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Exhibit 2.1
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
ROCKWELL COLLINS, INC.
and
ROCKWELL SCIENTIFIC COMPANY LLC
June 29, 2001
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.......................................................................... 1
SECTION 1.01 General.............................................................................. 1
ARTICLE II THE DISTRIBUTION..................................................................... 35
SECTION 2.01 The Distribution..................................................................... 35
SECTION 2.02 Cooperation Prior to the Distribution................................................ 35
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution................................ 36
SECTION 2.04 Waiver of Conditions................................................................. 37
SECTION 2.05 Disclosure........................................................................... 37
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION............................................ 37
SECTION 3.01 Intercorporate Reorganization........................................................ 37
SECTION 3.02 Financial Instruments................................................................ 40
SECTION 3.03 Shared Agreements.................................................................... 41
SECTION 3.04 Intercompany Accounts and Arrangements............................................... 42
SECTION 3.05 Cash Management...................................................................... 44
SECTION 3.06 The Rockwell Collins Board and the Rockwell Science Center Board..................... 46
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee...................................... 47
SECTION 3.08 Rockwell Collins Certificate of Incorporation and By-Laws; Rights Plan............... 48
SECTION 3.09 Insurance............................................................................ 48
SECTION 3.10 Use of Names, Trademarks, etc........................................................ 52
SECTION 3.11 Consents............................................................................. 58
SECTION 3.12 Intellectual Property................................................................ 59
SECTION 3.13 Software and Other License Agreements................................................ 66
SECTION 3.14 Charitable Entities.................................................................. 66
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION...................................................... 67
SECTION 4.01 Mutual Release....................................................................... 67
SECTION 4.02 Indemnification by Rockwell.......................................................... 67
SECTION 4.03 Indemnification by Rockwell Collins.................................................. 68
SECTION 4.04 Indemnification by Rockwell Science Center........................................... 69
SECTION 4.05 Limitations on Indemnification Obligations........................................... 69
SECTION 4.06 Procedures Relating to Indemnification............................................... 70
SECTION 4.07 Remedies Cumulative.................................................................. 72
SECTION 4.08 Survival of Indemnities.............................................................. 72
SECTION 4.09 Exclusivity of Tax Allocation Agreement and Science Center Tax Allocation Agreement.. 72
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ARTICLE V ACCESS TO INFORMATION................................................................ 73
SECTION 5.01 Access to Information................................................................ 73
SECTION 5.02 Production of Witnesses.............................................................. 75
SECTION 5.03 Retention of Records................................................................. 75
SECTION 5.04 Confidentiality...................................................................... 76
ARTICLE VI MISCELLANEOUS........................................................................ 76
SECTION 6.01 Entire Agreement; Construction....................................................... 76
SECTION 6.02 Survival of Agreements............................................................... 77
SECTION 6.03 Expenses............................................................................. 77
SECTION 6.04 Governing Law........................................................................ 78
SECTION 6.05 Notices.............................................................................. 78
SECTION 6.06 Dispute Resolution................................................................... 80
SECTION 6.07 Consent to Jurisdiction.............................................................. 80
SECTION 6.08 Amendments........................................................................... 81
SECTION 6.09 Assignment........................................................................... 81
SECTION 6.10 Captions; Currency................................................................... 81
SECTION 6.11 Severability......................................................................... 81
SECTION 6.12 Parties in Interest.................................................................. 81
SECTION 6.13 Schedules............................................................................ 81
SECTION 6.14 Termination.......................................................................... 81
SECTION 6.15 Waivers; Remedies.................................................................... 82
SECTION 6.16 Further Assurances................................................................... 82
SECTION 6.17 Counterparts......................................................................... 82
SECTION 6.18 Performance.......................................................................... 82
SECTION 6.19 Currency Calculations................................................................ 82
SECTION 6.20 Interpretation....................................................................... 82
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ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
Schedule 1.01(a) - Rockwell Collins Amended By-Laws
Schedule 1.01(b) - Rockwell Collins Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Collins Securities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Collins Aircraft
Schedule 1.01(j) - Rockwell Collins Patents and Trademarks
Schedule 1.01(k) - Rockwell Science Center Securities
Schedule 1.01(l) - Former Businesses of Rockwell Collins
Schedule 1.01(m) - Rockwell Collins Financial Instruments
Schedule 1.01(n) - Rockwell Collins Litigation
Schedule 1.01(o) - Rockwell Collins Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell Collins Subsidiaries
Schedule 1.01(q) - Rockwell Collins U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell Collins Credit Facilities
Schedule 1.01(y) - Rockwell Science Center Credit Facilities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell Collins Charitable Commitments
Schedule 4.02(b) - Certain Form 10 Sections
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June
29, 2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) ROCKWELL COLLINS, INC., a Delaware corporation
and, as of the date hereof, a wholly-owned subsidiary of Rockwell ("Rockwell
Collins"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware limited
liability company and, as of the date hereof, a wholly-owned subsidiary of
Rockwell ("Rockwell Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined
that it is appropriate and desirable to distribute all outstanding shares of
Rockwell Collins Common Stock (as defined herein) on a pro rata basis to the
holders of Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell Collins and Rockwell Science
Center have determined that it is appropriate and desirable to set forth the
principal corporate transactions required to effect such distribution and
certain other agreements that will govern certain matters relating to such
distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ACTION" means, with respect to any Person, any actual or
threatened or future action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Entity or any claims or other legal
matters that have been or may be asserted by or against, or otherwise affect,
such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning
ascribed thereto in Section 3.12(g)(i)(B).
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"AFFILIATE" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of the Transaction Agreements,
following the Time of Distribution no member of any Group shall be deemed to be
an Affiliate of any member of any other Group. For purposes of the immediately
preceding sentence, the term "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through ownership of voting securities, by contract or otherwise.
"AGENCY LICENSING AGREEMENTS" means (a) the agency licensing
agreement among Rockwell, Rockwell Science Center and ITL pursuant to which,
among other things, ITL will act as exclusive agent for the Rockwell Automation
Group in connection with the licensing of certain intellectual property to third
parties in fields other than the Rockwell Automation Group's businesses and (b)
the agency licensing agreement by and among Rockwell Collins, Rockwell Science
Center and ITL pursuant to which, among other things, ITL will act as exclusive
agent for the Rockwell Collins Group in connection with the licensing of certain
intellectual property to third parties in fields other than the Rockwell Collins
Group's businesses.
"AGREEMENT" shall have the meaning ascribed thereto in the
preamble.
"ANCILLARY AGREEMENTS" means, collectively, the Employee
Matters Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement, the Continuing Services Agreements, the Rockwell Science
Center Services Agreements, the Agency Licensing Agreements, the Transition
Agreement and the Conveyance and Assumption Instruments.
"ASSETS" means any and all assets, properties and rights,
whether tangible or intangible, real, personal or mixed, fixed, contingent or
otherwise, and wherever located (other than ownership interests in
Subsidiaries), including the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and
fixtures, leasehold improvements, repair parts, tools, plant,
laboratory and office equipment and supplies, computer hardware and
software, computer networking equipment, engineering and design
equipment, test equipment and other tangible personal property,
together with any rights or claims arising out of maintenance or
service contracts relating thereto or the breach of any express or
implied warranty by the manufacturers or sellers of any of such assets
or any component part thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
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(e) cash, cash on hand, cash equivalents, funds, certificates
of deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or
not current), performance and surety bonds and interests as beneficiary
under letters of credit and other similar instruments and all proceeds
thereof;
(g) Securities;
(h) swaps, collars, caps and other hedging arrangements of any
kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in
whatever form or medium, including electronic media), including books,
records, notes, sales and sales promotional material and data,
advertising materials, credit information, cost and pricing
information, customer and supplier lists, business plans, reference
catalogs, payroll and personnel records and procedures, blue-prints,
research and development files, data and laboratory books, sales order
files, litigation files, minute books, stock ledgers, stock transfer
records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by
third parties;
(m) claims, causes of action, choses in action, rights under
express or implied warranties, guarantees and indemnities and similar
rights, rights of recovery, rights of set-off, rights of subrogation
and all other rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in
Section 3.11.
"AUTOMATION PRODUCTS" means (a) industrial automation
products, systems and software, including controllers, electrical and electronic
controls, I/O (input/output) systems, drives (including electronic drives for
electric motors), sensors, power devices, packaged control products, operator
interface devices, computer software and hardware products, gears, gear
reducers, bearings, shaft supports, shaft hangers, shaft couplings, collars,
clutches, sheaves, sprockets, pulleys, elevating and conveying machinery, power
transmission machinery and components thereof, network monitoring products and
motors and (b) training, installation, repair, maintenance, consulting, computer
programming, designing, engineering, technical support and other services for
use in the field of industrial automation.
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"BNA" means Boeing North American, Inc., a Delaware
corporation formerly named Rockwell International Corporation, and any successor
thereto.
"BOEING" means The Boeing Company, a Delaware corporation.
"BOEING POST-CLOSING COVENANTS AGREEMENT" means the
Post-Closing Covenants Agreement dated as of December 6, 1996 among Rockwell,
Boeing, Boeing NA, Inc. and BNA, including all amendments thereto.
"BOEING TRANSITION AGREEMENT" means the Transition Agreement
dated as of December 6, 1996 by and among Rockwell, Boeing and BNA, including
all amendments thereto.
"BY-LAWS" means Rockwell Collins' amended by-laws
substantially in the form attached hereto as Schedule 1.01(a).
"CASH" means all cash, cash on hand, cash equivalents, funds,
certificates of deposit and similar instruments held by Rockwell or any of its
Subsidiaries and Affiliates (including members of the Rockwell Collins Group and
members of the Rockwell Science Center Group) immediately prior to the Time of
Distribution (it being understood that cash equivalents do not include
intercompany cash management balances which will be eliminated as of the Time of
Distribution pursuant to Section 3.04(a)).
"CERTIFICATE OF INCORPORATION" means Rockwell Collins'
restated certificate of incorporation substantially in the form attached hereto
as Schedule 1.01(b).
"CLAIMS ADMINISTRATION" means the processing of claims made
under insurance policies, including the reporting of claims to the insurer,
management and defense of claims, and providing for appropriate releases upon
settlement of claims.
"CLAIMS ADMINISTRATION CONTRACT" means the claims services
agreement existing on the Distribution Date between Rockwell and Constitution
State Service Company relating to the administration of self-insured general
liability claims of Rockwell and its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center Group), which
agreement constitutes a Rockwell Collins Shared Agreement.
"CLAIMS MADE POLICIES" shall have the meaning ascribed thereto
in Section 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"CONEXANT" means Conexant Systems, Inc., a Delaware
corporation, and any successor thereto.
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"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution
Agreement dated as of December 31, 1998 by and between Rockwell and Conexant,
including all amendments thereto.
"CONEXANT TRANSITION AGREEMENT" means the Transition Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments thereto.
"CONSENTS" means consents, approvals, waivers, clearances,
exemptions, allowances, novations, authorizations, filings, registrations and
notifications.
"CONTINUING SERVICES AGREEMENTS" means (a) the continuing
services agreement between Rockwell Collins and Rockwell entered into on or
prior to the Distribution Date pursuant to which, among other things, Rockwell
Collins will provide Rockwell with payroll and employee benefits administration
services and (b) the continuing services agreement between Rockwell Collins and
Rockwell Science Center entered into on or prior to the Distribution Date
pursuant to which, among other things, Rockwell Collins will provide Rockwell
Science Center with payroll and employee benefits administration services.
"CONTRACTS" means all agreements, real estate and other
leases, contracts, memoranda of understanding, letters of intent, sales orders,
purchase orders, open bids and other commitments, including in each case, all
amendments, modifications and supplements thereto and waivers and consents
thereunder.
"CONVEYANCE AND ASSUMPTION INSTRUMENTS" means, collectively,
the various agreements, deeds, bills of sale, stock powers, certificates of
title, instruments of conveyance and assignment, instruments of assumption and
other instruments and documents to be entered into to effect the transfer of
Assets and Subsidiaries and the assumption of Liabilities contemplated by the
transactions described in Sections 3.01(b) and 3.01(c).
"COSTA MESA OFFICE LEASE" means the lease agreement dated
December 20, 1996 between Rockwell and 600 Anton Boulevard Associates under
which office space located at 600 Anton Boulevard, Costa Mesa, California is
leased to Rockwell.
"CURRENT EXCESS WORKERS' COMPENSATION POLICY" means the excess
workers' compensation liability insurance policy with National Union Insurance
Company of Pittsburgh, Inc., a subsidiary of American International Group, as
insurer, covering Rockwell and its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center Group), the
coverage under which commenced on October 1, 2000 and terminates on September
30, 2003.
"CYPRESS ASSETS" means (i) Rockwell's Corporate Shared
Services Center located at 5836 Corporate Avenue, Cypress, California, the lease
agreement dated July 17, 1991 between Rockwell and IRP Muller Associates related
thereto and all leasehold improvements, equipment and other tangible assets
(including Rockwell's global employment management systems (GEMS) software,
pension recordkeeping integrated solutions management (PRISM) software
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and subsystems related to such software) located thereat and (ii) the computer
servers set forth on Schedule 1.01(c).
"DISPUTE" shall have the meaning ascribed thereto in Section
6.06.
"DISTRIBUTION" means the distribution, on the basis provided
for in Section 2.01, to holders of Rockwell Common Stock of the shares of
Rockwell Collins Common Stock owned by Rockwell on the Distribution Date.
"DISTRIBUTION AGENT" means the distribution agent selected by
Rockwell to distribute Rockwell Collins Common Stock in connection with the
Distribution.
"DISTRIBUTION DATE" means the date determined by the Rockwell
Board as the date as of which the Distribution will be effected.
"DIVESTED BUSINESS EMPLOYEE" shall have the meaning ascribed
thereto in the Employee Matters Agreement.
"EMPLOYEE MATTERS AGREEMENT" means the Employee Matters
Agreement by and among Rockwell, Rockwell Collins and Rockwell Science Center,
substantially in the form attached hereto as Annex A.
"EXCESS CP BORROWING AMOUNT" means the amount, if any,
received by Rockwell Collins through the issuance of Rockwell Collins commercial
paper on the day prior to the Distribution Date and/or on the Distribution Date
in excess of an aggregate amount of $300 million, to the extent such excess
amount is on deposit in the Rockwell Collins U.S. Bank Accounts (other than the
Rockwell Collins Pension Trust Bank Accounts) at the Time of Distribution.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM 10" means the registration statement on Form 10 filed by
Rockwell Collins with the Commission to effect the registration of the Rockwell
Collins Common Stock pursuant to the Exchange Act, including all amendments
thereto filed by Rockwell Collins with the Commission prior to the Time of
Distribution.
"FORMER BUSINESS" means any corporation, partnership, entity,
division, business unit, business, assets, plants, product line, operations or
contract (including any assets and liabilities comprising the same) that has
been sold, conveyed, assigned, transferred or otherwise disposed of or divested
(in whole or in part) by any member of the Pre-Distribution Group or the
operations, activities or production of which has been discontinued, abandoned,
completed or otherwise terminated (in whole or in part) by any member of the
Pre-Distribution Group.
"FORMER ROCKWELL CORPORATE EMPLOYEE" shall have the meaning
ascribed thereto in the Employee Matters Agreement.
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"GOVERNMENTAL ENTITY" means any government or any court,
arbitral tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, federal, state, local, domestic, foreign or
international.
"GROUP" means the Rockwell Automation Group, the Rockwell
Collins Group or the Rockwell Science Center Group, as applicable.
"INDEMNIFIABLE LOSSES" means any and all losses, Liabilities,
claims, damages, deficiencies, obligations, fines, payments, Taxes, Liens, costs
and expenses, matured or unmatured, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated, known or unknown, whenever arising and
whether or not resulting from Third Party Claims (including the costs and
expenses of any and all Actions; all amounts paid in connection with any
demands, assessments, judgments, settlements and compromises relating thereto;
interest and penalties with respect thereto; out-of-pocket expenses and
reasonable attorneys', accountants' and other experts' fees and expenses
reasonably incurred in investigating, preparing for or defending against any
such Actions or in asserting, preserving or enforcing an Indemnitee's rights
hereunder; and any losses that may result from the granting of injunctive relief
as a result of any such Actions).
"INDEMNIFYING PARTY" shall have the meaning ascribed thereto
in Section 4.05(a).
"INDEMNITEE" means any of the Rockwell Automation Indemnitees,
the Rockwell Collins Indemnitees or the Rockwell Science Center Indemnitees who
or which is entitled to seek indemnification under this Agreement.
"INDEMNITY REDUCTION AMOUNTS" shall have the meaning ascribed
thereto in Section 4.05(a).
"INFORMATION" means all records, books, contracts,
instruments, computer data and other data and information (in each case, in
whatever form or medium, including electronic media).
"INFORMATION STATEMENT" means the information statement with
respect to Rockwell Collins sent to the holders of Rockwell Common Stock in
connection with the Distribution.
"INSURANCE PROCEEDS" means monies (a) received by an insured
from an insurer, (b) paid by an insurer on behalf of an insured or (c) received
from any third party in the nature of insurance, contribution or indemnification
in respect of any Liability.
"INTELLECTUAL PROPERTY" means (a) inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents (including utility and design patents,
industrial designs and utility models), patent applications, patent and
invention disclosures and all other rights of inventorship, worldwide, together
with all reissuances, continuations, continuations-in-part, divisions,
revisions, supplementary protection certificates, extensions and re-examinations
thereof; (b) trademarks, service marks, trade names, trade dress, logos, domain
names, business and product names and slogans and any and every
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other form of trade identity and all registrations and applications for
registration thereof, worldwide; (c) copyrights in copyrightable works and all
other rights of authorship, worldwide, and all applications (including the right
to file applications), registrations and renewals in connection therewith; (d)
mask works and semiconductor chip rights, worldwide, and all applications
(including the right to file applications), registrations and renewals in
connection therewith; (e) trade secrets and confidential business and technical
information (including ideas, research and development, know-how, formulas,
technology, compositions, manufacturing and production processes and techniques,
technical data, engineering, production and other designs, drawings, engineering
notebooks, industrial models, software and specifications and any other
information meeting the definition of a trade secret under the Uniform Trade
Secrets Act); (f) computer and electronic data processing programs and software,
both source code and object code (including data and related documentation, flow
charts, diagrams, descriptive texts and programs, computer print-outs,
underlying tapes, computer databases and similar items), computer applications
and operating programs; (g) rights to sue for and remedies against past, present
and future infringements of any or all of the foregoing and rights of priority
and protection of interests therein under the laws of any jurisdiction
worldwide; (h) all copies and tangible embodiments of any or all of the
foregoing (in whatever form or medium, including electronic media); (i) all
other proprietary and intellectual property rights and interests; and (j) all
other rights relating to any or all of the foregoing.
"IRS" means the Internal Revenue Service.
"ITL" means Innovative Technology Licensing, LLC, a Delaware
limited liability company and a wholly owned subsidiary of Rockwell Science
Center.
"LIABILITIES" means any and all claims, debts, liabilities,
commitments and obligations of whatever nature, whether fixed, contingent or
absolute, matured or unmatured, liquidated or unliquidated, accrued or not
accrued, known or unknown, due or to become due, whenever or however arising and
whether or not the same would be required by generally accepted accounting
principles to be reflected as a liability in financial statements or disclosed
in the notes thereto, including all costs and expenses relating thereto and
those claims, debts, liabilities, commitments and obligations:
(a) based upon, arising out of or relating to any law, rule,
regulation, order or consent decree of any Governmental Entity or any
noncompliance therewith or breach or violation of any thereof;
(b) in respect of accounts payable;
(c) in respect of outstanding checks;
(d) based upon, arising out of or relating to workers'
compensation, automobile liability, general liability, product
liability, intellectual property liability and other claims and matters
(whether direct or for indemnification of any Person or otherwise, and
whether insured or uninsured);
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(e) based upon, arising out of or relating to Actions or any
award of any arbitrator of any kind;
(f) in respect of salary, bonuses, incentive payments,
severance payments and other compensation payments and all Taxes and
withholdings related thereto;
(g) in respect of employee welfare and fringe benefits;
(h) based upon, arising out of or relating to environmental
matters (including all removal, remediation and cleanup costs,
investigatory costs, governmental response costs, natural resources
damages, property damages, personal injury damages and all other costs
and damages);
(i) based upon, arising out of or relating to Contracts;
(j) based upon, arising out of or relating to any tort
(whether based on negligence, strict liability or otherwise) or
infringement; and
(k) in respect of products and services, including warranty
liabilities, deferred revenues, product liability claims and
liabilities in respect of the return, repair or replacement of
products.
"LICENSES" means licenses, permits, authorizations, consents,
certificates, registrations, variances, franchises and other approvals from any
Governmental Entity, including those relating to environmental matters.
"LIEN" means any lien, security interest, pledge, mortgage,
charge, restriction, claim, retention of title agreement or other encumbrance of
whatever nature.
"LOS ANGELES OFFICE LEASE" means the lease agreement dated
April 15, 1994 between Rockwell and Center West under which office space located
at 10877 Wilshire Boulevard, Los Angeles, California is leased for the benefit
of Robert Anderson.
"MERITOR" means ArvinMeritor, Inc., an Indiana corporation,
successor by merger to Meritor Automotive, Inc., a Delaware corporation, and any
successor thereto.
"MERITOR DISTRIBUTION AGREEMENT" means the Distribution
Agreement dated as of September 30, 1997 by and between Rockwell and Meritor,
including all amendments thereto.
"MERITOR TRANSITION AGREEMENT" means the Transition Agreement
dated as of September 30, 1997 by and between Rockwell and Meritor, including
all amendments thereto.
"METLIFE TRUST" means (a) the MetLife Demutualization Grantor
Trust established by Rockwell in 2000 in connection with the demutualization of
the Metropolitan Life Insurance Company and (b) all funds contained therein and
rights related thereto.
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"MILWAUKEE OFFICE LEASE" means the lease agreement dated March
5, 1999 between Rockwell and Firstar Bank N.A. under which office space located
at 777 E. Wisconsin Avenue, Milwaukee, Wisconsin is leased to Rockwell.
"NYSE" means the New York Stock Exchange, Inc.
"OCCURRENCE BASIS POLICIES" shall have the meaning ascribed
thereto in Section 3.09(b)(i).
"ORDINARY COURSE INTERCOMPANY ARRANGEMENTS" shall have the
meaning ascribed thereto in Section 3.04(b)(ii).
"PERSON" means any individual, partnership, joint venture,
corporation, limited liability entity, trust, unincorporated organization or
other entity (including a Governmental Entity).
"PITTSBURGH OFFICE LEASE" means the lease agreement dated
December 28, 1989 between Rockwell and Lincoln Liberty Avenue, Ltd. under which
office space located at 625 Liberty Avenue, Pittsburgh, Pennsylvania is leased
to Rockwell.
"POLICIES" means all insurance policies, insurance contracts
and claim administration contracts of any kind of the Pre-Distribution Group
which were or are in effect at any time at or prior to the Time of Distribution
(other than insurance policies, insurance contracts and claim administration
contracts established in contemplation of the Distribution to cover only members
of the Rockwell Collins Group or members of the Rockwell Science Center Group
from and after the Time of Distribution), including primary, excess and
umbrella, commercial general liability, fiduciary liability, product liability,
automobile, aircraft, property and casualty, business interruption, directors'
and officers' liability, employment practices liability, workers' compensation,
crime, errors and omissions, special accident, cargo and employee dishonesty
insurance policies and captive insurance company arrangements, together with all
rights, benefits and privileges thereunder.
"PRE-DISTRIBUTION GROUP" means (a) each of Rockwell, the
Subsidiaries of Rockwell existing immediately prior to the Time of Distribution
(including members of the Rockwell Collins Group and members of the Rockwell
Science Center Group) and the former Subsidiaries of Rockwell, (b) each of the
predecessors of each of the foregoing (including BNA) and (c) each of the
present and former Subsidiaries and other Affiliates of each of the foregoing,
and their predecessors. Notwithstanding the foregoing, BNA and Persons who are
Affiliates of BNA after December 6, 1996 will not constitute members of the
Pre-Distribution Group after December 6, 1996.
"PRESCRIPTION CENTER ASSETS" means Rockwell's prescription
center located at 298 Blairs Ferry Road, N.E., Cedar Rapids, Iowa, the lease
agreement dated April 1997 between Rockwell Collins and Lawrence R. Kelly and
Dorothy A. Kelly related thereto and all leasehold improvements, equipment and
other tangible assets located thereat.
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"PRIVILEGED INFORMATION" means, with respect to any Group,
Information regarding a member of such Group, or any of its operations,
employees, Assets or Liabilities (whether in documents or stored in any other
form or known to its employees or agents) that is or may be protected from
disclosure pursuant to the attorney-client privilege, the work product doctrine
or other applicable privileges, that a member of any other Group may come into
possession of or obtain access to pursuant to this Agreement or otherwise.
"RECIPIENT PARTY" shall have the meaning ascribed thereto in
Section 3.11.
"RECORD DATE" means the close of business on the date
determined by the Rockwell Board as the record date for the Distribution.
"RECORDED AMOUNT" means, with respect to cash in U.S. and
non-U.S. bank accounts, the amount on deposit in such bank accounts, as
reflected on bank account statements in respect of such bank accounts, as of the
Time of Distribution. The parties acknowledge that the Recorded Amount with
respect to any bank account will not have deducted therefrom the amount of
outstanding checks issued on such account.
"REPRESENTATIVE" means, with respect to any Person, any of
such Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"RIGHTS" means the Rights to be issued pursuant to the Rights
Plan.
