UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of Earliest Event Reported): April 2, 2019 (April 1, 2019)

 

 

DowDuPont Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-38196   81-1224539
(State or Other Jurisdiction
Of Incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

974 Centre Road, Wilmington, DE 19805

(302) 774-1000

Not applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act  ☐

 

 

 


Item 1.01

Entry Into a Material Definitive Agreement.

Agreements with Dow Inc. and Corteva, Inc.

Effective as of 5:00 p.m. on April 1, 2019, DowDuPont Inc. (the “Company”) completed the previously announced separation of its materials science business into a separate and independent public company by way of a distribution of Dow Inc. (“Dow”) through a pro rata dividend in-kind of all of the then-issued and outstanding shares of Dow’s common stock, par value $0.01 per share (the “Dow Common Stock”), to holders of the Company’s common stock, par value $0.01 per share (the “DowDuPont Common Stock”), as of the close of business on March 21, 2019 (the “Dow Distribution”). The Company also expects to complete the previously announced intended separation of its agriculture business into a separate and independent public company on June 1, 2019 by way of a distribution of Corteva, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Corteva”), through a pro rata dividend in-kind of all of the then-issued and outstanding shares of Corteva’s common stock, par value $0.01 per share, to holders of DowDuPont Common Stock as of a record date to be set by the Company’s Board of Directors (the “Corteva Distribution” and, together with the Dow Distribution, the “Distributions”). In connection with the Distributions, the Company, Dow and Corteva (together, the “Parties” and each a “Party”) entered into certain agreements as described below.

Separation and Distribution Agreement

The Parties entered into a Separation and Distribution Agreement, effective as of April 1, 2019, that sets forth, among other things, the agreements among the Parties regarding the principal transactions necessary to effect the Distributions. It also sets forth other agreements that govern certain aspects of the Parties’ ongoing relationships after the completion of the Distributions. The description of the Separation and Distribution Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the complete terms and conditions of the Separation and Distribution Agreement attached hereto as Exhibit 2.1, which is incorporated by reference herein.

Tax Matters Agreement

The Parties entered into a Tax Matters Agreement, effective as of April 1, 2019, that governs their respective rights, responsibilities and obligations with respect to tax liabilities and benefits, tax attributes, the preparation and filing of tax returns, the control of audits and other tax proceedings and other matters regarding taxes. The description of the Tax Matters Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the complete terms and conditions of the Tax Matters Agreement attached hereto as Exhibit 10.1, which is incorporated by reference herein.

Employee Matters Agreement

The Parties entered into an Employee Matters Agreement, effective as of April 1, 2019. The Employee Matters Agreement identifies employees and employee-related liabilities (and attributable assets) to be allocated (either retained, transferred and accepted, or assigned and assumed, as applicable) to the Parties as part of the Distributions and describes when and how the relevant transfers and assignments will occur. The description of the Employee Matters Agreement set forth under this Item 1.01 is qualified in its entirety by reference to the complete terms and conditions of the Employee Matters Agreement attached hereto as Exhibit 10.2, which is incorporated by reference herein.

Intellectual Property Cross-License Agreements

DowDuPont entered into an Intellectual Property Cross-License Agreement with Dow, effective as of April 1, 2019 (the “DowDuPont-Dow IP Cross-License Agreement”). In addition, Dow and Corteva entered into an Intellectual Property Cross-License Agreement, effective as of April 1, 2019 (the “Dow-Corteva IP Cross-License Agreement”). The Intellectual Property Cross-License Agreements set forth the terms and conditions under which the applicable Parties may use in their respective businesses, following each of the Distributions, certain know-how (including trade secrets), copyrights, and software, and certain patents and standards, allocated to another Party pursuant to the Separation and Distribution Agreement. The description of the Intellectual Property Cross-License Agreements set forth under this Item 1.01 is qualified in its entirety by reference to the complete terms and conditions of the DowDuPont-Dow IP Cross-License Agreement and the Dow-Corteva IP Cross-License Agreement, attached hereto as Exhibits 10.3 and 10.4, respectively, which are incorporated by reference herein.


Item 2.01

Completion of Material Acquisition or Disposition of Assets.

On April 1, 2019, the Company effected the Dow Distribution and completed the separation of its materials science business. Dow will commence trading “regular way” under the symbol “DOW” on the New York Stock Exchange on April 2, 2019.

Prior to the commencement of trading on April 2, 2019, the stockholders of record of the Company as of the close of business on March 21, 2019 received one share of Dow Common Stock for every three shares of DowDuPont Common Stock held by such stockholders as of the close of business on March 21, 2019. The Company did not issue fractional shares of Dow Common Stock in the Dow Distribution; the Company’s stockholders will receive cash in lieu of fractional shares.

 

Item 5.02

Departure of Directors and Certain Officers; Election of Directors; Appointment of Certain Officers.

In connection with the Dow Distribution, each of Ajay Banga, Jacqueline K. Barton, James A. Bell, Richard K. Davis, Jeff M. Fettig, Paul Polman, James M. Ringler and Ruth G. Shaw resigned from their positions as members of the Company’s Board of Directors (the “Board”), as well as their respective positions as members of various Committees thereof, and Mr. Fettig resigned from his position as the Company’s Executive Chairman, in each case effective as of the completion of the Dow Distribution.

On April 1, 2019, in connection with the director resignations (as well as the previously announced resignation of Marillyn A. Hewson from the Board, which became effective on March 31, 2019), the Board reduced its size from sixteen (16) members to seven (7) members and appointed Edward D. Breen as the Chairman of the Board. The composition of the Committees of the Board was also changed in connection with the Dow Distribution:

 

Committee

  

Members Post Dow Disposition

Audit Committee

  

Patrick J. Ward (Chairperson)

Robert A. Brown

Alexander M. Cutler

People and Compensation Committee

  

Lois D. Juliber (Chairperson)

Lamberto Andreotti

Nomination and Governance Committee

   Alexander M. Cutler (Chairperson)

Sustainability, Public Policy, Environment and Health and Safety Committee

  

Edward D. Breen (Chairperson)

Lee M. Thomas

In addition, effective as of the completion of the Dow Distribution, (i) Howard Ungerleider resigned from his position as the Company’s Chief Financial Officer, (ii) James R. Fitterling resigned from his position as the Chief Operating Officer of the Company’s Materials Science Division, (iii) Amy E. Wilson resigned from her position as the Company’s Assistant Secretary and (iv) Ronald C. Edmonds resigned from his position as the Company’s Co-Controller. In connection with the foregoing officer resignations, the Board appointed Jeanmarie F. Desmond as the Company’s Chief Financial Officer and principal accounting officer and Michael Goss as the Company’s Controller.

 

Item 5.03

Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Effective as of April 1, 2019, in connection with the Dow Distribution, the Board unanimously adopted the Third Amended and Restated Bylaws (the “Bylaws”). A copy of the Bylaws is attached hereto as Exhibit 3.1 and incorporated by reference herein.

 

Item 5.05

Amendment to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

Effective as of April 1, 2019, in connection with the Dow Distribution, the Board adopted a revised Code of Conduct for all officers and employees of the Company and the Nomination and Governance Committee of the Board adopted a revised Code of Financial Ethics applicable to the Company’s principal executive officers, principal financial officers, principal accounting officers or controllers, or persons performing similar functions. A copy of each Code is available under the Corporate Governance section of the Company’s website at http://www.dow-dupont.com/investors/corporate-governance/default.aspx.


Item 5.08

Shareholder Director Nominations.

The Board has established June 25, 2019, as the date of the Company’s 2019 annual meeting of stockholders (the “2019 Annual Meeting”). The Board has set the close of business on April 26, 2019 as the record date for determining stockholders who are eligible to receive notice of and vote at the 2019 Annual Meeting. The Company will publish additional details regarding the exact time, location and matters to be voted on at the 2019 Annual Meeting in the Company’s proxy statement for the 2019 Annual Meeting. Because the date of the 2019 Annual Meeting represents a change of more than 30 days from the anniversary date of the Company’s 2018 annual meeting of stockholders (the “2018 Annual Meeting”), the deadlines for stockholders to submit proposals and nominations of directors as set forth in the Company’s definitive proxy statement for the 2018 Annual Meeting are no longer effective.

Under the Bylaws, in order for stockholder proposals and director nominations to be presented at the 2019 Annual Meeting (other than by means of inclusion of proxy access nominations and a stockholder proposal in the proxy materials under Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which are each described below), written notice must be received by the Office of the Corporate Secretary not later than the close of business on April 12, 2019. Such notice must comply with the procedural and content requirements of the Bylaws.

Under the Bylaws, in order for proxy access nominations to be included in the Company’s proxy materials and presented at the 2019 Annual Meeting, written notice must be received by the Office of the Corporate Secretary not later than the close of business on April 12, 2019. Such notice must comply with the procedural and content requirements of the Bylaws.

Stockholder proposals intended for inclusion in the Company’s definitive proxy statement for the 2019 Annual Meeting pursuant to Rule 14a-8 under the Exchange Act must be received by the Office of the Corporate Secretary not later than the close of business on April 12, 2019 (which the Company believes is a reasonable time before it begins to print and send its proxy materials).

All submissions to the Office of the Corporate Secretary must be made to DowDuPont Inc., 974 Centre Road, Wilmington, Delaware 19805, Attention: Stacy L. Fox, General Counsel and Corporate Secretary.

 

Item 7.01

Regulation FD Disclosure.

Reconciliations of certain impacts from the Dow Distribution and the intended Corteva Distribution on GAAP and Non-GAAP measures for the years ended December 31, 2018 and 2017 are attached hereto as Exhibit 99.3.

The information contained in Item 7.01, including Exhibit 99.3 attached hereto, is being furnished and shall not be deemed filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of Section 18. Furthermore, the information contained in this report shall not be deemed to be incorporated by reference into any registration statement or other document filed pursuant to the Securities Act of 1933, as amended.

 

Item 8.01

Other Events.

On April 1, 2019, the Company issued a press release announcing the completion of the Dow Distribution. A copy of the press release is attached hereto as Exhibit 99.1.

Effective as of April 1, 2019, in connection with the Dow Distribution, the Board adopted revised Corporate Governance Guidelines and a revised Code of Conduct for all directors of the Company. Copies of both the Corporate Governance Guidelines and the Code of Conduct are available under the Corporate Governance section of the Company’s website at http://www.dow-dupont.com/investors/corporate-governance/default.aspx.

 

Item 9.01

Financial Statements and Exhibits.

(b) Pro Forma Financial Information.

Unaudited pro forma consolidated financial information of the Company giving effect to the Dow Distribution required by Article 11 of Regulation S-X, as well as the intended Corteva Distribution, is attached hereto as Exhibit 99.2.


(d) Exhibits.

