EXHIBIT 99.1
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DISTRIBUTION AGREEMENT
BETWEEN
CENTEX CORPORATION
AND
CENTEX CONSTRUCTION PRODUCTS, INC.
JULY 21, 2003
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TABLE OF CONTENTS
<Table>
<Caption>
Page
----
ARTICLE I. DEFINITIONS.................................................................................2
SECTION 1.1 Certain Definitions...............................................................2
SECTION 1.2 Other Defined Terms...............................................................8
ARTICLE II. THE DISTRIBUTION AND CASH DIVIDEND.........................................................9
SECTION 2.1 The Distribution..................................................................9
SECTION 2.2 The Cash Dividend................................................................14
SECTION 2.3 Declaration Date; Further Assurances.............................................16
ARTICLE III. REPRESENTATIONS AND WARRANTIES...........................................................17
SECTION 3.1 Representations and Warranties of CXP............................................17
SECTION 3.2 Representations and Warranties of Centex.........................................18
ARTICLE IV. COVENANTS.................................................................................19
SECTION 4.1 Access to Information............................................................19
SECTION 4.2 Confidentiality..................................................................20
SECTION 4.3 Litigation Cooperation...........................................................20
SECTION 4.4 No Solicitation..................................................................21
SECTION 4.5 Certain Post-Distribution Transactions...........................................22
SECTION 4.6 Public Announcements.............................................................23
SECTION 4.7 Required Consents................................................................23
SECTION 4.8 Stockholder Rights Plan..........................................................23
ARTICLE V. INDEMNIFICATION............................................................................24
SECTION 5.1 Indemnification by CXP...........................................................24
SECTION 5.2 Indemnification by Centex........................................................25
SECTION 5.3 Procedures for Indemnification...................................................26
SECTION 5.4 Subrogation......................................................................28
SECTION 5.5 Remedies Not Exclusive...........................................................28
SECTION 5.6 Indemnification Payments.........................................................28
ARTICLE VI. MISCELLANEOUS.............................................................................28
SECTION 6.1 Notices..........................................................................28
SECTION 6.2 Interpretation...................................................................30
SECTION 6.3 Amendments; No Waivers...........................................................30
SECTION 6.4 Assignment.......................................................................30
SECTION 6.5 Successors and Assigns...........................................................30
SECTION 6.6 Governing Law....................................................................31
SECTION 6.7 Counterparts; Effectiveness......................................................31
SECTION 6.8 Exhibits and Schedules...........................................................31
SECTION 6.9 Entire Agreement.................................................................31
SECTION 6.10 Severability.....................................................................31
SECTION 6.11 Termination......................................................................32
SECTION 6.12 Survival of Agreements...........................................................32
SECTION 6.13 Expenses.........................................................................32
</Table>
EXHIBITS
Exhibit A - Form of Administrative Services Agreement
Exhibit B - Form of Intellectual Property Agreement
Exhibit C - Form of Sublease Agreement
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT, dated as of July 21, 2003 (this
"Agreement"), is made between CENTEX CORPORATION, a Nevada corporation
("Centex"), and CENTEX CONSTRUCTION PRODUCTS, INC., a Delaware corporation
("CXP").
WITNESSETH:
WHEREAS, as of the date hereof, Centex owns 11,962,304 shares of Common
Stock, par value $.01 per share, of CXP ("Common Stock"), representing
approximately 65% of the outstanding shares of such class;
WHEREAS, prior to the date upon which the Reclassification (as
hereinafter defined) is consummated, Centex will contribute 9,220,000 shares
of Common Stock (the "Contributed Shares") to ARG Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of Centex ("Merger Sub") and will
continue to own 2,742,304 shares of Common Stock (the "Additional Shares");
WHEREAS, concurrently with the execution hereof, CXP, Centex and Merger
Sub are entering into an Agreement and Plan of Merger, dated as of the date
hereof (as amended from time to time, the "Merger Agreement"), pursuant to
which, among other things, Merger Sub will merge with and into CXP (the
"Merger"), with the result that the following changes will be made to the
capital stock of CXP and Merger Sub: (i) the Contributed Shares will be canceled
and retired with no securities or other consideration issued in exchange
therefor; (ii) all of the outstanding shares of common stock of Merger Sub will
be converted into an aggregate of 9,220,000 shares (the "Class B Shares") of a
new class of common stock of the Company to be designated as Class B Common
Stock, par value $.01 per share ("Class B Common Stock"), which class will be
entitled to elect at least 85% of the members of the Board of Directors of CXP
and will in all other respects be identical to the Common Stock; and (iii) all
other shares of Common Stock held by the stockholders of CXP, including the
Additional Shares, will remain issued and outstanding (such changes, as they
relate to the capital stock of CXP, being referred to herein as the
"Reclassification");
WHEREAS, the Board of Directors of Centex has determined that
it is desirable and in the best interests of Centex and its stockholders to
distribute the Class B Shares and all shares of Common Stock owned by Centex on
the Distribution Date (as hereinafter defined) (collectively, the "Distributable
Shares"), on the terms and subject to the conditions set forth in this
Agreement, to the holders of record of the Common Stock, par value $.25 per
share ("Centex Common Stock"), of Centex as of the Distribution Record Date (as
hereinafter defined) (the "Distribution");
WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Board of Directors of CXP shall declare the Cash Dividend (as
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hereinafter defined), payable on a pro rata basis to the holders of record of
Common Stock as of the Cash Dividend Record Date (as hereinafter defined);
WHEREAS, the Cash Dividend shall be paid prior to the consummation of
the Reclassification and the Distribution;
WHEREAS, Centex has submitted a request for a ruling (as it may be
amended from time to time, the "Ruling Request") from the IRS (as hereinafter
defined) confirming that the Distribution will be a tax-free distribution within
the meaning of Section 355 of the Code (as defined herein); and
WHEREAS, each of Centex and CXP desire to set forth their agreement as
to the principal corporate transactions required in order to effect the
Reclassification, the Cash Dividend, the Distribution and the other Transactions
(as hereinafter defined);
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein, the mutual benefits to be gained from the
performance thereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 Certain Definitions. The following terms, as used herein,
shall have the following meanings:
"Action" means any suit, action, arbitration, inquiry, investigation or
other proceeding of any nature (whether criminal, civil, legislative,
administrative, regulatory, prosecutorial or otherwise) by or before any
arbitrator or Governmental Entity or similar Person or body.
"Administrative Services Agreement" means the Administrative Services
Agreement to be entered into prior to or on the Distribution Date between CXP
and Centex Service Company, which agreement shall provide that, for a period of
up to two years after the Distribution Date, Centex Service Company shall
continue to provide to CXP the same intercompany services that Centex Service
Company currently provides to CXP on substantially the same terms as they are
currently provided (it being understood that the form, terms and provisions of
such agreement shall be mutually agreed upon by the parties and attached as
Exhibit A to this Agreement prior to the date the Proxy Statement is mailed to
the stockholders of CXP); provided, that the Administrative Services Agreement
shall supersede any and all prior administrative services or other agreements
between the parties with respect to the subject matter thereof.
"Affiliate" means, when used with respect to a specified Person,
another Person that controls, is controlled by, or is under common control with
such Person. As
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used in this definition, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities or other interests,
by contract or otherwise.
"Ancillary Agreements" means all agreements, certificates, deeds,
instruments, assignments and other written arrangements (other than this
Agreement) entered into between Centex or any of its Affiliates (including
Centex Service Company) on the one hand and CXP or any of its Affiliates on the
other hand in connection with the Transactions, including the Administrative
Services Agreement, the Intellectual Property Agreement and the Sublease
Agreement.
"Assets" means assets, properties and rights (including goodwill),
wherever located (including in the possession of vendors or other third parties
or elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or required to be
recorded or reflected on the books and records or financial statements of any
Person.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Cash Dividend Date" means the close of business on the Business Day
next preceding to the Distribution Date.
"Cash Dividend Record Date" means the close of business on the Business
Day next preceding the Distribution Record Date.
"Centex Business" means each and every business conducted at any time
prior to, on or after the Distribution Date by Centex or any current, former or
future Subsidiary of Centex (other than CXP and its Subsidiaries), whether or
not such Subsidiary is a Subsidiary of Centex on the date hereof, except for the
CXP Business.
"Centex Group" means Centex and each Person (other than any member of
the CXP Group) that is a Subsidiary of Centex immediately prior to the
Distribution Date.