"RIGHTS PLAN" means the rights agreement entered into on or
prior to the Distribution Date between Rockwell Collins and Mellon Investor
Services LLC, as rights agent, substantially in the form filed as an exhibit to
the Form 10.
"ROCKWELL" shall have the meaning ascribed thereto in the
preamble.
"ROCKWELL AUTOMATION ASSETS" means the following:
(a) all rights of any member of the Rockwell Automation Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of
the Rockwell Automation Group pursuant to the Employee Matters
Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement or the Transition Agreement;
(c) all Assets (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Collins Assets" and paragraphs
(b) and (d) of the definition of "Rockwell Science Center Assets")
which immediately prior to the Time of Distribution are owned by
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group) and
which are used primarily in or relate primarily to the Rockwell
Automation Business, as the same shall exist as of such time;
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(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group), in each case
whether or not such Assets are used primarily in or relate primarily to
the Rockwell Automation Business, the Rockwell Collins Business or the
Rockwell Science Center Business:
(i) all (A) Rockwell Automation Retained Accounts,
and (B) Cash, including all cash contained in the Rockwell
Automation Retained Accounts, the Rockwell Collins U.S. Bank
Accounts, the Rockwell Collins Non-U.S. Bank Accounts, the
Rockwell Science Center U.S. Bank Accounts and the Rockwell
Science Center Non-U.S. Bank Accounts, but not including cash
described in paragraphs (d)(vi), (d)(viii), (d)(ix), (d)(xi)
and (d)(xii) of the definition of "Rockwell Collins Assets"
and paragraphs (d)(ii) and (d)(v) of the definition of
"Rockwell Science Center Assets";
(ii) all Securities, other than Rockwell Collins
Securities and Rockwell Science Center Securities;
(iii) all Policies (including Shared Policies) and
all rights, benefits and privileges thereunder and related
thereto (including the right to receive any and all return
premiums with respect thereto), other than (A) the right to
assert claims under Shared Policies to the extent described in
Section 3.09(b), (B) the right to assert claims under the
Current Excess Workers' Compensation Policy to the extent
described in Section 3.09(c) and (C) rights in respect of the
Claims Administration Contract to the extent described in
Section 3.09(e);
(iv) other than as provided for in Section 3.10, all
rights in, and to the use of, the names, trademarks, trade
names, domain names and service marks "Rockwell", "Rockwell
International", "Rockwell Automation", "Rockwell Collins",
"Rockwell Science Center" and "Rockwell Scientific Company"
and all corporate symbols and logos related thereto and all
names, trademarks, trade names, domain names and service marks
which include the words "Rockwell" or "Rockwell
International";
(v) the Rockwell VEBA;
(vi) the Rockwell Good Government Committee;
(vii) the patents, patent applications, invention
disclosures and registered trademarks set forth on Schedule
1.01(d);
(viii) 50% of Rockwell's ownership interest in
Rockwell Science Center;
(ix) all interests in charitable trusts (including
the Rockwell Charitable Trust and the Rockwell Canadian
Charitable Trust) and assets thereof, subject to the
provisions of Section 3.14;
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(x) 32% of all assets of the MetLife Trust;
(xi) the Rockwell Property Trust;
(xii) the Rockwell Insurance Escrow Account;
(xiii) the aircraft set forth on Schedule 1.01(f);
(xiv) the Milwaukee Office Lease and all leasehold
improvements, equipment and other assets located at or related
to the office facility leased thereunder;
(xv) the Costa Mesa Office Lease and all leasehold
improvements, equipment and other assets located at or related
to the office facility leased thereunder;
(xvi) the Pittsburgh Office Lease and all leasehold
improvements, equipment and other assets located at or related
to the office facility leased thereunder;
(xvii) all Assets based upon, arising out of or
relating to the RAN Contract;
(xviii) all Assets based upon, arising out of or
relating to the operations of (A) the Santa Susana Field
Laboratory operated by Rockwell's former Rocketdyne Division,
(B) the Rocky Flats plant, Golden, Colorado and (C) the
Hanford Nuclear Reservation, Hanford, Washington;
(xix) all rights to receive payments for services
rendered prior to the Time of Distribution under the Boeing
Transition Agreement (other than pursuant to Section 2 of the
Boeing Transition Agreement), the Meritor Transition Agreement
and the Conexant Transition Agreement (other than pursuant to
Section 2 or 9 of the Conexant Transition Agreement);
(xx) all rights in U.S. Patent #4,368,098 entitled
"Epitaxial Composite and Method of Making", all license
agreements and royalties with respect to the licensing thereof
and all rights to sue and recover for and remedies against
past, present and future infringements thereof (including all
rights in respect of the Action Rockwell International
Corporation v. United States and SDL, Inc., Civ. No. 93-542 C,
U.S. Court of Federal Claims);
(xxi) all Assets relating to country club memberships
of Former Rockwell Corporate Employees;
(xxii) all Rockwell Science Center Shared Agreements
that relate to the Rockwell Automation Business and rights,
benefits and privileges thereunder and all Rockwell Collins
Shared Agreements and rights, benefits and privileges
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thereunder, except that, with respect to Shared Agreements
relating to Unrelated Former Businesses, Rockwell Collins will
have the rights described in paragraph (c)(i) of the
definition of "Rockwell Collins Assets" and Rockwell Science
Center will have the rights described in paragraph (c)(i) of
the definition of "Rockwell Science Center Assets"; and
(xxiii) all rights in respect of Unrelated Former
Businesses, other than (A) rights expressly allocated to
Rockwell Collins pursuant to the Transaction Agreements in
respect of Unrelated Former Businesses and current and former
employees thereof, which shall constitute Rockwell Collins
Assets, (B) rights described in paragraphs (c)(i) and (d) of
the definition of "Rockwell Collins Assets", which shall
constitute Rockwell Collins Assets and (C) rights described in
paragraphs (c)(i) and (d) of the definition of "Rockwell
Science Center Assets", which shall constitute Rockwell
Science Center Assets;
(e) all other Assets which immediately prior to the Time of
Distribution are owned by Rockwell or any of its Subsidiaries
(including members of the Rockwell Collins Group and members of the
Rockwell Science Center Group) that are not Rockwell Collins Assets or
Rockwell Science Center Assets; and
(f) all rights, choses in action, causes of action and claims
of Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center
Group) to the extent relating to any asset described in paragraphs (a)
through (e) above.
Anything contained herein to the contrary notwithstanding,
assets described in paragraphs (b) and (d) of the definition of "Rockwell
Collins Assets" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Assets" will not be included in Rockwell Automation Assets.
"ROCKWELL AUTOMATION BUSINESS" means:
(a) the Automation business engaged in prior to the Time of
Distribution by the Pre-Distribution Group of researching, developing,
designing, engineering, manufacturing, building, selling, distributing,
installing, modifying, repairing, servicing and supporting Automation
Products (marketed under such names as Rockwell Automation,
Allen-Bradley, Rockwell Software, Dodge, and Reliance Electric);
(b) the Electronic Commerce business engaged in at all times
prior to the Time of Distribution by the Pre-Distribution Group of
researching, developing, designing, engineering, manufacturing,
building, selling, distributing, installing, modifying, repairing,
servicing and supporting electronic commerce products for call center
systems and personalized electronic commerce applications, including
automatic call distributors, computer telephony integration software,
information collection, reporting, queuing and management systems, and
call center systems and consulting services;
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(c) Former Businesses related primarily to any of the
foregoing, including Former Businesses listed on Schedule 1.01(g); and
(d) activities of the Pre-Distribution Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell Automation Business shall not
include (i) the Rockwell Science Center Business or (ii) the Unrelated
Former Businesses set forth on Schedule 1.01(h).
"ROCKWELL AUTOMATION EXPENSES" means:
(a) the following out-of-pocket fees, costs and expenses of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group),
whether incurred and/or paid before, at or after the Time of
Distribution:
(i) all investment banking, legal and auditing fees
and expenses incurred in connection with effecting the
Distribution (other than (A) any such fees and expenses
described in paragraphs (a) and (b) of the definition of
"Rockwell Collins Expenses" or paragraph (a) of the definition
of "Rockwell Science Center Expenses" and (B) any such fees
and expenses incurred in connection with any dispute or
modification after the Distribution Date with respect to the
Transaction Agreements or the transactions contemplated
thereby or any claim under Article IV);
(ii) all fees and expenses of the Distribution Agent
incurred in connection with effecting the Distribution;
(iii) the initial listing fee payable to the NYSE for
the initial listing of the Rockwell Collins Common Stock on
the NYSE; and
(iv) all out-of-pocket fees, costs and expenses
relating to the Distribution to the extent the same relate to
operations of the Rockwell Automation Business after the Time
Distribution; and
(b) all other out-of-pocket fees, costs and expenses of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group)
incurred through the Time of Distribution in connection with effecting
the Distribution, the preparation, execution and delivery of the
Transaction Agreements and the consummation of the Distribution which
are not Rockwell Collins Expenses or Rockwell Science Center Expenses.
"ROCKWELL AUTOMATION GROUP" means Rockwell and the Rockwell
Subsidiaries.
"ROCKWELL AUTOMATION INDEMNITEES" means each member of the
Rockwell Automation Group, each of their respective Representatives and each of
the heirs, executors, successors and permitted assigns of any of the foregoing.
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"ROCKWELL AUTOMATION LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Automation
Group under any Transaction Agreement to which it is or becomes a
party;
(b) all Liabilities for which any member of the Rockwell
Automation Group is expressly made responsible pursuant to the Employee
Matters Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement or the Transition Agreement;
(c) all Liabilities (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Collins Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Liabilities") of Rockwell or any of its Subsidiaries (including members
of the Rockwell Collins Group and members of the Rockwell Science
Center Group) to the extent based upon, arising out of or relating to
the Rockwell Automation Assets or the Rockwell Automation Business,
including:
(i) all Liabilities to the extent relating to the
Rockwell Automation Business based upon, arising out of or
relating to Contracts (whether or not such Contracts
constitute Rockwell Automation Assets) (including any primary,
secondary, contingent or other obligations, such as under
guaranties or indemnities, in respect of Contracts), including
Liabilities arising out of any breaches or violations and
Liabilities to make payments or otherwise in connection with
the termination thereof as a result of the transactions
contemplated hereby or otherwise and including Liabilities in
respect of Shared Agreements;
provided, however, that Rockwell Automation Liabilities shall not
include Liabilities in respect of Rockwell Automation Assets to the
extent they constitute (i) Rockwell Collins Liabilities described in
paragraph (c) of the definition of "Rockwell Collins Liabilities"
because they are based upon, arise out of or relate to the Rockwell
Collins Business or (ii) Rockwell Science Center Liabilities described
in paragraph (c) of the definition of "Rockwell Science Center
Liabilities" because they are based upon, arise out of or relate to the
Rockwell Science Center Business;
(d) the following specifically enumerated Liabilities of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group), in
each case whether or not such Liabilities relate to the Rockwell
Automation Business, the Rockwell Automation Assets, the Rockwell
Collins Business, the Rockwell Collins Assets, the Rockwell Science
Center Business or the Rockwell Science Center Assets:
(i) all Liabilities in respect of the RAN Contract;
(ii) all (A) Liabilities in respect of
asbestos-related claims of Former Rockwell Corporate Employees
and Divested Business Employees in connection
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with their employment by any member of the Pre-Distribution
Group and (B) Liabilities in respect of tort claims by Former
Rockwell Corporate Employees and Divested Business Employees
in respect of the operations of the Rocky Flats plant, Golden,
Colorado (other than, in the case of both clauses (A) and (B),
Liabilities described in Section 6.01(d) of the Employee
Matters Agreement or paragraph (d)(iii) of the definition of
"Rockwell Collins Liabilities", which shall constitute
Rockwell Collins Liabilities), in each case whether asserted
prior to, on or after the Distribution Date;
(iii) all (A) employee indemnification Liabilities in
respect of the July 1994 explosion at the Santa Susana Field
Laboratory operated by Rockwell's former Rocketdyne Division
(other than Liabilities described in Section 6.01(d) of the
Employee Matters Agreement or paragraph (d)(iii) of the
definition of "Rockwell Collins Liabilities", which shall
constitute Rockwell Collins Liabilities) and (B) all other
Liabilities in respect of the operations of the Santa Susana
Field Laboratory operated by Rockwell's former Rocketdyne
Division (other than, in the case of this clause (B) only,
Liabilities described in paragraphs (d)(ii) and (iii) of the
definition of "Rockwell Collins Liabilities" and Liabilities
allocated to Rockwell Collins under the Employee Matters
Agreement, which shall constitute Rockwell Collins
Liabilities);
(iv) all (A) Liabilities not described in paragraph
(d)(ii)(B) of this definition in respect of the operations of
the Rocky Flats plant, Golden, Colorado (including in respect
of the pending Action brought against Rockwell by James Stone
relating to alleged violations of the False Claims Act) and
(B) Liabilities in respect of the operations of the Hanford
Nuclear Reservation, Hanford, Washington (other than, in the
case of both clauses (A) and (B), Liabilities described in
paragraphs (d)(ii) and (iii) of the definition of "Rockwell
Collins Liabilities" and Liabilities allocated to Rockwell
Collins under the Employee Matters Agreement, which shall
constitute Rockwell Collins Liabilities);
(v) all Liabilities in respect of the Milwaukee
Office Lease (other than Liabilities described in paragraphs
(d)(ii) and (iii) of the definition of "Rockwell Collins
Liabilities" and Liabilities allocated to Rockwell Collins
under the Employee Matters Agreement, which shall constitute
Rockwell Collins Liabilities);
(vi) all Liabilities in respect of the Costa Mesa
Office Lease (other than Liabilities described in paragraphs
(d)(ii) and (iii) of the definition of "Rockwell Collins
Liabilities" and Liabilities allocated to Rockwell Collins
under the Employee Matters Agreement, which shall constitute
Rockwell Collins Liabilities);
(vii) all Liabilities in respect of the Pittsburgh
Office Lease (other than Liabilities described in paragraphs
(d)(ii) and (iii) of the definition of "Rockwell Collins
Liabilities" and Liabilities allocated to Rockwell Collins
under the
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Employee Matters Agreement, which shall constitute Rockwell
Collins Liabilities);
(viii) all Liabilities based upon, arising out of or
relating to the wind tunnel donated by Rockwell to the
University of California, Los Angeles, in 1998;
(ix) all Liabilities based upon, arising out of or
relating to the Rockwell Debt, including all indebtedness
outstanding thereunder and interest and fees payable with
respect thereto; and
(x) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses, other than (A)
Liabilities expressly allocated to Rockwell Collins pursuant
to the Transaction Agreements in respect of Unrelated Former
Businesses and current and former employees thereof, which
shall constitute Rockwell Collins Liabilities, (B) Liabilities
described in paragraphs (c)(ii) and (d) of the definition of
"Rockwell Collins Liabilities", which shall constitute
Rockwell Collins Liabilities, and (C) Liabilities described in
paragraphs (c)(ii) and (d) of the definition of "Rockwell
Science Center Liabilities", which shall constitute Rockwell
Science Center Liabilities; and
(e) all other Liabilities of Rockwell or any of its
Subsidiaries (including members of the Rockwell Collins Group and
members of the Rockwell Science Center Group) in respect of operations
engaged in prior to the Time of Distribution that are not Rockwell
Collins Liabilities or Rockwell Science Center Liabilities.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Collins Liabilities" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Liabilities" will not be included in Rockwell Automation
Liabilities.
"ROCKWELL AUTOMATION LICENSE AGREEMENT" shall have the meaning
ascribed thereto in Section 3.13.
"ROCKWELL AUTOMATION RETAINED ACCOUNTS" means all bank
accounts of Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center Group)
immediately prior to the Time of Distribution, other than Rockwell Collins U.S.
Bank Accounts, Rockwell Collins Non-U.S. Bank Accounts, Rockwell Science Center
U.S. Bank Accounts and Rockwell Science Center Non-U.S. Bank Accounts.
"ROCKWELL BOARD" means the Board of Directors of Rockwell or a
duly authorized committee thereof.
"ROCKWELL CANADIAN CHARITABLE TRUST" means the Rockwell
International Canadian Trust.
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"ROCKWELL CHARITABLE TRUST" means the Rockwell International
Corporation Trust.
"ROCKWELL CLIR FUND" means (a) the Rockwell Continued Life
Insurance Reserve Fund and (b) all funds contained therein and rights related
thereto.
"ROCKWELL COLLINS" shall have the meaning ascribed thereto in
the preamble.
"ROCKWELL COLLINS ASSETS" means the following:
(a) all rights of any member of the Rockwell Collins Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of
the Rockwell Collins Group pursuant to the Employee Matters Agreement,
the Tax Allocation Agreement, the Science Center Tax Allocation
Agreement or the Transition Agreement;
(c) all Assets (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Automation Assets" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Assets") which immediately prior to the Time of Distribution are owned
by Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center
Group) and which are used primarily in or relate primarily to the
Rockwell Collins Business, as the same shall exist as of such time,
including:
(i) all rights in respect of Unrelated Former
Businesses relating primarily to the operations of the
Rockwell Collins Business which do not constitute a Rockwell
Automation Asset (or a right related thereto) described in any
of paragraphs (b) or (d)(i) - (xxi) of the definition of
"Rockwell Automation Assets" or a Rockwell Science Center
Asset (or a right related thereto) described in paragraphs (b)
or (d) of the definition of "Rockwell Science Center Assets",
including:
(A) rights to receive payments for services
provided under Section 9 of the Conexant Transition
Agreement;
(B) all rights to the extent relating
primarily to the operations of the Rockwell Collins
Business to receive indemnification from (x) BNA
pursuant to the Boeing Post-Closing Covenants
Agreement, (y) Meritor pursuant to the Meritor
Distribution Agreement or (z) Conexant pursuant to
the Conexant Distribution Agreement; and
(C) all rights to the extent relating
primarily to the operations of the Rockwell Collins
Business under Section 20 of the Boeing Transition
Agreement;
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(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group), in each case
whether or not such Assets are used primarily in or relate primarily to
the Rockwell Automation Business, the Rockwell Collins Business or the
Rockwell Science Center Business:
(i) 50% of Rockwell's ownership interest in Rockwell
Science Center;
(ii) the Cypress Assets;
(iii) the Prescription Center Assets;
(iv) the Los Angeles Office Lease and all leasehold
improvements, equipment and other tangible assets located at
the office facility leased thereunder;
(v) the Washington Office Assets;
(vi) the Rockwell CLIR Fund;
(vii) the Rockwell Collins U.S. Bank Accounts, the
Rockwell Collins Non-U.S. Bank Accounts and the Rockwell
Collins Patent Escrow Account;
(viii) (A) cash contained in Rockwell Collins U.S.
Bank Accounts and Rockwell Collins Non-U.S. Bank Accounts
(other than Rockwell Collins Pension Trust Bank Accounts) of
up to an aggregate Recorded Amount equal to the Rockwell
Collins Distribution Date Funding Amount; (B) all balances
contained in petty cash accounts at non-U.S. locations of the
Rockwell Collins Business; (C) the dollar value of travelers
checks at non-U.S. locations of the Rockwell Collins Business;
(D) all cash contained in the Rockwell Collins Patent Escrow
Account; and (E) pension funds held by the Rockwell Group
Trust as of the Time of Distribution after giving effect to
the transfers contemplated by Sections 3.01(c)(ii) and (iii)
of the Employee Matters Agreement (subject to Section 3.01(c)
of the Employee Matters Agreement);
(ix) 65% of all assets of the MetLife Trust;
(x) the aircraft set forth on Schedule 1.01(i);
(xi) the Rockwell Collins VEBA;
(xii) the Rockwell Collins Good Government Committee;
(xiii) the patents, patent applications, invention
disclosures and registered trademarks set forth on Schedule
1.01(j);
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(xiv) the Rockwell Collins Securities; and
(xv) the Rockwell Collins Charitable Corporation; and
(e) all rights, choses in action, causes of action and claims
of Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center
Group) to the extent relating to any asset described in paragraphs (a)
through (d) above.
Anything contained herein to the contrary notwithstanding,
assets described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Assets" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Assets" will not be included in Rockwell Collins Assets.
"ROCKWELL COLLINS BOARD" means the Board of Directors of
Rockwell Collins.
"ROCKWELL COLLINS BUSINESS" means:
(a) the Rockwell Collins business engaged in prior to the Time
of Distribution by the Pre-Distribution Group of researching,
developing, designing, engineering, manufacturing, building, selling,
distributing, installing, modifying, repairing, servicing and
supporting aviation electronics and airborne and mobile communications
products and systems for commercial and military applications (marketed
primarily under the name Rockwell Collins), including (i) flight deck
electronic products and systems, including communications, navigation,
display and automatic flight control systems, as well as in-flight
entertainment and information management systems, and (ii) defense
electronics products and systems, including communications, navigation
and integrated systems, for airborne, ground and shipboard
applications;
(b) Former Businesses related primarily to any of the
foregoing, including the Former Businesses listed on Schedule 1.01(l);
and
(c) activities of the Pre-Distribution Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell Collins Business shall not include
(i) the Rockwell Science Center Business or (ii) the Unrelated Former
Businesses set forth on Schedule 1.01(h).
"ROCKWELL COLLINS CHANGE IN CONTROL" means any of the
following events or circumstances: (a) any person (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner
(as that term is used in Section 13(d) of the Exchange Act, and the rules and
regulations promulgated thereunder) of shares of Rockwell Collins entitled to
cast more than 50% of the votes at the time entitled to be cast generally for
the election of directors of Rockwell Collins; (b) more than 50% of the members
of the Rockwell Collins Board shall not be Rockwell Collins Continuing
Directors; or (c) Rockwell Collins shall be merged or consolidated with, or, in
any transaction or series of transactions, substantially all of the business or
assets of Rockwell Collins shall be sold to or otherwise acquired by, another
corporation or entity and, as a result thereof, the shareowners of Rockwell
Collins immediately prior thereto
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shall not have at least 50% or more of the combined voting power of the
surviving, resulting or transferee corporation or entity immediately thereafter.
"ROCKWELL COLLINS CHARITABLE COMMITMENTS" means the
commitments of the Rockwell Charitable Trust set forth on Schedule 3.14.
"ROCKWELL COLLINS CHARITABLE CORPORATION" means the
not-for-profit charitable corporation established by Rockwell Collins prior to
the Time of Distribution.
"ROCKWELL COLLINS COMMON STOCK" means, collectively, the
Common Stock, par value $.01 per share, of Rockwell Collins and the related
Rights.
"ROCKWELL COLLINS CONTINUING DIRECTOR" means any member of the
Rockwell Collins Board who either (i) is a member of the Rockwell Collins Board
as of the Time of Distribution or (ii) is thereafter elected to the Rockwell
Collins Board, or nominated for election by shareowners, by a vote of at least a
majority of the directors who are Rockwell Collins Continuing Directors at the
time of such vote; provided, that an individual who is so elected or nominated
in connection with a merger, consolidation, acquisition or similar transaction
(but excluding the Distribution) shall not be a Rockwell Collins Continuing
Director unless such individual was a Rockwell Collins Continuing Director prior
thereto.
"ROCKWELL COLLINS CREDIT FACILITIES" means the credit
facilities set forth on Schedule 1.01(x).
"ROCKWELL COLLINS DISTRIBUTION DATE FUNDING AMOUNT" means the
sum of (i) $20 million, plus (ii) the Excess CP Borrowing Amount (if any).
"ROCKWELL COLLINS EXPENSES" means the following out-of-pocket
fees, costs and expenses of Rockwell or any of its Subsidiaries (including
members of the Rockwell Collins Group and members of the Rockwell Science Center
Group), in each case, whether incurred and/or paid before, at or after the Time
of Distribution:
(a) all out-of-pocket fees, costs, and expenses (including
legal fees and expenses) of and related to the credit facilities
established prior to the Time of Distribution for the benefit of
Rockwell Collins and other members of the Rockwell Collins Group with
The Chase Manhattan Bank, as agent;
(b) all out-of-pocket fees, costs and expenses (including
legal fees and expenses) of and related to the commercial paper program
established prior to the Time of Distribution for the benefit of
Rockwell Collins and other members of the Rockwell Collins Group;
(c) all out-of-pocket fees, costs and expenses of the transfer
agent and registrar for the Rockwell Collins Common Stock;
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(d) all out-of-pocket fees, costs and expenses of executive
search firms in connection with recruiting officers and directors of
the Rockwell Collins Group to be in place at or after the Time of
Distribution;
(e) all out-of-pocket fees, costs and expenses of consultants
in connection with establishing executive compensation plans for
Rockwell Collins;
(f) all fees and expenses required to be paid by Rockwell
Collins pursuant to Section 3.01(c)(ix) of the Employee Matters
Agreement; and
(g) all other out-of-pocket fees, costs and expenses relating
to the Distribution to the extent the same relate to operations of the
Rockwell Collins Business after the Time of Distribution.
"ROCKWELL COLLINS FINANCIAL INSTRUMENTS" means all credit
facilities, guaranties, foreign currency forward exchange contracts, comfort
letters, letters of credit and similar instruments related solely to the
Rockwell Collins Business under which any member of the Rockwell Automation
Group has any primary, secondary, contingent, joint, several or other Liability,
including those set forth on Schedule 1.01(m).
"ROCKWELL COLLINS GOOD GOVERNMENT COMMITTEE" means the
Rockwell Collins Good Government Committee, a political action committee
established for Rockwell Collins in contemplation of the Distribution, and all
funds held thereby.
"ROCKWELL COLLINS GROUP" means Rockwell Collins and the
Rockwell Collins Subsidiaries.
