Exhibit 10.5
ENVIRONMENTAL RESPONSIBILITY AGREEMENT
This ENVIRONMENTAL RESPONSIBILITY AGREEMENT ("Agreement") is
made as of December 1, 1999, by and among ACX Technologies, Inc.
("ACX"), and its Affiliates, and CoorsTek, Inc. ("CTI"), and its
Affiliates, hereinafter collectively referred to as the "Parties."
RECITALS
As part of this Agreement, the Parties recite certain
background information, so that persons who may subsequently
read, interpret, and apply this Agreement may understand the
motives and intent of the Parties and be better able to interpret
and apply its provisions.
A. The Parties recognize that their historical operations
may give rise to certain environmental liabilities.
B. The Parties recognize that future situations may
involve both ACX Parties and CTI Parties as a result of
geographic proximity of operations and past inter-company
transactions and arrangements.
C. The Parties intend that each of them will be and remain
responsible for their own respective actions, practices,
operations, and wastes, including those that pre-date this
Agreement.
D. The Parties further recognize that providing for the
handling and resolution of environmental conditions involving ACX
Parties and CTI Parties is in their common interests.
E. In furtherance of their common interests, the Parties
may desire to exchange documents (as that term is used in Fed.
Rule Civ. P. 34) and/or information that may be privileged work
product or subject to federal and/or state privileges, including,
but not limited, to the attorney-client privilege.
F. By distributing any documents or information among
themselves under the terms and conditions as set forth herein,
the Parties intend to fully preserve and not to waive any
privilege or other protection that may be available with respect
to such documents or information.
G. In no event shall entering into this Agreement, or any
subsequent agreement relating to allocation of costs associated
with any Liability, be construed or used in any manner as an
admission of any responsibility or liability or any share thereof
by any Party, or as a waiver by any Party of any defenses or
claims relating to any Liability, except as expressly set forth
herein.
1. Definitions. Capitalized terms used and not otherwise
defined herein will have the definitions set forth in the
Distribution Agreement dated as of October __, 1999, between ACX
and CTI ("Distribution Agreement"). Other terms capitalized
herein shall have the following meanings:
"ACX" shall mean ACX and its successors and assigns.
"ACX Parties" shall mean ACX and its Affiliates.
"CTI" shall mean CTI and its successors and assigns.
"CTI Parties" shall mean CTI and its Affiliates.
"Environmental Liability(ies)" shall mean any demand,
claim, proceeding, cause of action, obligation, or liability
which arises, or allegedly arises, from a Party's use, storage,
generation, transportation, release, discharge, emission or
disposal of any material, waste, pollutant or contaminant at any
time, including all times prior to the effective date of this
Agreement.
"Parties(ies)" shall mean CTI Parties and ACX Parties.
"Shared Information" shall mean mental impressions,
client confidences, expert opinions, data bases, opinions, work
product, information, memoranda, reports, and other documents
shared by the Parties under this Agreement that are considered
confidential and/or privileged.
2. Term of Agreement. The Agreement shall be effective
commencing on January 1, 2000, and shall remain in effect for
fifty (50) years thereafter.
3. Indemnification.
(a) Each ACX Party shall severally indemnify, defend
and hold harmless each CTI Party and each of their respective
directors, officers, employees and agents from and against any
and all Environmental Liabilities incurred or suffered by such
CTI Party in connection with or arising out of or due to,
directly or indirectly, (i) any past, present or future actions,
practices, or operations of such ACX Party, or (ii) any failure
to perform, or violation of, any provision of this Agreement that
is to be performed or complied with by such ACX Party.
(b) Each CTI Party shall severally indemnify, defend
and hold harmless each ACX Party and each of their respective
directors, officers, employees and agents from and against any
and all Environmental Liabilities incurred or suffered by such
ACX Party in connection with or arising out of or due to,
directly or indirectly, (i) any past, present or future actions,
practices, or operations of such CTI Party, or (ii) any failure
to perform, or violation of, any provision of this Agreement that
is to be performed or complied with by such CTI Party.
4. Duty to Notify. If any ACX Party or CTI Party becomes
aware of (a) any potential or actual Environmental Liability with
respect to which the other is or could be named or (b) a
reasonable likelihood that Environmental Liabilities may be
asserted against such other Party, it shall promptly so notify
such Party.
5. Duty to Cooperate. The Party giving such notice and
the Party that has been so notified shall cooperate with each
other to coordinate the exchange of information (including access
to knowledgeable employees) related to the investigation, defense
or settlement of any Environmental Liability.
6. Confidentiality and Use of Information.
(a) Confidentiality of Shared Information. By
distributing any documents or information among themselves under
the terms and conditions of this Agreement, the Parties expressly
agree not to waive, and intend to fully preserve, any privilege
or other protection that may be available with respect to such
documents or information. Each Party agrees that all Shared
Information received from any other Party or its counsel pursuant
to this Agreement shall be held in strict confidence by the
receiving Party and that such information shall be used only in
connection with any Liability. The Shared Information may, but
need not, be marked "Confidential" or with a similar legend.