 

Exhibit

Number

    
  2.1    Separation and Distribution Agreement, effective as of April 1, 2019, by and among DowDuPont Inc., Dow Inc. and Corteva, Inc.*
  3.1    Amended and Restated Bylaws of DowDuPont Inc., effective as of April 1, 2019
10.1    Tax Matters Agreement, effective as of April 1, 2019, by and among DowDuPont Inc., Dow Inc. and Corteva, Inc.*
10.2    Employee Matters Agreement, effective as of April 1, 2019, by and among DowDuPont Inc., Dow Inc. and Corteva, Inc.*
10.3    Intellectual Property Cross-License Agreement, effective as of April 1, 2019, by and between DowDuPont Inc. and Dow Inc.*
10.4    Intellectual Property Cross-License Agreement, effective as of April 1, 2019, by and between Dow Inc. and Corteva, Inc.*
99.1    Press Release, dated April 1, 2019, announcing the completion of the Dow Distribution
99.2    Unaudited Pro Forma Financial Information
99.3    Supplemental Financial Information and Reconciliations of certain Non-GAAP measures**

 

*

Upon request by the Securities and Exchange Commission (the “SEC”), the Company hereby undertakes to furnish supplementally to the SEC a copy of any omitted schedule or exhibit to such agreement; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule or exhibit so furnished.

**

Furnished herewith


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

DOWDUPONT INC.

(Registrant)

By: 

  /s/ Jeanmarie F. Desmond
Name:  

Jeanmarie F. Desmond

Title:  

Chief Financial Officer

Date: April 2, 2019

Exhibit 2.1

EXECUTION VERSION

SEPARATION AND DISTRIBUTION AGREEMENT

by and among

CORTEVA, INC.,

DOW INC.,

and

DOWDUPONT INC.

Dated as of April 1, 2019


TABLE OF CONTENTS

 

         Page  

ARTICLE I

 

DEFINITIONS AND INTERPRETATION

 

Section 1.1

 

General

     2  

Section 1.2

 

References; Interpretation

     74  

Section 1.3

 

Effective Time; Suspension

     74  

ARTICLE II

 

THE SEPARATION

 

Section 2.1

 

General

     75  

Section 2.2

 

Transfer of Assets; Assumption and Satisfaction of Liabilities

     75  

Section 2.3

 

Intergroup Accounts; Intercompany Accounts

     81  

Section 2.4

 

Limitation of Liability; Intergroup Contracts

     83  

Section 2.5

 

Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time

     84  

Section 2.6

 

Wrong Pockets; Mail & Other Communications; Payments

     86  

Section 2.7

 

Conveyancing and Assumption Instruments

     90  

Section 2.8

 

Further Assurances

     91  

Section 2.9

 

Novation of Liabilities

     91  

Section 2.10

 

Guarantees

     93  

Section 2.11

 

Disclaimer of Representations and Warranties

     96  

ARTICLE III

 

CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTIONS

 

Section 3.1

 

Certificate of Incorporation; Bylaws

     96  

Section 3.2

 

Directors

     97  

Section 3.3

 

Officers

     97  

Section 3.4

 

Resignations

     97  

Section 3.5

 

Delayed Partial Cash Sweep

     98  

Section 3.6

 

Certain Wires

     98  

Section 3.7

 

Certain Bank Accounts and Instructions

     99  

Section 3.8

 

Certain Payroll Balances Payable in the Ordinary Course of Business Prior to April 1, 2019

     101  

Section 3.9

 

Ancillary Agreements

     103  

 

i


ARTICLE IV

 

THE DISTRIBUTIONS

 

Section 4.1

 

Stock Dividends to DowDuPont

     103  

Section 4.2

  Fractional Shares      104  

Section 4.3

  Sole Discretion of DowDuPont      105  

Section 4.4

  Conditions to Distributions      105  

Section 4.5

  Effectiveness of Distributions      109  

ARTICLE V

 

CERTAIN COVENANTS

 

Section 5.1

 

Auditors and Audits; Annual and Quarterly Financial Statements and Accounting

     109  

Section 5.2

  Separation of Information      112  

Section 5.3

  Nonpublic Information      115  

Section 5.4

  Cooperation      115  

Section 5.5

  Permits and Financial Assurance      116  

Section 5.6

  Non-Competition      118  

Section 5.7

  Inventor Remuneration      124  

ARTICLE VI

  

SPECIFIED DOWDUPONT SHARED ASSETS AND SPECIFIED DOWDUPONT SHARED LIABILITIES

  

Section 6.1

  Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities      125  

Section 6.2

  Management of Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities      127  

Section 6.3

  Access to Information; Certain Services; Expenses      131  

Section 6.4

  Contingent Claim Committee      131  

Section 6.5

  Notice Relating to Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities      133  

Section 6.6

  Cooperation with Governmental Entity      134  

Section 6.7

  Default      134  

ARTICLE VII

 

SHARED HISTORICAL DUPONT ASSETS AND SHARED HISTORICAL DUPONT LIABILITIES

 

Section 7.1

 

Management of Shared Historical DuPont Assets and Shared Historical DuPont Liabilities

     134  

Section 7.2

  Shared Historical DuPont Claim Committee      137  

Section 7.3

  Access; Reimbursement; Limitation on Liability      142  

Section 7.4

  Cooperation with Governmental Entities      143  

Section 7.5

  Default      144  

Section 7.6

  No Effect on MatCo      144  

 

ii


ARTICLE VIII

 

INDEMNIFICATION

 

Section 8.1

 

Release of Pre-Distribution Claims

     144  

Section 8.2

 

Indemnification by SpecCo

     147  

Section 8.3

 

Indemnification by MatCo

     147  

Section 8.4

 

Indemnification by AgCo

     147  

Section 8.5

 

Procedures for Third Party Claims

     148  

Section 8.6

 

Procedures for Direct Claims.

     151  

Section 8.7

 

Cooperation In Defense and Settlement

     151  

Section 8.8

 

Indemnification Payments

     153  

Section 8.9

 

Indemnification Obligations Net of Insurance Proceeds and Other Amounts

     154  

Section 8.10

 

Additional Matters; Survival of Indemnities

     155  

Section 8.11

 

Environmental Matters

     155  

Section 8.12

 

Closure of Discontinued Operations

     159  

Section 8.13

 

Certain Other Limits on Indemnification

     161  

ARTICLE IX

 

CONFIDENTIALITY; ACCESS TO INFORMATION

 

Section 9.1

 

Preservation of Corporate Records

     167  

Section 9.2

 

Provision of Corporate Records

     168  

Section 9.3

 

Disposition of Information

     172  

Section 9.4

 

Witness Services

     173  

Section 9.5

 

Reimbursement; Other Matters

     173  

Section 9.6

 

Confidentiality; Non-Use

     174  

Section 9.7

 

Privileged Matters

     176  

Section 9.8

 

Conflicts Waiver

     179  

Section 9.9

 

Ownership of Information

     180  

Section 9.10

 

Prior Contracts

     181  

ARTICLE X

 

DISPUTE RESOLUTION

 

Section 10.1

 

Negotiation and Arbitration

     181  

Section 10.2

 

Continuity of Service and Performance

     185  

ARTICLE XI

 

INSURANCE

 

Section 11.1

 

Insurance Matters

     185  

Section 11.2

 

Liability Policies

     193  

 

iii


Section 11.3

 

Coverage After Transfer of Assets and Liabilities

     196  

Section 11.4

 

Cooperation

     197  

Section 11.5

 

Captive Insurance Matters

     198  

Section 11.6

 

No Assignment of Entire Insurance Policies

     199  

Section 11.7

 

Agreement for Waiver of Conflict and Shared Defense

     199  

Section 11.8

 

Certain Matters Relating to Organizational Documents

     200  

Section 11.9

 

Directors and Officers Liability Insurance

     200  

ARTICLE XII

 

MISCELLANEOUS

 

Section 12.1

 

Complete Agreement; Construction

     202  

Section 12.2

 

Ancillary Agreements

     203  

Section 12.3

 

Counterparts

     203  

Section 12.4

 

Survival of Agreements

     203  

Section 12.5

 

Expenses

     203  

Section 12.6

 

Notices

     204  

Section 12.7

 

Waivers

     206  

Section 12.8

 

Amendments

     207  

Section 12.9

 

Assignment

     207  

Section 12.10

 

Successors and Assigns

     207  

Section 12.11

 

Certain Termination and Amendment Rights

     207  

Section 12.12

 

Payment Terms

     208  

Section 12.13

 

No Circumvention

     208  

Section 12.14

 

Subsidiaries

     209  

Section 12.15

 

Third Party Beneficiaries

     209  

Section 12.16

 

Title and Headings

     209  

Section 12.17

 

Exhibits and Schedules

     209  

Section 12.18

 

Governing Law

     209  

Section 12.19

 

Specific Performance

     209  

Section 12.20

 

Severability

     210  

Section 12.21

 

No Duplication; No Double Recovery

     210  

Section 12.22

 

Public Announcements.

     210  

Section 12.23

 

Tax Treatment of Payments

     210  

Exhibits

 

Exhibit A

  

Internal Reorganization Steps Plan

Exhibit B

  

Form of DowDuPont Bylaws (Following MatCo Distribution)

Exhibit C

  

Industrial Real Property Transfer Provisions

 

iv


INDEX OF DEFINED TERMS

 