"ROCKWELL COLLINS INDEMNITEES" means each member of the
Rockwell Collins Group, each of their respective Representatives and each of the
heirs, executors, successors and permitted assigns of any of the foregoing.
"ROCKWELL COLLINS LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Collins
Group under any Transaction Agreement to which it is or becomes a
party;
(b) all Liabilities for which any member of the Rockwell
Collins Group is expressly made responsible pursuant to the Employee
Matters Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement or the Transition Agreement;
(c) all Liabilities (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Automation Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Liabilities") of Rockwell or any of its Subsidiaries (including members
of the Rockwell Collins Group and members of the Rockwell Science
Center Group) to the extent based upon, arising out of or relating to
the Rockwell Collins Assets or the Rockwell Collins Business,
including:
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(i) all Liabilities to the extent relating to the
Rockwell Collins Business based upon, arising out of or
relating to Contracts (whether or not such Contracts
constitute Rockwell Collins Assets) (including any primary,
secondary, contingent or other obligations, such as under
guaranties or indemnities, in respect of Contracts), including
Liabilities arising out of any breaches or violations and
Liabilities to make payments or otherwise in connection with
the termination thereof as a result of the transactions
contemplated hereby or otherwise and including Liabilities in
respect of Shared Agreements; and
(ii) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses to the extent relating
to the operations of the Rockwell Collins Business which do
not constitute a Rockwell Automation Liability described in
any of paragraphs (b) or (d)(i) - (ix) of the definition of
"Rockwell Automation Liabilities" or a Rockwell Science Center
Liability described in paragraphs (b) or (d) of the definition
of "Rockwell Science Center Liabilities", including (A) all
performance and other Liabilities relating to the services
required to be provided under Section 9 of the Conexant
Transition Agreement; and (B) all Liabilities to the extent
relating to the operations of the Rockwell Collins Business to
indemnify (x) BNA and certain other Persons pursuant to the
Boeing Post-Closing Covenants Agreement, (y) Meritor and
certain other Persons pursuant to the Meritor Distribution
Agreement or (z) Conexant and certain other Persons pursuant
to the Conexant Distribution Agreement;
provided, however, that Rockwell Collins Liabilities shall not include
Liabilities in respect of Rockwell Collins Assets to the extent they
constitute (i) Rockwell Automation Liabilities described in paragraph
(c) of the definition of "Rockwell Automation Liabilities" because they
are based upon, arise out of or relate to the Rockwell Automation
Business or (ii) Rockwell Science Center Liabilities described in
paragraph (c) of the definition of "Rockwell Science Center
Liabilities" because they are based upon, arise out of or relate to the
Rockwell Science Center Business; and
(d) the following specifically enumerated Liabilities of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group), in
each case whether or not such Liabilities relate to the Rockwell
Automation Business, the Rockwell Automation Assets, the Rockwell
Collins Business, the Rockwell Collins Assets, the Rockwell Science
Center Business or the Rockwell Science Center Assets:
(i) all Liabilities based upon, arising out of or
relating to the Actions set forth on Schedule 1.01(n);
(ii) except as provided in paragraphs (d)(ii) and
(d)(iii)(A) of the definition of "Rockwell Automation
Liabilities", all Liabilities based upon, arising out of or
relating to the employment of Former Rockwell Corporate
Employees and Divested Business Employees by any member of the
Pre-Distribution Group, including all Liabilities based upon,
arising out of or relating
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to (A) claims of Former Rockwell Corporate Employees and
Divested Business Employees in respect of their employment (or
termination of employment) with any member of the
Pre-Distribution Group, whether asserted prior to, on or after
the Distribution Date; (B) relocation, severance, salary
continuation and other amounts payable to Former Rockwell
Corporate Employees and Divested Business Employees in
connection with their employment (or termination of
employment) with any member of the Pre-Distribution Group; (C)
providing office, secretarial, telecommunications and other
support services to Donald R. Beall from and after the Time of
Distribution, including any monthly stipend paid to Mr. Beall
for the payment of such services; (D) providing office,
secretarial, telecommunications and other support services to
Robert Anderson from and after the Time of Distribution,
including all Liabilities in respect of the Los Angeles Office
Lease (and any replacement thereof); and (E) the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended;
(iii) all Liabilities based upon, arising out of or
relating to workers' compensation claims of Rockwell Collins
Participants (as defined in the Employee Matters Agreement),
whether asserted prior to, on or after the Distribution Date;
(iv) all Liabilities based upon, arising out of or
relating to the Rockwell CLIR Fund;
(v) all Liabilities based upon, arising out of or
relating to the Cypress Assets or the operations thereof or
the predecessor organizations of Rockwell's Cypress,
California Corporate Shared Services Center organization or
the operations thereof (it being understood that Liabilities
in respect of Active Rockwell Automation Employees (as defined
in the Employee Matters Agreement) engaged in payroll and
benefits consolidation activities shall constitute Rockwell
Automation Liabilities);
(vi) all Liabilities based upon, arising out of or
relating to the Prescription Center Assets or the operations
thereof;
(vii) all Liabilities based upon, arising out of or
relating to the Washington Office Assets or the operations
thereof;
(viii) all Liabilities based upon, arising out of or
relating to claims in respect of the demutualization of the
Metropolitan Life Insurance Company;
(ix) all Liabilities based upon, arising out of or
relating to the Rockwell Collins VEBA;
(x) all Liabilities based upon, arising out of or
relating to the Rockwell Collins Good Government Committee;
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(xi) all Liabilities based upon, arising out of or
relating to the Rockwell Collins Credit Facilities, including
all indebtedness outstanding thereunder and interest and fees
payable with respect thereto;
(xii) all Liabilities in respect of commitments of
the Rockwell Collins Charitable Corporation to be assumed
pursuant to Section 3.14; and
(xiii) all Liabilities based upon, arising out of or
relating to corporate office overhead claims filed by Rockwell
with the U.S. Department of Defense prior to the Time of
Distribution, including all Liabilities in respect of any
adjustments thereto (other than any such Liabilities that
would have been allocated to Rockwell Science Center in
accordance with government contract cost allocation practices
of Rockwell in effect immediately prior to the Time of
Distribution, which shall constitute Rockwell Science Center
Liabilities).
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell Science Center Liabilities" will not be included in Rockwell Collins
Liabilities.
"ROCKWELL COLLINS MARKS" shall have the meaning ascribed
thereto in Section 3.10(b)(i).
"ROCKWELL COLLINS NON-U.S. BANK ACCOUNTS" means all bank
accounts set forth on Schedule 1.01(o).
"ROCKWELL COLLINS PATENT ESCROW ACCOUNT" means the escrow
account in the name of Rockwell Collins established with the U.S. Patent
Commission.
"ROCKWELL COLLINS PENSION TRUST BANK ACCOUNTS" means bank
accounts of the Rockwell Group Trust which contain only pension assets of the
Rockwell Group Trust (which will be allocated pursuant to Section 3.01(c) of the
Employee Matters Agreement).
"ROCKWELL COLLINS SECURITIES" means the Securities set forth
on Schedule 1.01(e).
"ROCKWELL COLLINS SHARED AGREEMENTS" means all Contracts under
which Rockwell or any Rockwell Subsidiary has any rights or primary, secondary,
contingent, joint, several or other Liability arising out of or relating to both
(i) the Rockwell Collins Business and (ii) one or more other businesses of
Rockwell or any Rockwell Subsidiary (other than the Rockwell Science Center
Business), which by their terms will be outstanding or in effect as of or at any
time following the Time of Distribution; provided, however, that Rockwell
Collins Shared Agreements shall not include any Contract for the purchase of
goods or services assigned by any member of the Rockwell Automation Group to any
member of the Rockwell Collins Group prior to the Time of Distribution and under
which no member of the Rockwell Automation Group will make purchases after the
Time of Distribution (it being understood that any such Contracts will
constitute Rockwell Collins Assets).
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"ROCKWELL COLLINS SUBSIDIARY" means each Person listed on
Schedule 1.01(p).
"ROCKWELL COLLINS U.S. BANK ACCOUNTS" means all bank accounts
set forth on Schedule 1.01(q).
"ROCKWELL COLLINS VEBA" means (a) the Rockwell VEBA Trust No.
4 (to be renamed the "Rockwell Collins Pre-Funded VEBA Trust") and (b) all funds
contained therein and rights related thereto.
"ROCKWELL COMMON STOCK" means the Common Stock, par value
$1.00 per share, of Rockwell.
"ROCKWELL DEBT" means all Liabilities of Rockwell or any of
its Subsidiaries (including members of the Rockwell Collins Group and members of
the Rockwell Science Center Group) based upon, arising out of or relating to:
(a) the 6.8% Notes of Reliance Electric Company due April 15,
2003;
(b) the 6.15% Notes of Rockwell due January 15, 2008;
(c) the 6.70% Debentures of Rockwell due January 15, 2028;
(d) the 5.20% Debentures of Rockwell due January 15, 2098;
(e) the Reliance Electric Company Athens-Clarke County
Industrial Development Authority Revenue Bonds Series 1977;
(f) the commercial paper borrowings of Rockwell;
(g) the Amended and Restated Credit Agreement dated December
3, 1997 among Rockwell, the banks parties thereto and Morgan Guaranty
Trust Company of New York, as agent, and any borrowings thereunder; and
(h) all non-U.S. credit facilities of members of the Rockwell
Automation Group that are not assigned to or assumed by a member of the
Rockwell Collins Group or the Rockwell Science Center Group in
connection with the Distribution.
"ROCKWELL GOOD GOVERNMENT COMMITTEE" means the Rockwell
International Corporation Good Government Committee, a political action
committee (Federal Elections Commission I.D. No. C00324996), and all funds held
thereby.
"ROCKWELL GROUP TRUST" shall have the meaning ascribed thereto
in the Employee Matters Agreement.
"ROCKWELL INSURANCE ESCROW ACCOUNT" means (a) the escrow
account established by Rockwell prior to the Time of Distribution with Travelers
Insurance Company relating to the processing of the deductible portion of
certain workers' compensation and
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automobile liability losses and the self-insured retention portion of certain
commercial general liability losses and (b) all funds contained therein and
rights related thereto.
"ROCKWELL PROPERTY TRUST" means (a) the Master Rockwell
Property Exchange Trust established by Rockwell prior to the Time of
Distribution to receive proceeds from the sale of certain real property and to
disburse trust assets for the purpose of acquiring certain real property and (b)
all funds contained therein and rights related thereto.
"ROCKWELL SCIENCE CENTER" shall have the meaning ascribed
thereto in the preamble.
"ROCKWELL SCIENCE CENTER ASSETS" means the following:
(a) all rights of any member of the Rockwell Science Center
Group under any Transaction Agreement to which it is or becomes a
party;
(b) all Assets which are expressly allocated to any member of
the Rockwell Science Center Group pursuant to the Employee Matters
Agreement, the Tax Allocation Agreement, the Science Center Tax
Allocation Agreement or the Transition Agreement;
(c) all Assets (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Automation Assets" and
paragraphs (b) and (d) of the definition of "Rockwell Collins Assets")
which immediately prior to the Time of Distribution are owned by
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group) and
which are used primarily in or relate primarily to the Rockwell Science
Center Business, as the same shall exist as of such time, including:
(i) all rights in respect of Unrelated Former
Businesses relating primarily to the operations of the
Rockwell Science Center Business and which do not constitute a
Rockwell Automation Asset (or a right related thereto)
described in any of paragraphs (b) or (d)(i) - (xxi) of the
definition of "Rockwell Automation Assets" or a Rockwell
Collins Asset (or a right related thereto) described in
paragraphs (b) or (d) of the definition of "Rockwell Collins
Assets", including:
(A) rights to receive payments for services
provided under Section 2 of the Boeing Transition
Agreement and under Section 2 of the Conexant
Transition Agreement;
(B) all rights to the extent relating
primarily to the operations of the Rockwell Science
Center Business to receive indemnification from (x)
BNA pursuant to the Boeing Post-Closing Covenants
Agreement, (y) Meritor pursuant to the Meritor
Distribution Agreement or (z) Conexant pursuant to
the Conexant Distribution Agreement; and
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(C) all rights to the extent relating
primarily to the operations of the Rockwell Science
Center Business under Section 20 of the Boeing
Transition Agreement;
(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group), in each case
whether or not such Assets are used primarily in or relate primarily to
the Rockwell Automation Business, the Rockwell Collins Business or the
Rockwell Science Center Business:
(i) the Rockwell Science Center U.S. Bank Accounts,
the Rockwell Science Center Non-U.S. Bank Accounts and the
Rockwell Science Center Patent Escrow Account;
(ii) (A) cash contained in Rockwell Science Center
U.S. Bank Accounts and Rockwell Science Center Non-U.S. Bank
Accounts (other than Rockwell Science Center Pension Trust
Bank Accounts) of up to an aggregate Recorded Amount of $2
million; (B) all balances contained in petty cash accounts at
non-U.S. locations of the Rockwell Science Center Business;
(C) the dollar value of travelers checks at non-U.S. locations
of the Rockwell Science Center Business; (D) all cash
contained in the Rockwell Science Center Patent Escrow
Account; and (E) pension funds held by the Rockwell Science
Center Group Trust as of the Time of Distribution (subject to
Section 3.01(c) of the Employee Matters Agreement);
(iii) the Rockwell Science Center Securities;
(iv) the patents, patent applications, invention
disclosures and registered trademarks set forth on Schedule
1.01(r); and
(v) 3% of all assets of the MetLife Trust; and
(e) all rights, choses in action, causes of action and claims
of Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center
Group) to the extent relating to any asset described in paragraphs (a)
through (d) above.
Anything contained herein to the contrary notwithstanding,
assets described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Assets" and paragraphs (b) and (d) of the definition of "Rockwell
Collins Assets" will not be included in Rockwell Science Center Assets.
"ROCKWELL SCIENCE CENTER BOARD" means the Board of Directors
of Rockwell Science Center.
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"ROCKWELL SCIENCE CENTER BUSINESS" means:
(a) the business engaged in prior to the Time of Distribution
by the Rockwell Science Center Group of researching, developing,
designing, engineering, manufacturing, selling, licensing, servicing
and supporting technologies in electronics, imaging and optics,
material and computational sciences and information technologies;
(b) Former Businesses related primarily to any of the
foregoing; and
(c) activities of the Rockwell Science Center Group related to
the foregoing; provided, however, that, notwithstanding anything
contained herein to the contrary, the Rockwell Science Center Business
shall not include (i) the Rockwell Automation Business, (ii) the
Rockwell Collins Business or (iii) the Unrelated Former Businesses set
forth on Schedule 1.01(h).
"ROCKWELL SCIENCE CENTER CREDIT FACILITIES" means the credit
facilities set forth on Schedule 1.01(y).
"ROCKWELL SCIENCE CENTER EXPENSES" means the following
out-of-pocket fees, costs and expenses of Rockwell or any of its Subsidiaries
(including members of the Rockwell Collins Group and members of the Rockwell
Science Center Group) (in each case, whether incurred and/or paid before, at or
after the Time of Distribution):
(a) all out-of-pocket fees, costs and expenses (including
legal fees and expenses) of and related to the credit facility
established prior to or after the Time of Distribution for the benefit
of Rockwell Science Center and other members of the Rockwell Science
Center Group with Bank of America, N.A.; and
(b) all other out-of-pocket fees, costs and expenses related
to the Distribution to the extent the same relate to operations of the
Rockwell Science Center Business after the Time of Distribution.
"ROCKWELL SCIENCE CENTER FINANCIAL INSTRUMENTS" means all
credit facilities, guaranties, foreign currency forward exchange contracts,
comfort letters, letters of credit and similar instruments related solely to the
Rockwell Science Center Business under which any member of the Rockwell
Automation Group or the Rockwell Collins Group has any primary, secondary,
contingent, joint, several or other Liability, including those set forth on
Schedule 1.01(s).
"ROCKWELL SCIENCE CENTER GROUP" means Rockwell Science Center
and the Rockwell Science Center Subsidiaries.
"ROCKWELL SCIENCE CENTER GROUP TRUST" shall have the meaning
ascribed thereto in the Employee Matters Agreement.
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"ROCKWELL SCIENCE CENTER INDEMNITEES" means each member of the
Rockwell Science Center Group, each of their respective Representatives and each
of the heirs, executors, successors and permitted assigns of any of the
foregoing.
"ROCKWELL SCIENCE CENTER IP" shall have the meaning ascribed
thereto in Section 3.12(b)(i).
"ROCKWELL SCIENCE CENTER LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Science
Center Group under any Transaction Agreement to which it is or becomes
a party;
(b) all Liabilities for which any member of the Rockwell
Science Center Group is expressly made responsible pursuant to the
Employee Matters Agreement, the Tax Allocation Agreement, the Science
Center Tax Allocation Agreement or the Transition Agreement;
(c) all Liabilities (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Automation Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Collins
Liabilities") of Rockwell or any of its Subsidiaries (including members
of the Rockwell Collins Group and members of the Rockwell Science
Center Group) to the extent based upon, arising out of or relating to
the Rockwell Science Center Assets or the Rockwell Science Center
Business, including:
(i) all Liabilities to the extent relating to the
Rockwell Science Center Business based upon, arising out of or
relating to Contracts (whether or not such Contracts
constitute Rockwell Science Center Assets) (including any
primary, secondary, contingent or other obligations, such as
under guaranties or indemnities, in respect of Contracts),
including Liabilities arising out of any breaches or
violations and Liabilities to make payments or otherwise in
connection with the termination thereof as a result of the
transactions contemplated hereby or otherwise and including
Liabilities in respect of Shared Agreements; and
(ii) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses to the extent relating
to the operations of the Rockwell Science Center Business
which do not constitute a Rockwell Automation Liability
described in any of paragraphs (b) or (d)(i) - (ix) of the
definition of "Rockwell Automation Liabilities" or a Rockwell
Collins Liability described in any of paragraphs (b) or (d) of
the definition of "Rockwell Collins Liabilities", including
(A) all performance and other Liabilities relating to the
services required to be provided under Section 2 of the Boeing
Transition Agreement and Section 2 of the Conexant Transition
Agreement; and (B) all Liabilities to the extent relating to
the operations of the Rockwell Science Center Business to
indemnify (x) BNA and certain other Persons pursuant to the
Boeing Post-Closing Covenants Agreement, (y) Meritor and
certain other Persons pursuant to the Meritor
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Distribution Agreement or (z) Conexant and certain other
Persons pursuant to the Conexant Distribution Agreement;
provided, however, that Rockwell Science Center Liabilities shall not
include Liabilities in respect of Rockwell Science Center Assets to the
extent they constitute (i) Rockwell Automation Liabilities described in
paragraph (c) of the definition of "Rockwell Automation Liabilities"
because they are based upon, arise out of or relate to the Rockwell
Automation Business or (ii) Rockwell Collins Liabilities described in
paragraph (c) of the definition of "Rockwell Collins Liabilities"
because they are based upon, arise out of or relate to the Rockwell
Collins Business; and
(d) the following specifically enumerated Liabilities of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Collins Group and members of the Rockwell Science Center Group), in
each case whether or not such Liabilities relate to the Rockwell
Automation Business, the Rockwell Automation Assets, the Rockwell
Collins Business, the Rockwell Collins Assets, the Rockwell Science
Center Business or the Rockwell Science Center Assets:
(i) all Liabilities based upon, arising out of or
relating to the Actions set forth on Schedule 1.01(t);
(ii) all Liabilities based upon, arising out of or
relating to the Rockwell Science Center Credit Facilities,
including all indebtedness outstanding thereunder and interest
and fees payable with respect thereto; and
(iii) all Liabilities based upon, arising out of or
relating to corporate office overhead claims filed by Rockwell
with the U.S. Department of Defense prior to the Time of
Distribution, including all Liabilities in respect of any
adjustments thereto, which would have been allocated to
Rockwell Science Center in accordance with government contract
cost allocation practices of Rockwell in effect immediately
prior to the Time of Distribution.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell Collins Liabilities" will not be included in Rockwell Science Center
Liabilities.
"ROCKWELL SCIENCE CENTER MARKS" shall have the meaning
ascribed thereto in Section 3.10(c)(i).
"ROCKWELL SCIENCE CENTER NON-U.S. BANK ACCOUNTS" means the
bank accounts set forth on Schedule 1.01(u).
"ROCKWELL SCIENCE CENTER PATENT ESCROW ACCOUNT" means the
escrow account in the name of Rockwell Science Center established with the U.S.
Patent Commission.
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"ROCKWELL SCIENCE CENTER PENSION TRUST BANK ACCOUNTS" means
bank accounts of the Rockwell Science Center Group Trust which contain only
pension assets of the Rockwell Science Center Group Trust (which will be
allocated pursuant to Section 3.01(c) of the Employee Matters Agreement).
"ROCKWELL SCIENCE CENTER SECURITIES" means the Securities set
forth on Schedule 1.01(k).
"ROCKWELL SCIENCE CENTER SERVICES AGREEMENTS" means (a) the
agreement between Rockwell Science Center and Rockwell entered into on the
Distribution Date pursuant to which, among other things, Rockwell Science Center
will provide Rockwell with research and development services and (b) the
agreement between Rockwell Science Center and Rockwell Collins entered into on
the Distribution Date pursuant to which, among other things, Rockwell Science
Center will provide Rockwell Collins with research and development services.
"ROCKWELL SCIENCE CENTER SHARED AGREEMENTS" means all
Contracts under which Rockwell or any Rockwell Subsidiary and/or Rockwell
Collins or any Rockwell Collins Subsidiary has any rights or primary, secondary,
contingent, joint, several or other Liability arising out of or relating to both
(i) the Rockwell Science Center Business and (ii) one or more other businesses
of Rockwell or any Rockwell Subsidiary and/or one or more other businesses of
Rockwell Collins or any Rockwell Collins Subsidiary, which by their terms will
be outstanding or in effect as of or at any time following the Time of
Distribution.
"ROCKWELL SCIENCE CENTER SUBSIDIARY" means each Person listed
on Schedule 1.01(v).
"ROCKWELL SCIENCE CENTER U.S. BANK ACCOUNTS" means all bank
accounts set forth on Schedule 1.01(w).
"ROCKWELL SUBSIDIARY" means each Subsidiary of Rockwell other
than Rockwell Collins, the Rockwell Collins Subsidiaries, Rockwell Science
Center and the Rockwell Science Center Subsidiaries.
"ROCKWELL VEBA" means (a) the Rockwell VEBA Trust No. 3 (to be
renamed the "Rockwell Automation VEBA Trust") and (b) all funds contained
therein and rights related thereto.
"SCIENCE CENTER TAX ALLOCATION AGREEMENT" means the Tax
Allocation Agreement by and between Rockwell and Rockwell Science Center entered
into on the date hereof relating to, among other things, the allocation of
certain tax Liabilities.
"SECURITIES" means all short-term and long-term investments,
banker's acceptances, shares of stock, notes, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in profit-sharing
agreements, collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, puts, calls, straddles, options, investment
contracts, voting-trusts and certificates and other securities of any kind
(other than ownership interests in Subsidiaries, Rockwell Science Center and
joint ventures).
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"SHARED AGREEMENTS" means Rockwell Collins Shared Agreements
and Rockwell Science Center Shared Agreements.
"SHARED POLICIES" means (a) in the case of Rockwell Collins,
all Policies (other than claims administration contracts) which include Rockwell
Collins, any of the Rockwell Collins Subsidiaries and/or the Rockwell Collins
Business within the definition of the named insured and (b) in the case of
Rockwell Science Center, all Policies (other than claims administration
contracts) which include Rockwell Science Center, any of the Rockwell Science
Center Subsidiaries and/or the Rockwell Science Center Business within the
definition of the named insured.
"STRATEGIC SOURCING AGREEMENTS" means Shared Agreements (other
than those which do not relate to the Rockwell Automation Business) that are
strategic sourcing or similar agreements under which members of two or more
Groups purchased or had rights to purchase any products or services prior to the
Time of Distribution, as such Shared Agreements exist as of the Time of
Distribution.
"SUBSIDIARY" means, with respect to any Person, any
corporation or other organization, whether incorporated or unincorporated, of
which such Person or any Subsidiaries of such Person controls or owns, directly
or indirectly, more than 50% of the stock or other equity interest, or more than
50% of the voting power entitled to vote on the election of members to the board
of directors or similar governing body; provided, however, that for purposes of
this Agreement none of Rockwell Collins, the Rockwell Collins Subsidiaries,
Rockwell Science Center or the Rockwell Science Center Subsidiaries shall be
deemed to be a Rockwell Subsidiary.
"TAX" shall have the meaning ascribed thereto in the Tax
Allocation Agreement.
"TAX ALLOCATION AGREEMENT" means the Tax Allocation Agreement
by and between Rockwell and Rockwell Collins, substantially in the form attached
hereto as Annex B.
"TAX RULING" means a private letter ruling issued by the IRS
in form and substance satisfactory to Rockwell (in its sole discretion)
indicating that the Distribution will qualify as a tax-free spin-off to the
shareowners of Rockwell for federal income tax purposes under Section
368(a)(1)(D) of the Code.
"THIRD PARTY CLAIM" shall have the meaning ascribed thereto in
Section 4.06(a).
"TIME OF DISTRIBUTION" means the close of business on the
Distribution Date.
"TRANSACTION AGREEMENTS" means, collectively, this Agreement
and each Ancillary Agreement.
"TRANSITION AGREEMENT" means the transition services agreement
by and among Rockwell, Rockwell Collins and Rockwell Science Center entered into
on or prior to the Distribution Date and providing for various service and other
relationships among Rockwell, Rockwell Collins and Rockwell Science Center
following the Distribution Date.