"Centex Indemnitees" means Centex, each member of the Centex Group,
each of their respective present and former directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
"Centex Liabilities" means any and all Liabilities whatsoever that
arise out of, result from or are related to the operation of the Centex Business
or the ownership of the Assets of the Centex Business by Centex, any predecessor
entity of Centex (and all predecessors thereto) or any current, former or future
Subsidiary of
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Centex (other than CXP and its Subsidiaries), whether such Liabilities arise
before, on or after the Distribution Date and whether known or unknown, fixed or
contingent, and shall include, without limitation:
(a) any Liabilities for a breach by Centex of any representation,
warranty or covenant herein or in the Merger Agreement; and
(b) any and all Liabilities which CXP incurs as a result of, and to the
extent resulting from, information provided by Centex in writing relating to
Centex specifically for inclusion in the Proxy Statement (or any Amendment
thereto), any other solicitation materials or any oral solicitation of proxies
or any report or document filed by CXP with the Commission.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury regulations promulgated thereunder, including any successor
legislation.
"Commission" means the Securities and Exchange Commission.
"CXP Business" means each and every business conducted at any time
prior to, on or after the Distribution Date by CXP or any current, former or
future Subsidiary of CXP, whether or not such Subsidiary is a Subsidiary of CXP
on the date hereof.
"CXP Certificate of Incorporation" means the Restated Certificate of
Incorporation of CXP as in effect immediately after the Reclassification.
"CXP Group" means CXP and each Person that is a Subsidiary of CXP
immediately prior to the Distribution Date.
"CXP Indemnitees" means CXP, each member of the CXP Group, each of
their respective present and former directors, officers, employees and agents
and each of the heirs, executors, successors and assigns of any of the
foregoing.
"CXP Liabilities" means any and all Liabilities whatsoever that arise
out of, result from or are related to the operation of the CXP Business or the
ownership of the Assets of the CXP Business by CXP, any predecessor entity of
CXP (and all predecessors thereto) or any current, former or future Subsidiary
of CXP or any such predecessor, whether such Liabilities arise before, on or
after the Distribution Date and whether known or unknown, fixed or contingent,
and shall include, without limitation:
(a) any and all Liabilities to which Centex or any of its predecessors
or successors may become subject arising from or based upon its status or
alleged status as a "controlling person" (as defined under Section 15 of the
Securities Act and Section 20 of the Exchange Act) of CXP or a stockholder of
CXP relating to (i) the Proxy Statement (or any amendment thereto) or any other
solicitation materials or any oral
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solicitations of proxies (except for liabilities which CXP incurs as a result
of, and to the extent resulting from, information provided by Centex in writing
relating to Centex specifically for inclusion in the Proxy Statement (or any
amendment thereto) or any such other solicitation materials or oral
solicitation); or (ii) any other report or document filed by CXP with the
Commission at any time before, on or after the Distribution Date (except for
liabilities which CXP incurs as a result of, and to the extent resulting from,
information provided by Centex in writing relating to Centex specifically for
inclusion in such report or document);
(b) any Liabilities for a breach by CXP of any representation, warranty
or covenant herein or in the Merger Agreement; and
(c) any and all Liabilities which Centex incurs as a result of, and to
the extent resulting from, information provided in writing by CXP relating to
CXP specifically for inclusion in any proxy or information statement provided by
Centex to its stockholders or any related solicitation materials or other
similar communications or any report or document filed by Centex with the
Commission.
"Declaration Date" means the date on which (a) the Centex Board of
Directors shall authorize and declare the Distribution and (b) the CXP Board of
Directors shall authorize and declare the Cash Dividend.
"DGCL" means the General Corporation Law of the State of Delaware.
"Distribution Agent" means the distribution agent selected by Centex to
effect the Distribution, which may be Centex's stock transfer agent.
"Distribution Date" means a Business Day determined by the Board of
Directors of Centex, which shall be after the payment of the Cash Dividend and
the consummation of the Reclassification, for the mailing of certificates
evidencing Distributable Shares to stockholders of Centex in the Distribution.
"Distribution Record Date" means a Business Day determined by the Board
of Directors of Centex as the record date for the determination of the holders
of record of Centex Common Stock entitled to receive the Distributable Shares in
the Distribution.
"Established Liability" means, with respect to each Centex stockholder,
the amount of Tax Liability (including interest and penalties) resulting
directly from the Distribution, as evidenced by (i) an amended tax return of
such Centex stockholder reflecting the amount of such Tax Liability, together
with proof of payment of such amount, or (ii) a deficiency notice received by
such Centex stockholder from the IRS setting forth the amount of such Tax
Liability, together with proof of payment of such amount.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Form 8-A" means a registration statement on Form 8-A of CXP pursuant
to which the Class B Common Stock is to be registered under the Exchange Act,
including all amendments thereto.
"Governance Proposals" has the meaning set forth in the Merger
Agreement.
"Governmental Entity" means any federal, state, local, or foreign
government or any court, tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, domestic, foreign or
supranational.
"Intellectual Property Agreement" means the Intellectual Property
Agreement to be entered into prior to or on the Distribution Date between Centex
and CXP, which agreement shall provide that (i) prior to the Distribution Date,
Centex shall transfer to CXP all of the trademarks and other intellectual
property held in the name of Centex that relates primarily or exclusively to the
CXP Business and (ii) CXP shall have a limited right to use the "Centex" name in
connection with the CXP Business for a mutually agreed period after the
Distribution Date in a manner consistent with its current use of such name;
provided, however, that corporate name of CXP shall not include the word
"Centex" from and after the Distribution Date (it being understood and agreed
that the form, terms and provisions of such agreement shall be mutually agreed
upon and attached as Exhibit B to this Agreement prior to the date the Proxy
Statement is mailed to the stockholders of CXP).
"IRS" means the Internal Revenue Service.
"Liabilities" shall mean any and all losses, claims, charges, debts,
demands, actions, causes of action, suits, damages, obligations, payments, costs
and expenses, sums of money, accounts, reckonings, bonds, specialties,
indemnities and similar obligations, exonerations, covenants, contracts,
controversies, agreements, promises, doings, omissions, variances, guarantees,
make whole agreements and similar obligations, and other liabilities, including
all contractual obligations, whether absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, and including those arising under any law, rule, regulation,
Action, threatened or contemplated Action (including the costs and expenses of
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys' fees and any and all costs and expenses, whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any governmental
or other regulatory or administrative agency, body or commission or any award of
any arbitrator or mediator of any kind, and those arising under any contract,
commitment or undertaking, including those arising under this Agreement or the
Merger Agreement, in each case,
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whether or not recorded or reflected or required to be recorded or reflected on
the books and records or financial statements of any Person.
"Material Adverse Effect" means, with respect to any Person, any
change, effect, event, occurrence or development that is, individually or in the
aggregate, materially adverse to the business, operations, assets, liabilities,
condition (financial or otherwise), results of operations or prospects of such
Person.
"NYSE" means the New York Stock Exchange, Inc.
"NYSE Listing Application" shall mean the application to be submitted
by CXP to the NYSE for the listing of the Class B Common Stock.
"Person" means any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, Governmental Entity or other entity of any kind or
nature.
"Proxy Statement" has the meaning set forth in the Merger Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Stockholders Meeting" has the meaning set forth in the Merger
Agreement.
"Sublease Agreement" means the Sublease Agreement to be entered into
prior to or on the Distribution Date between CXP and Centex Service Company,
which agreement shall provide that, for a mutually agreed term from and after
the Distribution Date, Centex Service Company shall lease to CXP the same
office space currently occupied by CXP at the same lease rate as is currently
paid by CXP (it being understood that the form, terms and provisions of such
agreement shall be mutually agreed upon and attached as Exhibit C to this
Agreement prior to the date the Proxy Statement is mailed to the stockholders of
CXP).
"Subsidiary" means, with respect to any Person, (i) any corporation of
which at least a majority of the securities or other ownership interests having
by their terms ordinary voting power to elect a majority of the board of
directors are directly or indirectly owned or controlled by such Person and its
Subsidiaries, (ii) any partnership of which such Person or one of its
Subsidiaries is a general partner or as to which such Person and its
Subsidiaries are entitled to receive at least a majority of the assets upon the
liquidation thereof or (iii) any limited liability company of which such Person
or one of its Subsidiaries is a manager (or is entitled as a member to exercise
management rights over the conduct of the business of such limited liability
company) or as to which such Person and its Subsidiaries are entitled to receive
at least a majority of the assets upon the liquidation thereof.
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"Tax" or "Taxes" means taxes of any kind, levies or other like
assessments, customs, duties, imposts, charges or fees, including income, gross
receipts, ad valorem, value added, excise, real or personal property, asset,
sales, use, license, payroll, transaction, capital, net worth and franchise
taxes, withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes or other governmental taxes imposed or payable
to the United States, or any state, county, local or foreign government or
subdivision or agency thereof, and in each instance such term shall include any
interest, penalties, additions to tax or additional amounts attributable to any
such tax.
"Transaction Agreements" means this Agreement, the Merger Agreement and
the Ancillary Agreements.