     Page  

2018/2019 Internal Control Audit and Management Assessments

     2, 110  

AAA

     2, 182  

Acceptable Alternative Arrangement

     2, 77  

Action

     2  

Affiliate

     2  

AgCo

     1, 2  

AgCo Common Stock

     1, 2  

AgCo CSIs

     3, 94  

AgCo Designated Dow DDOB Deductible Amount

     3, 163  

AgCo Distribution

     3  

AgCo Distribution Date

     3  

AgCo Distribution Record Date

     3  

AgCo Group

     3  

AgCo Group DuPont Corporate Contracts

     18  

AgCo Group DuPont Divested Business Liability Basket

     3, 162  

AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities

     3  

AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement

     4, 136  

AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement Objection Notice

     4, 136  

AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities

     4  

AgCo Hurdle

     4, 162  

AgCo Indemnitees

     4  

AgCo Information Statement

     4  

AgCo Inventory

     10  

AgCo Knowledge Group

     4  

AgCo Liability Policies

     4, 194  

AgCo Representative

     4, 131  

AgCo Spin Contribution

     4  

AgCo Unaccrued Portion

     13  

Agent

     4  

Aggregate Qualifying Historical Dow AgCo Closing Cash

     5  

Aggregate Qualifying Historical Dow SpecCo Closing Cash

     5  

Aggregate Qualifying Historical DuPont MatCo Closing Cash

     5  

Agreement

     1, 5  

Agriculture Accrued Amount

     13  

Agriculture Assets

     5, 8  

Agriculture Business

     12  

Agriculture Contracts

     12  

Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities

     12  

Agriculture Environmental Liabilities

     12  

 

v


Agriculture Factoring Proceeds

     7  

Agriculture Form 10

     12  

Agriculture Known Undisclosed Liabilities

     13  

Agriculture Liabilities

     14  

Agriculture Real Property

     9  

Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities

     18  

Agriculture Shared Contracts

     18  

Agriculture Shared Historical DuPont Percentage

     18  

Agriculture Specified Leased Real Property

     6  

Agriculture Specified Owned Real Property

     5  

Ancillary Agreements

     19  

Applicable Agriculture Percentage

     19  

Applicable Materials Science Percentage

     19  

Applicable Percentage

     19  

Applicable Specialty Products Percentage

     19  

Appropriate Remediation Standard

     19, 157  

Arbitral Tribunal

     19, 182  

Assets

     19  

Assume

     20, 76  

Audited Party

     20, 110  

Board

     1, 20  

Brazil and Argentina Factoring Proceeds

     7  

Business

     20  

Business Day

     20  

Business Entity

     20  

Cap

     20, 130  

Cash and Cash Equivalents

     20  

Change of Control

     20  

Code

     1, 21  

Collective Benefit Services

     21, 176  

Commercial Insurance Policies

     21  

Commercial Insurer

     21  

Commercially Reasonable Expenditures

     21, 159  

Commission

     21  

Confidential Information

     21  

Consents

     21  

Construction and Infrastructure Business

     123  

Contingent Claim Committee

     22, 131  

Continuing Arrangements

     22  

Contract

     22  

Contract Manufacturing Agreements

     22  

Contribution

     22  

Contributions

     22  

Conveyancing and Assumption Instruments

     22  

Copyrights

     31  

 

vi


Corporate Risk Management Document

     22  

Corrective Action Performing Party

     22, 159  

Covered

     22  

Credit Support Instruments

     23  

Damages

     23  

De Minimis Amount

     23, 166  

De Minimis Threshold

     23, 162  

Decision on Interim Relief

     23, 184  

Demolition Party

     160  

Designated Ancillary Agreements

     23  

Designated DDOB De Minimis Threshold

     23, 163  

Designated Dow DDOB Liabilities

     23  

Designated DuPont DDOB Liabilities

     23  

Designated Managing Party

     23, 127  

Discontinued and/or Divested Operations and Businesses

     24  

Discontinued Buildings and Related Improvements

     24, 160  

Discontinued Closely Linked Product

     24  

Dispute

     25, 181  

Dispute Notice

     25  

Distribution

     25  

Distribution Date

     25  

Distribution Disclosure Documents

     25  

Distributions

     25  

Dow

     25  

Dow Captive Policies

     25, 198  

Dow Corporate Contract

     25, 41  

Dow Discontinued and/or Divested Operations and Business Liabilities

     25  

Dow Insurer

     25  

DowDuPont

     1, 26  

DowDuPont Common Stock

     26  

DuPont

     26  

DuPont Discontinued and/or Divested Operations and Business Liabilities

     26  

Effective Time

     26  

Emergency Arbitrator

     26  

Employee Matters Agreement

     26  

Employee Records

     26  

Employee Related Liabilities

     33  

Engineering Models and Databases

     26  

Environmental Laws

     26  

Environmental Liabilities

     26  

Environmental Permit

     27  

Exchange Act

     27  

Final Determination

     27  

Final Separation Date

     27  

Financing Disclosure Documents

     27  

First Non-Compete Discussion Period

     27, 122  

 

vii


First Shared Historical DuPont Escalation Negotiation Period

     27, 136  

Food Business

     123  

Force Majeure Event

     27  

GAAP

     27  

General Dispute Notice

     27, 181  

General Negotiation Period

     28, 181  

General Services Agreements

     28  

Global Product Sales Agreements

     28  

Governmental Entity

     28  

Ground Leases

     28  

Group

     28  

Guaranty Release

     28, 93  

Hazardous Substances

     28  

Historical Dow

     28  

Historical Dow AgCo Group Pre-MatCo Spin Payroll Amount

     101  

Historical Dow AgCo Required Cash

     50  

Historical Dow Counsel

     28  

Historical Dow Discontinued Buildings and Related Improvements

     28, 159  

Historical Dow Intergroup Accounts

     28, 81  

Historical Dow Knowledge Group

     29  

Historical Dow Selected Intercompany Accounts

     29, 82  

Historical Dow SpecCo Group Pre-MatCo Spin Payroll Amount

     102  

Historical Dow SpecCo Required Cash

     51  

Historical DuPont

     29  

Historical DuPont Counsel

     29  

Historical DuPont Discontinued Buildings and Related Improvements

     29, 160  

Historical DuPont Intergroup Accounts

     29, 81  

Historical DuPont Knowledge Group

     29  

Historical DuPont MatCo Group Pre-MatCo Spin Payroll Amount

     102  

Historical DuPont MatCo Required Cash

     51  

Historical DuPont Selected Intercompany Accounts

     29, 82  

Historical DuPont Specified Governmental Action

     29, 135  

Historical DuPont Trade Payables

     17, 29  

Incremental Costs

     29, 130  

Indebtedness

     29  

Indemnifiable Loss

     30  

Indemnifiable Losses

     30  

Indemnification Notice

     30  

Indemnifying Party

     30, 148  

Indemnitee

     30, 147  

Indemnity Payment

     30, 154  

Industrial Purpose

     30  

Industrial Real Property Restrictions

     30, 90, 2  

Information

     30  

Information Statement

     31  

Insurance Proceeds

     31  

 

viii


Intellectual Property

     31  

Intellectual Property Cross-License Agreements

     31  

Intergroup Accounts

     31, 81  

Intergroup Leases

     32  

Interim Relief

     32, 183  

Internal Reorganization

     32  

Intertower Accounts

     82  

Inventor Remuneration

     32  

IT Assets

     32  

Joint SpecCo/AgCo Representative

     32, 132  

Know-How

     31  

Law

     32  

Liabilities

     32  

Liable Party

     33, 92  

Litigation Hold

     33, 167  

Managing Party

     33, 127, 134

Managing Party Claimant

     33, 127  

Managing Party Determination Notice

     33, 137  

Managing Party First Discussion

     33, 127  

Managing Party Negotiation Period

     33, 138  

Managing Party Notice

     33, 127  

Manufacturing Product Agreements

     33  

MatCo

     1, 33  

MatCo AgCo Designated DuPont DDOB Deductible Amount

     164  

MatCo Common Stock

     1, 33  

MatCo CSIs

     33, 94  

MatCo Distribution

     33  

MatCo Distribution Date

     34  

MatCo Distribution Record Date

     34  

MatCo Group

     34  

MatCo Group DuPont Corporate Contracts

     34, 70  

MatCo Indemnitees

     34  

MatCo Information Statement

     34  

MatCo Inventory

     39  

MatCo Knowledge Group

     34  

MatCo Liability Policies

     34, 195  

MatCo Non-Compete Acquirers

     34, 119  

MatCo Non-Compete Target

     34, 118  

MatCo Prohibited Activities

     34, 118  

MatCo Representative

     34, 131  

MatCo SpecCo Designated DuPont DDOB Deductible Amount

     164  

MatCo Spin Contribution

     34  

MatCo Unaccrued Portion

     42  

Material Impairment

     34, 133  

Materials Science Accrued Amount

     42  

Materials Science Assets

     35  

 

ix


Materials Science Business

     41  

Materials Science Contracts

     41  

Materials Science Environmental Liabilities

     41  

Materials Science Factoring Proceeds

     37  

Materials Science Form 10

     41  

Materials Science Known Undisclosed Liabilities

     42  

Materials Science Liabilities

     43  

Materials Science Real Property

     39  

Materials Science Shared Contract

     47  

Materials Science Specified Leased Real Property

     35  

Materials Science Specified Owned Real Property

     35  

Materials Science Specified Permitted Activities

     47  

Materials Science Trade Payables

     45  

Measurement Date

     24, 47  

Medical Devices Business

     124  

MOD 5 (ROFAN) License Agreements

     47  

Negotiation Period

     47  

New Shared Matter

     47, 127  

New Shared Matter Notice

     47, 127  

Non-Assumable Third Party Claims

     47, 148  

Non-Compete Dispute Notice

     47, 122  

Non-Compete Escalation Notice

     47, 122  

Non-Compete Period

     47, 118  

Non-Performing Impacted Party

     47, 156  

Non-Performing Site Controller

     47, 156  

Non-Shared Contract

     48  

Non-Transferred Permit

     48, 116  

Notice Recipient

     48, 79  

Notifying Party

     48, 79  

NYSE

     48  

Off-Site Environmental Liabilities

     48  

Operating Services Agreements

     48  

Operating Systems and Tools License Agreements

     48  

Other Parties’ Auditors

     48, 110  

Other Party

     48, 91  

Other Surviving Intergroup Accounts

     48, 81  

Other Surviving Selected Intercompany Accounts

     48, 81  

Owner or Lessee Party

     160  

Partial Assignment

     48, 76  

Parties

     1, 48  

Party

     1, 48, 207  

Patents

     31  

Performing Party

     48, 156  

Permit Transferee

     48  

Permit Transferor

     49  

Person

     49  

 

x


Pharmaceuticals Business

     124  

Pilot Plant Services Agreement

     49  

Plant Operating Documents

     49  

Policies

     49  

Pre-Acquisition MatCo Business

     49, 118  

Pre-Acquisition MatCo Entities

     49, 119  

Pre-Acquisition SpecCo Business

     49, 120  

Pre-Acquisition SpecCo Entities

     49, 121  

Pre-Agreed Historical Dow Wires

     99  

Pre-Agreed Historical DuPont Wires

     99  

Privilege

     50, 176  

Privilege Waiver Negotiation Period

     50, 178  

Privilege Waiver Objection Notice

     50, 178  

Privileged Information

     50, 176  

Product Marks Trademark License Agreements

     50  

Proposal

     50, 129, 135  

Public Reports

     50, 111  

Purchase for Resale Agreements

     50  

Qualifying Historical Dow AgCo Closing Cash

     50  

Qualifying Historical Dow SpecCo Closing Cash

     50  

Qualifying Historical DuPont MatCo Closing Cash

     51  

Records

     51  

Regulatory Cross License Agreements

     51  

Regulatory Data

     51  

Regulatory Transfer and Support Agreements

     52  

Related

     52  

Release

     52  

Relevant Time

     52  

Representative

     52  

Requisite Approval

     52, 132, 140  

Response Action

     52, 156  

Restricted Industrial Specialties Business

     124  

Rules

     52, 182  

Scheduled Selected Intercompany Accounts

     82  

Second Non-Compete Discussion Period

     52, 123  

Second Shared Historical DuPont Escalation Negotiation Period

     52, 137  

Section 8.13(c) Basket

     52, 166  

Section 9.8 Matters

     53, 179  

Security Interest

     53  

Selected Intercompany Accounts

     53, 82  

Separation Expenses

     53, 204

Settling Party

     53, 130, 142  

Shared Contract

     53  

Shared Historical DuPont Assets

     53  

Shared Historical DuPont Assets and Liabilities Determination Period

     53, 139  

Shared Historical DuPont Assets and Liabilities Notice

     53, 139  

 