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"TRANSITION PERIOD" shall have the meaning ascribed thereto in
Section 3.12(g)(i)(C).
"UNRELATED FORMER BUSINESSES" means all Former Businesses not
included in the Rockwell Automation Business, the Rockwell Collins Business or
the Rockwell Science Center Business. Notwithstanding anything to the contrary
contained herein, Unrelated Former Businesses shall include the Former
Businesses set forth on Schedule 1.01(h).
"WASHINGTON OFFICE ASSETS" means Rockwell's office facility
located at 1300 Wilson Boulevard, Arlington, Virginia, the lease agreement dated
December 31, 1997 between Rockwell and US Property Fund GmbH & Co. related
thereto and all leasehold improvements, equipment and other tangible assets
located thereat.
ARTICLE II
THE DISTRIBUTION
SECTION 2.01 The Distribution.
(a) Subject to Section 2.03, on or prior to the Distribution
Date, Rockwell will deliver to the Distribution Agent, for the benefit of
holders of record of Rockwell Common Stock as of the Record Date, a number of
shares of Rockwell Collins Common Stock equal to the number of shares of
Rockwell Common Stock issued and outstanding as of the Record Date (excluding
treasury shares held by Rockwell), and Rockwell will instruct the Distribution
Agent to make book-entry credits on the Distribution Date or as soon thereafter
as practicable for each holder of record of Rockwell Common Stock as of the
Record Date, or the designated transferee or transferees of such holder, for a
number of shares of Rockwell Collins Common Stock equal to the number of shares
of Rockwell Common Stock so held by such holder of record as of the Record Date
(excluding treasury shares held by Rockwell). The Distribution will be effective
as of the Time of Distribution.
(b) Rockwell and Rockwell Collins will each provide to the
Distribution Agent all information (including information necessary to make
appropriate book-entry credits) and share certificates, in each case, as may be
required in order to complete the Distribution on the basis of one share of
Rockwell Collins Common Stock for each share of Rockwell Common Stock issued and
outstanding as of the Record Date (excluding treasury shares held by Rockwell).
SECTION 2.02 Cooperation Prior to the Distribution. Prior to
the Distribution:
(a) Rockwell and Rockwell Collins will prepare the Information
Statement, which will set forth appropriate disclosure concerning Rockwell
Collins, the Distribution and such other matters as Rockwell and Rockwell
Collins may determine. Rockwell and Rockwell Collins will prepare, and Rockwell
Collins will file with the Commission, the Form 10, which will include or
incorporate by reference the Information Statement. Rockwell Collins will use
its
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reasonable best efforts to cause the Form 10 to become effective under the
Exchange Act as soon as practicable following the filing thereof. Promptly after
effectiveness of the Form 10 and completion of the Information Statement
included therein, Rockwell will mail to the holders of Rockwell Common Stock the
Information Statement.
(b) Rockwell and Rockwell Collins will cooperate in preparing,
filing with the Commission and causing to become effective any registration
statements or amendments thereof which are required to reflect the establishment
of, or amendments to, any employee benefit and other plans contemplated by the
Employee Matters Agreement.
(c) Rockwell and Rockwell Collins will take all such action as
may be necessary or appropriate under the securities or "blue sky" laws of the
states or other political subdivisions of the United States and the securities
laws of any applicable foreign countries or other political subdivisions thereof
in connection with the transactions contemplated by this Agreement.
(d) Rockwell and Rockwell Collins will cause to be prepared,
and Rockwell Collins will file and use its reasonable best efforts to have
approved, an application for the listing on the NYSE of the Rockwell Collins
Common Stock to be distributed in the Distribution.
SECTION 2.03 Rockwell Board Action; Conditions to the
Distribution. The Rockwell Board will in its discretion establish the Record
Date and the Distribution Date and all appropriate procedures in connection with
the Distribution, but in no event will the Distribution occur prior to such time
as each of the following conditions shall have been satisfied or shall have been
waived by the Rockwell Board in accordance with Section 2.04:
(a) Rockwell shall have received the Tax Ruling and the Tax
Ruling shall be in full force and effect and shall not have been modified or
amended in any respect adversely affecting the tax consequences set forth
therein;
(b) the Rockwell Board shall have given final approval of the
Distribution;
(c) all material Consents which are required to effect the
Distribution shall have been obtained and shall be in full force and effect;
(d) the Form 10 shall have become effective under the Exchange
Act;
(e) the Certificate of Incorporation, the By-Laws and the
Rights Plan each shall have been adopted and be in effect;
(f) the Rockwell Collins Common Stock shall have been approved
for listing upon notice of issuance on the NYSE;
(g) the transactions contemplated by Section 3.01 and Section
3.02 shall have been consummated in all material respects;
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(h) Rockwell, Rockwell Collins and Rockwell Science Center
shall have entered into each of the Ancillary Agreements to which they are
parties and each such agreement shall be in full force and effect;
(i) no order, injunction or decree issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing
consummation of the Distribution shall be in effect;
(j) no suit, action or proceeding by or before any court of
competent jurisdiction or other Governmental Entity shall have been commenced
and be pending to restrain or challenge the Distribution, and no inquiry shall
have been received that in the reasonable judgment of the Rockwell Board may
lead to such a suit, action or proceeding; and
(k) Rockwell Collins shall have made a pre-Distribution
dividend payment to Rockwell in the amount of $300 million;
provided that the satisfaction of such conditions will not create any obligation
on the part of Rockwell to effect or seek to effect the Distribution or in any
way limit Rockwell's right to terminate this Agreement set forth in Section 6.14
or alter the consequences of any such termination from those specified in
Section 6.14.
SECTION 2.04 Waiver of Conditions. Any or all of the
conditions set forth in Section 2.03 may be waived, in whole or in part, in the
sole discretion of the Rockwell Board.
SECTION 2.05 Disclosure. If at any time after the date hereof
any of the parties shall become aware of any circumstances that will or could
reasonably be expected to prevent any or all of the conditions contained in
Section 2.03 from being satisfied, it will promptly give to the other parties
written notice of those circumstances.
ARTICLE III
TRANSACTIONS RELATING TO THE DISTRIBUTION
SECTION 3.01 Intercorporate Reorganization.
(a) Prior to the Distribution Date, Rockwell and Rockwell
Collins will take all actions necessary to increase the outstanding shares of
Rockwell Collins Common Stock so that, immediately prior to the Distribution,
Rockwell will hold a number of shares of Rockwell Collins Common Stock equal to
the number of shares of Rockwell Common Stock issued and outstanding as of the
Record Date (excluding treasury shares held by Rockwell).
(b) Subject to Section 3.11, prior to the Time of
Distribution, Rockwell, Rockwell Collins and Rockwell Science Center will take,
or cause to be taken, all actions necessary, including the actions specified in
Section 3.01(c), to have:
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(i) Rockwell, each Rockwell Subsidiary, Rockwell Science
Center and each Rockwell Science Center Subsidiary assign and transfer,
or cause to be assigned and transferred, to Rockwell Collins or a
Rockwell Collins Subsidiary, as appropriate, any and all right, title
and interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell
Science Center and each of the Rockwell Science Center Subsidiaries in
the Rockwell Collins Subsidiaries;
(ii) Rockwell, each Rockwell Subsidiary, Rockwell Collins and
each Rockwell Collins Subsidiary assign and transfer, or cause to be
assigned and transferred, to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell
Collins and each of the Rockwell Collins Subsidiaries in the Rockwell
Science Center Subsidiaries;
(iii) Rockwell Collins, each Rockwell Collins Subsidiary,
Rockwell Science Center and each Rockwell Science Center Subsidiary
assign and transfer, or cause to be assigned and transferred, to
Rockwell or a Rockwell Subsidiary, as appropriate, any and all right,
title and interest of Rockwell Collins, each of the Rockwell Collins
Subsidiaries, Rockwell Science Center and each of the Rockwell Science
Center Subsidiaries in the Rockwell Subsidiaries;
(iv) Rockwell, each Rockwell Subsidiary, Rockwell Science
Center and each Rockwell Science Center Subsidiary assign and transfer,
or cause to be assigned and transferred, to Rockwell Collins or a
Rockwell Collins Subsidiary, as appropriate, any and all right, title
and interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell
Science Center and each of the Rockwell Science Center Subsidiaries in
Rockwell Collins Assets;
(v) Rockwell, each Rockwell Subsidiary, Rockwell Collins and
each Rockwell Collins Subsidiary assign and transfer, or cause to be
assigned and transferred, to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell
Collins and each of the Rockwell Collins Subsidiaries in Rockwell
Science Center Assets;
(vi) Rockwell Collins, each Rockwell Collins Subsidiary,
Rockwell Science Center and each Rockwell Science Center Subsidiary
assign and transfer, or cause to be assigned and transferred, to
Rockwell or a Rockwell Subsidiary, as appropriate, any and all right,
title and interest of Rockwell Collins, each of the Rockwell Collins
Subsidiaries, Rockwell Science Center and each of the Rockwell Science
Center Subsidiaries in Rockwell Automation Assets;
(vii) Rockwell Collins or a Rockwell Collins Subsidiary, as
appropriate, unconditionally assume and undertake to pay, perform and
discharge, in a timely manner and in accordance with the terms thereof,
all Liabilities of Rockwell, the Rockwell
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Subsidiaries, Rockwell Science Center and the Rockwell Science Center
Subsidiaries that are Rockwell Collins Liabilities;
(viii) Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, unconditionally assume and undertake to
pay, perform and discharge, in a timely manner and in accordance with
the terms thereof, all Liabilities of Rockwell, the Rockwell
Subsidiaries, Rockwell Collins and the Rockwell Collins Subsidiaries
that are Rockwell Science Center Liabilities; and
(ix) Rockwell or a Rockwell Subsidiary, as appropriate,
unconditionally assume and undertake to pay, perform and discharge, in
a timely manner and in accordance with the terms thereof, all
Liabilities of Rockwell Collins, the Rockwell Collins Subsidiaries,
Rockwell Science Center and the Rockwell Science Center Subsidiaries
that are Rockwell Automation Liabilities.
In the event that at any time or from time to time (whether
prior to, at or after the Time of Distribution) any party (or any member of such
party's respective Group) shall receive or otherwise possess any Asset that is
allocated to any other Person pursuant to this Agreement or any Ancillary
Agreement, such party will promptly transfer, or cause to be transferred, such
Asset to the Person so entitled thereto. Prior to any such transfer, the Person
receiving or possessing such Asset will hold such Asset in trust for the benefit
of the Person entitled thereto (at the expense of the Person entitled thereto).
In the event that at any time or from time to time (whether
prior to, at or after the Time of Distribution) any party determines that any
other party (or any member of such other party's respective Group) shall not
have unconditionally assumed any Liabilities that are allocated to such other
party (or a member of such other party's respective Group) pursuant to this
Agreement or any Ancillary Agreement, such other party will promptly execute and
deliver, or cause to be executed and delivered, all such documents and
instruments and will take, or cause to be taken, all such actions as the
requesting party may reasonably request to unconditionally assume, or cause to
be unconditionally assumed, such Liabilities.
(c) Subject to Section 3.11, Rockwell, Rockwell Collins and
Rockwell Science Center will take, or cause to be taken, the actions described
on Schedule 3.01(c) in connection with United States and international
operations of the Rockwell Collins Business, the Rockwell Automation Business
and the Rockwell Science Center Business.
(d) In connection with the transfers of Subsidiaries and
Assets and the assumptions of Liabilities contemplated by subsections (b) and
(c) of this Section 3.01, Rockwell, Rockwell Collins and Rockwell Science Center
will execute or cause to be executed by the appropriate entities the Conveyance
and Assumption Instruments. The transfer of capital stock contemplated by such
subsections will be effected by means of delivery of stock certificates duly
endorsed or accompanied by duly executed stock powers and notation on the stock
record books of the corporation or other legal entities involved and, to the
extent required by applicable law, by notation on appropriate registries.
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(e) Each of Rockwell (on behalf of itself and each other
member of the Rockwell Automation Group), Rockwell Collins (on behalf of itself
and each other member of the Rockwell Collins Group) and Rockwell Science Center
(on behalf of itself and each other member of the Rockwell Science Center Group)
understands and agrees that, except as expressly set forth in any Transaction
Agreement, no party to any Transaction Agreement or any other agreement or
document contemplated by any Transaction Agreement either has or is, in such
agreement or otherwise, representing or warranting in any way as to the Assets,
Subsidiaries, businesses or Liabilities retained, transferred or assumed as
contemplated hereby or thereby, as to any consents or approvals required in
connection with the transactions contemplated by the Transaction Agreements, as
to the value or freedom from any Lien of, or any other matter concerning, any
Assets, Liabilities or Subsidiaries of such party, or as to the absence of any
defenses or rights of setoff or freedom from counterclaim with respect to any
claim or other Assets or Subsidiaries of any party, or as to the legal
sufficiency of any assignment, document or instrument delivered hereunder or
thereunder to convey title to any Asset or Subsidiary or thing of value upon the
execution, delivery or filing hereof or thereof. Except as may expressly be set
forth in any Transaction Agreement, all Assets and Subsidiaries being
transferred or retained as contemplated by any Transaction Agreement or any
other agreement or document contemplated by any Transaction Agreement are being
transferred, or are being retained, on an "as is", "where is" basis (and, in the
case of the transfer of any real property, by means of a quitclaim or similar
form deed or conveyance) and the respective transferees shall bear the economic
and legal risks that any conveyance shall prove to be insufficient or that the
title to any Asset or Subsidiary shall be other than good and marketable and
free and clear of any Lien.
(f) It is the intention of the parties that payments made by
the parties to each other after the Time of Distribution pursuant to this
Agreement, the Employee Matters Agreement, the Tax Allocation Agreement and the
Science Center Tax Allocation Agreement are to be treated as relating back to
the transactions occurring prior to the Time of Distribution pursuant to this
Section 3.01 as an adjustment to the transfers of Assets, Subsidiaries and
Liabilities contemplated by this Section 3.01, and Rockwell, Rockwell Collins
and Rockwell Science Center will, and will cause their Subsidiaries to, take
positions consistent with such intention with any Tax authority, unless with
respect to any payment any party receives an opinion of counsel reasonably
acceptable to Rockwell and Rockwell Collins to the effect that there is no
substantial authority for such a position.
SECTION 3.02 Financial Instruments.
(a) Rockwell Collins will, at its expense, take or cause to be
taken all actions and enter into (or cause the Rockwell Collins Subsidiaries to
enter into) such agreements and arrangements as shall be necessary to effect the
release of and substitution for each member of the Rockwell Automation Group, as
of the Time of Distribution, from all primary, secondary, contingent, joint,
several and other Liabilities in respect of Rockwell Collins Financial
Instruments (it being understood that all Liabilities in respect of Rockwell
Collins Financial Instruments are Rockwell Collins Liabilities).
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(b) Rockwell Collins' obligations under this Section 3.02 will
continue to be applicable to all Rockwell Collins Financial Instruments
identified at any time by Rockwell, whether before, at or after the Time of
Distribution.
(c) Rockwell Science Center will, at its expense, take or
cause to be taken all actions and enter into (or cause the Rockwell Science
Center Subsidiaries to enter into) such agreements and arrangements as shall be
necessary to effect the release of and substitution for each member of the
Rockwell Automation Group and each member of the Rockwell Collins Group,
effective as of the Time of Distribution, from all primary, secondary,
contingent, joint, several and other Liabilities in respect of Rockwell Science
Center Financial Instruments (it being understood that all Liabilities in
respect of Rockwell Science Center Financial Instruments are Rockwell Science
Center Liabilities).
(d) Rockwell Science Center's obligations under this Section
3.02 will continue to be applicable to all Rockwell Science Center Financial
Instruments identified at any time by Rockwell or Rockwell Collins, as the case
may be, whether before, at or after the Time of Distribution.
SECTION 3.03 Shared Agreements.
(a) The parties acknowledge and understand that (i) all
Rockwell Science Center Shared Agreements that relate to the Rockwell Automation
Business and (ii) all Rockwell Collins Shared Agreements shall constitute
Rockwell Automation Assets, except that, with respect to Shared Agreements
relating to Unrelated Former Businesses, Rockwell Collins will have the rights
described in paragraph (c)(i) of the definition of "Rockwell Collins Assets" and
Rockwell Science Center will have the rights described in paragraph (c)(i) of
the definition of "Rockwell Science Center Assets". All Rockwell Science Center
Shared Agreements that do not relate to the Rockwell Automation Business will
constitute (i) Rockwell Collins Assets if they relate primarily to the Rockwell
Collins Business and (ii) Rockwell Science Center Assets if they relate
primarily to the Rockwell Science Center Business. No member of any Group will
extend or amend any Shared Agreement after the Time of Distribution unless it is
the owner of the Shared Agreement.
(b) The parties agree as follows with respect to Strategic
Sourcing Agreements:
(i) For so long as any member of the Rockwell Automation Group
derives any benefit under any Strategic Sourcing Agreement following
the Time of Distribution (including the ability to continue to make
purchases on the terms set forth in the Strategic Sourcing Agreement)
as a result of purchases by members of the Rockwell Collins Group or
the Rockwell Science Center Group, as the case may be, then Rockwell
Collins or Rockwell Science Center, as the case may be, will use
reasonable best efforts to, and will cause the other members of the
Rockwell Collins Group or the Rockwell Science Center Group, as the
case may be, to use reasonable best efforts to, continue to make
purchases under such Strategic Sourcing Agreement in accordance with
the terms thereof.
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(ii) Each party will use its reasonable best efforts to
obtain, or cause to be obtained, any required consents of third parties
to Strategic Sourcing Agreements to allow members of any Group to make
purchases under Strategic Sourcing Agreements on the terms and
conditions of such Strategic Sourcing Agreements existing as of the
Time of Distribution.
(iii) If Rockwell receives any rebate from a third party to a
Strategic Sourcing Agreement after the Time of Distribution, Rockwell
will promptly pay to each of Rockwell Collins and Rockwell Science
Center its proportionate share of such rebate, if any, as reasonably
determined by Rockwell (after deducting Rockwell's out-of-pocket costs
and expenses incurred in connection with obtaining such rebate), based
on the amount of purchases made by each Group under such Strategic
Sourcing Agreement that the rebate relates to.
(iv) If Rockwell is required for any reason to return after
the Time of Distribution all or any portion of a rebate received from a
third party to a Strategic Sourcing Agreement, then each of Rockwell
Collins and Rockwell Science Center will promptly upon request of
Rockwell pay to Rockwell its proportionate share of such rebate, as
reasonably determined by Rockwell.
SECTION 3.04 Intercompany Accounts and Arrangements.
(a) Elimination of Intercompany Accounts.
(i) Except as set forth in Section 3.04(a)(ii) or on Schedule
3.04(a), Rockwell Collins, on behalf of itself and each other member of
the Rockwell Collins Group, Rockwell, on behalf of itself and each
other member of the Rockwell Automation Group, and Rockwell Science
Center, on behalf of itself and each other member of the Rockwell
Science Center Group, hereby settle and eliminate, by cancellation or
transfer to a member of the other Group (whether to cancel or transfer
and the manner thereof will be determined by Rockwell), effective as of
the Time of Distribution, all intercompany receivables, payables and
other balances (including intercompany cash management balances)
existing immediately prior to the Time of Distribution (a) between
Rockwell Collins and/or any Rockwell Collins Subsidiary, on the one
hand, and Rockwell and/or any Rockwell Subsidiary, on the other hand,
(b) between Rockwell Science Center and/or any Rockwell Science Center
Subsidiary, on the one hand, and Rockwell and/or any Rockwell
Subsidiary, on the other hand, and (c) between Rockwell Science Center
and/or any Rockwell Science Center Subsidiary, on the one hand, and
Rockwell Collins and/or any Rockwell Collins Subsidiary, on the other
hand.
(ii) The provisions of Section 3.04(a)(i) will not apply to
any intercompany receivables, payables and other balances arising under
any Transaction Agreement, including those arising under Section 3.05
and those incurred in connection with the payment by any party of any
expenses which are required to be paid or reimbursed by the other party
pursuant to Section 6.03.
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(b) Intercompany Agreements.
(i) Except as set forth in Section 3.04(b)(ii), in furtherance
of the releases and other provisions of Section 4.01, Rockwell Collins,
on behalf of itself and each other member of the Rockwell Collins
Group, Rockwell, on behalf of itself and each other member of the
Rockwell Automation Group, and Rockwell Science Center, on behalf of
itself and each other member of the Rockwell Science Center Group,
hereby terminate any and all agreements, arrangements, commitments or
understandings in existence as of the Time of Distribution, whether or
not in writing (A) between or among Rockwell Collins and/or any
Rockwell Collins Subsidiary, on the one hand, and Rockwell and/or any
Rockwell Subsidiary, on the other hand, (B) between or among Rockwell
Science Center and/or any Rockwell Science Center Subsidiary, on the
one hand, and Rockwell and/or any Rockwell Subsidiary, on the other
hand, and (C) between or among Rockwell Science Center and/or any
Rockwell Science Center Subsidiary, on the one hand, and Rockwell
Collins and/or any Rockwell Collins Subsidiary, on the other hand. No
such terminated agreement, arrangement, commitment or understanding
(including any provision thereof which purports to survive termination)
shall be of any further force or effect after the Time of Distribution.
(ii) The provisions of Section 3.04(b)(i) will not apply to
any of the following agreements, arrangements, commitments or
understandings (or to any of the provisions thereof): (A) the
Transaction Agreements (and each other agreement, instrument or
document expressly contemplated by any Transaction Agreement to be
entered into by any party hereto or any of the members of their
respective Groups; (B) any agreements, arrangements, commitments or
understandings listed or described on Schedule 3.04(b)(ii); (C) any
agreements, arrangements, commitments or understandings to which any
Person other than the parties hereto and their respective Affiliates is
a party; (D) any other agreements, arrangements, commitments or
understandings that any of the Transaction Agreements expressly
contemplates will survive the Time of Distribution; and (E) any
agreements, arrangements, commitments or understandings (x) between
Rockwell Collins and/or any Rockwell Collins Subsidiary, on the one
hand, and Rockwell and/or any Rockwell Subsidiary, on the other hand,
(y) between Rockwell Science Center and/or any Rockwell Science Center
Subsidiary, on the one hand, and Rockwell and/or any Rockwell
Subsidiary, on the other hand, or (z) between Rockwell Science Center
and/or any Rockwell Science Center Subsidiary, on the one hand, and
Rockwell Collins and/or any Rockwell Collins Subsidiary, on the other
hand, in any such case for the purchase or sale of goods or services of
a type which the provider thereof provides to unaffiliated third
parties in the ordinary course of its business ("Ordinary Course
Intercompany Arrangements"); provided, however, that in the event any
such Ordinary Course Intercompany Arrangements (other than any
Transaction Agreements or agreements described on Schedule 3.04(b)(ii))
do not, as of the Time of Distribution, contain commercially reasonable
arm's-length terms of a type to which unaffiliated parties would
reasonably agree or do not include terms which would normally appear in
such arrangements between unaffiliated parties, Rockwell, Rockwell
Collins and Rockwell Science Center, as the case may be, will cause
such Ordinary Course Intercompany Arrangements to be amended so that
they will contain terms which are, as
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of the Time of Distribution, commercially reasonable arm's-length terms
of a type to which unaffiliated parties would reasonably agree.
SECTION 3.05 Cash Management.
(a) Bank Accounts. Subject to Section 3.05(b), (i) all
Rockwell Collins U.S. Bank Accounts and Rockwell Collins Non-U.S. Bank Accounts
will constitute Rockwell Collins Assets, (ii) all Rockwell Science Center U.S.
Bank Accounts and Rockwell Science Center Non-U.S. Bank Accounts will constitute
Rockwell Science Center Assets, and (iii) all Rockwell Automation Retained
Accounts will constitute Rockwell Automation Assets.
(b) Cash Balances.
(i) (A) In the event the aggregate Recorded Amount of cash in
the Rockwell Collins U.S. Bank Accounts and the Rockwell Collins
Non-U.S. Bank Accounts (other than Rockwell Collins Pension Trust Bank
Accounts) (x) exceeds the Rockwell Collins Distribution Date Funding
Amount, Rockwell Collins will pay to Rockwell (by wire transfer to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania,
Account No. 102-3474), within three business days after the
Distribution Date, an amount equal to such excess or (y) is less than
the Rockwell Collins Distribution Date Funding Amount, Rockwell will
pay to Rockwell Collins, within three business days after the
Distribution Date, an amount equal to such deficit.
(B) Rockwell Collins will pay to Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A.,
Pittsburgh, Pennsylvania, Account No. 102-3474), within three
business days after the Distribution Date, (x) all balances
contained immediately prior to the Time of Distribution in
petty cash accounts at U.S. locations of the Rockwell Collins
Business, and (y) the dollar value of travelers checks
immediately prior to the Time of Distribution at U.S.
locations of the Rockwell Collins Business.
(ii) (A) In the event the aggregate Recorded Amount of cash in
the Rockwell Science Center U.S. Bank Accounts and the Rockwell Science
Center Non-U.S. Bank Accounts (other than Rockwell Science Center
Pension Trust Bank Accounts) (x) exceeds $2 million, Rockwell Science
Center will pay to Rockwell (by wire transfer to Rockwell's bank
account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account No.
102-3474), within three business days after the Distribution Date, an
amount equal to such excess or (y) is less than $2 million, Rockwell
will pay to Rockwell Science Center, within three business days after
the Distribution Date, an amount equal to such deficit.