"Transactions" means the Reclassification, the Cash Dividend, the
Distribution and the other transactions contemplated by the Transaction
Agreements.
SECTION 1.2 Other Defined Terms. The following terms have the meanings
assigned to them in the provisions of this Agreement referred to in the table
below:
<Table>
<Caption>
TERM SECTION
---- -------
355 Failure 5.1(b)
Acquisition Proposal 4.4(a)
Additional Shares Recitals
Cash Dividend 2.2(a)
Centex Preamble
Centex Common Stock Recitals
Centex Failure 5.2(b)
Centex Member 5.1(b)
Centex Tax Liability 5.1(c)
Common Stock Recitals
CXP Preamble
CXP Failure 5.1(b)
CXP Member 5.2(b)
Distribution Recitals
Distributable Shares Recitals
Final Determination 5.3(b)
Indemnifying Party 5.3(a)
Indemnitee 5.3(a)
IRS Ruling 2.1(b)(i)
Merger Recitals
Merger Agreement Recitals
Merger Sub Recitals
Required Consents 4.7
Ruling Request Recitals
</Table>
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<Table>
<Caption>
TERM SECTION
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Target Date 4.1(c)
Tax Claim 5.3(b)
Third Party Claim 5.3(a)
</Table>
ARTICLE II.
THE DISTRIBUTION AND CASH DIVIDEND
SECTION 2.1 The Distribution.
(a) The Distribution. Subject to the conditions set forth in Section
2.1(b), on the Declaration Date, the Board of Directors of Centex shall declare
the Distribution. In addition, in order to effect the Distribution, on the
Distribution Date, if the Cash Dividend shall have been paid and the
Reclassification shall have been consummated and subject to the other conditions
set forth in Section 2.1(b), Centex shall cause the Distribution Agent to
distribute the Distributable Shares to the holders of record of Centex Common
Stock as of the Distribution Record Date, on a pro rata basis and taking into
account the provisions of Section 2.1(c). Upon receipt by Centex of certificates
representing the Class B Shares as a result of the Reclassification, Centex
shall deliver such certificates and its certificate evidencing the Additional
Shares to the Distribution Agent. Until such time as the certificates
representing the Distributable Shares are mailed to holders of record of Centex
Common Stock on the Distribution Record Date or on which fractional
Distributable Shares are sold on behalf of such holders, the Distribution Agent
shall hold the certificates representing the Distributable Shares on behalf of
such holders. Centex shall enter into an agreement with the Distribution Agent
in connection with the foregoing, and shall agree, among other things, to
reimburse the Distribution Agent for its reasonable costs, expenses and fees in
connection with the Distribution.
(b) Conditions to the Distribution. The obligations of Centex to
declare the Distribution on the Declaration Date and to cause the Distribution
to be effected on the Distribution Date are subject to the satisfaction or
waiver by Centex, as determined by Centex in its sole discretion, of the
conditions set forth below (which conditions must be satisfied or waived on or
prior to the Declaration Date unless any such condition by its terms can only be
satisfied after the Declaration Date, in which case such condition must be
satisfied or waived on or prior to the Distribution Date):
(i) a private letter ruling from the IRS shall have been
obtained, and shall continue in effect, providing that, among other
things, the Reclassification and the Distribution will qualify as
tax-free transactions for federal income tax purposes under Sections
368(a), 354 and 355 of the Code (the "IRS Ruling"), which ruling shall
be in form and substance satisfactory to Centex in its sole discretion;
and Centex and CXP shall have complied with all conditions set forth in
such ruling
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that are required to be complied with prior to the Declaration Date and
the Distribution Date;
(ii) any material governmental approvals and consents
necessary for Centex to declare and effect the Distribution and the
other Transactions shall have been obtained and shall be in full force
and effect;
(iii) no order, injunction or decree issued by any court or
agency of competent jurisdiction or other legal restraint or
prohibition preventing the declaration and effectuation of the
Distribution or the consummation of the other Transactions shall be in
effect and no other event outside the control of Centex shall have
occurred or failed to occur that prevents the lawful declaration and
effectuation of the Distribution or the consummation of the other
Transactions;
(iv) the Distribution and the other Transactions shall be in
compliance with applicable federal and state securities and other
applicable laws;
(v) all of the Required Consents shall have been obtained;
(vi) in the case of the obligation to declare the
Distribution, (A) all conditions to the payment of the Cash Dividend
shall have been satisfied or waived by CXP; (B) the Cash Dividend shall
have been declared by the Board of Directors of CXP and (C) no
circumstances shall exist that, in the reasonable judgment of Centex,
could be expected to prevent the payment of the Cash Dividend prior to
the Distribution; and, in the case of the obligation to effect the
Distribution, the Cash Dividend shall have been paid to the
stockholders of CXP (including Centex);
(vii) in the case of the obligation to declare the
Distribution, (A) all conditions to the obligations of Centex to
consummate the Reclassification set forth in the Merger Agreement
(other than the conditions set forth in Section 4.2(d) and the
conditions set forth in Section 4.2(e) to the extent it requires that
the Cash Dividend have been paid) shall have been satisfied or waived
by Centex; and (B) no circumstances shall exist that, in the reasonable
judgment of Centex, could be expected to prevent the consummation of
the Reclassification immediately prior to the Distribution; and, in the
case of the obligation to effect the Distribution, the Reclassification
shall have been consummated;
(viii) the Form 8-A shall have been filed with the Commission;
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(ix) the Class B Shares shall have been approved for listing
on the NYSE, subject to official notice of issuance;
(x) all representations and warranties of CXP set forth in
this Agreement and the Merger Agreement that are qualified as to
materiality shall be true and correct, and any such representations and
warranties that are not so qualified shall be true and correct in all
material respects, as of the Distribution Date; and
(xi) all covenants to have been performed at or prior to the
Distribution Date by CXP pursuant to this Agreement or the Merger
Agreement shall have been performed at or prior to the Distribution
Date by CXP in all material respects.
The foregoing conditions are solely for the benefit of Centex and shall not give
rise to or create any duty on the part of Centex to waive or not waive any such
condition.
(c) Sale of Fractional Shares. Centex shall appoint the Distribution
Agent as agent for each holder of record of Centex Common Stock who would
otherwise be entitled to receive in the Distribution any fractional
Distributable Share. The Distribution Agent shall aggregate all such fractional
shares and sell them in an orderly manner after the Distribution Date in the
open market and, after completion of such sales, distribute a pro rata portion
of the net proceeds from such sales, based upon the gross selling price of all
such fractional shares, to each shareholder of Centex who would otherwise have
received a fractional share. Centex shall reimburse the Distribution Agent for
its reasonable costs, expenses and fees (other than selling expenses) in
connection with the sale of fractional Distributable Shares and the distribution
of the proceeds thereof in accordance with this Section 2.1(c).
(d) Other Actions.
(i) Centex shall prepare and mail, at such time as determined
by Centex, to the holders of Centex Common Stock, such information
concerning CXP, its business, operations and management, the
Distribution and the tax consequences thereof and such other matters as
Centex shall reasonably determine or as may be required by law. Centex
shall give CXP and its counsel reasonably appropriate advance
opportunity to review and comment upon such documents and shall
consider in good faith any comments CXP timely delivers to Centex with
respect to such information. CXP agrees to cooperate with Centex in the
preparation of, and provide any information reasonably requested by
Centex for inclusion in, such mailing. CXP represents that all
information provided to Centex for such mailing shall be true and
correct in all material respects. Centex and CXP will prepare, and CXP
will, to
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the extent required under applicable law, file with the Commission any
such documentation, including any no action letters or other requests
for interpretive or regulatory assistance, if any, which Centex
reasonably determines are necessary or desirable to effectuate the
Distribution and the other transactions contemplated hereby and by the
Merger Agreement and Centex and CXP shall each use its reasonable best
efforts to obtain all necessary approvals from the Commission with
respect thereto as soon as practicable.
(ii) CXP and Centex shall take all such action as may be
necessary or appropriate under the securities or blue sky laws of the
United States (and any comparable laws under any foreign jurisdiction)
in connection with the Distribution and the other Transactions.
(iii) CXP shall prepare and file, and shall use its reasonable
best efforts to have approved, subject to official notice of issuance,
the NYSE Listing Application.
(iv) CXP shall prepare and file the Form 8-A (which may
include or incorporate by reference information contained in the Proxy
Statement) with the Commission as promptly as practicable following the
execution hereof, and shall use its reasonable best efforts to cause
the Form 8-A to become effective under the Exchange Act immediately
following the consummation of the Reclassification or as soon as
practicable thereafter.
(v) On or prior to the Distribution Date, CXP shall from time
to time, as and to the extent reasonably requested by Centex or
requested by the IRS, provide any documentation, certifications or
other information necessary to enable Centex to obtain the IRS Ruling.