xi


Shared Historical DuPont Claim Committee

     53, 137  

Shared Historical DuPont Escalation Committee

     53, 136  

Shared Historical DuPont Liabilities

     53  

Shared Historical DuPont Liability Settlement Cap

     54, 142  

Shared Historical DuPont Percentage

     54  

Shared Liability Escalation Committee

     54, 128  

Shared Liability Escalation Discussion Period

     54, 128  

Shared Liability Escalation Discussions

     54, 128  

Shared Policies

     54  

Site Access Agreements

     54  

Site Services Agreements

     54  

Software

     54  

Sole Benefit Services

     54, 176  

Space Leases

     54  

SpecCo

     1, 54  

SpecCo CSIs

     54, 94  

SpecCo Designated Dow DDOB Deductible Amount

     55, 163  

SpecCo Group

     55  

SpecCo Group DuPont Corporate Contracts

     55, 70  

SpecCo Group DuPont Divested Business Liability Basket

     55, 162  

SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities

     55  

SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement

     55, 136  

SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities

     56  

SpecCo Hurdle

     56, 162  

SpecCo Indemnitees

     56  

SpecCo Inventory

     61  

SpecCo Knowledge Group

     56  

SpecCo Liability Policies

     56, 193  

SpecCo Non-Compete Acquirers

     56, 121  

SpecCo Non-Compete Target

     56, 120  

SpecCo Prohibited Activities

     56, 120  

SpecCo Representative

     56, 131  

SpecCo Specified Permitted Activities

     56  

SpecCo Unaccrued Portion

     65  

Specialty Products Accrued Amount

     64  

Specialty Products Assets

     56, 59  

Specialty Products Business

     63  

Specialty Products Contracts

     64  

Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities

     64  

Specialty Products Environmental Liabilities

     64  

Specialty Products Factoring Proceeds

     59  

Specialty Products Known Undisclosed Liabilities

     64  

 

xii


Specialty Products Liabilities

     65  

Specialty Products Real Property

     61  

Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities

     69  

Specialty Products Shared Contracts

     70  

Specialty Products Shared Historical DuPont Percentage

     70  

Specialty Products Specified Leased Real Property

     57  

Specialty Products Specified Owned Real Property

     57  

Specified Agriculture Assets

     6  

Specified Agriculture DuPont Corporate Contracts

     12  

Specified Agriculture Liabilities

     16  

Specified C&I Cellulosics

     124  

Specified Contingent Governmental Action

     70, 129  

Specified DowDuPont Shared Asset

     70  

Specified DowDuPont Shared Liabilities

     70  

Specified IS Cellulosics

     124  

Specified Materials Science Assets

     36  

Specified Materials Science Liabilities

     45  

Specified Specialty Products Assets

     58  

Specified Specialty Products DuPont Corporate Contracts

     64  

Specified Specialty Products Liabilities

     68  

Specified Tier 1 DDOB Liability Termination Date

     164  

Specified Tier 1 Dow DDOB Liability

     72  

Specified Tier 1 DuPont DDOB Liability

     72  

Specified Tier 2 DDOB Liability Termination Date

     165  

Specified Tier 2 Dow DDOB Liability

     72  

Specified Tier 2 DuPont DDOB Liability

     72  

Steps Plan

     72  

Subsidiary

     72  

Tax

     72  

Tax Contest

     72  

Tax Matters Agreement

     72  

Tax Return

     72  

Taxes

     72  

Taxing Authority

     72  

Telone Distribution Agreement

     72  

Temporary Managing Party

     73, 138  

Third Party Claim

     73, 147  

Third Party Proceeds

     73, 154  

TMODS License Agreement

     73  

Tower Realignment Time

     73  

Trademarks

     31, 73  

Transaction Expenses

     73, 204  

Transfer

     73, 75  

Transferred

     73  

Transferred Industrial Real Property

     73, 90  

 

xiii


Transitional House Marks Trademark License Agreements

     73  

Umbrella Secrecy Agreement

     73  

Unauthorized Historical Dow Instructions

     99  

Unauthorized Historical Dow Payments

     100  

Unauthorized Historical DuPont Instructions

     100  

Unauthorized Historical DuPont Payments

     100  

USA-Subject Ancillary Agreements

     73  

 

xiv


SEPARATION AND DISTRIBUTION AGREEMENT

SEPARATION AND DISTRIBUTION AGREEMENT (this “ Agreement ”), dated as of April 1, 2019, by and among DowDuPont Inc., a Delaware corporation (“ DowDuPont ” or “ SpecCo ”), Dow Inc., a Delaware corporation (“ MatCo ”) and Corteva, Inc., a Delaware corporation (“ AgCo ”). Each of SpecCo, MatCo and AgCo is sometimes referred to herein as a “ Party ” and collectively, as the “ Parties .”

W I T N E S S E T H:

WHEREAS, DowDuPont, acting through its direct and indirect Subsidiaries, currently conducts (i) the Agriculture Business (as defined herein), (ii) the Materials Science Business (as defined herein) and (iii) the Specialty Products Business (as defined herein);

WHEREAS, the Board of Directors of DowDuPont (the “ Board ”) has determined that it is appropriate, desirable and in the best interests of DowDuPont and its stockholders to separate DowDuPont into three separate, publicly traded companies, one for each of (i) the Agriculture Business, which shall be owned and conducted, directly or indirectly, by AgCo, (ii) the Materials Science Business, which shall be owned and conducted, directly or indirectly, by MatCo and (iii) the Specialty Products Business, which shall be owned and conducted, directly or indirectly, by SpecCo;

WHEREAS, in order to effect such separation, the Board has determined that it is appropriate, desirable and in the best interests of DowDuPont and its stockholders (i) to enter into a series of transactions whereby (A) SpecCo and/or one or more members of the SpecCo Group will, collectively, own all of the Specialty Products Assets, assume (or retain) all of the Specialty Products Liabilities and, except as provided in any Ancillary Agreement, operate the Specialty Products Business, (B) MatCo and/or one or more members of the MatCo Group will, collectively, own all of the Materials Science Assets, assume (or retain) all of the Materials Science Liabilities and, except as provided in any Ancillary Agreement, operate the Materials Science Business and (C) AgCo and/or one or more members of the AgCo Group will, collectively, own all of the Agriculture Assets, assume (or retain) all of the Agriculture Liabilities and, except as provided in any Ancillary Agreement, operate the Agriculture Business and (ii) for DowDuPont to distribute to the holders of DowDuPont Common Stock by way of a pro rata dividend (in each case without consideration being paid by such stockholders) (A) all of the then issued and outstanding shares of common stock, par value $0.01 per share, of MatCo (the “ MatCo Common Stock ”) and (B) all of the then issued and outstanding shares of common stock, par value $0.01 per share, of AgCo (the “ AgCo Common Stock ”);

WHEREAS, in order to effect such separation, the Board has determined that it is appropriate, desirable and in the best interests of DowDuPont and its stockholders for DowDuPont to undertake the Internal Reorganization;

WHEREAS, it is the intention of the Parties that the MatCo Spin Contribution and the MatCo Distribution, taken together, will qualify as a transaction that is tax-free for U.S. federal income tax purposes under Section 355 and Section 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the “ Code ”);

 

1


WHEREAS, it is the intention of the Parties that the AgCo Spin Contribution and the AgCo Distribution, taken together, will qualify as a transaction that is tax-free for U.S. federal income tax purposes under Section 355 and Section 368(a)(1)(D) of the Code; and

WHEREAS, each of SpecCo, MatCo and AgCo has determined that it is necessary and desirable to agree to the principal corporate transactions required to effect the Internal Reorganization (to the extent not already effected prior to the date hereof) and each of the MatCo Distribution and the AgCo Distribution and to agree to other agreements that will govern certain other matters following the Effective Time.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 General . As used in this Agreement, the following terms shall have the following meanings:

(1) “ 2018/2019 Internal Control Audit and Management Assessments ” shall have the meaning set forth in Section  5.1(b) .

(2) “ AAA ” shall have the meaning set forth in Section  10.1(c) .

(3) “ Acceptable Alternative Arrangement ” shall have the meaning set forth in Section  2.2(d)(i) .

(4) “ Action ” shall mean any demand, action, claim, cause of action, suit, countersuit, arbitration, inquiry, case, litigation, subpoena, proceeding or investigation (whether civil, criminal or administrative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority.

(5) “ Affiliate ” shall mean, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For the purposes of this definition, “control” (including the terms “controlled by” and “under common control with”), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or otherwise. It is expressly agreed that no Party or member of any Group shall be deemed to be an Affiliate of another Party or member of such other Party’s Group solely by reason of having one or more directors in common or by reason of having been under common control of DowDuPont or DowDuPont’s stockholders prior to, or in case of SpecCo’s stockholders, after the Effective Time.

(6) “ AgCo ” shall have the meaning set forth in the preamble.

(7) “ AgCo Common Stock ” shall have the meaning set forth in the recitals hereto.

 

2


(8) “ AgCo CSIs ” shall have the meaning set forth in Section  2.10(d) .

(9) “ AgCo Designated Dow DDOB Deductible Amount ” shall have the meaning set forth in Section  8.13(b)(i) .

(10) “ AgCo Distribution ” shall mean the distribution on the AgCo Distribution Date to holders of shares of DowDuPont Common Stock as of the AgCo Distribution Record Date of the AgCo Common Stock on the basis of a to-be-determined number of shares of AgCo Common Stock (to be determined by the board of directors of DowDuPont prior to the AgCo Distribution) for every one (1) outstanding share of DowDuPont Common Stock.

(11) “ AgCo Distribution Date ” shall mean the date, as shall be determined by the Board, on which DowDuPont distributes all of the issued and outstanding shares of AgCo Common Stock to the holders of DowDuPont Common Stock.

(12) “ AgCo Distribution Record Date ” shall mean such date as may be determined by the Board as the record date for determining the holders of DowDuPont Common Stock entitled to receive AgCo Common Stock in the AgCo Distribution.

(13) “ AgCo Group ” shall mean AgCo and each Person (other than any member of the SpecCo Group or the MatCo Group) that is a direct or indirect Subsidiary of AgCo immediately after the Tower Realignment Time, and each Person that becomes a Subsidiary of AgCo after the Tower Realignment Time, which, for the avoidance of doubt, shall include those Persons identified as such on Schedule 1.1(13) (and shall not include the Persons on Schedule 1.1(180) or Schedule 1.1(288) ).

