scope and substance) will be reasonably
satisfactory to the managing underwriters, if any, and
TOTAL) addressed to Total and the underwriters, if any,
covering the matters customarily covered in opinions
requested in comparable underwritten offerings and such
other matters as may be reasonably requested by Total and
the managing underwriter, if any;
(iii) obtain "cold comfort" letters and bring-downs thereof from
UDS's independent certified public accountants addressed to
TOTAL and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters by independent accountants
in connection with underwritten offerings;
(iv) if requested, provide indemnification in accordance with the
provisions and procedures of Section 10 to all parties to be
indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be reasonably
requested by Total and the managing underwriters, if any, to
evidence compliance with Section 7(f) and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by UDS.
(j) cooperate with Total and the managing underwriter or underwriters
or agents, if any, to facilitate, to the extent commercially reasonable
under the circumstances, the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing the
securities to be sold under such Registration Statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or underwriters or agents, if any, or Total may
request;
(k) if reasonably requested by the managing underwriter or
underwriters or Total, incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and Total
agree should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including without limitation
information with respect to the purchase price being paid by such
underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering and make
all required filings of such Prospectus supplement or post-effective
amendment as promptly as practicable upon being notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
(l) provide Total, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or
other agent retained by Total or underwriter (collectively, the
"Inspectors") reasonable access to appropriate officers of UDS to ask
questions and to obtain information reasonably requested by any such
Inspector and make available for inspection all financial and other records
and other information, pertinent corporate documents and properties of any
of UDS (collectively, the "Records") as may be reasonably necessary to
enable them to exercise their due diligence responsibilities; provided,
however, that the Records that UDS determines, in good faith, to be
confidential and which it notifies the Inspectors in writing are
confidential will not be disclosed to any Inspector unless such Inspector
signs a confidentiality agreement reasonably satisfactory to UDS but in any
event permitting disclosure by an Inspector if (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission of a
material fact in such Registration Statement or (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; provided further, however, that any decision
regarding the disclosure of information pursuant to clause (i) may be made
only after consultation with counsel for the applicable Inspectors. Total
agrees that it will promptly, after learning that disclosure of such
Records is sought in a court having jurisdiction, give notice to UDS and
allow UDS, at UDS's expense, to undertake appropriate action to prevent
disclosure of such Records; and
(m) in the event of the issuance of any stop order of which UDS or
its counsel is aware suspending the effectiveness of the Registration
Statement or of any order suspending or preventing the use of any related
Prospectus or suspending the qualification of any Registrable Securities
included in the Registration Statement for sale in any jurisdiction, UDS
will use commercially reasonable efforts promptly to obtain its withdrawal;
and the period for which the Registration Statement will be kept effective
will be extended by a number of days equal to the number of days between
the issuance and withdrawal of any stop orders (a "Section 7(m) Period").
UDS may require Total to furnish to UDS such information regarding Total
and pertinent to the disclosure requirements relating to the registration
and the distribution of such securities as UDS may from time to time
reasonably request in writing. Upon receipt of any notice from UDS of the
happening of any event of the kind described in Section 7(e), Total will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities
until Total's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 7(e), and, if so directed by UDS, Total
will deliver to UDS (at UDS's expense) all copies, other than permanent
file copies then in Total's possession of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
8. Registration Expenses. UDS will pay, upon the written request of
Total, all reasonable expenses incident to the performance of or compliance
with this Agreement, including without limitation (a) all SEC, National
Association of Securities Dealers, Inc. and securities exchange
registration and filing fees, (b) all printing expenses, (c) all fees and
expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or automated quotation system
pursuant to Section 7(h), and (d) the fees and disbursements of counsel for
UDS and of its independent public accountants, and Total will pay (i) any
fees or expenses, disbursements of counsel to Total and (ii) all
underwriting discounts and commissions and transfer taxes, if any, and all
other fees, costs and expenses of Total relating to the sale or disposition
of Registrable Securities pursuant to the Registration Statement.
9. Reports under the Exchange Act. UDS will:
(a) file with the SEC in a timely manner all reports and other
documents required of UDS under the Exchange Act; and
(b) furnish to Total, during the Effective Period, forthwith upon
request (i) a written statement by UDS that it has complied with the
current public information and reporting requirements of Rule 144 under the
Securities Act and the Exchange Act and (ii) a copy of the most recent
annual or quarterly report of UDS and such other reports and documents so
filed by UDS.