(vi) Centex shall keep CXP informed regarding the status of
the IRS Ruling and any significant requests made by the IRS for changes
or undertakings in connection with the Transactions and shall provide
CXP with copies of any additional submissions by Centex to the IRS
related to the IRS Ruling.
(vii) Subject to the terms and conditions of this Agreement,
on or prior to the Distribution Date, each of Centex and CXP shall
consummate the transactions in connection with the Distribution that
are contemplated by the IRS Ruling, the Ruling Request and any related
submissions by Centex to the IRS.
(viii) Centex shall give CXP and its counsel reasonably
appropriate advance opportunity to review and comment upon filings to
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be made by Centex with the Commission with respect to this Agreement,
the Merger Agreement or any of the Transactions and shall consider in
good faith any comments CXP timely delivers to Centex with respect to
such filing.
(ix) In addition to those matters specifically set forth
above, Centex and CXP shall each take such other reasonable steps as
are necessary and appropriate to cause the conditions set forth in
Section 2.1(b) to be satisfied and to effect the Distribution on the
Distribution Date.
(x) CXP agrees that it shall not file with the Commission any
report or other document that contains any disclosure relating to the
Transaction Agreements or the Transactions without the prior written
consent of Centex with respect to such disclosure, which consent shall
not be unreasonably withheld. Centex will review all such draft reports
and other documents promptly and will provide any comments to CXP
within a reasonable period of time.
(xi) Prior to the Distribution Date, CXP shall not amend, and
the CXP Board of Directors shall not approve any amendment to, CXP's
Restated Certificate of Incorporation or CXP's Amended and Restated
Bylaws, other than the Governance Proposals and the amendments to the
Certificate of Incorporation, which will take effect upon the filing of
the certificate of merger with the Secretary of State of the State of
Delaware in connection with the Reclassification in accordance with the
terms of the Merger Agreement.
(xii) On or prior to the Distribution Date, each of Centex
(or, in the case of the Administrative Services Agreement and the
Sublease Agreement, Centex Service Company) and CXP shall enter into
the Administrative Services Agreement, the Intellectual Property
Agreement and the Sublease Agreement, which agreements shall be on
terms reasonably satisfactory to the parties.
(xiii) Except as expressly provided otherwise herein, all
agreements and arrangements existing on the date hereof between Centex
or any of its Subsidiaries on the one hand and CXP and any of its
Subsidiaries on the other hand, whether written or oral, shall continue
in full force and effect in accordance with their terms and consistent
with past practice from the date hereof, through the Distribution Date
and thereafter.
(xiv) On or prior to the Distribution Date, each of Centex and
CXP, as the case may be, shall, from time to time and to the extent
reasonably requested by the other, provide any documentation,
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certifications or other information to make required filings in
connection with the transactions contemplated by this Agreement and the
Merger Agreement.
SECTION 2.2 The Cash Dividend.
(a) The Cash Dividend. Subject to the conditions set forth in Section
2.2(b), on the Declaration Date, the Board of Directors of CXP shall declare a
pro rata cash dividend to the holders of record of CXP Common Stock as of the
Cash Dividend Record Date in the amount of $6.00 per share (the "Cash
Dividend"). In addition, subject to the conditions set forth in Section 2.2(b),
on the Cash Dividend Date, CXP shall pay the Cash Dividend to the holders of
record of CXP Common Stock as of the Cash Dividend Record Date, on a pro rata
basis.
(b) Conditions of the Cash Dividend. The obligations of CXP to declare
the Cash Dividend on the Declaration Date and to cause the Cash Dividend to be
paid on the Cash Dividend Date are subject to the satisfaction or waiver by CXP,
as determined by CXP in its sole discretion, of the conditions set forth below
(which conditions must be satisfied or waived on or prior to the Declaration
Date unless any such condition by its terms can only be satisfied after the
Declaration Date, in which case such condition must be satisfied or waived on or
prior to the Cash Dividend Distribution Date):
(i) any material governmental approvals and consents necessary
for CXP to declare and pay the Cash Dividend and consummate the other
Transactions shall have been obtained and shall be in full force and
effect;
(ii) no order, injunction or decree issued by any court or
agency of competent jurisdiction or other legal restraint or
prohibition in each case preventing the declaration or payment by CXP
of the Cash Dividend or the consummation of the other Transactions
shall be in effect and no other event outside the control of CXP shall
have occurred or failed to occur that prevents the declaration or the
lawful payment of the Cash Dividend or consummation of the other
Transactions;
(iii) the Cash Dividend and the other Transactions shall be in
compliance with applicable federal and state securities and other
applicable laws;
(iv) all of the Required Consents shall have been obtained ;
(v) in the case of the obligation to declare the Cash
Dividend, all conditions to the Distribution (other than the
declaration and payment of the Cash Dividend) shall have been satisfied
or waived
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by Centex; in the case of the declaration and the payment of the Cash
Dividend, the Distribution shall have been declared by the Board of
Directors of Centex substantially simultaneously with the declaration
of the Cash Dividend and no circumstances shall exist that would
reasonably be expected to prevent the prompt consummation of the
Distribution following payment of the Cash Dividend;
(vi) in the case of the obligation to declare the Cash
Dividend, all conditions to the obligations on the part of CXP to
consummate the Reclassification set forth in the Merger Agreement shall
have been satisfied or waived; in the case of the payment of the Cash
Dividend, no circumstances shall exist that would reasonably be
expected to prevent the prompt consummation of the Reclassification
following payment of the Cash Dividend;
(vii) the Form 8-A shall have been filed with the Commission;
(viii) the Class B Common Stock shall have been approved for
listing on the NYSE, subject to official notice of issuance;
(ix) all representations and warranties of Centex set forth in
this Agreement and the Merger Agreement that are qualified as to
materiality shall be true and correct, and any such representations and
warranties that are not so qualified shall be true and correct in all
material respects as of the Declaration Date and the Cash Dividend
Date;
(x) all covenants to have been performed at or prior to the
Distribution Date by Centex pursuant to this Agreement or the Merger
Agreement shall have been performed by Centex at or prior to the
Distribution Date in all material respects;
(xi) CXP shall have entered into definitive loan agreements
for financing which, when added to CXP's available cash and reasonably
anticipated cash flow through the Declaration Date, will permit the
payment of the Cash Dividend, with sufficient cash available, in the
reasonable judgment of the Board of Directors of CXP, to meet the needs
of CXP's business, and which are subject only to customary conditions.
CXP shall provide copies of such loan agreements to Centex and shall
provide such other documents and information in connection therewith as
Centex shall reasonably request; and
(xii) the payment of the Cash Dividend shall be permitted by
the applicable provisions of the DGCL, and the Board of Directors of
CXP shall have obtained such reasonable and customary assurances as the
Board of Directors of CXP deems necessary for the authorization of such
dividend.
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The foregoing conditions are solely for the benefit of CXP and shall not give
rise to or create any duty on the part of CXP to waive or not waive any such
condition.
(c) Certain Limitations on Expenditures by CXP. Until such time as the
Cash Dividend has been paid, CXP shall not, and shall not permit any of its
Subsidiaries to, without the prior written consent of Centex, (i) pay any other
cash dividends on any of its capital stock other than regular quarterly cash
dividends not in excess of $0.05 per share of Common Stock, or (ii) repurchase
any shares of its capital stock, except purchases necessary to offset exercises
of employee stock options that are outstanding on the date hereof.
(d) Financing. CXP agrees that it will use its commercially reasonable
efforts to secure financing which, when added to its available cash and
reasonably anticipated cash flow through the Declaration Date, will permit
payment of the Cash Dividend, with sufficient cash available, in the reasonable
judgment of the Board of Directors of CXP, to meet the needs of CXP's business.
SECTION 2.3 Declaration Date; Further Assurances.
(a) The parties agree that the Declaration Date shall occur as soon as
reasonably practicable following the satisfaction or waiver of the conditions to
the declaration of the Distribution set forth in Section 2.1(b) (other than the
declaration of the Cash Dividend) and the conditions to the declaration of the
Cash Dividend set forth in Section 2.2(b). The parties shall cause their
respective Boards of Directors (or in the case of Centex, a duly authorized
committee thereof) to meet in person or telephonically on the Declaration Date
and each shall take such corporate action at such meeting as shall be required
to (in the case of CXP) declare the Cash Dividend and (in the case of Centex)
declare the Distribution. Following such meetings, the parties shall take all
actions required to consummate the Reclassification in accordance with the terms
of the Merger Agreement, including the filing of the certificate of merger
relating to the Reclassification with the Secretary of State of the State of
Delaware.