(14) “ AgCo Group DuPont Divested Business Liability Basket ” shall have the meaning set forth in Section  8.13(a)(i) .

(15) “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean (i) any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group other than (w) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (x) AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, (y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, including those set forth on Schedule 1.1(15) and, solely to the extent in excess of the amount set forth therefor on Schedule 1.1(18) , those set forth on Schedule 1.1(18) ; provided , however , in the case of this clause (i), that from and after the time that both the SpecCo Hurdle (as defined in Section  8.13(a)(i) ) and the AgCo Hurdle (as defined in Section  8.13(a)(ii) ) have been met, “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean, with respect to additional DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group or SpecCo Group, the Agriculture Shared Historical DuPont Percentage of any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group or SpecCo Group other than (W) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (X) AgCo Group Specified DuPont Discontinued

 

3


and/or Divested Operations and Business Liabilities, (Y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (Z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities and (ii) the Agriculture Shared Historical DuPont Percentage of any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the MatCo Group other than (w) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (x) AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, (y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities.

(16) “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement ” shall have the meaning set forth in Section  7.1(f) .

(17) “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement Objection Notice ” shall have the meaning set forth in Section  7.1(f) .

(18) “ AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group set forth on Schedule 1.1(18) , but, in each case, solely to the extent of the amount therefor set forth on Schedule 1.1(18) .

(19) “ AgCo Hurdle ” shall have the meaning set forth in Section  8.13(a)(ii)

(20) “ AgCo Indemnitees ” shall mean each member of the AgCo Group and each of their Affiliates from and after the Effective Time and each member of the AgCo Group’s and their respective current, former and future Affiliates’ respective directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(21) “ AgCo Information Statement ” shall mean the Information Statement attached as an exhibit to the Agriculture Form 10 sent to the holders of shares of DowDuPont Common Stock in connection with the AgCo Distribution, including any amendment or supplement thereto.

(22) “ AgCo Knowledge Group ” shall mean the individuals specified on Schedule 1.1(22) .

(23) “ AgCo Liability Policies ” shall have the meaning set forth in Section  11.2(b) .

(24) “ AgCo Representative ” shall have the meaning set forth in Section  6.4(a) .

(25) “ AgCo Spin Contribution ” means any contribution to AgCo by DowDuPont in connection with, or in anticipation of, the AgCo Distribution.

(26) “ Agent ” shall mean Computershare Trust Company, N.A.

 

4


(27) “ Aggregate Qualifying Historical Dow AgCo Closing Cash ” means an amount equal to the lesser of (x) $15,000,000 and (y) the sum of Qualifying Historical Dow AgCo Closing Cash in all countries.

(28) “ Aggregate Qualifying Historical Dow SpecCo Closing Cash ” means an amount equal to the lesser of (x) $15,000,000 and (y) the sum of Qualifying Historical Dow SpecCo Closing Cash in all countries.

(29) “ Aggregate Qualifying Historical DuPont MatCo Closing Cash ” means an amount equal to the lesser of (x) $15,000,000 and (y) the sum of Qualifying Historical DuPont MatCo Closing Cash in all countries.

(30) “ Agreement ” shall have the meaning set forth in the preamble.

(31) “ Agriculture Assets ” shall mean any and all right, title and interest in and to the following Assets of (x) any member of the MatCo Group at the applicable Relevant Time, (y) any member of the AgCo Group at the applicable Relevant Time, and (z) any member of the SpecCo Group at the applicable Relevant Time (provided, however, that Agriculture Assets shall not include Tax Assets (as defined in the Tax Matters Agreement), which shall be governed by the Tax Matters Agreement, or Assets allocated pursuant to the Employee Matters Agreement, which shall be governed thereby):

(i) (A) all interests in the capital stock of, or any other equity interests in the members of the AgCo Group (other than AgCo), including those set forth on Schedule 1.1(13) , (B) all interests in the capital stock of, or any other equity interests in the Persons set forth on Schedule 1.1(31)(i)(B) , and (C) the capital stock and other equity interests set forth on Schedule 1.1(31)(i)(C) of certain other Persons and, in each case (clauses (A)-(C)), any and all rights related thereto;

(ii) the Assets set forth on Schedule 1.1(31)(ii) ;

(iii) any and all rights and interests of the AgCo Group under this Agreement;

(iv) (A) all rights, title and interest in and to the owned real property set forth on Schedule 1.1(31)(iv)(A) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(31)(iv)(A) under the heading “Other Parties in Possession”) (the “ Agriculture Specified Owned Real Property ”) and (B) all rights, title and interest in, and to and under the leases or subleases of the real property set forth on Schedule 1.1(31)(iv)(B) , including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings

 

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and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(31)(iv)(B) under the heading “Other Parties in Possession”) (the “ Agriculture Specified Leased Real Property ”);

(v) any and all Agriculture Shared Contracts; provided ; however , that any such Agriculture Shared Contracts shall be subject to Section  2.2(d) ;

(vi) (A) the Patents and Patent applications and registrations set forth on Schedule 1.1(31)(vi)(A) , (B)(I) the Corteva, Inc. name and any and all Corteva, Inc. brands, related Trademarks and related Trademark applications and registrations, including those set forth on Schedule 1.1(31)(vi)(B)(I) , and any and all derivations, abbreviations, translations, localizations and other variations of any of the foregoing and any confusingly similar Trademark and Trademark application and registration and (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(31)(vi)(B)(II) , (C) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(31)(vi)(C) and (D) the Know-How set forth on Schedule 1.1(31)(vi)(D) ;

(vii) any and all Assets in respect of accruals, counterclaims, insurance claims, rights to coverage under applicable insurance policies, warranties, contractual indemnities, control rights and other rights similar to the foregoing, in each case, to the extent related to any Agriculture Liability, including those set forth on Schedule 1.1(31)(vii) ;

(viii) the IT Assets set forth on Schedule 1.1(31)(viii) ;

(ix) all Agriculture Contracts;

(x) other than Intellectual Property and IT Assets, any and all (a) Information to the extent related to any Agriculture Asset or Agriculture Liability and (b) corporate or similar legal entity books and records of any Person described in clause (i) of this definition of Agriculture Assets;

(xi) the Applicable Agriculture Percentage of any Specified DowDuPont Shared Asset (clauses (i)–(xi), the “ Specified Agriculture Assets ”);

(xii) unless constituting a Specified Materials Science Asset or a Specified Specialty Products Asset under clauses (i)–(xi) of the definitions thereof:

 

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(a) any and all rights, title and interest in, and to, any Asset (excluding IT Assets and excluding Intellectual Property) of Historical DuPont that is not related to any Business (other than in a de minimis respect) (e.g. corporate or enterprise-wide Assets) (I) owned by a member of the AgCo Group, including those set forth on Schedule 1.1(31)(xii)(a)(I) and (II) owned by a member of the MatCo Group while such entity was a part of Historical DuPont and set forth on Schedule 1.1(31)(xii)(a)(II) ;

(b) all Intellectual Property owned by Historical DuPont that is not related to any Business (other than in a de minimis respect) and is set forth on Schedule 1.1(31)(xii)(b) , including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(31)(xii)(b)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(31)(xii)(b)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(31)(xii)(b)(III) and (IV) the Know-How set forth on Schedule 1.1(31)(xii)(b)(IV) ;

(c) (I) subject to Section  3.5 , all Cash and Cash Equivalents, notes, interest receivables and other financial assets owned by any member of the AgCo Group (other than any such Cash and Cash Equivalents, notes, interest receivables and other financial assets constituting Materials Science Factoring Proceeds or Specialty Products Factoring Proceeds), (II) all derivative instruments of Historical DuPont owned by any member of the AgCo Group, and (III) the Agriculture Shared Historical DuPont Percentage of all derivative instruments of Historical DuPont owned by a member of the MatCo Group while such entity was a part of Historical DuPont;

(d) (I) all accounts and notes receivable to the extent related to the Agriculture Business and any proceeds from the factoring of any such accounts receivable with a payment date on or after the MatCo Distribution (other than any proceeds from ordinary course factoring prior to 12:00 am local time on April 1, 2019 of such accounts receivable attributable to Historical Dow’s Agriculture Business in Brazil and Argentina (the “ Brazil and Argentina Factoring Proceeds )) (“ Agriculture Factoring Proceeds ”) ( provided , however , that any such accounts receivable represented by an invoice of less than $1,000,000 shall not constitute Agriculture Assets pursuant to this clause (d) if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Materials Science Business or the Specialty Products Business), and (II) all accounts receivable (other than those not related to any Business in more than a de minimis respect) represented by an invoice of less than $1,000,000 if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Agriculture Business;

(e) the Agriculture Shared Historical DuPont Percentage of all accounts and notes receivable in respect of goods or services sold or provided by Historical DuPont that are not related to any Business (other than in a de minimis respect);

 

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(f) all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items, in each case to the extent they are used or held for use in, or arise out of, the operation or conduct of (I) the Agriculture Business (including, for the avoidance of doubt, such portion of any credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items of the MatCo Group or SpecCo Group to the extent they are used or held for use in, or arise out of, the operation or conduct of the Agriculture Business), (II) Historical DuPont to the extent such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items are owned by a member of the AgCo Group, and are not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(31)(xii)(f)(II) , and/or (III) Historical DuPont to the extent such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items were recorded by a member of the MatCo Group while such entity was a part of Historical DuPont, and are not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(31)(xii)(f)(III) ; provided , however , that, in the case of clause (III), “ Agriculture Assets ” shall include only the Agriculture Shared Historical DuPont Percentage of any and all such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items;

(g) except for furniture, all tangible personal property and interests therein (including machinery, tools, equipment and vehicles), in each case, that is not related to any Business (other than in a de minimis respect) (I) that is set forth on Schedule 1.1(31)(xii)(g) or (II) for which the relevant historical use of such Asset was at any Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property or Agriculture Real Property, other than (1) at any portion leased or subleased by any member of the MatCo Group or SpecCo Group pursuant to an Intergroup Lease and (2) those set forth on Schedule 1.1(192)(xii)(f) or Schedule 1.1(303)(xii)(g) ;

(h) all furniture that is not related to any Business (other than in a de minimis respect) to the extent that the relevant historical use of such furniture was at (I) any Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property (except as provided pursuant to the terms of an Intergroup Lease or lease with any Person other than the Parties and their respective Group members and Affiliates) or Agriculture Real Property other than those set forth on Schedule 1.1(192)(xii)(g) or Schedule 1.1(303)(xii)(h) or (II) any site set forth on Schedule 1.1(31)(xii)(h) ;