Distribution of Shared Information among the Parties shall not
constitute a waiver of the attorney-client or attorney-work
product privileges. Any Party receiving Shared Information
pursuant to this Agreement agrees to distribute the information
only in a manner consistent with the privileges protecting such
information. Each Party shall take all necessary and appropriate
measures to ensure that any person who is granted access to any
Shared Information or who in any manner participates in joint
projects, or who otherwise assists any counsel in connection with
the performance of this Agreement, is familiar with the terms of
this Agreement and complies with such terms as they relate to the
duties of such person.
(b) Intent, Duration, and Scope of Confidentiality
Provisions. The Parties intend to protect from disclosure all
Shared Information exchanged pursuant to this Agreement to the
greatest extent permitted by law regardless of whether the
information is marked "Confidential." The provisions of this
Agreement shall not apply to information that is now or hereafter
becomes public knowledge without violation of this Agreement or
which is sought and attained from a Party pursuant to discovery
procedures and not otherwise protected from disclosure. The
confidentiality obligations of the Parties shall survive the
termination of this Agreement and the resolution or settlement of
any Liability.
(c) Notification of Proposed Disclosure. If any Party
is subpoenaed or becomes the subject of any process that will
require or result in the disclosure of any confidential
information, that Party will promptly notify the other Parties.
7. Enforcement of Agreement/Dispute Resolution. If the
Parties are unable to resolve any disagreement or dispute arising
out of matters within the scope of this Agreement, then the
provisions in Article IX of the Distribution Agreement shall
apply. All negotiations pursuant to this clause are confidential
and shall be treated as compromise and settlement negotiations
for purposes of the federal and state rules of evidence.
8. Rights of Contribution. In circumstances in which the
indemnification provisions of this Agreement apply, such
provisions are in lieu of federal and state statutory and common
law rights of contribution. The rights created by the Agreement
are stipulated to be contractual in nature.
9. Reservation of Rights. Except as provided in Section
8, the Parties reserve any and all rights they may have under
other agreements or under any federal or state statutory or
common law.
10. Joint Defense Agreements. Except as otherwise provided
in the Distribution Agreement, for any Third Party Claim in which
both one or more ACX Parties and one or more CTI Parties share an
actual or potential material interest, the Parties affected
thereby shall enter into a Joint Defense Agreement. Unless an
Indemnifying Party is the sole indemnifying party or the parties
otherwise specifically agree in writing in a Joint Defense
Agreement, each party shall pay its proportionate share (as
provided in the Joint Defense Agreement) of all costs and
expenses reasonably incurred in connection with the defense of
such Third Party Claim.
11. Miscellaneous.
(a) Amendment. This Agreement may be amended at any
time by agreement of ACX and CTI. All amendments shall be in
writing and executed by ACX and CTI.
(b) No Admission. Nothing in this Agreement is
intended as, shall constitute, or shall be interpreted,
construed, or used as evidence of any admission by a Party of any
wrongdoing, liability, or fault (including comparative or
proportional fault or liability), a waiver of any defense, an
estoppel, or an admission as to any matter of law or fact, either
as among the Parties or with respect to any person or entity not
a Party to this Agreement; provided, however, that any Party
shall be entitled to use this Agreement as may become necessary
to enforce its terms.
(c) Entire Agreement. This Agreement constitutes the
entire Agreement and understanding among the Parties with respect
to the subject matter hereof and supersedes all prior and/or
contemporaneous written or oral agreements or understandings
relating to the subject matter of this Agreement.
(d) Counterparts. This Agreement may be executed in
multiple counterparts.
(e) Successors, Assigns and Additional Parties. This
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the successors and assigns of any of the Parties.
ACX and CTI shall cause their respective new Affiliates to be
bound by this Agreement.
(f) Partial Invalidity. If any portion of this
Agreement is declared invalid or unenforceable, the remainder of
this Agreement shall continue in full force and effect.
(g) No Other Beneficiaries. Except to the extent
expressly provided otherwise herein, this Agreement shall not
inure to the benefit of any third party or parties and shall not
relieve any insurer or other third party who would otherwise be
obligated to pay any claim of the responsibility with respect
thereto or, solely by virtue of the indemnification provisions
hereof, provide any subrogation rights with respect thereto, and
each party agrees to waive such rights against the other to the
fullest extent permitted.
(h) Governing Law. This Agreement shall be governed
by and shall be construed and enforced in accordance with the
laws of the State of Colorado, except for any conflict of laws
provisions in said laws of the State of Colorado that might
otherwise require the application of the laws of a jurisdiction
other than the State of Colorado.
(i) Headings. The headings contained in this
Agreement are for convenience only and are not intended to limit
the scope or affect the interpretation of any provision of this
Agreement.
(j) Joint Negotiation. The Parties acknowledge that
this Agreement is the result of joint negotiations among the
Parties and agree that neither this agreement nor any amendment
to the Agreement shall be construed or interpreted against any
Party on the grounds of sole or primary authorship.
(k) Relationship of Parties. Each Party reserves the
right to select and retain or employ its own legal counsel to
represent such Party in connection with this Agreement. Nothing
contained in this Agreement shall be deemed to create a
partnership, joint venture, agency, or other similar relationship
between or among any Parties.
Effective as of the 1st day of January, 2000.
ACX TECHNOLOGIES, INC. COORSTEK, INC.
By: /s/ Jill B. W. Sisson By: /s/ Katherine A. Resler
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Name: Jill B. W. Sisson Name: Katherine A. Resler
Title: General Counsel and Title: General Counsel and
Secretary Secretary