(b) Subject to each of Centex's and CXP's right to terminate this
Agreement in accordance with Section 6.11, if at any time after the date hereof
any further action is reasonably necessary or desirable to carry out the
Transactions or any other purpose of the Transaction Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, and subject as aforesaid, Centex and CXP shall
use all reasonable efforts to obtain the IRS Ruling and all consents and
approvals, to enter into all amendatory agreements to make all filings and
applications that may be required for the consummation of the
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transactions contemplated by this Agreement and the Merger Agreement, including
all applicable governmental and regulatory filings.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of CXP. CXP hereby
represents and warrants to Centex as follows:
(a) Organization; Good Standing. CXP is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate power required to consummate the Transactions.
(b) Authorization. The execution, delivery and performance by CXP of
the Transaction Agreements and the consummation by CXP of the Transactions have
been duly authorized by all necessary corporate action on the part of CXP, other
than the formal declaration of the Cash Dividend by the Board of Directors of
CXP and the approval of the Reclassification and the Governance Proposals by the
stockholders of CXP. Each of this Agreement and the Merger Agreement
constitutes, and each other Transaction Agreement executed and delivered or to
be executed and delivered by CXP will, upon such execution and delivery,
constitute a legal, valid and binding obligation of CXP, enforceable against CXP
in accordance with its terms, except insofar as enforcement may be limited by
(i) any bankruptcy, reorganization, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such is considered in a
proceeding at law or in equity).
(c) Consents and Filings. Except (i) for the filing of a certificate of
merger in connection with the Reclassification and any other filings required to
be made with the Secretary of State of the State of Delaware, (ii) for the IRS
Ruling, (iii) for the filing of the Proxy Statement and the Form 8-A and any
other reports or documents required to be filed under the Exchange Act and (iv)
the NYSE Listing Application, no consent of, or filing with, any Governmental
Entity which has not been obtained or made is required for or in connection with
the execution and delivery of the Transaction Agreements by CXP or the
consummation by CXP of the Transactions.
(d) Noncontravention. Except in the case of any consents that CXP will
use its reasonable best efforts to obtain prior to the Distribution Date (which
consents are listed on Schedule 3.1(d)), the execution, delivery and performance
of the Transaction Agreements by CXP do not, and the consummation by CXP of the
Transactions will not, (i) violate any applicable federal, state or local
statute, law, rule or regulation, (ii) violate any provision of the Restated
Certificate of Incorporation or the Amended and Restated Bylaws of CXP or (iii)
violate any provision of, or result in the termination or acceleration of, or
entitle any party to accelerate any obligation or
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indebtedness under, any mortgage, lease, franchise, license, permit, agreement,
instrument, order, arbitration award, judgment or decree to which CXP or any of
its Subsidiaries is a party or by which any of them are bound, except for, in
the case of clauses (i) and (iii) above, such violations as would not result in
a Material Adverse Effect with respect to CXP or prevent the parties from
complying with the terms and provisions of the Transaction Agreements in any
material respect.
(e) Litigation. There are no actions or suits against CXP pending, or
to the knowledge of CXP, threatened which seek to, and CXP is not subject to any
judgments, decrees or orders which, enjoin or rescind the Transactions or
otherwise prevent CXP from complying with the terms and provisions of the
Transaction Agreements.
(f) Change of Control Adjustments. None of the Transactions will (i)
constitute a "change of control" or otherwise result in the increase or
acceleration of any benefits, including to employees of CXP, under any agreement
to which CXP or any of its Subsidiaries is a party or by which it or any of its
Subsidiaries is bound, or (ii) result in any adjustment of the number of shares
subject to, or the terms of, including exercise price, any outstanding employee
stock options of CXP.
(g) Certain Transactions. Except for transactions or other actions that
occurred prior to January 1, 2002 or that are described in Schedule 3.1(g),
neither CXP nor any other member of the CXP Group has engaged in any transaction
or taken any other action, or engaged in any negotiations or discussions,
involving or relating to any sale of CXP or a substantial portion of its
business in a single transaction or series of related transactions (whether in
the form of an asset sale, stock sale, merger or otherwise) or the issuance of
any substantial portion of the capital stock of CXP or options, warrants or
other rights to acquire capital stock of CXP (other than compensatory stock plan
issuances). None of the transactions or other actions, negotiations or
discussions described in Schedule 3.1(g) were undertaken by CXP in contemplation
of the Distribution or are related to the Distribution.
SECTION 3.2 Representations and Warranties of Centex. Centex hereby
represents and warrants to CXP as follows:
(a) Organization; Good Standing. Centex is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada and has all corporate power required to consummate the Transactions.
(b) Authorization. The execution, delivery and performance by Centex of
the Transaction Agreements and the consummation by Centex of the Transactions
have been duly authorized by all necessary corporate action on the part of
Centex, other than the formal declaration of the Distribution by the Board of
Directors of Centex (or a committee thereof). Each of this Agreement and Merger
Agreement constitutes, and each other Transaction Agreement executed and
delivered or to be
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executed and delivered by Centex pursuant to this Agreement will, upon such
execution and delivery, constitute, a legal, valid and binding obligation of
Centex, enforceable against Centex in accordance with its terms, except insofar
as enforcement may be limited by (i) any bankruptcy, reorganization, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such is considered in a proceeding at law or in equity).
(c) Consents and Filings. Except (i) for the filing of a certificate of
merger in connection with the Reclassification and any other filings required to
be made with the Secretary of State of the State of Delaware, (ii) for the IRS
Ruling and (iii) for any reports or documents required to be filed under the
Exchange Act, no material consent of, or filing with, any Governmental Entity
which has not been obtained or made is required for or in connection with the
execution and delivery of the Transaction Agreements by Centex or the
consummation by Centex of the Transactions.
(d) Noncontravention. The execution, delivery and performance of the
Transaction Agreements do not, and the consummation by Centex of the
Transactions will not, (i) violate any applicable federal, state or local
statute, law, rule or regulation, (ii) violate any provision of the Restated
Articles of Incorporation or the Amended and Restated By-Laws of Centex or (iii)
violate any provision of, or result in the termination or acceleration of, or
entitle any party to accelerate any obligation or indebtedness under, any
mortgage, lease, franchise, license, permit, agreement, instrument, order,
arbitration award, judgment or decree to which Centex or any of its Subsidiaries
is a party or by which any of them are bound, except for, in the case of clause
(iii) above, such violations that would not prevent Centex from complying with
the terms and provisions of the Transaction Agreements in any material respect.
(e) Litigation. There are no actions or suits against Centex pending,
or to the knowledge of Centex, threatened which seek to, and Centex is not
subject to any judgments, decrees or orders which, enjoin or rescind the
Transactions or otherwise prevent Centex from complying with the terms and
provisions of the Transaction Agreements.
ARTICLE IV.
COVENANTS
SECTION 4.1 Access to Information.
(a) Other than in circumstances in which indemnification is sought
pursuant to Article V (in which event the provisions of such Article will
govern), from and after the Distribution Date, each of CXP and Centex shall
afford to the other and its authorized accountants, counsel and other designated
representatives reasonable access
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during normal business hours, subject to appropriate restrictions for
classified, privileged or confidential information, to the personnel,
properties, books and records of such party and its Subsidiaries insofar as such
access is reasonably required by the other party and relates to such other
party's performance of its obligations under the Transaction Agreements or such
party's financial, tax and other reporting obligations.
(b) A party providing information or access to information to the other
party under this Article IV shall be entitled to receive from the recipient,
upon the presentation of invoices therefor, payments for such amounts, relating
to supplies, disbursements and other out-of-pocket expenses, as may be
reasonably incurred in providing such information or access to information.
(c) For a period of two years following the Distribution Date, CXP
shall provide to Centex: (i) promptly following the date (the "Target Date") as
of which there has been an aggregate change in the outstanding equity or capital
structure of CXP (measured during the period beginning on the Distribution Date
and ending on the Target Date and not taking into account the Reclassification
or transfers of shares by CXP stockholders, unless CXP participates in such
transfers or such transfers are reported on a Schedule 13D or 13G under the
Exchange Act) that accounts for at least 10% of the total outstanding equity of
CXP as of the Distribution Date written notice of such change and (ii) after the
Target Date, reasonably detailed reports delivered promptly following the
occurrence of each additional change or changes (if any) in the outstanding
equity or capital structure of CXP that, individually or in the aggregate (not
taking into account the Reclassification or transfers of shares by CXP
stockholders, unless CXP participates in such transfers or such transfers are
reported on a Schedule 13D or 13G under the Exchange Act), account for at least
5% of the total outstanding equity of CXP as of the Distribution Date.