(i) any and all Information of Historical DuPont (other than (x) Intellectual Property, (y) Information described in clause (xii) of the definition of “ Materials Science Assets ” and clause (xii) of the definition of “ Specialty Products Assets ” and (z) IT Assets) that is not related to any Business (other than in a de minimis respect) (I) owned by a member of the AgCo Group, including Information set forth on Schedule 1.1(31)(xii)(i)(I) or (II) owned by a member of the MatCo Group while such entity was a part of Historical DuPont and set forth on Schedule 1.1(31)(xii)(i)(II) ; and

 

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(j) all rights, claims, causes of action and credits to the extent relating to any Agriculture Asset that do not relate to any Business (other than in a de minimis respect) and do not relate to any Specialty Products Liability or a Materials Science Liability (other than in a de minimis respect), including those arising under any guaranty, warranty, indemnity, right of recovery, right of set-off or similar right, including those set forth on Schedule 1.1(31)(xii)(j) ;

(xiii) any and all Assets Related to the Agriculture Business, including in the following categories, but, in each case, excluding IT Assets, the Specified Materials Science Assets, the Specified Specialty Products Assets and the Assets described in clause (xii) of each of the definitions of Agriculture Assets, Materials Science Assets and Specialty Products Assets:

(a) (1) all rights, title and interest in and to the owned real property Related to the Agriculture Business, including those set forth on Schedule 1.1(31)(xiii)(a)(1) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(31)(xiii)(a)(1) under the heading “Other Parties in Possession”) and (2) all rights, title and interest in, and to and under the leases or subleases of the real property Related to the Agriculture Business, including those set forth on Schedule 1.1(31)(xiii)(a)(2) , including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(31)(xiii)(a)(2) under the heading “Other Parties in Possession”) (the “ Agriculture Real Property ”);

(b) except for IT Assets and AgCo Inventory, any and all tangible personal property and interests therein, including machinery, furniture, tools, equipment, vehicles, in each case that are Related to the Agriculture Business, including those set forth on Schedule 1.1(31)(xiii)(b) ;

 

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(c) any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging, finished goods and products and other inventories, including those set forth on Schedule 1.1(31)(xiii)(c)(i) , (I) related to, or held for the benefit of, the Agriculture Business and not related (other than in a de minimis respect) to any other Business, (II) held at a site subject to a Manufacturing Product Agreement and allocated to the AgCo Group as set forth on Schedule 1.1(31)(xiii)(c)(ii) , (III) related to the Agriculture Business (other than in a de minimis respect) and held at any Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property or Agriculture Real Property (unless at a portion of such site leased to a different Group pursuant to an Intergroup Lease) that is not subject to any Manufacturing Product Agreement, (IV) Related to the Agriculture Business, held at any Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property, Materials Science Real Property, Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property, other than any portion thereof leased by the AgCo Group pursuant to an Intergroup Lease (other than those subject to any Manufacturing Product Agreement), and not related (other than in a de minimis respect) to the Business of the Group to which such real property was allocated, and (V) Related to the Agriculture Business and not held at a real property constituting Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property, Agriculture Real Property, Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property, Materials Science Real Property, Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property (the “ AgCo Inventory ”) (it being understood and agreed that any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging and finished goods referred to under clause (II) or (III) shall constitute an Asset Related to the Agriculture Business);

(d) all Intellectual Property Related to the Agriculture Business, including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(31)(xiii)(d)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(31)(xiii)(d)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(31)(xiii)(d)(III) and (IV) the Know-How set forth on Schedule 1.1(31)(xiii)(d)(IV) ;

(e) any and all Consents, registrations and Regulatory Data, in each case, that is Related to the Agriculture Business, including those set forth on Schedule 1.1(31)(xiii)(e) ;

(f) any and all Information (other than Intellectual Property and IT Assets) that is Related to the Agriculture Business; and

 

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(g) any and all interests in the capital stock of, or other equity interests in, any Person that is not a member of the MatCo Group, SpecCo Group or AgCo Group that is Related to the Agriculture Business, including those set forth on Schedule 1.1(31)(xiii)(g) .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Materials Science Assets and Specialty Products Assets, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Agriculture Asset listed on Schedules 1.1(13) , 1.1(31)(i)(B) , 1.1(31)(i)(C) , 1.1(31)(ii) , 1.1(31)(iv)  (A) and (B) (except to the extent otherwise set forth on Schedules 1.1(31)(iv)(A) and (B)  under the heading “Other Parties in Possession”), 1.1(31)(vi)(A) , (B)(I) , (B)(II) , (C) and (D) , 1.1(31)(vii) , 1.1(31)(viii) and 1.1(31)(xiii)(c)(ii) (to the extent allocated to AgCo) constitutes an Agriculture Asset, (ii) any Contract listed on Schedule 1.1(33)(i) constitutes an Agriculture Asset, (iii) any Shared Contract listed on Schedule 1.1(40) constitutes an Agriculture Asset, (iv) (a) any Asset listed on Schedules 1.1(31)(xii)(a)(I) and (II)  shall give rise to a rebuttable presumption in favor of AgCo that such Asset is owned by Historical DuPont and is not related to any Business (other than in a de minimis respect), (b) any Asset listed on Schedules 1.1(31)(xii)(b)(I) , (II) , (III) and (IV)  shall give rise to a rebuttable presumption in favor of AgCo that such Asset is not related to any Business (other than in a de minimis respect), (c) any Asset listed on Schedule 1.1(31)(xii)(f)(II) shall give rise to a rebuttable presumption in favor of AgCo that such Asset is used or held for use in, or arises out of, the operation or conduct of Historical DuPont, is owned by a member of the AgCo Group and is not related to any Business (other than in a de minimis respect), (d) any Asset listed on Schedule 1.1(31)(xii)(f)(III) shall give rise to a rebuttable presumption in favor of AgCo that such Asset is used or held for use in, or arises out of, the operation or conduct of Historical DuPont, was recorded by a member of the MatCo Group while such entity was part of Historical DuPont and is not related to any Business (other than in a de minimis respect), (e) any Asset listed on Schedule 1.1(31)(xii)(g) shall give rise to a rebuttable presumption in favor of AgCo that such Asset is not related to any Business (other than in a de minimis respect), (f) any furniture at any site set forth on Schedule 1.1(31)(xii)(h) shall give rise to a rebuttable presumption in favor of AgCo that such furniture is not related to any Business (other than in a de minimis respect), (g) any Asset listed on Schedules 1.1(31)(xii)(i)(I) and (II)  shall give rise to a rebuttable presumption in favor of AgCo that such Asset is of Historical DuPont and is not related to any Business (other than in a de minimis respect) and (h) any Asset listed on Schedule 1.1(31)(xii)(j) shall give rise to a rebuttable presumption in favor of AgCo that such Asset is not related to any Business (other than in a de minimis respect) and is not related to any Specialty Products Liability or Materials Science Liability (other than in a de minimis respect), and (v) any Asset listed on any of the Schedules described in Section  1.1(31)(xiii) (other than Schedule 1.1(31)(xiii)(c)(ii) and, in case of Schedules 1.1(31)(xiii)(a)(1) and (2) , except to the extent otherwise set forth on Schedules 1.1(31)(xiii)(a)(1) and (2)  under the heading “Other Parties in Possession”) shall give rise to a rebuttable presumption in favor of AgCo that such Asset is Related to the Agriculture Business. Notwithstanding anything to the contrary herein, this Agreement and the Ancillary Agreements do not purport to transfer ownership of any of the Parties’ insurance policies, and any assignment of rights to coverage under such insurance policies is governed by Article XI herein.

 

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(32) “ Agriculture Business ” shall mean (i) (A) DuPont Agriculture / Pioneer and (B) in each case, all portions of the following business as conducted on December 11, 2015, August 31, 2017 and/or prior to the AgCo Distribution Date, Dow AgroSciences (excluding the Telone/1,3-dichloropropene business), (ii) all other businesses of Historical DuPont as of December 11, 2015 (except for those described in clauses (i), (iii) or (iv) of the definition of “ Materials Science Business ” or clauses (i), (ii) or (iii) of the definition of “ Specialty Products Business ”), (iii) any other business conducted primarily through the use of the Agriculture Assets prior to the Relevant Time (other than that described in clause (i) of the definition of “ Materials Science Business ” and clause (i) of the definition of “ Specialty Products Business ”) and (iv) the businesses and operations of Business Entities acquired or established by or for AgCo or any of its Subsidiaries in connection with the operation of the agriculture business after the date of this Agreement (other than that described in clause (i) of the definition of “ Materials Science Business ” and clause (i) of the definition of “ Specialty Products Business ”). For the avoidance of doubt, (x) any businesses conducted within those described in clauses (i)(B) as of December 11, 2015 or August 31, 2017, shall constitute part of the Agriculture Business irrespective of whether conducted through different segments or business units of Dow after either or both of such times and (y) the Agriculture Business includes the businesses and operations set forth on Schedule 1.1(32) .

(33) “ Agriculture Contracts ” shall mean Contracts to which DowDuPont or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of their respective Assets is bound, whether or not in writing, which fall within any of the following categories:

(i) any and all Contracts that relate exclusively to the Agriculture Business, the Agriculture Assets and/or the Agriculture Liabilities and are not related (other than in a de minimis respect) to any other Business, any Materials Science Asset, any Specialty Products Asset, any Materials Science Liability or any Specialty Products Liability, including those set forth on Schedule 1.1(33)(i) ; and

(ii) any and all Contracts to which Historical DuPont or any of its Subsidiaries was a party as of the Relevant Time (and any amendments, extensions or replacements thereof) that are not related in any respect (other than in a de minimis respect) to any Business and are set forth on Schedule 1.1(33)(ii) (the “ Specified Agriculture DuPont Corporate Contracts ”).

(34) “ Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean, collectively, (a) the Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (b) the AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities and (c) the AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities.

(35) “ Agriculture Environmental Liabilities ” shall mean the Liabilities described in clauses (ix) and (xvi)(c) of the definition of Agriculture Liabilities.

(36) “ Agriculture Form 10 ” shall mean the registration statement on Form 10 filed by AgCo with the Commission in connection with the AgCo Distribution.