(B) Rockwell Science Center will pay to Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A.,
Pittsburgh, Pennsylvania, Account No. 102-3474), within three
business days after the Distribution Date, (x) all balances
contained immediately prior to the Time of Distribution in
petty cash accounts at U.S. locations of the Rockwell Science
Center Business, and
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(y) the dollar value of travelers checks immediately prior to
the Time of Distribution at U.S. locations of the Rockwell
Science Center Business.
(c) Rockwell Customer Payments. Each of Rockwell Collins and
Rockwell Science Center will, and will cause their respective Subsidiaries and
Affiliates to, forward promptly to Rockwell (for the account of Rockwell or the
applicable Rockwell Subsidiary) any customer payments in respect of accounts
receivable constituting Rockwell Automation Assets received by Rockwell Collins,
Rockwell Science Center or any of their respective Subsidiaries or Affiliates
after the Time of Distribution, whether received in lock boxes, via wire
transfer or otherwise. Such amounts will be forwarded by wire transfer (to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account
No. 102-3474) in the case of customer payments received within thirty days after
the Distribution Date and by check in the case of customer payments received
thereafter.
(d) Rockwell Collins Customer Payments. Each of Rockwell and
Rockwell Science Center will, and will cause their respective Subsidiaries and
Affiliates to, forward promptly to Rockwell Collins (for the account of Rockwell
Collins or the applicable Rockwell Collins Subsidiary) any customer payments in
respect of accounts receivable constituting Rockwell Collins Assets received by
Rockwell, Rockwell Science Center or any of their respective Subsidiaries or
Affiliates after the Time of Distribution, whether received in lock boxes, via
wire transfer or otherwise. Such amounts will be forwarded by wire transfer in
the case of customer payments received within thirty days after the Distribution
Date and by check in the case of customer payments received thereafter.
(e) Rockwell Science Center Customer Payments. Each of
Rockwell and Rockwell Collins will, and will cause their respective Subsidiaries
and Affiliates to, forward promptly to Rockwell Science Center (for the account
of Rockwell Science Center or the applicable Rockwell Science Center Subsidiary)
any customer payments in respect of accounts receivable constituting Rockwell
Science Center Assets received by Rockwell, Rockwell Collins or any of their
respective Subsidiaries or Affiliates after the Time of Distribution, whether
received in lock boxes, via wire transfer or otherwise. Such amounts will be
forwarded by wire transfer in the case of customer payments received within
thirty days after the Distribution Date and by check in the case of customer
payments received thereafter.
(f) Funding of Outstanding Checks.
(i) The following subsections of this Section 3.05(f) are
intended to implement the parties' agreement that (A) Rockwell Collins
or a Rockwell Collins Subsidiary will be liable for payment of checks
relating to the Rockwell Collins Business or the Rockwell Collins
Liabilities that are outstanding immediately prior to the Time of
Distribution and (B) Rockwell Science Center or a Rockwell Science
Center Subsidiary will be liable for payment of checks relating to the
Rockwell Science Center Business or the Rockwell Science Center
Liabilities that are outstanding immediately prior to the Time of
Distribution.
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(ii) Rockwell Collins or a Rockwell Collins Subsidiary will
fund all amounts in respect of checks that are outstanding immediately
prior to the Time of Distribution and presented for payment at or after
the Time of Distribution in Rockwell Collins U.S. Bank Accounts or
Rockwell Collins Non-U.S. Bank Accounts. Rockwell Science Center or a
Rockwell Science Center Subsidiary will fund all amounts in respect of
checks that are outstanding immediately prior to the Time of
Distribution and presented for payment at or after the Time of
Distribution in Rockwell Science Center U.S. Bank Accounts or Rockwell
Science Center Non-U.S. Bank Accounts.
(iii) Rockwell or a Rockwell Subsidiary will fund all amounts
in respect of checks that are outstanding immediately prior to the Time
of Distribution and presented for payment at or after the Time of
Distribution in Rockwell Automation Retained Accounts. Within three
business days after Rockwell's request:
(A) Rockwell Collins will reimburse Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A.,
Pittsburgh, Pennsylvania, account number 102-3474), for the
account of Rockwell or the applicable Rockwell Subsidiary, for
all such amounts funded by Rockwell or a Rockwell Subsidiary
in respect of checks relating to the Rockwell Collins Business
or the Rockwell Collins Liabilities that are outstanding
immediately prior to the Time of Distribution and presented
for payment at or after the Time of Distribution in Rockwell
Automation Retained Accounts; and
(B) Rockwell Science Center will reimburse Rockwell
(by wire transfer to Rockwell's bank account at Mellon Bank,
N.A., Pittsburgh, Pennsylvania, account number 102-3474), for
the account of Rockwell or the applicable Rockwell Subsidiary,
for all such amounts funded by Rockwell or a Rockwell
Subsidiary in respect of checks relating to the Rockwell
Science Center Business or the Rockwell Science Center
Liabilities that are outstanding immediately prior to the Time
of Distribution and presented for payment at or after the Time
of Distribution in Rockwell Automation Retained Accounts.
(iv) No checks relating to the Rockwell Collins Business, the
Rockwell Collins Liabilities, the Rockwell Science Center Business or
the Rockwell Science Center Liabilities will be issued on any Rockwell
Automation Retained Accounts at or after the Time of Distribution.
SECTION 3.06 The Rockwell Collins Board and the Rockwell
Science Center Board.
(a) Prior to the Time of Distribution, Rockwell and Rockwell
Collins will take all actions which may be required to elect or otherwise
appoint the persons named in the Form 10 to constitute the board of directors of
Rockwell Collins at the Time of Distribution.
(b) Prior to the Time of Distribution, Rockwell and Rockwell
Collins will take all actions which may be required to elect or otherwise
appoint the persons set forth on
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Schedule 3.06(b) to constitute the board of directors of Rockwell Science Center
at the Time of Distribution.
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee.
(a) Rockwell will cause all of its employees and directors and
all of the employees and directors of each other member of the Rockwell
Automation Group to resign, not later than the Time of Distribution, from all
boards of directors or similar governing bodies of Rockwell Collins or any other
member of the Rockwell Collins Group and of Rockwell Science Center or any other
member of the Rockwell Science Center Group on which they serve, and from all
positions as officers of Rockwell Collins or any other member of the Rockwell
Collins Group and of Rockwell Science Center or any other member of the Rockwell
Science Center Group in which they serve, except as otherwise specified on
Schedule 3.07. Rockwell Collins will cause all of its employees and directors
and all of the employees and directors of each other member of the Rockwell
Collins Group to resign, not later than the Time of Distribution, from all
boards of directors or similar governing bodies of Rockwell or any other member
of the Rockwell Automation Group and of Rockwell Science Center or any other
member of the Rockwell Science Center Group on which they serve, and from all
positions as officers of Rockwell or any other member of the Rockwell Automation
Group and of Rockwell Science Center or any other member of the Rockwell Science
Center Group in which they serve, except as otherwise specified on Schedule
3.07. Rockwell Science Center will cause all of its employees and directors and
all of the employees and directors of each other member of the Rockwell Science
Center Group to resign, not later than the Time of Distribution, from all boards
of directors or similar governing bodies of Rockwell or any other member of the
Rockwell Automation Group and of Rockwell Collins or any other member of the
Rockwell Collins Group on which they serve, and from all positions as officers
of Rockwell or any other member of the Rockwell Automation Group and of Rockwell
Collins or any other member of the Rockwell Collins Group in which they serve,
except as otherwise specified on Schedule 3.07.
(b) Rockwell will cause each of its employees, and each of the
employees of the other members of the Rockwell Automation Group, who holds stock
or similar evidence of ownership of any Rockwell Collins Group entity or
Rockwell Science Center Group entity as nominee for such entity pursuant to the
laws of the country in which such entity is located to transfer such stock or
similar evidence of ownership to the Person so designated by Rockwell Collins or
Rockwell Science Center, as the case may be, to be such nominee as of and after
the Time of Distribution. Rockwell Collins will cause each of its employees, and
each of the employees of the other members of the Rockwell Collins Group, who
holds stock or similar evidence of ownership of any Rockwell Automation Group
entity or Rockwell Science Center Group entity as nominee for such entity
pursuant to the laws of the country in which such entity is located to transfer
such stock or similar evidence of ownership to the Person so designated by
Rockwell or Rockwell Science Center, as the case may be, to be such nominee as
of and after the Time of Distribution. Rockwell Science Center will cause each
of its employees, and each of the employees of the other members of the Rockwell
Science Center Group, who holds stock or similar evidence of ownership of any
Rockwell Automation Group entity or Rockwell Collins Group entity as nominee for
such entity pursuant to the laws of the country in which such entity is located
to transfer such stock or similar evidence of ownership to the Person so
designated by
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Rockwell or Rockwell Collins, as the case may be, to be such nominee as of and
after the Time of Distribution.
(c) Rockwell will cause each of its employees and each of the
employees of the other members of the Rockwell Automation Group to revoke or
withdraw their express written authority, if any, to act on behalf of any
Rockwell Collins Group entity or Rockwell Science Center Group entity as an
agent or representative thereof after the Time of Distribution. Rockwell Collins
will cause each of its employees and each of the employees of the other members
of the Rockwell Collins Group to revoke or withdraw their express written
authority, if any, to act on behalf of any Rockwell Automation Group entity or
Rockwell Science Center Group entity as an agent or representative thereof after
the Time of Distribution. Rockwell Science Center will cause each of its
employees and each of the employees of the other members of the Rockwell Science
Center Group to revoke or withdraw their express written authority, if any, to
act on behalf of any Rockwell Automation Group entity or Rockwell Collins Group
entity as an agent or representative thereof after the Time of Distribution.
SECTION 3.08 Rockwell Collins Certificate of Incorporation and
By-Laws; Rights Plan. Prior to the Time of Distribution, (a) the Rockwell
Collins Board will (i) approve the Certificate of Incorporation and will cause
the same to be filed with the Secretary of State of the State of Delaware and
(ii) adopt the By-Laws, and (b) Rockwell, as sole shareowner of Rockwell
Collins, will approve the Certificate of Incorporation. Prior to the Time of
Distribution, the Rockwell Collins Board will adopt the Rights Plan and declare
a dividend of the Rights so that each share of Rockwell Collins Common Stock
issued and outstanding as of the Time of Distribution will initially have one
Right attached thereto.
SECTION 3.09 Insurance.
(a) Coverage. Subject to the provisions of this Section 3.09,
coverage of Rockwell Collins, the Rockwell Collins Subsidiaries, Rockwell
Science Center and the Rockwell Science Center Subsidiaries under all Policies
shall cease as of the Time of Distribution. From and after the Time of
Distribution, Rockwell Collins, the Rockwell Collins Subsidiaries, Rockwell
Science Center and the Rockwell Science Center Subsidiaries will be responsible
for obtaining and maintaining all insurance coverages in their own right. All
Policies will constitute Rockwell Automation Assets and will be retained by
Rockwell and the Rockwell Subsidiaries, together with all rights, benefits and
privileges thereunder (including the right to receive any and all return
premiums with respect thereto), except that Rockwell Collins and Rockwell
Science Center will have the rights in respect of Policies to the extent
described in Sections 3.09(b), (c) and (e).
(b) Rights Under Shared Policies. From and after the Time of
Distribution, Rockwell Collins, the Rockwell Collins Subsidiaries, Rockwell
Science Center and the Rockwell Science Center Subsidiaries will have no rights
with respect to any Policies, except (1) as provided in Sections 3.09(c) and (e)
and (2) as follows:
(i) Rockwell Collins will have the right to assert claims (and
Rockwell will use reasonable best efforts to assist Rockwell Collins in
asserting claims) for any loss,
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liability or damage with respect to Rockwell Collins Assets or Rockwell
Collins Liabilities under Shared Policies with third-party insurers
which are "occurrence basis" insurance policies ("Occurrence Basis
Policies") arising out of insured incidents occurring from the date
coverage thereunder first commenced until the Time of Distribution to
the extent that the terms and conditions of any such Occurrence Basis
Policies and agreements relating thereto so allow;
(ii) Rockwell Collins will have the right to continue to
prosecute claims with respect to Rockwell Collins Assets or Rockwell
Collins Liabilities properly asserted with the insurer prior to the
Time of Distribution (and Rockwell will use reasonable best efforts to
assist Rockwell Collins in connection therewith) under Shared Policies
with third-party insurers which are insurance policies written on a
"claims made" basis ("Claims Made Policies") arising out of insured
incidents occurring from the date coverage thereunder first commenced
until the Time of Distribution to the extent that the terms and
conditions of any such Claims Made Policies and agreements relating
thereto so allow;
(iii) Rockwell Science Center will have the right to assert
claims (and Rockwell will use reasonable best efforts to assist
Rockwell Science Center in asserting claims) for any loss, liability or
damage with respect to Rockwell Science Center Assets or Rockwell
Science Center Liabilities under Occurrence Basis Policies arising out
of insured incidents occurring from the date coverage thereunder first
commenced until the Time of Distribution to the extent that the terms
and conditions of any such Occurrence Basis Policies and agreements
relating thereto so allow; and
(iv) Rockwell Science Center will have the right to continue
to prosecute claims with respect to Rockwell Science Center Assets or
Rockwell Science Center Liabilities properly asserted with the insurer
prior to the Time of Distribution (and Rockwell will use reasonable
best efforts to assist Rockwell Science Center in connection therewith)
under Claims Made Policies arising out of insured incidents occurring
from the date coverage thereunder first commenced until the Time of
Distribution to the extent that the terms and conditions of any such
Claims Made Policies and agreements relating thereto so allow;
provided, that in the case of each of clauses (i), (ii), (iii) and (iv) above,
(A) all of Rockwell's and each Rockwell Subsidiary's reasonable costs and
expenses incurred in connection with the foregoing are promptly paid by Rockwell
Collins or Rockwell Science Center, as the case may be, (B) Rockwell and the
Rockwell Subsidiaries may, at any time, without liability or obligation to
Rockwell Collins, any Rockwell Collins Subsidiary, Rockwell Science Center or
any Rockwell Science Center Subsidiary (other than as set forth in Section
3.09(d)), amend, commute, terminate, buy-out, extinguish liability under or
otherwise modify any Occurrence Basis Policies or Claims Made Policies (and such
claims shall be subject to any such amendments, commutations, terminations,
buy-outs, extinguishments and modifications), (C) such claims will be subject to
(and recovery thereon will be reduced by the amount of) any applicable
deductibles, retentions, self-insurance provisions or any payment or
reimbursement obligations of Rockwell, any Rockwell Subsidiary or any Affiliate
of Rockwell or any Rockwell
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Subsidiary in respect thereof, and (D) such claims will be subject to exhaustion
of existing aggregate limits. Rockwell's obligation to use reasonable best
efforts to assist Rockwell Collins and Rockwell Science Center in asserting
claims under Occurrence Basis Policies will include using reasonable best
efforts in assisting Rockwell Collins and Rockwell Science Center to establish
its right to coverage under Occurrence Basis Policies (so long as all of
Rockwell's costs and expenses in connection therewith are promptly paid by
Rockwell Collins or Rockwell Science Center, as the case may be). None of
Rockwell or the Rockwell Subsidiaries will bear any Liability for the failure of
an insurer to pay any claim under any Occurrence Basis Policy or Claims Made
Policy.
(c) Rights Under Current Excess Workers' Compensation Policy.
Rockwell will request that the insurer under the Current Excess Workers'
Compensation Policy permit members of the Rockwell Collins Group to be named as
additional named insureds under the Current Excess Workers' Compensation Policy
with respect to incidents occurring from the Distribution Date through September
30, 2003, provided that no member of the Rockwell Automation Group will be
required to pay any consideration or grant any financial or other accommodation
in connection therewith. In connection therewith, from and after the Time of
Distribution Rockwell Collins will have the right to assert claims (and Rockwell
will use reasonable best efforts to assist Rockwell Collins in asserting claims)
for any loss, liability or damage with respect to Rockwell Collins Assets or
Rockwell Collins Liabilities under the Current Excess Workers' Compensation
Policy arising out of insured incidents occurring from the Time of Distribution
to September 30, 2003 to the extent that the terms and conditions of the Current
Excess Workers' Compensation Policy and agreements relating thereto and the
insurer thereunder so allow; provided, that (i) all of Rockwell's and each
Rockwell Subsidiary's reasonable costs and expenses incurred in connection with
the foregoing are promptly paid by Rockwell Collins, (ii) Rockwell and the
Rockwell Subsidiaries may, at any time, without liability or obligation to
Rockwell Collins or any Rockwell Collins Subsidiary (other than as set forth in
Section 3.09(d)), amend, commute, terminate, buy-out, extinguish liability under
or otherwise modify the Current Excess Workers' Compensation Policy (and such
claims shall be subject to any such amendments, commutations, terminations,
buy-outs, extinguishments and modifications), (iii) such claims will be subject
to (and recovery thereon will be reduced by the amount of) any applicable
deductibles, retentions, self-insurance provisions or any payment or
reimbursement obligations of Rockwell, any Rockwell Subsidiary or any Affiliate
of Rockwell or any Rockwell Subsidiary in respect thereof, and (iv) such claims
will be subject to exhaustion of existing aggregate limits. Rockwell's
obligation to use reasonable best efforts to assist Rockwell Collins in
asserting claims under the Current Excess Workers' Compensation Policy will
include using reasonable best efforts in assisting Rockwell Collins to establish
its right to coverage under the Current Excess Workers' Compensation Policy (so
long as all of Rockwell's costs and expenses in connection therewith are
promptly paid by Rockwell Collins). None of Rockwell or the Rockwell
Subsidiaries will bear any Liability for the failure of the insurer to pay any
claim under the Current Excess Workers' Compensation Policy.
(d) Rockwell Actions. In the event that after the Time of
Distribution Rockwell or any Rockwell Subsidiary proposes to amend, commute,
terminate, buy-out, extinguish liability under or otherwise modify any
Occurrence Basis Policies (including the Current Excess Workers' Compensation
Policy) or Claims Made Policies under which Rockwell
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Collins or Rockwell Science Center has rights to assert claims pursuant to
Section 3.09(b) or Section 3.09(c) in a manner that would adversely affect any
such rights of Rockwell Collins or Rockwell Science Center, (i) Rockwell will
give Rockwell Collins and/or Rockwell Science Center, as the case may be, prior
notice thereof and consult with Rockwell Collins and/or Rockwell Science Center,
as the case may be, with respect to such action (it being understood that the
decision to take any such action will be in the sole discretion of Rockwell) and
(ii) Rockwell will pay to Rockwell Collins and/or Rockwell Science Center, as
the case may be, its equitable share (which shall be determined by Rockwell
based on the amount of premiums paid by or allocated to the Rockwell Collins
Business or the Rockwell Science Center Business, as the case may be, in respect
of the applicable Shared Policy) of any net proceeds actually received by
Rockwell from the insurer under the applicable Shared Policy as a result of such
action by Rockwell (after deducting Rockwell's reasonable costs and expenses
incurred in connection with such action).
(e) Claims Administration. To the extent Constitution State
Service Company and the terms and conditions of the Claims Administration
Contract so allow, Rockwell will permit the Rockwell Collins Group to continue
to administer commercial general liability self-insured claims that relate to
incidents occurring prior to the Time of Distribution under the Claims
Administration Contract; provided, that (i) all of Rockwell's and each Rockwell
Subsidiary's reasonable costs and expenses incurred in connection with the
foregoing are promptly paid by Rockwell Collins and (ii) Rockwell and the
Rockwell Subsidiaries may, at any time, without liability or obligation to
Rockwell Collins or any Rockwell Collins Subsidiary, amend, modify or terminate
the Claims Administration Contract. Notwithstanding the foregoing, the parties
acknowledge and agree that all Liabilities in respect of claims administered for
the Rockwell Collins Group under the Claims Administration Contract shall
constitute Rockwell Collins Liabilities.
(f) Administration. From and after the Time of Distribution:
(i) Rockwell or a Rockwell Subsidiary, as appropriate, will be
responsible for the Claims Administration with respect to claims of
Rockwell and the Rockwell Subsidiaries under Occurrence Basis Policies
(including the Current Excess Workers' Compensation Policy) and Claims
Made Policies;
(ii) Rockwell Collins or a Rockwell Collins Subsidiary, as
appropriate, will be responsible for the Claims Administration with
respect to the claims of Rockwell Collins and the Rockwell Collins
Subsidiaries under Occurrence Basis Policies (including the Current
Excess Workers' Compensation Policy) and Claims Made Policies that are
permitted under Sections 3.09(b) and 3.09(c); and
(iii) Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, will be responsible for the Claims
Administration with respect to the claims of Rockwell Science Center
and the Rockwell Science Center Subsidiaries under Occurrence Basis
Policies and Claims Made Policies that are permitted under Section
3.09(b).
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(g) Insurance Premiums. Rockwell will pay all premiums
(retrospectively-rated or otherwise) as required under the terms and conditions
of the respective Policies in respect of periods prior to the Time of
Distribution and, in the case of the Current Excess Workers' Compensation
Policy, in respect of periods to September 30, 2003, whereupon (i) Rockwell
Collins will, upon request of Rockwell, forthwith reimburse Rockwell for that
portion of such premiums paid by Rockwell as are reasonably determined by
Rockwell to be attributable to the Rockwell Collins Business and (ii) Rockwell
Science Center will, upon request of Rockwell, forthwith reimburse Rockwell for
that portion of such premiums paid by Rockwell as are reasonably determined by
Rockwell to be attributable to the Rockwell Science Center Business.
(h) Agreement for Waiver of Conflict and Shared Defense. In
the event that an Occurrence Basis Policy or a Claims Made Policy provides
coverage for two or more of (i) Rockwell and/or a Rockwell Subsidiary, (ii)
Rockwell Collins and/or a Rockwell Collins Subsidiary and (iii) Rockwell Science
Center and/or a Rockwell Science Center Subsidiary relating to the same
occurrence, Rockwell, Rockwell Collins and Rockwell Science Center, as
applicable, agree to defend jointly and to waive any conflict of interest
necessary to the conduct of that joint defense. Nothing in this Section 3.09(h)
will be construed to limit or otherwise alter in any way the indemnity
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
(i) Directors' and Officers' Insurance. Rockwell will use its
reasonable best efforts to cause the persons currently serving as directors
and/or officers of Rockwell or any Subsidiary of Rockwell who will be, effective
as of the Time of Distribution, directors and/or officers of Rockwell Collins,
any Rockwell Collins Subsidiary, Rockwell Science Center or any Rockwell Science
Center Subsidiary to be covered for a period of six years from the Time of
Distribution with respect to claims arising from facts or events which occurred
prior to the Time of Distribution by the directors' and officers' liability
insurance policies maintained by Rockwell during such six-year period following
the Time of Distribution for all persons who served as directors and/or officers
of Rockwell or any Rockwell Subsidiary prior to the Time of Distribution with
respect to claims arising from facts or events which occurred prior to the Time
of Distribution.
(j) Rockwell Science Center Coverage Under Rockwell Collins
Aviation Insurance. Following the Time of Distribution, Rockwell Collins will
provide aviation products liability insurance coverage for the benefit of the
Rockwell Science Center Group with respect to products made by or on behalf of
the Rockwell Science Center Group for the Rockwell Collins Group, which
insurance shall provide coverage similar to that which Rockwell Collins
maintains for its own account.
SECTION 3.10 Use of Names, Trademarks, etc.
(a) From and after the Time of Distribution, subject to
Sections 3.10(b), 3.10(c) and 3.10(d), Rockwell will own all rights of Rockwell
or any of its Subsidiaries (including members of the Rockwell Collins Group and
members of the Rockwell Science Center Group) in, and to the use of, the names
"Rockwell", "Rockwell International", "Rockwell
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Collins", "Rockwell Science Center" and "Rockwell Scientific Company" and all
corporate symbols and logos related thereto and any name or mark which includes
the words "Rockwell" or "Rockwell International" and all derivatives thereof and
any other name, mark or symbol connoting "Rockwell" or which constitutes a
formative thereof. From and after the Time of Distribution, except as permitted
in Sections 3.10(b), 3.10(c) and 3.10(d), the Rockwell Collins Group and the
Rockwell Science Center Group will not use or have any rights to the names,
trademarks, trade names, domain names and service marks "Rockwell", "Rockwell
International", "Rockwell Collins", "Rockwell Science Center" or "Rockwell
Scientific Company" or any corporate symbol or logo related thereto or any name
or mark which includes the words "Rockwell" or "Rockwell International" or any
derivative thereof or any name or mark confusingly similar thereto, or any
special script, type font, form, style, logo, design, device, trade dress or
symbol which contains, represents or evokes the trademark, trade name or service
mark "Rockwell" or "Rockwell International" or any derivative thereof or any
name or mark confusingly similar thereto. From and after the Time of
Distribution the Rockwell Collins Group will not hold itself out as having any
affiliation with the Rockwell Automation Group. Prior to or as soon as
practicable following the Time of Distribution (but in no event later than one
year after the Distribution Date) (i) Rockwell Collins will change the name of
any Rockwell Collins Subsidiary to eliminate therefrom the name "Rockwell" other
than in the combined format "Rockwell Collins" and (ii) Rockwell Science Center
will change the name of any Rockwell Science Center Subsidiary to eliminate
therefrom the name "Rockwell" other than in the combined format "Rockwell
Science Center", "Rockwell Scientific" or "Rockwell Scientific Company".