SECTION 4.2 Confidentiality. Each of CXP and its Subsidiaries and
Centex and its Subsidiaries shall keep, and shall cause its employees,
consultants, agents and advisors to keep, confidential all information
concerning the other parties in its possession, its custody or under its control
(except to the extent that (a) such information has been in the public domain
through no fault of such party, (b) such information has been later lawfully
acquired from other sources by such party or (c) the Transaction Agreements
permit the use or disclosure of such information), and each party shall not
(without the prior written consent of the other) otherwise release or disclose
such information to any other person, except such party's auditors and
attorneys, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
party has used commercially reasonable efforts to consult with the other
affected party or parties prior to such disclosure, and in each such case shall
exercise all reasonable efforts to obtain reliable assurance that such
information will be accorded confidential treatment.
SECTION 4.3 Litigation Cooperation. Each of Centex and CXP shall use
reasonable efforts to make available to the other party, upon written request
and at
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the expense of the other party, its officers, directors, employees and agents as
witnesses to the extent that such persons may reasonably be required in
connection with any Action arising out of the business of such other party and
its predecessors, if any, in which the requesting party may from time to time be
involved; provided, that such Action does not involve a claim between either of
Centex or CXP against the other.
SECTION 4.4 No Solicitation.
(a) Subject to Sections 4.4(b) and 4.4(c), neither Centex nor CXP
shall, directly or indirectly, through any officer, director, employee,
representative, securityholder or agent solicit, initiate or encourage any
inquiries, offers or proposals or any indication of interest or the commencement
of negotiations or continue any current negotiations or conduct any negotiations
or enter into any agreement with respect to, or provide any nonpublic
information regarding or in connection with, any proposal for the acquisition by
any third party of any shares of capital stock of CXP from CXP or Centex (other
than issuances of common stock by CXP pursuant to existing employee stock plans
in the ordinary course of business) or the acquisition of, or business
combination with, CXP or its businesses or operations through any other means,
including a merger or purchase of assets (an "Acquisition Proposal"), until the
earlier to occur of the termination of this Agreement or the time at which the
Distribution is consummated; provided, however, that Centex and CXP may respond
to any unsolicited inquiries or proposals solely to indicate that it is bound by
this Section 4.4. If either of CXP or Centex receives any such inquiry or
proposal, then CXP or Centex, as the case may be, shall inform the other of the
terms and conditions, if any, of such inquiry or proposal and the identity of
the Person making the proposal and shall keep such party promptly advised of all
further communications relating to such inquiry or proposal.
(b) Centex shall be relieved of its obligations under Section 4.4(a)
(in the case of clause (iii) below, only to the extent set forth therein) if:
(i) the Board of Directors of CXP shall or shall resolve to
(A) not recommend, or withdraw its approval or recommendation of, the
Transactions or the Transaction Agreements, (B) modify any such
approval or recommendation in a manner adverse to Centex or (C)
approve, recommend or enter into any agreement for any Acquisition
Proposal;
(ii) CXP breaches or fails to comply with any of its material
obligations set forth in this Agreement or the Merger Agreement and
fails to cure such breach or failure within 30 days following written
notice from Centex; or
(iii) after receipt of a bona fide written Acquisition
Proposal, the Board of Directors of Centex determines reasonably and in
good faith that it would be inconsistent with the Board's fiduciary
duties to
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stockholders of Centex not to commence discussions or negotiations
with, or not to provide nonpublic information (other than nonpublic
information with respect to CXP) to, the person making such Acquisition
Proposal; provided, however, that Centex shall only be released from
its obligations under Section 4.4(a) pursuant to this Section
4.4(b)(iii) with respect to such Acquisition Proposal.
(c) CXP shall be relieved of its obligations under Section 4.4(a) (to
the extent specifically set forth in this Section 4.4(c)) if (i) after receipt
of a bona fide written Acquisition Proposal, the Board of Directors of CXP
determines reasonably and in good faith that it would be inconsistent with the
Board's fiduciary duties to stockholders of CXP not to commence discussions or
negotiations with, or provide nonpublic information to, the person making such
Acquisition Proposal; provided, however, that CXP shall only be released from
its obligations under Section 4.4(a) pursuant to this Section 4.4(c) with
respect to such Acquisition Proposal, or (ii) if Centex breaches or fails to
comply with any of its material obligations set forth in this Agreement or the
Merger Agreement and fails to cure such breach or failure within 30 days
following written notice from CXP.
SECTION 4.5 Certain Post-Distribution Transactions.
(a) CXP and Centex shall each comply with, and shall cause its
respective Subsidiaries to comply with, and otherwise not take, and prevent its
respective Subsidiaries from taking, any action inconsistent with each
representation and statement made by such respective party to the IRS in
connection with the request by Centex for the IRS Ruling. Without limiting the
generality of the foregoing, until two years after the Distribution Date, CXP
will maintain its status as a company engaged in the active conduct of a trade
or business, as defined in Section 355(b) of the Code.
(b) CXP agrees that, prior to the second anniversary of the
Distribution Date, it will not (i) merge or consolidate with or into any other
corporation, which would have the effect of causing or permitting one or more
persons to acquire directly or indirectly stock representing a 50 percent or
greater interest (within the meaning of Section 355(e) of the Code) in CXP, (ii)
liquidate or partially liquidate, (iii) sell or transfer all or substantially
all of its assets (within the meaning of Rev. Proc. 77-37, 1977-2 C.B. 568) in a
single transaction or series of transactions, (iv) redeem or otherwise
repurchase any CXP stock (other than as described in Section 4.05(1)(b) of Rev.
Proc. 96-30, 1996-1 C.B. 696), or (v) take any other action or actions which in
the aggregate (and taking into account the Reclassification) would have the
effect of causing or permitting one or more persons to acquire directly or
indirectly stock representing a 50 percent or greater interest (within the
meaning of Section 355(e) of the Code) in CXP, unless prior to taking any such
action set forth in the foregoing clauses (i) through (v), CXP has obtained (and
provided to Centex) a written opinion in form and substance reasonably
acceptable to Centex of a law firm reasonably
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acceptable to Centex, or Centex has obtained (at the reasonable request and at
the expense of CXP) a supplemental ruling from the IRS, that such action or
actions will not result in (i) the Distribution failing to qualify under Section
355(a) of the Code or (ii) the CXP shares failing to qualify as qualified
property for purposes of Section 355(c)(2) of the Code by reason of Section
355(e) of the Code. CXP further agrees that, prior to the second anniversary of
the Distribution Date, it shall not initiate or support, or call any meeting of
its stockholders with respect to, any action that would in any way alter the
ability of the holders of the Class B Common Stock to (i) elect at least 85% of
the members of the Board of Directors of the Company (to the extent and in the
manner set forth in the CXP Certificate of Incorporation) or (ii) otherwise
possess at least 85% of the total combined voting power of all classes of
capital stock of CXP entitled to vote for directors (as described in Section
368(c) of the Code), unless prior to taking any such action set forth in the
foregoing clauses (i) and (ii), CXP has obtained (and provided to Centex) a
written opinion in form and substance reasonably acceptable to Centex of a law
firm reasonably acceptable to Centex, or Centex has obtained (at the reasonable
request and at the expense of CXP) a supplemental ruling from the IRS, that such
action or actions will not result in (i) the Distribution failing to qualify
under Section 355(a) of the Code or (ii) the CXP shares failing to qualify as
qualified property for purposes of Section 355(c)(2) of the Code by reason of
Section 355(e) of the Code. Centex agrees(i) to cooperate with CXP in obtaining
any opinion contemplated by this Section 4.5(b), including, where appropriate,
by providing written representations as to factual events that transpired prior
to the Distribution Date, and (ii) if requested by CXP as provided herein, to
seek in good faith to obtain a supplemental ruling from the IRS contemplated by
this Section 4.5(b).
SECTION 4.6 Public Announcements. No public release or announcement
concerning the Transactions shall be issued by either party without the prior
written consent of the other (which shall not be unreasonably withheld), except
as such release or announcement may be required by law or the rules or
regulations of any United States securities exchange, in which case the party
required to make the release or announcement shall use its commercially
reasonable efforts to allow each other party reasonable time to comment on each
release or announcement in advance of such issuance.
SECTION 4.7 Required Consents. Each of Centex and CXP shall use
commercially reasonable efforts to obtain all of the consents, waivers or
authorizations required to be obtained by it in connection with the Transactions
completion that are listed on Schedule 4.7 (the "Required Consents").
SECTION 4.8 Stockholder Rights Plan. The Special Committee has
recommended that the Board of Directors of CXP consider the adoption of a
stockholder rights plan. CXP agrees to use its reasonable best efforts to have
its Board of Directors give due consideration to the adoption of a stockholders
right plan to be effective upon the consummation of the Distribution, subject to
ratification by the stockholders at the Stockholders Meeting as contemplated by
the Merger Agreement.
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ARTICLE V.
INDEMNIFICATION
SECTION 5.1 Indemnification by CXP.
(a) CXP shall, to the fullest extent permitted by law, indemnify,
defend and hold harmless the Centex Indemnitees from and against any and all CXP
Liabilities or third party allegations of CXP Liabilities.