 

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(37) “ Agriculture Known Undisclosed Liabilities ” shall mean any Liability (or Liabilities arising from the same or substantially similar facts underlying such Liability) (other than ordinary course trade payables and ordinary course commercial obligations, in each case incurred on or after the Measurement Date) of Historical Dow (i) that is Related to the Agriculture Business but is not a Specified Agriculture Liability or described in clauses (xiv)-(xv) of the definition of Agriculture Liabilities, and (ii) (a) for which a member of Historical Dow (x) has recorded an accrual prior to the MatCo Distribution (other than actual accruals by a member of Historical Dow recorded in the manner described on Schedule 1.1(37)(ii)(a)  (1) as of or prior to December 31, 2018 or (2) in the ordinary course of business after December 31, 2018 and prior to the MatCo Distribution (the amount of such accrual for a particular Liability or Liabilities arising from the same or substantially similar facts underlying such Liability, the “ Agriculture Accrued Amount ”)), or (y) (other than the Agriculture Accrued Amount therefor, if any) has not recorded an accrual, but in accordance with GAAP was required to have recorded an accrual, prior to the MatCo Distribution, (b) that is described in any Corporate Risk Management Document of Dow (but not the Agriculture Accrued Amount therefor, if any), (c) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical Dow Knowledge Group, Historical Dow is (or based on the actual knowledge (as of the MatCo Distribution Date) of the Historical Dow Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence (but not the Agriculture Accrued Amount therefor, if any), or (d) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical Dow Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date (but not the Agriculture Accrued Amount therefor, if any); provided , however , that Agriculture Known Undisclosed Liabilities shall not include any such Liability (A) that has been disclosed (or for which the facts and circumstances underlying such Liability have been disclosed) on Schedule 1.1(37)(A) or on any of the Schedules described in Section  1.1(38) , (B) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the AgCo Knowledge Group, Historical Dow is (or based on the actual knowledge (as of the MatCo Distribution Date) of the AgCo Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence, or (C) to the actual knowledge (as of the MatCo Distribution Date) of any member of the AgCo Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date; provided , further , that any Liability that would constitute an Agriculture Known Undisclosed Liability but in respect of which (or in respect of a Liability arising from the same or substantially similar facts) an Indemnification Notice has not been provided on or prior to the date that is the third (3 rd ) anniversary of the MatCo Distribution Date shall be deemed to not constitute an Agriculture Known Undisclosed Liability. For the avoidance of doubt, Agriculture Known Undisclosed Liabilities shall exclude the Agriculture Accrued Amount therefor (if any), and if the actual aggregate amount of Indemnifiable Losses resulting from a Liability exceeds the applicable Agriculture Accrued Amount therefor (if any) (the amount of such excess, the “ AgCo Unaccrued Portion ”), whether such Liability constitutes an Agriculture Known Undisclosed Liability pursuant to clauses (ii)(a)(y) or (ii)(b) – (ii)(d) of this definition and whether such Liability does not constitute an Agriculture Known Undisclosed Liability pursuant to clauses (A)-(C) of the proviso to this definition shall be determined based on the AgCo Unaccrued Portion and the facts and circumstances underlying the AgCo Unaccrued Portion.

 

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(38) “ Agriculture Liabilities ” shall mean any and all Liabilities of (x) any member of the MatCo Group at the applicable Relevant Time, (y) any member of the AgCo Group at the applicable Relevant Time and/or (z) any member of the SpecCo Group at the applicable Relevant Time, in the following categories, in each case, regardless of (i) when or where such Liabilities arose or arise, (ii) where or against whom such Liabilities are asserted or determined, (iii) regardless of whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the AgCo Group, MatCo Group or SpecCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (iv) which entity is named in any Action associated with any Liability (except for Liabilities related to Taxes which are governed exclusively by the Tax Matters Agreement, and Liabilities (other than those to the extent related to, resulting from or arising out of Discontinued and/or Divested Operations and Businesses (except for Liabilities allocated pursuant to Section 1.10(a)-(c) of the Employee Matters Agreement and Section 2.07 of the Employee Matters Agreement)) allocated pursuant to the Employee Matters Agreement, which are governed exclusively thereby):

(i) any and all Liabilities that are expressly assumed by or allocated to the AgCo Group pursuant to this Agreement, including any obligations and Liabilities of any member of the AgCo Group under this Agreement, including those pursuant to Section  12.5 hereof;

(ii) any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from the Distribution Disclosure Documents, including the Agriculture Form 10, in each case relating to, arising out of or resulting from occurrences prior to, the AgCo Distribution, but excluding any statements or omissions made or incorporated by reference in the Distribution Disclosure Documents based on information supplied by Historical Dow;

(iii) any and all Liabilities arising out of Inventor Remuneration to the extent related to (i) the Intellectual Property constituting an Agriculture Asset (other than any discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of such Intellectual Property by members of the MatCo Group or SpecCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements), or (ii) the discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of Intellectual Property constituting a Materials Science Asset or a Specialty Products Asset by a member of the AgCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements;

(iv) the Agriculture Shared Historical DuPont Percentage of Liabilities relating to, arising out of or resulting from any statements or omissions made or incorporated by reference in the Distribution Disclosure Documents and relating to, arising out of or resulting from occurrences prior to, the MatCo Distribution based on information supplied by Historical DuPont;

 

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(v) the Agriculture Shared Historical DuPont Percentage of any and all costs, fees and expenses, including legal fees and costs, in connection with (A) the Transfer of Materials Science Assets of Historical DuPont (but only for Transfers prior to the Tower Realignment Time or pursuant to Sections 2.5 and 2.6 ) and/or (B) the Transfer of Agriculture Assets or Specialty Products Assets of Historical DuPont (but only for Transfers prior to the AgCo Distribution or pursuant to Sections 2.5 and 2.6 );

(vi) the Applicable Agriculture Percentage of any Specified DowDuPont Shared Liability;

(vii) any of the Liabilities set forth on Schedule 1.1(38)(vii) ;

(viii) the Agriculture Shared Historical DuPont Percentage of any Materials Science Known Undisclosed Liabilities (other than those described in any Corporate Risk Management Document of DuPont) in excess of $125,000,000 in the aggregate, and the Agriculture Shared Historical DuPont Percentage of any Materials Science Known Undisclosed Liabilities described in any Corporate Risk Management Document of DuPont;

(ix) (a) any and all Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities that constitute Environmental Liabilities, (b) Environmental Liabilities set forth on Schedule 1.1(38)(ix)(b) , (c) any and all Off-Site Environmental Liabilities of Historical DuPont (that do not constitute Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities of Historical DuPont) that are Related to the Agriculture Business, including those set forth on Schedule 1.1(38)(ix)(c) , (d) the Agriculture Shared Historical DuPont Percentage of any and all Off-Site Environmental Liabilities of Historical DuPont (that do not constitute Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities of Historical DuPont) that are (I) Related to the Materials Science Business, including those set forth on Schedule 1.1(38)(ix)(d)(I) or (II) not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(38)(ix)(d)(II) , (e) any and all Environmental Liabilities of Historical DuPont to the extent related to or arising out of occurrences prior to the Relevant Time that do not constitute Off-Site Environmental Liabilities or DuPont Discontinued and/or Divested Operations and Business Liabilities which are not related to any Business (other than in a de minimis respect) to the extent arising out of or related to any Agriculture Real Property, Agriculture Specified Owned Real Property or Agriculture Specified Leased Real Property owned by Historical DuPont prior to the AgCo Distribution Date and (f) the Agriculture Shared Historical DuPont Percentage of any and all Environmental Liabilities of Historical DuPont to the extent arising out of or related to occurrences prior to the Relevant Time that do not constitute Off-Site Environmental Liabilities or DuPont Discontinued and/or Divested Operations and Business Liabilities which are not related to any Business (other than in a de minimis respect) to the extent arising out of or related to any Materials Science Real Property, Materials Science Specified Owned Real Property or Materials Science Specified Leased Real Property owned by Historical DuPont prior to the Tower Realignment Time; provided , in each case (clauses (a)-(f)), that they shall be subject to Section  8.11 ;

 

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(x) any and all Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities which do not constitute Environmental Liabilities;

(xi) any and all Liabilities (other than Materials Science Trade Payables and Historical DuPont Trade Payables) primarily related to, arising out of or resulting from the Specified Agriculture DuPont Corporate Contracts;

(xii) any and all Liabilities for Indebtedness of the type described in clauses (i), (iv) and (vii) (but in case of clause (vii) solely with respect to clauses (i) and (iv)) of the definition of Indebtedness of Historical DuPont that was incurred by any member of the AgCo Group (and any such Indebtedness guaranteed by any member of Historical DuPont that is a member of the AgCo Group), including those set forth on Schedule 1.1(38)(xii) ;

(xiii) the Agriculture Shared Historical DuPont Percentage of any and all Indebtedness of the type described in clauses (i), (iv) and (vii) (but in case of clause (vii) solely with respect to clauses (i) and (iv)) of the definition of Indebtedness of Historical DuPont that was incurred by any member of the MatCo Group prior to the time such entity became a Subsidiary of MatCo (and any such Indebtedness guaranteed by any member of Historical DuPont that is a member of the MatCo Group), but is not set forth on Schedule 1.1(198)(xiii) , if any (clauses (i)-(xiii) of this Section  1.1(38) , the “ Specified Agriculture Liabilities ”);

(xiv) unless constituting a Specified Materials Science Liability or a Specified Specialty Products Liability,

(a) (i) any and all checks issued but not drawn and accounts payable to the extent related (other than in de minimis respects) to the Agriculture Business ( provided , however , that any such accounts payable represented by an invoice of less than $1,000,000 shall not constitute Agriculture Liabilities pursuant to this clause (a) if the aggregate amount of accounts payable represented by such invoice is Related to the Materials Science Business or the Specialty Products Business), and (ii) all accounts payable represented by an invoice of less than $1,000,000 if the aggregate amount of accounts payable represented by such invoice is Related to the Agriculture Business (except for any such accounts payable represented by such invoice that are not related to any Business in more than a de minimis respect); and

(b) the Agriculture Shared Historical DuPont Percentage of the Liabilities of Historical DuPont for any and all checks issued but not drawn and accounts payable of Historical DuPont (including such Liabilities of any member of the MatCo Group which was a part of Historical DuPont as of immediately prior to the Tower Realignment Time), which are not related to any Business (other than in a de minimis respect) (the “ Historical DuPont Trade Payables ”);

 

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(xv) unless constituting a Specified Materials Science Liability or a Specified Specialty Products Liability, the Agriculture Shared Historical DuPont Percentage of any and all Liabilities to the extent relating to, arising out of or resulting from a general corporate matter of Historical DuPont or any of its Subsidiaries (which Subsidiaries were Subsidiaries of Historical DuPont immediately prior to the Tower Realignment Time, but only while such Subsidiaries were Subsidiaries of Historical DuPont) incurred on or prior to the AgCo Distribution, including any Liabilities (including under applicable federal and state securities Laws) to the extent relating to, arising out of or resulting from:

(a) claims made by or on behalf of holders of any of Historical DuPont’s securities (including debt securities), in their capacities as such;

(b) any form, report, statement, certifications or other document (including all exhibits, amendments and supplements thereto) (other than a Distribution Disclosure Document) filed by DuPont or any of its Subsidiaries with the Commission on or prior to the AgCo Distribution, including the financial statements included therein (other than for Liabilities related to any such forms, reports, statements, certifications or other documents, in each case filed in connection with the Internal Reorganization, specifically relating to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be);