(b) (i) Rockwell hereby grants to Rockwell Collins an
exclusive, non-transferable (other than by way of sublicenses to
members of the Rockwell Collins Group) license to utilize without
obligation to pay royalties to Rockwell the name, trademark, trade
name, domain name and service mark "Rockwell Collins" (the "Rockwell
Collins Marks") in connection with businesses of the Rockwell Collins
Group, other than in connection with (A) the Rockwell Automation
Business (as it exists on the Distribution Date), (B) the Rockwell
Science Center Business (as it exists on the Distribution Date) or (C)
researching, developing, designing, engineering, manufacturing,
building, selling, distributing, installing, modifying, repairing,
servicing or supporting Automation Products. Unless and until the
license granted under this Section 3.10(b) is terminated, Rockwell will
not use, nor grant a license to any third party to use, the Rockwell
Collins Marks.
(ii) As a condition to the license granted by this Section
3.10(b), Rockwell Collins will use the Rockwell Collins Marks (A) in
connection with goods and services having a level of quality at least
as high as that established by the Rockwell Collins Business for
similar goods or services made, sold or offered for sale prior to the
Distribution Date and (B) in compliance with all applicable laws and
regulations.
(iii) Rockwell will have the right to exercise quality control
over Rockwell Collins' and any permitted sublicensee's presentation or
use of the Rockwell Collins Marks to that degree reasonably necessary,
in the opinion of Rockwell, to maintain the validity and enforceability
of the Rockwell Collins Marks and the name, trademark, trade
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name or service mark "Rockwell" and to protect the goodwill associated
with any of the foregoing. Rockwell Collins will, upon request by
Rockwell, submit to Rockwell materials of the Rockwell Collins Group
bearing the Rockwell Collins Marks as Rockwell may reasonably require
to ensure Rockwell Collins' and any permitted sublicensee's compliance
with the obligations set forth in this Section 3.10(b).
(iv) (A) Rockwell may terminate the license granted under this
Section 3.10(b) in the event of a material breach of this
Section 3.10(b) by any member of the Rockwell Collins Group
that has not been cured within sixty days (or ninety days, if
substantial progress is being made at the end of such sixty
day period) of written notice by Rockwell to Rockwell Collins.
(B) The license granted under this Section 3.10(b)
will terminate automatically on the 180th day after a Rockwell
Collins Change in Control.
(v) From and after the Time of Distribution, Rockwell Collins
will have all rights of Rockwell or any of its Subsidiaries (including
members of the Rockwell Collins Group and members of the Rockwell
Science Center Group) in, and to the use of, the name, trademark, trade
name and service mark "Collins" (other than in the combined format
"Rockwell Collins") and all corporate symbols and logos related thereto
and all derivatives thereof.
(c) (i) Rockwell hereby grants to Rockwell Science Center an
exclusive, non-transferable (other than by way of sublicenses to
members of the Rockwell Science Center Group) license to utilize
without obligation to pay royalties to Rockwell the names, trademarks,
trade names, domain names and service marks "Rockwell Science Center",
"Rockwell Scientific" and "Rockwell Scientific Company" (collectively,
the "Rockwell Science Center Marks") in connection with the Rockwell
Science Center Business as it exists on the Distribution Date. Unless
and until the license granted under this Section 3.10(c) is terminated,
Rockwell will not use, nor grant a license to any third party to use,
the Rockwell Science Center Marks.
(ii) As a condition to the license granted by this Section
3.10(c), Rockwell Science Center will use the Rockwell Science Center
Marks (A) in connection with goods and services having a level of
quality at least as high as that established by the Rockwell Science
Center Business for similar goods or services made, sold or offered for
sale prior to the Distribution Date and (B) in compliance with all
applicable laws and regulations.
(iii) Rockwell will have the right to exercise quality control
over Rockwell Science Center's and any permitted sublicensee's
presentation or use of the Rockwell Science Center Marks to that degree
reasonably necessary, in the opinion of Rockwell, to maintain the
validity and enforceability of the Rockwell Science Center Marks and
the name, trademark, trade name or service mark "Rockwell" and to
protect the goodwill associated with any of the foregoing. Rockwell
Science Center will, upon request by Rockwell, submit to Rockwell
materials of the Rockwell Science Center Group bearing
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the Rockwell Science Center Marks as Rockwell may reasonably require to
ensure Rockwell Science Center's and any permitted sublicensee's
compliance with the obligations set forth in this Section 3.10(c).
(iv) (A) Rockwell may terminate the license granted under this
Section 3.10(c) in the event of a material breach of this
Section 3.10(c) by any member of the Rockwell Science Center
Group that has not been cured within sixty days (or ninety
days, if substantial progress is being made at the end of such
sixty day period) of written notice by Rockwell to Rockwell
Science Center.
(B) The license granted under this Section 3.10(c)
will terminate automatically on the earlier of (x) the 180th
day after a Rockwell Collins Change in Control or (y) the
180th day after the aggregate equity ownership interest of
Rockwell and Rockwell Collins in Rockwell Science Center falls
below 50% or (z) the date that Rockwell and Rockwell Collins,
when acting in concert, lack the ability to control management
of Rockwell Science Center.
(d) In addition to, and without limiting the licenses granted
in Section 3.10(b) and Section 3.10(c), Rockwell hereby grants to each of
Rockwell Collins and Rockwell Science Center a non-exclusive, non-transferable
(other than by way of sublicenses to members of the Rockwell Collins Group or
the Rockwell Science Center Group, as the case may be) license to utilize
without obligation to pay royalties to Rockwell the names, trademarks or trade
names "Rockwell" and "Rockwell International" and any corporate symbol or logo
related thereto in connection with stationery, supplies, labels, catalogs,
vehicles, signs and products of the Rockwell Collins Business or the Rockwell
Science Center Business, as the case may be, described in paragraphs (i) through
(v) of this Section 3.10(d), subject to the terms and conditions of this Section
3.10(d) and Section 3.10(e), in each case in the same manner and to the same
extent as such names, trademarks, trade names, corporate symbols or logos were
used by the Rockwell Collins Business or the Rockwell Science Center Business,
as the case may be, at any time within the five year period preceding the
Distribution:
(i) All stationery, invoices, purchase orders and other
similar documents of a transactional nature, business cards, outside
forms such as packing lists, labels, and cartons, forms for internal
use only and product literature constituting Rockwell Collins Assets or
Rockwell Science Center Assets, as the case may be, as of the Time of
Distribution may be used for a period of one year following the
Distribution Date or until the supply is exhausted, whichever is the
first to occur.
(ii) All vehicles constituting Rockwell Collins Assets or
Rockwell Science Center Assets, as the case may be, as of the Time of
Distribution may continue to be used without re-marking (except as to
legally required permit numbers, license numbers, etc.) for a period
not to exceed (A) one year following the Distribution Date or (B) the
date of disposition of the vehicle, whichever is the first to occur.
(iii) Within six months following the Distribution Date,
Rockwell Collins and Rockwell Science Center, as the case may be, will
cause to be removed from display at
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all owned and leased facilities constituting Rockwell Collins Assets or
Rockwell Science Center Assets, respectively, all demountable displays
which contain the names, trademarks or trade names "Rockwell" or
"Rockwell International" (other than, (x) in the case of Rockwell
Collins, in the combined format "Rockwell Collins" and (y) in the case
of Rockwell Science Center, in the combined format "Rockwell Science
Center" or "Rockwell Scientific Company") or any corporate symbol
related thereto and Rockwell Collins and Rockwell Science Center each
will remove, or will cause the removal of, all signs displaying any
such name, trademark, trade name or corporate symbol at all such
facilities (A) located in the United States, no later than six months
following the Distribution Date and (B) located outside the United
States, no later than one year following the Distribution Date.
(iv) Products of the Rockwell Collins Business and the
Rockwell Science Center Business may have applied thereto the names,
trademarks or trade names "Rockwell" or "Rockwell International" or any
Rockwell corporate symbol or logo related thereto for a period of six
months after the Distribution.
(v) Products of the Rockwell Collins Business and the Rockwell
Science Center Business in finished goods inventory and work in process
(to the extent the same bear the names, trademarks or trade names
"Rockwell" or "Rockwell International" at the Time of Distribution or
have any such trademark or trade name applied to them in accordance
with paragraph (v) above) may be disposed of without re-marking.
(e) (i) Apart from the rights granted under Section 3.10(b),
Section 3.10(c) and Section 3.10(d), no member of the Rockwell Collins
Group or the Rockwell Science Center Group shall have any right, title
or interest in, or to the use of, the Rockwell Collins Marks, the
Rockwell Science Center Marks or the names, trademarks or trade names
"Rockwell" or "Rockwell International" or any corporate symbol or logo
related thereto, either alone or in combination with any other word,
name, symbol, device, trademarks, or any combination thereof. Anything
contained herein to the contrary notwithstanding, except as expressly
permitted by Section 3.10(b), Section 3.10(c) and Section 3.10(d), in
no event will any member of the Rockwell Collins Group or any member of
the Rockwell Science Center Group utilize the Rockwell Collins Marks,
the Rockwell Science Center Marks, as the case may be, or the names,
trademarks, trade names or domain names "Rockwell" or "Rockwell
International" or any corporate symbol or logo related thereto as a
component of a company or trade name. Rockwell Collins and Rockwell
Science Center each will not, and will cause each other member of the
Rockwell Collins Group and the Rockwell Science Center Group, as the
case may be, not to, challenge or contest the validity of such names,
trademarks, trade names, domain names, corporate symbols or logos, the
registration thereof or the ownership thereof by the Rockwell
Automation Group. Rockwell Collins and Rockwell Science Center each
will not, and will cause each other member of the Rockwell Collins
Group and the Rockwell Science Center Group, as the case may be, not
to, apply anywhere at any time for any registration as owner or
exclusive licensee of such names, trademarks, trade names, domain
names, corporate symbols or logos. If, notwithstanding the foregoing,
any member of the Rockwell Collins Group or the Rockwell Science
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Center Group develops, adopts or acquires, directly or indirectly, any
right, title or interest in, or to the use of, any such names,
trademarks, trade names, domain names, corporate symbols or logos in
any jurisdiction, or any goodwill incident thereto, Rockwell Collins or
Rockwell Science Center, as the case may be, will, upon the request of
Rockwell, and for a nominal consideration of one dollar, assign or
cause to be assigned to Rockwell or any designee of Rockwell, all
right, title and interest in, and to the use of, such names,
trademarks, trade names, domain names, corporate symbols or logos in
any and all jurisdictions, together with any goodwill incident thereto.
(ii) If the laws of any country require that any mark subject
to Section 3.10(b), Section 3.10(c) or Section 3.10(d) or the right of
any member of the Rockwell Collins Group or the Rockwell Science Center
Group to use any mark as permitted by Section 3.10(b), Section 3.10(c)
or Section 3.10(d) be registered in order to fully protect the Rockwell
Automation Group, then Rockwell Collins or Rockwell Science Center, as
the case may be, and Rockwell will cooperate in constituting such
member of the Rockwell Collins Group or the Rockwell Science Center
Group, as the case may be, as a registered user (or its equivalent) in
each of the countries in which such registration is necessary. Any
expenses for registering such mark or constituting such member of the
Rockwell Collins Group or the Rockwell Science Center Group, as the
case may be, as a registered user in any country shall be borne by
Rockwell Collins or Rockwell Science Center, as the case may be. Any
registration of such member of the Rockwell Collins Group or the
Rockwell Science Center Group, as the case may be, as a registered user
of any mark hereunder shall be expunged on termination of the period of
permitted use under this Agreement or upon a breach or threatened
breach by any member of the Rockwell Collins Group or the Rockwell
Science Center Group, as the case may be, of the terms of this Section
3.10 and Rockwell Collins or Rockwell Science Center, as the case may
be, will, upon request of Rockwell, take all necessary steps to cause
such registration to be so expunged upon such termination or breach or
threatened breach.
(iii) Rockwell will have the right to terminate the license
granted in Section 3.10(b) and/or Section 3.10(d) (with respect to
Rockwell Collins) in the event of a material breach of this Section
3.10(e) by any member of the Rockwell Collins Group that has not been
cured within sixty days (or ninety days, if substantial progress is
being made at the end of such sixty day period) after written notice by
Rockwell to Rockwell Collins. Rockwell will have the right to terminate
the license granted in Section 3.10(c) and/or Section 3.10(d) (with
respect to Rockwell Science Center) in the event of a material breach
of this Section 3.10(e) by any member of the Rockwell Science Center
Group that has not been cured within sixty days (or ninety days, if
substantial progress is being made at the end of such sixty day period)
after written notice by Rockwell to Rockwell Science Center.
(iv) Rockwell Collins hereby constitutes and appoints Rockwell
the true and lawful attorney of Rockwell Collins and its Subsidiaries
to act as their attorney-in-fact to execute any documents and to take
all necessary steps to cause Rockwell Collins and its Subsidiaries to
perform any of their obligations set forth in this Section 3.10(e),
provided however, that Rockwell will provide Rockwell Collins sixty
days written notice prior to
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executing such documents or commencing such steps. Rockwell Science
Center hereby constitutes and appoints Rockwell the true and lawful
attorney of Rockwell Science Center and its Subsidiaries to act as
their attorney-in-fact to execute any documents and to take all
necessary steps to cause Rockwell Science Center and its Subsidiaries
to perform any of their obligations set forth in this Section 3.10(e),
provided however, that Rockwell will provide Rockwell Science Center
sixty days written notice prior to executing such documents or
commencing such steps.
(f) From and after the Distribution Date, the Rockwell
Automation Group will not hold itself out as having an affiliation with the
Rockwell Collins Group.
SECTION 3.11 Consents. Prior to and after the Distribution
Date, Rockwell, Rockwell Collins and Rockwell Science Center will, and will
cause their respective Subsidiaries to, use their reasonable best efforts (as
requested by any other party) to obtain, or to cause to be obtained, all
Consents and to resolve all impracticalities of assignments or transfers
necessary for the transfer of all Assets, Subsidiaries and Liabilities
contemplated to be transferred pursuant to this Article III; provided, however,
that none of Rockwell, Rockwell Collins or Rockwell Science Center or their
respective Subsidiaries shall be obligated to pay any consideration or offer or
grant any financial accommodation in connection therewith. Anything contained
herein to the contrary notwithstanding, this Agreement shall not constitute an
agreement to assign any Contract, License or Asset if an assignment or attempted
assignment of the same without the Consent of any other party or parties thereto
or other required Consent would constitute a breach thereof or of any applicable
law or in any way impair the rights of any member of the Rockwell Automation
Group, the Rockwell Collins Group or the Rockwell Science Center Group, as the
case may be, thereunder. If any such Consent is not obtained or if an attempted
assignment would be ineffective or would impair any member of a Group's rights
under any such Contract, License or Asset so that the contemplated assignee
hereunder (the "Recipient Party") would not receive all such rights, then (x)
the party contemplated hereunder to assign such Contract, License or Asset (the
"Assigning Party") will use reasonable best efforts (it being understood that
such efforts shall not include any requirement of the Assigning Party to pay any
consideration or offer or grant any financial accommodation) to provide or cause
to be provided to the Recipient Party, to the extent permitted by law, the
benefits of any such Contract, License or Asset and the Assigning Party will
promptly pay or cause to be paid to the Recipient Party when received all moneys
and properties received by the Assigning Party with respect to any such
Contract, License or Asset and (y) the Recipient Party will pay, perform and
discharge on behalf of the Assigning Party all of the Assigning Party's
Liabilities thereunder in a timely manner and in accordance with the terms
thereof. In addition, the Assigning Party will take such other actions (at the
Recipient Party's expense) as may reasonably be requested by the Recipient Party
in order to place the Recipient Party, insofar as reasonably possible, in the
same position as if such Contract, License or Asset had been transferred as
contemplated hereby and so all the benefits and burdens relating thereto,
including possession, use, risk of loss, potential for gain and dominion,
control and command, shall inure to the Recipient Party. If and when such
Consents are obtained, the transfer of the applicable Contract, License or Asset
shall be effected as promptly following the Time of Distribution as shall be
practicable in accordance with the terms of this Agreement. To the extent that
any transfers and assumptions contemplated by this Article III shall not have
been consummated on or prior to the Time of Distribution, the parties shall
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cooperate to effect such transfers as promptly following the Time of
Distribution as shall be practicable, it nonetheless being agreed and understood
by the parties that no party shall be liable in any manner to any other party
for any failure of any of the transfers contemplated by this Article III to be
consummated prior to the Time of Distribution.
SECTION 3.12 Intellectual Property.
(a) Effective immediately after the Time of Distribution,
Rockwell, on behalf of itself and the Rockwell Subsidiaries, hereby grants to
Rockwell Science Center a royalty-free, world-wide, irrevocable, non-exclusive
license under all Intellectual Property (excluding trademarks, trade names,
domain names, service marks, trade dress or any other form of trade identity)
which constitutes Rockwell Automation Assets and which immediately after the
Time of Distribution is either owned by the Rockwell Automation Group or under
which the Rockwell Automation Group has a right to license without the payment
of royalties to a third party to make, have made, use, import, sell or otherwise
dispose of products, or to practice any process in connection therewith, in the
conduct of the Rockwell Science Center Business (as such business is being
conducted at the Time of Distribution); said non-exclusive license being
transferable only by sublicenses (to the extent permitted in the case of any
restricted grant to Rockwell or a Rockwell Subsidiary, as a licensee) to members
of the Rockwell Science Center Group and in connection with the sale or other
disposition of all or any part of the Rockwell Science Center Business to which
such Intellectual Property relates. To the extent that the Rockwell Science
Center Group does not have copies of any information or materials relating to
Intellectual Property licensed under this Section 3.12(a) that are essential to
exercising such rights, Rockwell will, upon reasonable request, supply to the
Rockwell Science Center Group copies of any such information or materials
relating to such Intellectual Property. In no event shall Rockwell Science
Center use the subject matter of any Intellectual Property licensed under this
Section 3.12(a) in a manner that is competitive with the Rockwell Automation
Business as such business is being conducted at the Time of Distribution, or any
extensions or expansions thereof occurring in the ordinary course of business,
except that Rockwell Science Center shall be able to continue to use the subject
matter of such Intellectual Property in a manner that is competitive with the
Rockwell Automation Business in any such extensions or expansions of the
Rockwell Automation Business to the extent (but only to the extent) such
Intellectual Property was used by Rockwell Science Center prior to such
extensions or expansions of the Rockwell Automation Business.
(b) (i) Effective immediately after the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell Science
Center Subsidiaries, hereby grants to Rockwell a royalty-free,
world-wide, irrevocable, non-exclusive license under all Intellectual
Property (excluding trademarks, trade names, domain names, service
marks, trade dress or any other form of trade identity) which
constitutes Rockwell Science Center Assets and which immediately after
the Time of Distribution is either owned by the Rockwell Science Center
Group or under which the Rockwell Science Center Group has a right to
license without the payment of royalties to a third party
(collectively, "Rockwell Science Center IP") to make, have made, use,
import, sell or otherwise dispose of products, or to practice any
process in connection therewith, in the conduct of the Rockwell
Automation Business (as such business is being conducted at the Time of
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Distribution, or any extensions or expansions thereof occurring in the
ordinary course of business); said non-exclusive license being
transferable only (A) by sublicenses (to the extent permitted in the
case of any restricted grant to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as a licensee) to members of the Rockwell
Automation Group, (B) by sublicenses (to the extent permitted in the
case of any restricted grant to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as a licensee) to any Person, but only in
cases where the creation of Rockwell Science Center IP was funded in
whole or in part by the Rockwell Automation Business prior to the Time
of Distribution, and (C) in connection with the sale or other
disposition of all or any part of the Rockwell Automation Business to
which such Intellectual Property relates. To the extent that the
Rockwell Automation Group does not have copies of any information or
materials relating to Intellectual Property licensed under this Section
3.12(b) that are essential to exercising such rights, Rockwell Science
Center will, upon reasonable request, supply to the Rockwell Automation
Group copies of any such information or materials relating to such
Intellectual Property.
(ii) In addition to any other right granted to Rockwell in
this Section 3.12(b), after the Time of Distribution and upon the
written request of Rockwell or any member of the Rockwell Automation
Group, Rockwell Science Center, on behalf of itself and the Rockwell
Science Center Subsidiaries, agrees to cooperate, discuss and negotiate
in good faith with Rockwell with respect to granting Rockwell or a
Rockwell Subsidiary, on commercially reasonable terms, the right to
grant any Person a world-wide, non-exclusive license under Rockwell
Science Center IP or any part thereof, to make, have made, use, import,
sell or otherwise dispose of products, or to practice any process in
connection therewith, which is not permitted by Section 3.12(b)(i).
(iii) Rockwell Science Center hereby covenants not to (and to
cause the Rockwell Science Center Subsidiaries not to) assert any
claims or rights, bring any suit, or institute any other action against
the Rockwell Automation Group or any permitted or otherwise lawful
transferee of products and services of the Rockwell Automation Group or
any Person in privity with any member of the Rockwell Automation Group
under any contract concerning the making, using or selling of products
or services for the Rockwell Automation Group, based upon any
infringement of any Intellectual Property (excluding trademarks, trade
names, domain names, service marks, trade dress or any other form of
trade identity) which constitutes Rockwell Science Center Assets and
which immediately after the Time of Distribution is either owned by the
Rockwell Science Center Group or under which the Rockwell Science
Center Group has a right to license or grant immunity from suit without
payment of royalties to a third party. This covenant not to sue shall
extend in perpetuity to (i) the Rockwell Automation Group and (ii)
assignees of the Rockwell Automation Group, but only in connection with
the sale or other disposition of all or any part of the Rockwell
Automation Business to which such Intellectual Property relates. All
Intellectual Property covered by the covenant in this Section
3.12(b)(iii) shall be transferred, whether by assignment, license or
otherwise, subject to this covenant and all transferees of such
Intellectual Property shall take such assignment, license or other
transfer subject to this covenant.
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(c) Effective immediately after the Time of Distribution,
Rockwell Collins, on behalf of itself and the Rockwell Collins Subsidiaries,
hereby grants to Rockwell Science Center a royalty-free, world-wide,
irrevocable, non-exclusive license under all Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Collins Assets and which
immediately after the Time of Distribution is either owned by the Rockwell
Collins Group or under which the Rockwell Collins Group has a right to license
without the payment of royalties to a third party to make, have made, use,
import, sell or otherwise dispose of products, or to practice any process in
connection therewith, in the conduct of the Rockwell Science Center Business (as
such business is being conducted at the Time of Distribution); said
non-exclusive license being transferable only by sublicenses (to the extent
permitted in the case of any restricted grant to Rockwell Collins or a Rockwell
Collins Subsidiary, as a licensee) to members of the Rockwell Science Center
Group and in connection with the sale or other disposition of all or any part of
the Rockwell Science Center Business to which such Intellectual Property
relates. To the extent that the Rockwell Science Center Group does not have
copies of any information or materials relating to Intellectual Property
licensed under this Section 3.12(c) that are essential to exercising such
rights, Rockwell Collins will, upon reasonable request, supply to the Rockwell
Science Center Group copies of any such information or materials relating to
such Intellectual Property. In no event shall Rockwell Science Center use any
subject matter of the Intellectual Property licensed under this Section 3.12(c)
in a manner that is competitive with the Rockwell Collins Business as such
business is being conducted at the Time of Distribution, or any extensions or
expansions thereof occurring in the ordinary course of business, except that
Rockwell Science Center shall be able to continue to use the subject matter of
such Intellectual Property in a manner that is competitive with the Rockwell
Collins Business in any such extensions or expansions of the Rockwell Collins
Business to the extent (but only to the extent) such Intellectual Property was
used by Rockwell Science Center prior to such extensions or expansions of the
Rockwell Collins Businesses.
(d) (i) Effective immediately after the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell Science
Center Subsidiaries, hereby grants to Rockwell Collins a royalty-free,
world-wide, irrevocable, non-exclusive license under all Rockwell
Science Center IP to make, have made, use, import, sell or otherwise
dispose of products, or to practice any process in connection
therewith, in the conduct of the Rockwell Collins Business (as such
business is being conducted at the Time of Distribution, or any
extensions or expansions thereof occurring in the ordinary course of
business, but excluding any extensions or expansions occurring as a
result of, or at any time after, a Rockwell Collins Change in Control);
said non-exclusive license being transferable only (A) by sublicenses
(to the extent permitted in the case of any restricted grant to
Rockwell Science Center or a Rockwell Science Center Subsidiary, as a
licensee) to members of the Rockwell Collins Group, (B) by sublicenses
(to the extent permitted in the case of any restricted grant to
Rockwell Science Center or a Rockwell Science Center Subsidiary, as a
licensee) to any Person, but only in cases where the creation of
Rockwell Science Center IP was funded in whole or in part by the
Rockwell Collins Business prior to the Time of Distribution, and (C) in
connection with the sale or other disposition of all or any part of the
Rockwell Collins Business to which such Intellectual Property relates.
To the extent that the Rockwell Collins Group does not have copies of
any information or
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materials relating to Intellectual Property licensed under this Section
3.12(d) that are essential to exercising such rights, Rockwell Science
Center will, upon reasonable request, supply to the Rockwell Collins
Group copies of any such information or materials relating to such
Intellectual Property.
(ii) In addition to any other right granted to Rockwell
Collins in this Section 3.12(d), after the Time of Distribution and
upon the written request of Rockwell Collins or any Rockwell Collins
Subsidiary, Rockwell Science Center, on behalf of itself and the
Rockwell Science Center Subsidiaries, agrees to cooperate, discuss and
negotiate in good faith with Rockwell Collins with respect to granting
Rockwell Collins or a Rockwell Collins Subsidiary, on commercially
reasonable terms, the right to grant any Person a world-wide,
non-exclusive license under Rockwell Science Center IP or any part
thereof, to make, have made, use, import, sell or otherwise dispose of
products, or to practice any process in connection therewith, which is
not permitted by Section 3.12(d)(i).