(b) CXP shall, to the fullest extent permitted by law, indemnify,
defend and hold harmless (i) Centex, (ii) each member of the consolidated group
of corporations of which Centex is the common parent corporation (within the
meaning of Section 1504 of the Code) and (iii) each direct or indirect
Subsidiary of Centex (each Person referred to in clauses (ii) and (iii), a
"Centex Member") from and against (A) any actual Liability of Centex or any
Centex Member (including any actual Liability for Taxes to the extent that, in
the absence of any Liability for Taxes resulting from a determination that the
Distribution fails to qualify under Section 355(a) of the Code or Section 355(e)
of the Code or that the CXP shares fail to qualify as qualified property for
purposes of Section 355(c)(2) of the Code (each, a "355 Failure"), such
Liability would otherwise have been reduced or eliminated by a net operating
loss deduction (within the meaning of Section 172 of the Code and the Treasury
regulations thereunder)), and (B) any Established Liability of any stockholder
of Centex (it being understood that any Established Liability of any stockholder
of Centex shall be deemed to be an actual Liability of Centex for purposes of
determining CXP's indemnification obligation hereunder, regardless of whether
such stockholder actually has or pursues a valid claim for such Established
Liability against Centex), in each case arising from any inaccuracy in, or
failure by CXP to comply with, any representation or undertaking made by CXP to
the IRS or based upon information provided by CXP to Centex and made by Centex
to the IRS in connection with the Ruling Request if such inaccuracy or failure
was intentional or resulted from gross negligence on the part of CXP (referred
to herein as an "CXP Failure"); provided, however, that, notwithstanding the
foregoing, CXP shall not indemnify Centex or any Centex Member for any Liability
or Established Liability that results solely from a Centex Failure (except to
the extent that any such Centex Failure is in respect of a representation based
in whole or in part upon inaccurate information provided by CXP if such
inaccuracy was intentional or resulted from gross negligence on the part of
CXP); and provided, further, that if any Liability or Established Liability
described in this clause (b) arises as a result of both an CXP Failure and a
Centex Failure, and each such failure is an independent cause of such Liability
or Established Liability, then CXP and Centex shall allocate such Liability or
Established Liability between themselves in such proportion as is appropriate to
reflect the relative fault of CXP on the one hand and Centex on the other with
respect to such Liability or Established Liability.
(c) If CXP (or any of its Subsidiaries) fails to comply with any of its
obligations under Section 4.5(a) or (b) or takes any action or fails to take any
action,
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and such failure to comply, action or omission is the direct and primary or
exclusive cause of a 355 Failure, then CXP shall, to the fullest extent
permitted by law, indemnify, defend and hold harmless Centex and each Centex
Member from and against (i) any and all federal, state and local Taxes,
including any interest, penalties or additions to Tax, imposed upon or incurred
by Centex and any Centex Member and (ii) any Established Liability of any
stockholder of Centex (it being understood that any Established Liability of any
stockholder of Centex shall be deemed to be a Centex Tax Liability (as defined
below) for purposes of determining CXP's indemnification obligation hereunder,
regardless of whether such stockholder actually has or pursues a valid claim for
such Established Liability against Centex), in each case arising from such 355
Failure (any such Tax, interest, penalty or addition to Tax, together with any
such Established Liability, a "Centex Tax Liability").
(d) Any indemnity payment made by CXP pursuant to either clause (b) or
(c) above shall be made on an after-tax basis, based on the actual tax position
of Centex, the Centex Member or Centex stockholder, as the case may be, in the
taxable year such indemnity payment is received and taking into account the
deductibility for federal income tax purposes of any state taxes.
SECTION 5.2 Indemnification by Centex.
(a) Centex shall, to the fullest extent permitted by law, indemnify,
defend and hold harmless the CXP Indemnitees from and against any and all
Centex Liabilities or third party allegations of Centex Liabilities.
(b) Centex shall, to the fullest extent permitted by law, indemnify,
defend and hold harmless CXP and each member of the consolidated group of
corporations of which CXP is the common parent corporation (within the meaning
of Section 1504 of the Code) (each an "CXP Member") from and against any actual
Liability of CXP or any CXP Member arising from any inaccuracy in, or failure by
Centex to comply with, any representation or undertaking made by Centex to the
IRS in connection with the request by Centex for the IRS Ruling (referred to
herein as a "Centex Failure"); provided, however, that, notwithstanding the
foregoing, Centex shall not indemnify CXP or any CXP Member for any liability
that results solely from a CXP Failure or a failure on the part of CXP to comply
with its obligations under Section 4.5(a) or (b) (except to the extent that any
such failure is in respect of a representation based in whole or in part upon
information provided by Centex); and provided, further, that if any Liability
described in this clause (b) arises as a result of
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both a Centex Failure and a CXP Failure or a failure on the part of CXP to
comply with its obligations under Section 4.5(a) or (b), and each such failure
is an independent cause of such Liability, then Centex and CXP shall allocate
such Liability between themselves in such proportion as is appropriate to
reflect the relative fault of Centex on the one hand and CXP on the other with
respect to such Liability.
SECTION 5.3 Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against a CXP
Indemnitee or a Centex Indemnitee (each, an "Indemnitee") by any person who is
not a party to this Agreement (a "Third Party Claim") as to which such
Indemnitee is entitled to indemnification pursuant to this Agreement, such
Indemnitee shall notify the party which is or may be required pursuant to the
terms hereof to make such indemnification (the "Indemnifying Party") in writing,
and in reasonable detail, of the Third Party Claim promptly (and in any event
within five Business Days) after receipt by such Indemnitee of written notice of
the Third Party Claim; provided, however, that failure to give such notification
shall 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 shall deliver to the Indemnifying Party,
promptly (and in any event within two Business Days) after the Indemnitee's
receipt thereof, copies of all notices and documents (including court papers)
received by the Indemnitee relating to the Third Party Claim.
If a Third Party Claim is made against an Indemnitee with respect to
which a claim for indemnification is made pursuant to Section 5.1 or Section 5.2
hereof, the Indemnifying Party shall be entitled to participate in the defense
thereof and, if it so chooses and acknowledges in writing its obligation to
indemnify the Indemnitee therefor, to assume the defense thereof with counsel
selected by the Indemnifying Party; provided that the Indemnitee does not
reasonably object to such counsel. Should the Indemnifying Party so elect to
assume the defense of a Third Party Claim, the Indemnifying Party shall, within
30 days (or sooner if the nature of the Third Party Claim so requires), notify
the Indemnitee of its intent to do so, and the Indemnifying Party shall
thereafter not be liable to the Indemnitee for legal or other expenses
subsequently incurred by the Indemnitee in connection with the defense thereof;
provided, that such Indemnitee shall have the right to employ counsel to
represent such Indemnitee if, in such Indemnitee's reasonable judgment, a
conflict of interest between such Indemnitee and such Indemnifying Party exists
in respect of such claim which would make representation of both such parties by
one counsel inappropriate, and in such event the fees and expenses of such
separate counsel shall be paid by such Indemnifying Party.
If the Indemnifying Party assumes the defense of a Third-Party Claim,
the Indemnitee shall have the right to participate in the defense thereof and to
employ counsel, but the fees and expenses of such counsel shall, subject to the
proviso of the preceding sentence, be at its own expense, it being understood
that the Indemnifying Party shall control such defense. If the Indemnifying
Party assumes the defense of a
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Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying
Party in the defense or prosecution thereof, including by providing or causing
to be provided, records and witnesses as soon as reasonably practicable after
receiving any request therefor from or on behalf of the Indemnifying Party.
If the Indemnifying Party assumes the defense of a Third Party Claim,
then in no event will the Indemnitee admit any liability with respect to, or
settle, compromise or discharge, any Third Party Claim without the Indemnifying
Party's prior written consent (which shall not be unreasonably withheld);
provided, however, that the Indemnitee shall have the right to settle,
compromise or discharge such Third Party Claim without the consent of the
Indemnifying Party if the Indemnitee releases the Indemnifying Party from its
indemnification obligation hereunder with respect to such Third Party Claim and
such settlement, compromise or discharge would not otherwise adversely affect
the Indemnifying Party. If the Indemnifying Party assumes the defense of a Third
Party Claim, the Indemnifying Party shall be permitted to enter into, and the
Indemnitee shall agree to, any settlement, compromise or discharge of a Third
Party Claim that the Indemnifying Party may recommend and that by its terms
obligates the Indemnifying Party to pay the full amount of the liability in
connection with such Third Party Claim and releases the Indemnitee completely in
connection with such Third Party Claim and that would not otherwise adversely
affect the Indemnitee or subject the Indemnitee to any equitable remedy.