10. Registration Indemnification; Contribution. (a) UDS will
indemnify and hold harmless Total, its officers, directors, agents,
trustees, general partners and each person who controls Total (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against all losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees, disbursements and expenses) as and
when incurred by such party pursuant to any actual or threatened action,
suit, proceeding or investigation arising out of or based upon (i) any
violation by UDS (or its officers, directors or controlling persons) of any
federal or state Law, rule or regulation applicable to UDS and relating to
any action required or inaction by UDS (or such other person) in connection
with or relating to any Registration Statement, (ii) any untrue or alleged
untrue statement of material fact contained in the Registration Statement,
any Prospectus or preliminary Prospectus, or any amendment or supplement to
any of the foregoing, or (iii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a Prospectus or a preliminary
Prospectus, in light of the circumstances then existing) not misleading,
except in each case insofar as the same arise out of or are based upon any
such untrue statement or omission made in reliance on and in conformity
with information with respect to such indemnified party furnished in
writing to UDS by such indemnified party or its counsel expressly for use
therein. In connection with an underwritten offering, UDS will indemnify
the underwriters thereof, their officers, directors, agents, trustees,
general partners, and each person who controls such underwriters (within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of Total Notwithstanding the foregoing provisions of this
Section 10(a), UDS will not be liable to Total (or any officer, director,
agent, trustee or controlling person thereof), any person who participates
as an underwriter in the offering or sale of Registrable Securities or any
other person, if any, who controls Total or underwriter (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act),
under the indemnity agreement in this Section 10(a) for any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense that arises out of Total's or such other person's failure to send
or deliver a copy of the final Prospectus to the person asserting the
existence of an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of the
Registrable Securities to such person if such statement or omission was
corrected in such final Prospectus and UDS had previously furnished copies
thereof to Total or such other person in accordance with this Agreement.
(b) In connection with a Registration Statement, Total will furnish
to UDS in writing such information, including the name and address of, and
the amount of Registrable Securities held by, Total, as UDS reasonably
requests for use in such Registration Statement or the related Prospectus
and will indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 10(a)) UDS or any underwriter, as the case
may be, and any of their respective affiliates, directors, officers,
agents, trustees and controlling persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act), against any
losses, claims, damages, liabilities and expenses resulting from (i) any
violation by Total (or its officers, directors, agents, trustees or
controlling persons) of any federal or state Law, rule or regulation
relating to action required of or inaction by Total (or such other person)
in connection with its offer and sale of Registrable Securities and (ii)
any untrue or alleged untrue statement of a material fact contained in, or
any omission or alleged omission of a material fact required to be stated
in, such Registration Statement or Prospectus or any amendment or
supplement to either of them or necessary to make the statements therein
(in the case of a Prospectus, in the light of the circumstances then
existing) not misleading, but only to the extent that any such untrue
statement or omission is made in reliance on and in conformity with
information with respect to Total furnished in writing to UDS by Total or
its counsel specifically for inclusion therein.
(c) Any Person entitled to indemnification hereunder agrees to give
prompt written notice to the indemnifying party after the receipt by such
indemnified party of any written notice of the commencement of any action,
suit, proceeding or investigation or threat thereof made in writing for
which such indemnified party may claim indemnification or contribution
pursuant to this Agreement (provided that failure to give such notification
will not affect the obligations of the indemnifying party pursuant to this
Section 10 except to the extent the indemnifying party shall have been
actually prejudiced as a result of such failure). In case any such action
is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it wishes, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who may not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation, unless in the reasonable judgment of any indemnified
party a conflict of interest is likely to exist, based on the written
opinion of counsel, between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party will be obligated to pay the reasonable fees and
expenses of such additional counsel. No indemnifying party, in defense of
any such action, suit, proceeding or investigation, may, except with the
consent of each indemnified party, consent to the entry of any judgment or
entry into any settlement (which consent will not be unreasonably withheld)
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability with respect to such action, suit, proceeding or investigation to
the extent the same is covered by the indemnity obligation set forth in
this Section 10. No indemnified party may consent to entry of any judgment
or enter into any settlement without the consent of each indemnifying party
(which consent will not be unreasonably withheld).
(d) If the indemnification from the indemnifying party provided for
in this Section 10 is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, will contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
and expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with
the actions which resulted in such losses, claims, damages, liabilities and
expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party will be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above will be deemed to include,
subject to the limitations set forth in Section 10(c), any legal and other
fees and expenses reasonably incurred by such indemnified party in
connection with any investigation or proceeding. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 10(d),
no underwriter will be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Registrable
Securities underwritten by it. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Total's obligation to contribute is
several in the proportion that the proceeds of the offering received by
Total bears to the total proceeds of the offering, and not joint. If
indemnification is available under this Section 10(d), the indemnifying
parties will indemnify each indemnified party to the full extent provided
in Section 10(a) or 10(b), as the case may be, without regard to the
relative fault of said indemnifying parties or indemnified party or any
other equitable consideration provided for in this Section 10(d).
(e) In no event will Total be liable or required to contribute any
amount under this Section 10 or otherwise in respect of any untrue or
alleged untrue statement or omission or alleged omission for amounts in
excess of the amount by which the total price at which the Registrable
Securities of Total were offered to the public exceeds the amount of any
damages which Total has otherwise been required to pay by reason of such
untrue statement or omission.
(f) The provisions of this Section 10 will be in addition to any
liability which any indemnifying party may have to any indemnified party
and will survive the termination of this Agreement.
11. Participation in Underwritten Offerings. Total may not
participate in any underwritten offering pursuant to Section 2 unless Total
(i) agrees to sell the Registrable Securities on the basis provided in any
underwriting arrangements approved by UDS in its reasonable discretion and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.