(iii) Rockwell Science Center hereby covenants not to (and to
cause the Rockwell Science Center Subsidiaries not to) assert any
claims or rights, bring any suit, or institute any other action against
the Rockwell Collins Group or any permitted or otherwise lawful
transferee of products and services of the Rockwell Collins Group or
any Person in privity with any member of the Rockwell Collins Group
under any contract concerning the making, using or selling of products
or services for the Rockwell Collins Group, based upon any infringement
of any Intellectual Property (excluding trademarks, trade names, domain
names, service marks, trade dress or any other form of trade identity)
which constitutes Rockwell Science Center Assets and which immediately
after the Time of Distribution is either owned by the Rockwell Science
Center Group or under which the Rockwell Science Center Group has a
right to license or grant immunity from suit without payment of
royalties to a third party. This covenant not to sue shall extend in
perpetuity to (i) the Rockwell Collins Group and (ii) assignees of the
Rockwell Collins Group, but only in connection with the sale or other
disposition of all or any part of the Rockwell Collins Business to
which such Intellectual Property relates. All Intellectual Property
covered by the covenant in this Section 3.12(d)(iii) shall be
transferred, whether by assignment, license or otherwise, subject to
this covenant and all transferees of such Intellectual Property shall
take such assignment, license or other transfer subject to this
covenant.
(e) Rockwell hereby covenants not to (and to cause the
Rockwell Subsidiaries not to) assert any claims or rights, bring any suit, or
institute any other action against the Rockwell Collins Group or any Person in
the chain of title of products and services of the Rockwell Collins Group, based
upon any infringement of any Intellectual Property (excluding trademarks, trade
names, domain names, service marks, trade dress or any other form of trade
identity) which constitutes Rockwell Automation Assets and which immediately
after the Time of Distribution is either owned by the Rockwell Automation Group
or under which the Rockwell Automation Group has a right to license or grant
immunity from suit without payment of royalties to a third party which might
occur as a result of any manufacture, use, import, sale or other disposition by
the Rockwell Collins Group of products or services after the Time of
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Distribution in the conduct of the Rockwell Collins Business (as such business
is being conducted at the Time of Distribution, or any extensions or expansions
thereof occurring in the ordinary course of business, but excluding any
extensions or expansions occurring as a result of, or at any time after, a
Rockwell Collins Change in Control). This covenant not to sue shall extend in
perpetuity to (i) the Rockwell Collins Group and (ii) assignees of the Rockwell
Collins Group, but only in connection with the sale or other disposition of all
or any part of the Rockwell Collins Business to which such Intellectual Property
relates. All Intellectual Property covered by the covenant in this Section
3.12(e) shall be transferred, whether by assignment, license or otherwise,
subject to this covenant and all transferees of such Intellectual Property shall
take such assignment, license or other transfer subject to this covenant.
(f) Rockwell Collins hereby covenants not to (and to cause the
Rockwell Collins Subsidiaries not to) assert any claims or rights, bring any
suit, or institute any other action against the Rockwell Automation Group or any
Person in the chain of title of products and services of the Rockwell Automation
Group, based upon any infringement of any Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Collins Assets and which
immediately after the Time of Distribution is either owned by the Rockwell
Collins Group or under which the Rockwell Collins Group has a right to license
or grant immunity from suit without payment of royalties to a third party which
might occur as a result of any manufacture, use, import, sale or other
disposition by the Rockwell Automation Group of products or services after the
Time of Distribution in the conduct of the Rockwell Automation Business (as such
business is being conducted at the Time of Distribution, or any extensions or
expansions thereof occurring in the ordinary course of business). This covenant
not to sue shall extend in perpetuity to (i) the Rockwell Automation Group and
(ii) assignees of the Rockwell Automation Group, but only in connection with the
sale or other disposition of all or any part of the Rockwell Automation Business
to which such Intellectual Property relates. All Intellectual Property covered
by the covenant in this Section 3.12(f) shall be transferred, whether by
assignment, license or otherwise, subject to this covenant and all transferees
of such Intellectual Property shall take such assignment, license or other
transfer subject to this covenant.
(g) (i) For purposes of this Section 3.12(g), the following
terms will have the following definitions:
(A) "Administrative Services" means services
pertaining to personnel, payroll, property management,
benefits, human resource management, financial planning, case
docketing and management, contract and subcontract management,
facilities management, proposal activities and other similar
services.
(B) "Administrative Services Software" means
software originated internally and owned by Rockwell or any of
its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group) prior
to the Time of Distribution and relating to the provision of
Administrative Services to business units of Rockwell or any
of its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group)
immediately prior to the Time of Distribution, regardless of
where ownership of such software vests after the Time of
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Distribution. Administrative Services Software also shall
include materials and documentation supplied by one party to
the other pursuant to clause (iv) of this Section 3.12(g).
(C) "Transition Period" means the period from the
Time of Distribution until the termination or expiration of
the provision of services pursuant to each of the Transition
Agreement and the Continuing Services Agreements.
(ii) Anything contained herein to the contrary
notwithstanding, the following licenses shall govern Administrative Services
Software:
(A) Effective as of the Time of Distribution,
Rockwell, on behalf of itself and the Rockwell Subsidiaries,
hereby grants to the Rockwell Collins Group and the Rockwell
Science Center Group a royalty-free, world-wide, irrevocable
non-exclusive license to use Administrative Services Software
which constitutes Rockwell Automation Assets and which
immediately after the Time of Distribution is either owned by
the Rockwell Automation Group or under which the Rockwell
Automation Group has a right to license without the payment of
royalties to a third party, but only for the internal business
purposes of the Rockwell Collins Group or the Rockwell Science
Center Group, as the case may be, including the right to
sublicense only to (x) members of the Rockwell Collins Group
or the Rockwell Science Center Group, as the case may be, and
(y) service providers to use the Administrative Services
Software for or on behalf of the Rockwell Collins Group or the
Rockwell Science Center Group, as the case may be.
(B) Effective as of the Time of Distribution,
Rockwell Collins, on behalf of itself and the Rockwell Collins
Subsidiaries, hereby grants to the Rockwell Automation Group
and the Rockwell Science Center Group a royalty-free,
world-wide, irrevocable non-exclusive license to use
Administrative Services Software which constitutes Rockwell
Collins Assets and which immediately after the Time of
Distribution is either owned by the Rockwell Collins Group or
under which the Rockwell Collins Group has a right to license
without the payment of royalties to a third party, but only
for the internal business purposes of the Rockwell Automation
Group or the Rockwell Science Center Group, as the case may
be, including the right to sublicense only to (x) members of
the Rockwell Automation Group or the Rockwell Science Center
Group, as the case may be, and (y) service providers to use
the Administrative Services Software for or on behalf of the
Rockwell Automation Group or the Rockwell Science Center
Group, as the case may be.
(C) Effective as of the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell
Science Center Subsidiaries, hereby grants to the Rockwell
Automation Group and the Rockwell Collins Group a
royalty-free, world-wide, irrevocable non-exclusive license to
use Administrative Services Software which constitutes
Rockwell Science Center Assets and which immediately after the
Time of Distribution is either owned by the Rockwell Science
Center Group or under which the Rockwell Science Center Group
has a right to license without the payment of royalties to a
third party, but only for the internal business purposes of
the Rockwell Automation
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Group or the Rockwell Collins Group, as the case may be,
including the right to sublicense only to (x) members of the
Rockwell Automation Group or the Rockwell Collins Group, as
the case may be, and (y) service providers to use the
Administrative Services Software for or on behalf of the
Rockwell Automation Group or the Rockwell Collins Group, as
the case may be.
(D) Except as set forth in this paragraph (ii),
the licenses granted pursuant to this Section 3.12(g) do not
include the right to sublicense. Software originated or
maintained during the Transition Period by a party and
relating to the provision of Administrative Services to any
other party pursuant to the Transition Agreement or the
Continuing Services Agreements shall be considered
Administrative Services Software subject to the above
licenses, provided, that the party to be licensed has paid a
mutually agreeable share of the origination and/or maintenance
costs for such software and requests during the Transition
Period that such software be subject to such licenses.
(iii) Each party shall have the right to use, disclose,
perform, display, copy, distribute and make derivatives of
Administrative Services Software within the scope of the licenses
granted herein. Title to Administrative Services Software and all
rights therein, including all rights in patents, copyrights and trade
secrets and any other intellectual property rights applicable thereto,
shall remain vested in the party to which ownership is allocated
pursuant to this Agreement. Notwithstanding anything to the contrary
contained herein, each licensed party agrees that it will not use,
copy, disclose, sell, assign or sublicense, or otherwise transfer
Administrative Services Software licensed to it under this Section
3.12(g) or any derivatives thereof, except as expressly provided in
this Section 3.12(g).
(iv) To the extent that a licensed party does not have copies
of any Administrative Services Software or materials and documentation
(such as source code listings, flow charts, user guides and
programmer's guides) relating to the operation and maintenance of such
Administrative Services Software to which another applicable party has
ownership, such owning party shall, as soon as practicable after
request of the licensed party, supply to the licensed party copies of
such Administrative Services Software and any related operating and
maintenance materials or documentation existing as of the Time of
Distribution.
(v) In the event that Administrative Services Software is used
by the owner in the ordinary course of its business either associated
or bundled with software owned or controlled by a third party (e.g., as
a suite of software), without which the Administrative Services
Software would be wholly or partly inoperable or otherwise unfit for
its intended purposes, the grant of the licenses under the provisions
of this Section 3.12(g) shall not be construed as an implied license to
use the software of such a third party or as an undertaking on the part
of the owner of the Administrative Services Software to obtain a
license to permit the use of such third party software.
(h) (i) Rockwell makes no representations or warranties of any
kind with respect to the validity, scope or enforceability of any
Intellectual Property of Rockwell or the Rockwell Subsidiaries subject
to this Section 3.12 and none of Rockwell or the Rockwell Subsidiaries
has any obligation to file or prosecute any patent applications or
maintain any
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patents in force in connection therewith. Notwithstanding anything
contained herein to the contrary, this Section 3.12 will not be
applicable to any rights in, and to the use of, the names, trademarks,
trade names and service marks "Rockwell" and "Rockwell International"
and all corporate symbols and logos related thereto and all names,
trademarks, trade names and service marks which include the words
"Rockwell" or "Rockwell International" or any derivative thereof.
(ii) Rockwell Collins makes no representations or warranties
of any kind with respect to the validity, scope or enforceability of
any Intellectual Property of Rockwell Collins or the Rockwell Collins
Subsidiaries subject to this Section 3.12 and none of Rockwell Collins
or the Rockwell Collins Subsidiaries has any obligation to file or
prosecute any patent applications or maintain any patents in force in
connection therewith.
(iii) Rockwell Science Center makes no representations or
warranties of any kind with respect to the validity, scope or
enforceability of any Intellectual Property of Rockwell Science Center
or the Rockwell Science Center Subsidiaries subject to this Section
3.12 and none of Rockwell Science Center or the Rockwell Science Center
Subsidiaries has any obligation to file or prosecute any patent
applications or maintain any patents in force in connection therewith.
SECTION 3.13 Software and Other License Agreements. If after
the Time of Distribution, Rockwell Collins (or any member of the Rockwell
Collins Group) or Rockwell Science Center (or any member of the Rockwell Science
Center Group), as the case may be, no longer has licensee rights under any
software or other license agreement of Rockwell (or any member of the Rockwell
Automation Group) (a "Rockwell Automation License Agreement") that, prior to the
Time of Distribution, was used in the conduct of the Rockwell Collins Business
or the Rockwell Science Center Business, as the case may be, (i) because such
license agreement does not constitute a Rockwell Collins Asset or a Rockwell
Science Center Asset, as the case may be, (ii) because the transfer of, or
sublicense under such Rockwell Automation License Agreement required the consent
of a third party and such consent was not obtained or (iii) for any other
reason, then Rockwell Collins or Rockwell Science Center, as the case may be,
shall be responsible for all costs and expenses incurred in connection with the
procurement of new license agreements to replace any such Rockwell Automation
License Agreements.
SECTION 3.14 Charitable Entities. Prior to the Time of
Distribution, Rockwell Collins shall have established the Rockwell Collins
Charitable Corporation. Promptly after all required governmental approvals
applicable thereto are obtained:
(i) Rockwell shall cause to be transferred from the Rockwell
Charitable Trust to the Rockwell Collins Charitable Corporation an
aggregate amount equal to the sum of (A) the amount of the Rockwell
Collins Charitable Commitments outstanding at the time of such
transfer, plus (B) 40% of the remainder of (x) the assets of the
Rockwell Charitable Trust at the Time of Distribution, minus (y)
$5,034,000; and
(ii) Rockwell shall cause to be transferred to the Rockwell
Collins Charitable Corporation, and Rockwell and Rockwell Collins shall
cause the Rockwell Collins
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Charitable Corporation to assume, the Rockwell Collins Charitable
Commitments that remain outstanding at the time of such transfer and
assumption.
ARTICLE IV
MUTUAL RELEASE; INDEMNIFICATION
SECTION 4.01 Mutual Release. Effective as of the Time of
Distribution and except as otherwise specifically set forth in the Transaction
Agreements, each of Rockwell, on behalf of itself and the Rockwell Subsidiaries,
Rockwell Collins, on behalf of itself and the Rockwell Collins Subsidiaries, and
Rockwell Science Center, on behalf of itself and the Rockwell Science Center
Subsidiaries, hereby releases and forever discharges each other party and its
Subsidiaries, and its and their respective officers, directors, agents, record
and beneficial security holders (including trustees and beneficiaries of trusts
holding such securities), advisors and Representatives (in each case, in their
respective capacities as such) and their respective heirs, executors,
administrators, successors and assigns, of and from all debts, demands, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages,
claims and Liabilities whatsoever of every name and nature, both in law and in
equity, which the releasing party has or ever had or ever will have, which arise
out of or relate to events, circumstances or actions taken by such other party
occurring or failing to occur or any conditions existing at or prior to the Time
of Distribution; provided, however, that the foregoing general release shall not
apply to (i) any Liabilities or other obligations (including Liabilities with
respect to payment, reimbursement, indemnification or contribution) under the
Transaction Agreements or assumed, transferred, assigned, allocated or arising
under any of the Transaction Agreements (including any Liability that the
parties may have with respect to payment, performance, reimbursement,
indemnification or contribution pursuant to any Transaction Agreement for claims
brought against the parties by third Persons) and the foregoing release will not
affect any party's right to enforce the Transaction Agreements in accordance
with their terms, (ii) any Liability arising from or relating to any agreement,
arrangement, commitment or undertaking described in Section 3.04(b)(ii)
(including Ordinary Course Intercompany Arrangements), or (iii) any Liability
the release of which would result in the release of any Person other than a
Person released pursuant to this Section 4.01 (provided, that the parties agree
not to bring suit or permit any of their Subsidiaries to bring suit against any
member of any other Group with respect to any Liability to the extent such
member of the other Group would be released with respect to such Liability by
this Section 4.01 but for this clause (iii)).
SECTION 4.02 Indemnification by Rockwell. Subject to the
provisions of this Article IV, Rockwell shall indemnify, defend and hold
harmless the Rockwell Collins Indemnitees and the Rockwell Science Center
Indemnitees from and against, and pay or reimburse, as the case may be, the
Rockwell Collins Indemnitees and the Rockwell Science Center Indemnitees for,
all Indemnifiable Losses, as incurred, suffered by any Rockwell Collins
Indemnitee or Rockwell Science Center Indemnitee, as the case may be, based
upon, arising out of or relating to the following (except that paragraph (b)
below shall not apply to Rockwell Science Center Indemnitees):
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(a) the Rockwell Automation Liabilities (including the failure
by Rockwell or any other member of the Rockwell Automation Group to
pay, perform or otherwise discharge such Liabilities in accordance with
their terms), whether such Indemnifiable Losses are based upon, arise
out of or relate to events, occurrences, actions, omissions, facts,
circumstances or conditions occurring, existing or asserted before, at
or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the sections of the Form 10 listed on
Schedule 4.02(b), or any omission or alleged omission to state in such
sections a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; but only in each case with respect to
information relating to the Rockwell Automation Group provided by
Rockwell expressly for use in the sections of the Form 10 listed on
Schedule 4.02(b);
(c) the breach by any member of the Rockwell Automation Group
of any agreement or covenant contained in a Transaction Agreement which
does not by its express terms expire at the Time of Distribution; or
(d) the enforcement by the Rockwell Collins Indemnitees or the
Rockwell Science Center Indemnitees, as the case may be, of their
rights to be indemnified, defended and held harmless under this Section
4.02.
SECTION 4.03 Indemnification by Rockwell Collins. Subject to
the provisions of this Article IV, Rockwell Collins shall indemnify, defend and
hold harmless the Rockwell Automation Indemnitees and the Rockwell Science
Center Indemnitees from and against, and pay or reimburse, as the case may be,
the Rockwell Automation Indemnitees and the Rockwell Science Center Indemnitees
for, all Indemnifiable Losses, as incurred, suffered by any Rockwell Automation
Indemnitee or Rockwell Science Center Indemnitee, as the case may be, based
upon, arising out of or relating to the following (except that paragraphs (b)
and (d) below will not apply to Rockwell Science Center Indemnitees):
(a) the Rockwell Collins Liabilities (including the failure by
Rockwell Collins or any other member of the Rockwell Collins Group to
pay, perform or otherwise discharge Rockwell Collins Liabilities in
accordance with their terms), whether such Indemnifiable Losses are
based upon, arise out of or relate to events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or
asserted before, at or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the Form 10, or any omission or alleged
omission to state in the Form 10 a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except in
each case with respect to information relating to the Rockwell
Automation Group provided by Rockwell expressly for use in the sections
of the Form 10 listed on Schedule 4.02(b);
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(c) the breach by any member of the Rockwell Collins Group of
any agreement or covenant contained in a Transaction Agreement which
does not by its express terms expire at the Time of Distribution;
(d) the use by members of the Rockwell Collins Group of any
names, trademarks, trade names, domain names or corporate symbols or
logos pursuant to Section 3.10(b) or Section 3.10(d); or
(e) the enforcement by the Rockwell Automation Indemnitees or
the Rockwell Science Center Indemnitees, as the case may be, of their
rights to be indemnified, defended and held harmless under this Section
4.03.
SECTION 4.04 Indemnification by Rockwell Science Center.
Subject to the provisions of this Article IV, Rockwell Science Center shall
indemnify, defend and hold harmless the Rockwell Automation Indemnitees and the
Rockwell Collins Indemnitees from and against, and pay or reimburse, as the case
may be, the Rockwell Automation Indemnitees and the Rockwell Collins Indemnitees
for, all Indemnifiable Losses, as incurred, suffered by any Rockwell Automation
Indemnitee or Rockwell Collins Indemnitee, as the case may be, based upon,
arising out of or relating to the following (except that paragraph (c) below
will not apply to Rockwell Collins Indemnitees):
(a) the Rockwell Science Center Liabilities (including the
failure by Rockwell Science Center or any other member of the Rockwell
Science Center Group to pay, perform or otherwise discharge Rockwell
Science Center Liabilities in accordance with their terms), whether
such Indemnifiable Losses are based upon, arise out of or relate to or
are otherwise in connection with events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or
asserted before, at or after the Time of Distribution;
(b) the breach by any member of the Rockwell Science Center
Group of any agreement or covenant contained in a Transaction Agreement
which does not by its express terms expire at the Time of Distribution;
(c) the use by members of the Rockwell Science Center Group of
any names, trademarks, trade names, domain names or corporate symbols
or logos pursuant to Section 3.10(c) or Section 3.10(d); or
(d) the enforcement by the Rockwell Automation Indemnitees or
the Rockwell Collins Indemnitees, as the case may be, of their rights
to be indemnified, defended and held harmless under this Section 4.04.
SECTION 4.05 Limitations on Indemnification Obligations.
(a) The amount which any party (an "Indemnifying Party") is or
may be required to pay to an Indemnitee in respect of Indemnifiable Losses or
other Liability for which indemnification is provided under this Agreement shall
be reduced by any amounts actually received (including Insurance Proceeds
actually received) by or on behalf of such Indemnitee
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(net of increased insurance premiums and charges related directly and solely to
the related Indemnifiable Losses and costs and expenses (including reasonable
legal fees and expenses) incurred by such Indemnitee in connection with seeking
to collect and collecting such amounts) in respect of such Indemnifiable Losses
or other Liability (such net amounts are referred to herein as "Indemnity
Reduction Amounts"). If any Indemnitee receives any Indemnity Reduction Amounts
in respect of an Indemnifiable Loss for which indemnification is provided under
this Agreement after the full amount of such Indemnifiable Loss has been paid by
an Indemnifying Party or after an Indemnifying Party has made a partial payment
of such Indemnifiable Loss and such Indemnity Reduction Amounts exceeds the
remaining unpaid balance of such Indemnifiable Loss, then the Indemnitee shall
promptly remit to the Indemnifying Party an amount equal to the excess (if any)
of (A) the amount theretofore paid by the Indemnifying Party in respect of such
Indemnifiable Loss, less (B) the amount of the indemnity payment that would have
been due if such Indemnity Reduction Amounts in respect thereof had been
received before the indemnity payment was made. An insurer or other third party
who would otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto or, solely by virtue of the indemnification
provisions hereof, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurer or any other third party shall
be entitled to any benefit they would not be entitled to receive in the absence
of the indemnification provisions by virtue of the indemnification provisions
hereof.
(b) In determining the amount of any Indemnifiable Losses,
such amount shall be (i) reduced to take into account any net Tax benefit
realized by the Indemnitee arising from the incurrence or payment by the
Indemnitee of such Indemnifiable Losses and (ii) increased to take into account
any net Tax cost incurred by the Indemnitee as a result of the receipt or
accrual of payments hereunder (grossed-up for such increase), in each case
determined by treating the Indemnitee as recognizing all other items of income,
gain, loss, deduction or credit before recognizing any item arising from such
Indemnifiable Losses. It is the intention of the parties to this Agreement that
indemnity payments made pursuant to this Agreement are to be treated as relating
back to the Distribution as an adjustment to capital (i.e., capital contribution
or distribution), and the parties shall not take any position inconsistent with
such intention before any Tax Authority (as defined in the Tax Allocation
Agreement), except to the extent that a final determination (as defined in
Section 1313 of the Code) with respect to the recipient party causes any such
payment not to be so treated.
SECTION 4.06 Procedures Relating to Indemnification.
(a) If a claim or demand is made against an Indemnitee, or an
Indemnitee shall otherwise learn of an assertion, by any Person who is not a
party to this Agreement (or an Affiliate thereof) as to which an Indemnifying
Party may be obligated to provide indemnification pursuant to this Agreement (a
"Third Party Claim"), such Indemnitee will notify the Indemnifying Party in
writing, and in reasonable detail, of the Third Party Claim reasonably promptly
after becoming aware of such Third Party Claim; provided, however, that failure
to give such notification will not affect the indemnification provided hereunder
except to the extent the Indemnifying Party shall have been actually prejudiced
as a result of such failure. Thereafter, the Indemnitee will deliver to the
Indemnifying Party, promptly after the
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Indemnitee's receipt thereof, copies of all material notices and documents
(including court papers) received or transmitted by the Indemnitee relating to
the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party will be entitled to participate in or to assume the defense
thereof (in either case, at the expense of the Indemnifying Party) with counsel
selected by the Indemnifying Party and reasonably satisfactory to the
Indemnitee. Should the Indemnifying Party so elect to assume the defense of a
Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee
for any legal or other expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, that if in the Indemnitee's
reasonable judgment a conflict of interest exists in respect of such claim or if
the Indemnifying Party shall have assumed responsibility for such claim with any
reservations or exceptions, such Indemnitee will have the right to employ
separate counsel reasonably satisfactory to the Indemnifying Party to represent
such Indemnitee and in that event the reasonable fees and expenses of such
separate counsel (but not more than one separate counsel for all Indemnitees
similarly situated) shall be paid by such Indemnifying Party. If the
Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee
will have the right to participate in the defense thereof and to employ counsel,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party will control such
defense. The Indemnifying Party will be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof. If the Indemnifying Party
assumes the defense of any Third Party Claim, the Indemnifying Party will
promptly supply to the Indemnitee copies of all material correspondence and
documents relating to or in connection with such Third Party Claim and keep the
Indemnitee fully informed of all material developments relating to or in
connection with such Third Party Claim (including providing to the Indemnitee on
request updates and summaries as to the status thereof). If the Indemnifying
Party chooses to defend a Third Party Claim, the parties hereto will cooperate
in the defense thereof (such cooperation to be at the expense, including
reasonable legal fees and expenses, of the Indemnifying Party), which
cooperation shall include the retention in accordance with this Agreement and
(upon the Indemnifying Party's request) the provision to the Indemnifying Party
of records and information which are reasonably relevant to such Third Party
Claim, and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
(c) No Indemnifying Party will consent to any settlement,
compromise or discharge (including the consent to entry of any judgment) of any
Third Party Claim without the Indemnitee's prior written consent (which consent
will not be unreasonably withheld); provided, that if the Indemnifying Party
assumes the defense of any Third Party Claim, the Indemnitee will agree to any
settlement, compromise or discharge of such Third Party Claim which the
Indemnifying Party may recommend and which by its terms obligates the
Indemnifying Party to pay the full amount of Indemnifiable Losses in connection
with such Third Party Claim and unconditionally and irrevocably releases the
Indemnitee and its Affiliates completely from all Liability in connection with
such Third Party Claim; provided, however, that the Indemnitee may refuse to
agree to any such settlement, compromise or discharge (x) that provides for
injunctive or other nonmonetary relief affecting the Indemnitee or any of its
Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would
otherwise materially adversely affect the
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Indemnitee or any of its Affiliates. Whether or not the Indemnifying Party shall
have assumed the defense of a Third Party Claim, the Indemnitee will not (unless
required by law) admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Indemnifying Party's prior written
consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does
not involve a Third Party Claim will be asserted by reasonably prompt written
notice given by the Indemnitee to the Indemnifying Party from whom such
indemnification is sought. The failure by any Indemnitee so to notify the
Indemnifying Party will not relieve the Indemnifying Party from any liability
which it may have to such Indemnitee under this Agreement, except to the extent
that the Indemnifying Party shall have been actually prejudiced by such failure.