If an Indemnifying Party elects not to assume the defense of a Third
Party Claim, or fails to notify an Indemnitee of its election to do so as
provided herein, such Indemnitee may compromise, settle or defend such Third
Party Claim. In such case, the Indemnifying Party shall be responsible for the
cost of such compromise, settlement or defense.
Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defense of any Third Party Claim (and shall be liable for
the reasonable fees and expenses of counsel incurred by the Indemnitee in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnitee which the Indemnitee reasonably determines, after
conferring with its counsel, cannot be separated from any related claim for
money damages. If such equitable relief or other relief portion of the Third
Party Claim can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion relating to money
damages.
(b) In the event any Tax Claim is disposed of pursuant to the
provisions of this Section 5.3 or a Final Determination has been made in
circumstances that give rise to a Tax Liability or an Established Liability on
the part of Centex, any Centex Member or any Centex stockholder, as the case may
be, then CXP shall pay to Centex all amounts in respect of any Tax Claim within
twenty (20) business days after such Tax Claim is disposed of or such Final
Determination has been made. For
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purposes of this Section 5.3(b), (i) "Tax Claim" shall mean any notice of
deficiency, proposed adjustment, adjustment, assessment, audit, examination,
suit, dispute or other written claim which is commenced or initiated against
Centex, any Centex Member or any Centex stockholder with respect to Taxes that
are attributable to the Reclassification or Distribution and which result from
any act or acts of CXP or its Subsidiaries described in Section 4.5 or the
breach by CXP of any representation or warranty set forth in this Agreement and
(ii) "Final Determination" shall mean (A) the entry of a decision of a court of
competent jurisdiction at such time as an appeal may no longer be taken from
such decision or (B) the execution of a closing agreement or its equivalent
between the particular taxpayer and the particular relevant taxing authority.
SECTION 5.4 Subrogation. In the event of payment by an Indemnifying
Party to any Indemnitee in connection with any Third-Party Claim, such
Indemnifying Party shall 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 or other person or entity asserting such Third-Party
Claim, or any other person who is not a party to this Agreement. Such Indemnitee
shall 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 5.5 Remedies Not Exclusive. The remedies provided in this
Article V 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; provided, however, that upon the consummation of the
Distribution, the Indemnification Agreement, dated as of April 19, 1994, among
CXP, Centex and the other parties named therein shall be terminated and be of no
further force or effect.
SECTION 5.6 Indemnification Payments. Indemnification required by this
Article V shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or loss,
liability, claim, damage or expense is incurred.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise), or by overnight
courier service to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and will be deemed
given on the date on which such notice is received:
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To Centex:
Centex Corporation
2728 North Harwood
Dallas, Texas 75201
Fax No.: (214) 981-6859
Attn: Chief Executive Officer
with a copy to:
Baker Botts L.L.P.
2001 Ross Avenue
Dallas, Texas 75201
Fax No.: (214) 953-6503
Attn: Geoffrey L. Newton
To CXP:
Centex Construction Products, Inc.
2728 North Harwood
Dallas, Texas 75201
Fax No.: (214) 981-6559
Attn: Chief Operating Officer
and:
The Special Committee of the Board of Directors
c/o The Secretary of Centex Construction Products, Inc.
Centex Construction Products, Inc.
2728 North Harwood
Dallas, Texas 75201
Fax No.: (214) 981-6559
with a copy to:
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
Attention: Michael M. Boone
Fax No.: (214) 651-5940
and
Attention: William L. Boeing
Fax No.: (972) 692-9053
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SECTION 6.2 Interpretation.
(a) The article, section and paragraph headings contained herein are
for the purposes of convenience only and are not intended to define or limit the
contents of said articles, sections or paragraphs. Whenever the words "include,"
"includes" and "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation." Whenever a reference is made in this
Agreement to a "party" or "parties," such reference shall be to a party or
parties to this Agreement unless otherwise indicated. Whenever the context
requires, the use of any gender herein shall be deemed to be or include the
other genders and the use of the singular herein shall be deemed to include the
plural (and vice versa). Unless the context otherwise requires, references in
this Agreement to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement. The use of the words "hereof" and "herein" and words of similar
import shall refer to this entire Agreement and not to any particular article,
section, subsection, clause, paragraph or other subdivision of this Agreement,
unless the context otherwise requires.
(b) Each party hereto stipulates and agrees that the rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement to
favor any party against the other, and that no party, including any drafting
party, shall have the benefit of any legal presumption (including "meaning of
the authors") or the detriment of any burden of proof by reason of any ambiguity
or uncertain meaning contained in this Agreement.
SECTION 6.3 Amendments; No Waivers. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by each party, or in the case of a waiver,
by the party against whom the waiver is to be effective. No failure or delay by
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 6.4 Assignment. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any party hereto without the prior
written consent of the other party hereto, and any attempt to assign any rights
or obligations arising under this Agreement without such consent shall be void.
SECTION 6.5 Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns. Nothing contained in this
Agreement is intended to confer upon any Person other than the parties hereto
and their
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respective successors and permitted assigns, any benefit, right or remedies
under or by reason of this Agreement, except that the provisions of Article V
shall inure to the benefit of the Centex Indemnitees and the CXP Indemnitees. In
addition, the provisions of this Agreement shall be binding upon any person that
acquires, directly or indirectly, 50% or more of the (a) voting power, in an
election of directors or otherwise, represented by the outstanding common stock,
(b) shares of outstanding common stock or (c) assets of CXP on or after the
Distribution Date, but CXP shall not enter into any agreement with respect to
the foregoing or permit to be consummated any such transaction unless and until
a writing shall be signed by any such person and delivered to Centex whereby
such person agrees to assume the obligations of CXP hereunder.
SECTION 6.6 Governing Law. Except insofar as mandatory conflicts of law
principles require that the Distribution be governed by Nevada law, this
Agreement shall be governed by and construed in accordance with the Laws of the
State of Delaware applicable to contracts made and to be performed in the State
of Delaware.
SECTION 6.7 Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
SECTION 6.8 Exhibits and Schedules. The Exhibits and Schedules shall be
construed with and as an integral part of this Agreement to the same extent as
if the same had been set forth verbatim herein.
SECTION 6.9 Entire Agreement. This Agreement and the other Transaction
Agreements constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter hereof and thereof. No representation, inducement,
promise, understanding, condition or warranty not set forth in the Transaction
Agreements has been made or relied upon by any party hereto.
SECTION 6.10 Severability. If any one or more of the provisions
contained in this Agreement should be declared invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained in this Agreement shall not in any way be affected or
impaired thereby so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a declaration, the parties shall modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner so that the transactions contemplated hereby are consummated
as originally contemplated to the fullest extent possible.
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SECTION 6.11 Termination. This Agreement may be terminated and the
Transactions may be amended, modified or abandoned at any time prior to the
filing of the certificate of merger relating to the Reclassification by and in
the sole discretion of Centex without the approval of CXP or the stockholders of
CXP. This Agreement may be terminated by CXP only upon (i) a material breach by
Centex of a representation, warranty or covenant contained in this Agreement,
which breach is reasonably expected to result in a Material Adverse Effect with
respect to CXP after giving effect to the Distribution and has not been
substantially cured (so that no Material Adverse Effect would result therefrom)
within 30 days after written notice thereof has been given to Centex or (ii) the
termination of the Merger Agreement pursuant to Section 5.1(a)(iv) thereof. This
Agreement shall terminate automatically without any action on the part of Centex
or CXP in the event that the Merger Agreement is terminated in accordance with
its terms. In the event of termination of this Agreement by either party hereto,
except as set forth in Section 6.13, no party shall have any liability of any
kind to any other party or any other person. After the payment of the Cash
Dividend, this Agreement may not be terminated except by an agreement in writing
signed by both parties and approved by a majority of the directors of CXP that
are not affiliated with Centex.
SECTION 6.12 Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
SECTION 6.13 Expenses. Except as otherwise set forth in this Agreement
or in the Merger Agreement, all costs and expenses incurred in connection with
the preparation, execution and delivery and the consummation of the Transactions
shall be charged to and borne by the party incurring such costs and expenses.
Notwithstanding the foregoing, if this Agreement is terminated for any reason
without the Distribution having been consummated, Centex shall pay all
out-of-pocket expenses of CXP incurred in connection with the Transaction
Agreements. The provisions of this Section 6.13 shall survive any termination
of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
CENTEX CORPORATION
By: /s/ LAURENCE E. HIRSCH
--------------------------------
Name: Laurence E. Hirsch
--------------------------------
Title: Chairman & CEO
--------------------------------
CENTEX CONSTRUCTION PRODUCTS, INC.
By: /s/ STEVEN R. ROWLEY
--------------------------------
Name: Steven R. Rowley
--------------------------------
Title: Executive Vice President & COO
--------------------------------
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