(e) In the event of payment in full by an Indemnifying Party
to any Indemnitee in connection with any Third Party Claim, such Indemnifying
Party will be subrogated to and shall stand in the place of such Indemnitee as
to any events or circumstances in respect of which such Indemnitee may have any
right or claim relating to such Third Party Claim against any claimant or
plaintiff asserting such Third Party Claim or against any other Person. Such
Indemnitee will cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense of such Indemnifying Party, in prosecuting any
subrogated right or claim.
SECTION 4.07 Remedies Cumulative. Subject to the provisions of
Section 6.06, the remedies provided in this Article IV shall be cumulative and
shall not preclude assertion by any Indemnitee of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
SECTION 4.08 Survival of Indemnities. The obligations of each
of Rockwell, Rockwell Collins and Rockwell Science Center under this Article IV
will not terminate at any time and will survive the sale or other transfer by
any party of any assets or businesses or the assignment by any party of any
Liabilities with respect to any Indemnifiable Losses of the other related to
such assets, businesses or Liabilities.
SECTION 4.09 Exclusivity of Tax Allocation Agreement and
Science Center Tax Allocation Agreement. Notwithstanding anything in this
Agreement to the contrary, (a) the Tax Allocation Agreement will be the
exclusive agreement between Rockwell and Rockwell Collins with respect to all
Tax matters, including indemnification in respect of Tax matters and (b) the
Science Center Tax Allocation Agreement will be the exclusive agreement between
Rockwell and Rockwell Science Center with respect to all Tax matters, including
indemnification in respect of Tax matters.
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ARTICLE V
ACCESS TO INFORMATION
SECTION 5.01 Access to Information.
(a) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell Collins and its
Representatives (at Rockwell Collins' expense) reasonable access and duplicating
rights during normal business hours and upon reasonable advance notice to all
Information within Rockwell's possession or control or in the possession or
control of a Rockwell Subsidiary relating to Rockwell Collins, any Rockwell
Collins Subsidiary or the Rockwell Collins Business insofar as such access is
reasonably required by Rockwell Collins or any Rockwell Collins Subsidiary,
subject to the provisions below regarding Privileged Information.
(b) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell Science Center
and its Representatives (at Rockwell Science Center's expense) reasonable access
and duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell's possession or control or in the
possession or control of a Rockwell Subsidiary relating to Rockwell Science
Center, any Rockwell Science Center Subsidiary or the Rockwell Science Center
Business insofar as such access is reasonably required by Rockwell Science
Center or any Rockwell Science Center Subsidiary, subject to the provisions
below regarding Privileged Information.
(c) From and after the Time of Distribution, Rockwell Collins
will, and will cause each Rockwell Collins Subsidiary to, afford to Rockwell and
its Representatives (at Rockwell's expense) reasonable access and duplicating
rights during normal business hours and upon reasonable advance notice to all
Information within Rockwell Collins' possession or control or in the possession
or control of a Rockwell Collins Subsidiary relating to Rockwell, any Rockwell
Subsidiary or the Rockwell Automation Business insofar as such access is
reasonably required by Rockwell or any Rockwell Subsidiary, subject to the
provisions below regarding Privileged Information.
(d) From and after the Time of Distribution, Rockwell Collins
will, and will cause each Rockwell Collins Subsidiary to, afford to Rockwell
Science Center and its Representatives (at Rockwell Science Center's expense)
reasonable access and duplicating rights during normal business hours and upon
reasonable advance notice to all Information within Rockwell Collins' possession
or control or in the possession or control of a Rockwell Collins Subsidiary
relating to Rockwell Science Center, any Rockwell Science Center Subsidiary or
the Rockwell Science Center Business insofar as such access is reasonably
required by Rockwell Science Center or any Rockwell Science Center Subsidiary,
subject to the provisions below regarding Privileged Information.
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(e) From and after the Time of Distribution, Rockwell Science
Center will, and will cause each Rockwell Science Center Subsidiary to, afford
to Rockwell and its Representatives (at Rockwell's expense) reasonable access
and duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell Science Center's possession or control
or in the possession or control of a Rockwell Science Center Subsidiary relating
to Rockwell, any Rockwell Subsidiary or the Rockwell Automation Business insofar
as such access is reasonably required by Rockwell or any Rockwell Subsidiary,
subject to the provisions below regarding Privileged Information.
(f) From and after the Time of Distribution, Rockwell Science
Center will, and will cause each Rockwell Science Center Subsidiary to, afford
to Rockwell Collins and its Representatives (at Rockwell Collins' expense)
reasonable access and duplicating rights during normal business hours and upon
reasonable advance notice to all Information within Rockwell Science Center's
possession or control or in the possession or control of a Rockwell Science
Center Subsidiary relating to Rockwell Collins, any Rockwell Collins Subsidiary
or the Rockwell Collins Business insofar as such access is reasonably required
by Rockwell Collins or any Rockwell Collins Subsidiary, subject to the
provisions below regarding Privileged Information.
(g) Without limiting the foregoing, Information may be
requested under this Article V for audit, accounting, claims, litigation,
insurance, environmental and safety and tax purposes, as well as for purposes of
fulfilling disclosure and reporting obligations and for performing this
Agreement and the transactions contemplated hereby.
In furtherance of the foregoing:
(i) Each party acknowledges that (A) each of Rockwell,
Rockwell Collins and the Rockwell Science Center (and the members of
the Rockwell Automation Group, the Rockwell Collins Group and the
Rockwell Science Center Group, respectively) has or may obtain
Privileged Information; (B) there are a number of Actions affecting one
or more of the members of the Rockwell Automation Group, the Rockwell
Collins Group and the Rockwell Science Center Group; (C) the parties
may have a common legal interest in Actions, in the Privileged
Information, and in the preservation of the confidential status of the
Privileged Information; and (D) each of Rockwell, Rockwell Collins and
Rockwell Science Center intends that the transactions contemplated by
the Transaction Agreements and any transfer of Privileged Information
in connection therewith shall not operate as a waiver of any
potentially applicable privilege.
(ii) Each of Rockwell, Rockwell Collins and Rockwell Science
Center agrees, on behalf of itself and each member of the Group of
which it is a member, not to disclose or otherwise waive any privilege
attaching to any Privileged Information relating to the business of
another Group without providing prompt written notice to and obtaining
the prior written consent of the applicable other party, which consent
will not be unreasonably withheld. In the event of a disagreement
between any member of the Rockwell Automation Group, any member of the
Rockwell Collins Group and/or any member of the Rockwell Science Center
Group concerning the reasonableness of
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withholding such consent, no disclosure will be made prior to a final,
nonappealable resolution of such disagreement.
(iii) Upon any member of the Rockwell Automation Group, any
member of the Rockwell Collins Group or any member of the Rockwell
Science Center Group receiving any subpoena or other compulsory
disclosure notice from a court, other Governmental Entity or otherwise
which requests disclosure of Privileged Information, in each case
relating to the business of another Group, the recipient of the notice
will promptly provide to the applicable other party (following the
notice provisions set forth herein) a copy of such notice, the intended
response, and all materials or information relating to the other Group
that might be disclosed. In the event of a disagreement as to the
intended response or disclosure, unless and until the disagreement is
resolved as provided in Section 5.01(g)(ii), the parties will cooperate
to assert all defenses to disclosure claimed by any Group, at the cost
and expense of the Group claiming such defense to disclosure, and shall
not disclose any disputed documents or information until all legal
defenses and claims of privilege have been finally determined.
SECTION 5.02 Production of Witnesses. Subject to Section 5.01,
after the Time of Distribution, each of Rockwell, Rockwell Collins and Rockwell
Science Center will, and will cause each member of the Rockwell Automation
Group, the Rockwell Collins Group and the Rockwell Science Center Group,
respectively, to, make available to each other party and members of such other
party's Group, upon written request and at the cost and expense of the party so
requesting, its directors, officers, employees and agents as witnesses to the
extent that any such Person may reasonably be required (giving consideration to
business demands of such directors, officers, employees and agents) in
connection with any Actions or other proceedings in which the requesting party
may from time to time be involved, provided that the same shall not unreasonably
interfere with the conduct of business by the Group of which the request is
made.
SECTION 5.03 Retention of Records. Except as otherwise
required by law or agreed to by the parties in writing, if any Information
relating to the business, assets or Liabilities of a member of a Group is
retained by a member of any other Group, each of Rockwell, Rockwell Collins and
Rockwell Science Center will, and will cause the members of the Group of which
it is a member to, retain for the period required by the applicable Rockwell
records retention policy in effect immediately prior to the Time of Distribution
all such Information in such Group's possession or under its control. In
addition, after the expiration of such required retention period, if any member
of a Group wishes to destroy or dispose of any such Information, prior to
destroying or disposing of any of such Information, (1) Rockwell, Rockwell
Collins or Rockwell Science Center, on behalf of the member of its Group that is
proposing to dispose of or destroy any such Information, will provide no less
than 30 days' prior written notice to the applicable other party, specifying in
reasonable detail the Information proposed to be destroyed or disposed of, and
(2) if, prior to the scheduled date for such destruction or disposal, the
recipient of such notice requests in writing that any of the Information
proposed to be destroyed or disposed of be delivered to such requesting party,
the party whose Group is proposing to dispose of or destroy such Information
promptly will arrange for the delivery of the requested Information to a
location specified by, and at the expense of, the requesting party.
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SECTION 5.04 Confidentiality. Subject to Section 5.01, which
shall govern Privileged Information, from and after the Time of Distribution,
each of Rockwell, Rockwell Collins and Rockwell Science Center shall hold, and
shall use reasonable efforts to cause members of its Group and its and their
Representatives to hold, in strict confidence all Information concerning each
other party's Group in its possession or control or furnished to it by such
other party's Group pursuant to the Transaction Agreements or the transactions
contemplated thereby and will not release or disclose such Information to any
other Person, except members of its Group and its and their Representatives, who
will be bound by the provisions of this Section 5.04; provided, however, that
any member of the Rockwell Automation Group, the Rockwell Collins Group or the
Rockwell Science Center Group may disclose such Information to the extent that
(a) disclosure is compelled by judicial or administrative process or, in the
opinion of such Person's counsel, by other requirements of law (in which case
the party required to make such disclosure will notify the other party as soon
as practicable of such obligation or requirement and cooperate with the other
party to limit the Information required to be disclosed and to obtain a
protective order or other appropriate remedy with respect to the Information
ultimately disclosed) or (b) such Person can show that such Information was (i)
available to such Person on a nonconfidential basis (other than from a member of
another party's Group) prior to its disclosure by such Person, (ii) in the
public domain through no fault of such Person, or (iii) lawfully acquired by
such Person from another source after the time that it was furnished to such
Person by another party's Group, and not acquired from such source subject to
any confidentiality obligation on the part of such source known to the acquiror,
or on the part of the acquiror. Each party acknowledges that it will be liable
for any breach of this Section 5.04 by its Representatives to whom such
Information is disclosed by such party. Notwithstanding the foregoing, each of
Rockwell, Rockwell Collins and Rockwell Science Center will be deemed to have
satisfied its obligations under this Section 5.04 with respect to any
Information (other than Privileged Information) if it exercises the same care
with regard to such Information as it takes to preserve confidentiality for its
own similar Information.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Entire Agreement; Construction. This Agreement
and the Ancillary Agreements, including any annexes, schedules and exhibits
hereto or thereto, and other agreements and documents referred to herein and
therein, will together constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and will supersede all prior
negotiations, agreements and understandings of the parties of any nature,
whether oral or written, with respect to such subject matter. Notwithstanding
any other provisions in the Transaction Agreements to the contrary, (i) in the
event and to the extent that there is a conflict between the provisions of this
Agreement and the provisions of the Employee Matters Agreement, the Tax
Allocation Agreement or the Science Center Tax Allocation Agreement, the
provisions of the Employee Matters Agreement, the Tax Allocation Agreement or
the Science Center Tax Allocation Agreement, as appropriate, will control and
(ii) in the event and to the extent that there is a conflict between the
provisions of this Agreement and the
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provisions of any Conveyance and Assumption Instruments, the provisions of this
Agreement will control.
SECTION 6.02 Survival of Agreements. Except as otherwise
contemplated by the Transaction Agreements, all covenants and agreements of the
parties contained in the Transaction Agreements will remain in full force and
effect and survive the Time of Distribution.
SECTION 6.03 Expenses.
(a) Except as otherwise set forth in any Transaction
Agreement, (i) all Rockwell Automation Expenses will be charged to and paid by
Rockwell, (ii) all Rockwell Collins Expenses will be charged to and paid by
Rockwell Collins and (iii) all Rockwell Science Center Expenses will be charged
to and paid by Rockwell Science Center.
(b) Within ten days after the Distribution Date, Rockwell
Collins will reimburse Rockwell (by wire transfer to Rockwell's bank account at
Mellon Bank, N.A., Pittsburgh, Pennsylvania, account number 102-3474) for all
amounts in respect of Rockwell Collins Expenses paid by Rockwell or any of its
Subsidiaries (including members of the Rockwell Collins Group and members of the
Rockwell Science Center Group) before or at the Time of Distribution and
notified in writing by Rockwell to Rockwell Collins within five days after the
Distribution Date. Promptly after Rockwell's request therefor, Rockwell Collins
will reimburse Rockwell (by wire transfer to the same bank account referred to
in the preceding sentence) for all Rockwell Collins Expenses paid by Rockwell or
any of its Subsidiaries before, at or after the Time of Distribution (other than
as previously reimbursed by Rockwell Collins pursuant to the preceding
sentence). Rockwell will, at the request of Rockwell Collins, provide Rockwell
Collins with appropriate documentation to support Rockwell Collins Expenses
required to be reimbursed to Rockwell pursuant to this Section 6.03(b).
(c) Within ten days after the Distribution Date, Rockwell
Science Center will reimburse Rockwell (by wire transfer to Rockwell's bank
account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account No. 102-3474)
for all amounts in respect of Rockwell Science Center Expenses paid by Rockwell
or any of its Subsidiaries (including members of the Rockwell Collins Group and
members of the Rockwell Science Center Group) before or at the Time of
Distribution and notified in writing by Rockwell to Rockwell Science Center
within five days after the Distribution Date. Promptly after Rockwell's request
therefor, Rockwell Science Center will reimburse Rockwell (by wire transfer to
the same bank account referred to in the preceding sentence) for all Rockwell
Science Center Expenses paid by Rockwell or any of its Subsidiaries before, at
or after the Time of Distribution (other than as previously reimbursed by
Rockwell Science Center pursuant to the preceding sentence). Rockwell will, at
the request of Rockwell Science Center, provide Rockwell Science Center with
appropriate documentation to support Rockwell Science Center Expenses required
to be reimbursed to Rockwell pursuant to this Section 6.03(c).
(d) Except as otherwise set forth in any Transaction
Agreement, all out-of-pocket costs and expenses incurred following the Time of
Distribution in connection with implementation of the transactions contemplated
by the Transaction Agreements will be charged
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to and paid by the party for whose benefit the expenses are incurred, with any
out-of-pocket expenses which cannot be allocated on such basis to be split
equally between Rockwell and Rockwell Collins.
SECTION 6.04 Governing Law. This Agreement will be governed by
and construed in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 6.05 Notices. All notices, requests, claims, demands
and other communications required or permitted to be given hereunder will be in
writing and will be delivered by hand or telecopied, e-mailed or sent, postage
prepaid, by registered, certified or express mail or reputable overnight courier
service and will be deemed given when so delivered by hand or telecopied, when
e-mail confirmation is received if delivered by e-mail, or three business days
after being so mailed (one business day in the case of express mail or overnight
courier service). All such notices, requests, claims, demands and other
communications will be addressed as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:
(a) If to Rockwell:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Mr. Michael A. Bless
Senior Vice President,
Finance and Planning and
Chief Financial Officer
Telecopy: (414) 212-5552
E-mail: mabless@corp.rockwell.com
with a copy to:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and Secretary
Telecopy: (414) 212-5357
E-mail: wjcalise@corp.rockwell.com
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(b) If to Rockwell Collins:
Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laericks@rockwellcollins.com
with a copy to:
Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention:
Senior Vice President,
General Counsel and Secretary
Telecopy: (319) 295-3599
(c) If to Rockwell Science Center:
Rockwell Scientific Company LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Derek T. Cheung
President and Chief Executive Officer
Telecopy: (805) 373-4775
E-Mail: dcheung@rwsc.com
with a copy to:
Rockwell Scientific Company LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Wayne A. Davey
Vice President and Chief Financial
Officer
Telecopy: (805) 373-4775
E-Mail: wdavey@rwsc.com
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and with a copy to Rockwell (in the case of any
notice given by a member of the Rockwell Collins
Group) or Rockwell Collins (in the case of any notice
given by any member of the Rockwell Automation
Group).
SECTION 6.06 Dispute Resolution. In the event that any
dispute, claim or controversy (collectively, a "dispute") arises out of or
relates to this Agreement, the Employee Matters Agreement, the Tax Allocation
Agreement or the Science Center Tax Allocation Agreement, any provision of this
Agreement, the Employee Matters Agreement, the Tax Allocation Agreement or the
Science Center Tax Allocation Agreement or the breach, performance, enforcement
or validity or invalidity of any thereof, the Chief Financial Officers of the
parties affected thereby will attempt a good faith resolution of such dispute
within 30 days after any party notifies any other party in writing of such
dispute. If the dispute is not resolved by such designees within 30 days of
receipt of such notification, or within such other time as they may agree, such
dispute will be referred for resolution to the Chief Executive Officers of the
parties affected thereby. Should they be unable to resolve such dispute within
30 days following such referral to them, or within such other time as they may
agree, the parties affected thereby will then attempt in good faith to resolve
such dispute by mediation in accordance with the then-existing CPR Mediation
Procedure promulgated by the CPR Institute for Dispute Resolution, New York
City. If such mediation is unsuccessful within 60 days after commencement
thereof, any party to the dispute may pursue any other remedies available to it.
SECTION 6.07 Consent to Jurisdiction. Each of Rockwell,
Rockwell Collins and Rockwell Science Center irrevocably submits to the
exclusive jurisdiction of (i) the Court of Chancery in and for the State of
Delaware and the Superior Court in and for the State of Delaware and (ii) the
United States District Court for the District of Delaware, for the purposes of
any suit, action or other proceeding arising out of this Agreement, the Employee
Matters Agreement, the Tax Allocation Agreement or the Science Center Tax
Allocation Agreement or any transaction contemplated thereby or the breach,
performance, enforcement or validity or invalidity of any thereof (and agrees
not to commence any action, suit or proceeding relating thereto except in such
courts). Each of Rockwell, Rockwell Collins and Rockwell Science Center further
agrees that service of any process, summons, notice or document hand delivered
or sent by U.S. registered mail to such party's respective address set forth in
Section 6.05 will be effective service of process for any action, suit or
proceeding in Delaware with respect to any matters to which it has submitted to
jurisdiction as set forth in the immediately preceding sentence. Each of
Rockwell, Rockwell Collins and Rockwell Science Center irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement, the Employee Matters Agreement, the
Tax Allocation Agreement or the Science Center Tax Allocation Agreement or the
transactions contemplated thereby or the breach, performance, enforcement or
validity or invalidity of any thereof in (i) the Court of Chancery in and for
the State of Delaware and the Superior Court in and for the State of Delaware or
(ii) the United States District Court for the District of Delaware, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. Notwithstanding the foregoing,
each party agrees that a final judgment in any action, suit or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment in any
jurisdiction or in any other manner provided in law or in equity.
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SECTION 6.08 Amendments. This Agreement cannot be amended,
modified or supplemented except by a written agreement executed by each party
affected thereby.
SECTION 6.09 Assignment. No party to this Agreement will
convey, assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties affected
thereby in their sole and absolute discretion, except that, other than as
expressly provided herein, any party may (without obtaining any consent) assign
any of its rights hereunder to a successor to all or any part of its business.
Any such conveyance, assignment or transfer requiring the prior written consent
of the other parties which is made without such consent will be void ab initio.
No assignment of this Agreement will relieve the assigning party of its
obligations hereunder.
SECTION 6.10 Captions; Currency. The article, section and
paragraph captions herein and the table of contents hereto are for convenience
of reference only, do not constitute part of this Agreement and will not be
deemed to limit or otherwise affect any of the provisions hereof. Unless
otherwise specified, all references herein to numbered articles or sections are
to articles and sections of this Agreement and all references herein to annexes
or schedules are to annexes and schedules to this Agreement. Unless otherwise
specified, all references contained in this Agreement, in any annex or schedule
referred to herein or in any instrument or document delivered pursuant hereto to
dollars or "$" shall mean United States Dollars.
SECTION 6.11 Severability. If any provision of this Agreement
or the application thereof to any Person or circumstance is determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, will remain in full force and effect and will in no way be
affected, impaired or invalidated thereby. If the economic or legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party as a result thereof, the parties affected thereby will negotiate in good
faith in an effort to agree upon a suitable and equitable substitute provision
to effect the original intent of the parties.
SECTION 6.12 Parties in Interest. This Agreement is binding
upon and is for the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not made for the benefit of
any Person not a party hereto, and no Person other than the parties hereto or
their respective successors and permitted assigns will acquire or have any
benefit, right, remedy or claim under or by reason of this Agreement, except
that the provisions of Sections 4.02, 4.03 and 4.04 hereof shall inure to the
benefit of the Persons referred to therein.
SECTION 6.13 Schedules. All annexes and schedules attached
hereto are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Capitalized terms used in the schedules hereto but not
otherwise defined therein will have the respective meanings assigned to such
terms in this Agreement.
SECTION 6.14 Termination. This Agreement may be terminated and
the Distribution abandoned at any time prior to the Time of Distribution by and
in the sole discretion of the Rockwell Board without the approval of Rockwell
Collins, Rockwell Science Center, or
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Rockwell's shareowners. In the event of such termination, no party will have any
liability of any kind to any other party on account of such termination.
SECTION 6.15 Waivers; Remedies. The conditions to Rockwell's
obligation to consummate the Distribution are for the sole benefit of Rockwell
and may be waived in writing by Rockwell in whole or in part in Rockwell's sole
discretion. No failure or delay on the part of Rockwell, Rockwell Collins or
Rockwell Science Center in exercising any right, power or privilege hereunder
will operate as a waiver thereof, nor will any waiver on the part of Rockwell,
Rockwell Collins or Rockwell Science Center of any right, power or privilege
hereunder operate as a waiver of any other right, power or privilege hereunder,
nor will any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. Subject to the provisions of Section
6.06, the rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which the parties may otherwise have at law
or in equity.
SECTION 6.16 Further Assurances. From time to time after the
Distribution, as and when requested by any party hereto, each other party shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such actions as the
requesting party may reasonably request to consummate the transactions
contemplated by the Transaction Agreements.
SECTION 6.17 Counterparts. This Agreement may be executed in
separate counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts will together constitute the same
agreement.
SECTION 6.18 Performance. Each party will cause to be
performed and hereby guarantees the performance of all actions, agreements and
obligations set forth herein to be performed by any Subsidiary or Affiliate of
such party.
SECTION 6.19 Currency Calculations. Following the Distribution
Date, for purposes of calculating the United States Dollar equivalent of any
amount payable under any Transaction Agreement which is denominated in a
currency other than United States Dollars, the New York foreign exchange selling
rate applicable to such currency will be used, as published in the Wall Street
Journal, New York Edition, for the second business day preceding the earlier of
the date such payment is due or the date such payment is made (it being
understood that this Section 6.19 shall not apply to the conversion of foreign
currency balances made as of the Distribution Date in accordance with standard
Rockwell accounting practices and procedures).
SECTION 6.20 Interpretation. Any reference herein to any
federal, state, local, or foreign law shall be deemed also to refer to all rules
and regulations promulgated thereunder, unless the context requires otherwise.
For the purposes of this Agreement, (a) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires, (b) the terms "hereof",
"herein", and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement and (c) the word "including" and words of
similar import when used in this Agreement shall mean "including, without
limitation".
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
hereinabove written.
ROCKWELL INTERNATIONAL CORPORATION
By: /s/ William J. Calise, Jr.
------------------------------------------
Name: William J. Calise, Jr.
Title: Senior Vice President, General
Counsel and Secretary
ROCKWELL COLLINS, INC.
By: /s/ Lawrence A. Erickson
------------------------------------------
Name: Lawrence A. Erickson
Title: Senior Vice President and
Chief Financial Officer
ROCKWELL SCIENTIFIC COMPANY LLC
By: /s/ Wayne A. Davey
------------------------------------------
Name: Wayne A. Davey
Title: Vice President and
Chief Financial Officer
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