(c) the maintenance of Historical DuPont’s books and records, Historical DuPont’s corporate compliance and other corporate-level actions and oversight of Historical DuPont; and

(d) (x) indemnification obligations to any current or former director or officer of Historical DuPont in their capacity as such in respect of occurrences prior to the AgCo Distribution Date or (y) any claims for breach of fiduciary duties brought against any current or former directors or officers of Historical DuPont, in their capacities as such, in respect of occurrences prior to the AgCo Distribution Date, in each case, relating to any acts, omissions or events on or prior to the Final Separation Date;

(xvi) any and all Liabilities Related to the Agriculture Business, including in the following categories and including those set forth on Schedule 1.1(38)(xvi) , but in each case, excluding the Specified Materials Science Liabilities, the Specified Specialty Products Liabilities, the Liabilities described in clauses (xiv) and (xv) of each of the definitions of Agriculture Liabilities and Materials Science Liabilities and the Liabilities described in clauses (xiii) and (xiv) of the definition of Specialty Products Liabilities:

(a) any and all Liabilities arising out of or resulting from any Action Related to the Agriculture Business, including such Actions listed on Schedule 1.1(38)(xvi)(a) ;

 

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(b) any and all Liabilities arising under any of the Agriculture Contracts (except in the case of a Contract constituting an Agriculture Contract because it is exclusively related to an Agriculture Asset, any such Liabilities Related to the Materials Science Business or Specialty Products Business); and

(c) any Environmental Liability that is Related to the Agriculture Business, including those set forth on Schedule 1.1(38)(xvi)(c) ; provided , that any such Environmental Liability shall be subject to Section  8.11 .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Materials Science Liabilities and Specialty Products Liabilities, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Agriculture Liability listed on Schedules 1.1(15) , 1.1(18) , 1.1(38)(vii) , 1.1(38)(ix)(b) and (c) , 1.1(38)(xii) and 1.1(39) constitutes an Agriculture Liability (in the case of Schedules 1.1(15) and 1.1(18) , subject to the proviso in Section  1.1(15) ), (ii) the Agriculture Shared Historical DuPont Percentage of any Specified Specialty Products Liability listed on Schedules 1.1(38)(ix)(d)(I) and (II)  constitutes an Agriculture Liability and (iii) any Liability listed on Schedules 1.1(38)(xvi) , 1.1(38)(xvi)(a) and 1.1(38)(xvi)(c) shall give rise to a rebuttable presumption in favor of MatCo and SpecCo that such Liability Relates to the Agriculture Business and/or the Agriculture Assets. In addition, the allocation set forth in clauses (ix) and (xvi)(c) is not intended to affect or impact the share of any such Environmental Liability attributable to third parties.

(39) “ Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all DuPont Discontinued and/or Divested Operations and Business Liabilities that are primarily related to the conduct prior to the Measurement Date of the Agriculture Business of Historical DuPont (for purposes of measuring such relationship only, viewing the Agriculture Business as it was conducted on or after January 1, 2015 but prior to the Measurement Date), including those set forth on Schedule 1.1(39) .

(40) “ Agriculture Shared Contracts ” shall mean (i) any and all Shared Contracts that are primarily related to the Agriculture Business including those set forth on Schedule 1.1(40) , but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract and (ii) prior to the AgCo Distribution Date, any and all Contracts (and any amendments, extensions or replacements thereof) entered into by a member of the AgCo Group while such member was a subsidiary of Historical DuPont that are not related in any respect (other than in a de minimis respect) to any Business (“ AgCo Group DuPont Corporate Contracts ”), but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract; provided, however, such AgCo Group DuPont Corporate Contract shall not be deemed to inure to the benefit or burden of the MatCo Group, except for such AgCo Group DuPont Corporate Contracts set forth on Schedule 1.1(40)(iii) .

(41) “ Agriculture Shared Historical DuPont Percentage ” shall mean twenty nine percent (29%).

 

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(42) “ Ancillary Agreements ” shall mean all of the written Contracts, instruments, assignments or other arrangements (other than this Agreement) entered into in connection with the transactions contemplated hereby, including the Tax Matters Agreement, the General Services Agreements, the Employee Matters Agreement, the Operating Services Agreements, the Site Services Agreements, the Intellectual Property Cross-License Agreements, the Transitional House Marks Trademark License Agreements, the Product Marks Trademark License Agreements, the Regulatory Transfer and Support Agreements, the Regulatory Cross License Agreements, MOD 5 (ROFAN) License Agreements, TMODS License Agreement, Global Product Sales Agreements, Operating Systems and Tools License Agreements, Manufacturing Product Agreements, Contract Manufacturing Agreements, Ground Leases, Space Leases, Umbrella Secrecy Agreements, Pilot Plant Services Agreement, Site Access Agreements, Telone Distribution Agreement, Purchase for Resale Agreements and the agreements set forth on Schedule 1.1(42) and any other agreements to be entered into by and among any member of the AgCo Group, any member of the MatCo Group and any member of the SpecCo Group, at, prior to or after the Distributions in connection with the Distributions, but shall exclude the Continuing Arrangements and the Conveyancing and Assumption Instruments.

(43) “ Applicable Agriculture Percentage ” shall mean fourteen percent (14%); provided , however , with respect to Liabilities of DowDuPont described in Section  1.1(315)(ii) arising out of occurrences after the MatCo Distribution, the Applicable Agriculture Percentage shall be twenty nine percent (29%).

(44) “ Applicable Materials Science Percentage ” shall mean fifty one percent (51%); provided , however , with respect to Liabilities of DowDuPont described in Section  1.1(315)(ii) arising out of occurrences after the MatCo Distribution, the Applicable Materials Science Percentage shall be 0%.

(45) “ Applicable Percentage ” of a particular Group shall mean (i) the Applicable Agriculture Percentage, (ii) Applicable Materials Science Percentage or (iii) Applicable Specialty Products Percentage, as applicable.

(46) “ Applicable Specialty Products Percentage ” shall mean thirty five percent (35%); provided , however , with respect to Liabilities of DowDuPont described in Section  1.1(315)(ii) arising out of occurrences after the MatCo Distribution, the Applicable Specialty Products Percentage shall be seventy one percent (71%).

(47) “ Appropriate Remediation Standard ” shall have the meaning set forth in Section  8.11(e) .

(48) “ Arbitral Tribunal ” shall have the meaning set forth in Section  10.1(c)(i) .

(49) “ Assets ” shall mean all right, title and ownership interests in and to all properties, claims, Contracts, businesses, or assets (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, 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. Except as otherwise

 

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specifically set forth herein or in the Tax Matters Agreement or the Employee Matters Agreement, the rights and obligations of the Parties with respect to (a) Taxes shall be governed by the Tax Matters Agreement and (b) any assets of the nature described in the preceding sentence of this definition that are allocated pursuant to the Employee Matters Agreement shall be governed by the Employee Matters Agreement, and, therefore, Taxes (including any Tax items, attributes or rights to receive any Tax Refunds (as defined in the Tax Matters Agreement)) and such assets shall not be treated as Assets.

(50) “ Assume ” shall have the meaning set forth in Section  2.2(c) .

(51) “ Audited Party ” shall have the meaning set forth in Section  5.1(c) .

(52) “ Board ” shall have the meaning set forth in the recitals hereto.

(53) “ Business ” shall mean (i) with respect to AgCo, the Agriculture Business, (ii) with respect to MatCo, the Materials Science Business or (iii) with respect to SpecCo, the Specialty Products Business.

(54) “ Business Day ” shall mean any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by Law to be closed in The City of New York.

(55) “ Business Entity ” shall mean any corporation, partnership, limited liability company, joint venture or other entity which may legally hold title to Assets.

(56) “ Cap ” shall have the meaning set forth in Section  6.2(j) .

(57) “ Cash and Cash Equivalents ” shall mean (i) cash and (ii) checks, certificates of deposit having a maturity of less than one year, money orders, marketable securities, money market funds, commercial paper, short-term instruments, funds in time and demand deposits or similar accounts, and any evidence of indebtedness issued or guaranteed by any Governmental Entity, minus the amount of any outbound checks, plus the amount of any deposits in transit.

(58) “ Change of Control ” shall mean, as applicable, the occurrence after the MatCo Distribution of any of the following: (A) the sale, conveyance, transfer or other disposition (however accomplished), in one or a series of related transactions, of all or substantially all of the assets of such party’s Group to a third Person that is not an Affiliate of such party prior to such transaction or the first of such related transactions; (B) the consolidation, merger or other business combination of such party with or into any other entity, immediately following which the stockholders of such party immediately prior to such transaction fail to own in the aggregate at least a majority of the voting power in the election of directors of all the outstanding voting securities of the surviving party in such consolidation, merger or business combination or of its ultimate publicly traded parent entity; (C) a transaction or series of transactions in which any Person or “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) acquires at least thirty-five percent (35%) of the outstanding voting securities of such party and effective control of such party (other than (I) a reincorporation, holding company merger or similar corporate transaction in which each of such party’s stockholders owns, immediately thereafter, interests in the new parent company in substantially the same percentage as such stockholder owned in such party immediately prior to such transaction, or (II) in connection with

 

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a transaction described in clause (B), which shall be governed by such clause (B)); or (D) a majority of the board of directors of such party ceasing to consist of individuals who have become directors as a result of being nominated or elected by a majority of such party’s directors. For the avoidance of doubt, the previous determination that a “Change of Control” has occurred shall not prejudice the determination as to whether any other subsequent events, on one or more occasions, meet the definition of “Change of Control.”

(59) “ Code ” shall have the meaning set forth in the recitals hereto.

(60) “ Collective Benefit Services ” shall have the meaning set forth in Section  9.7(a) .

(61) “ Commercial Insurance Policies ” shall mean all insurance policies of the Parties and their respective Subsidiaries, other than insurance policies issued by the Dow Insurer or any other captive insurer.

(62) “ Commercial Insurer ” shall mean the insuring entity issuing and/or subscribing to one or more Commercial Insurance Policies.

(63) “ Commercially Reasonable Expenditures ” shall have the meaning set forth in Section  8.11(g)(ii) .

(64) “ Commission ” shall mean the United States Securities and Exchange Commission.

(65) “ Confidential Information ” shall mean all non-public, confidential or proprietary Information concerning a Party and/or its Subsidiaries or with respect to AgCo, the Agriculture Business, any Agriculture Assets or any Agriculture Liabilities, or with respect to MatCo, the Materials Science Business, any Materials Science Asset or any Materials Science Liabilities, or with respect to SpecCo, the Specialty Products Business, any Specialty Products Assets or any Specialty Products Liabilities, which, prior to or following the Effective Time, has been disclosed by a Party or its Subsidiaries to another Party or its Subsidiaries, or otherwise has come into the possession of, the other, including pursuant to the access provisions of Sections 9.1 or 9.2 or any other provision of this Agreement, including any data or documentation resident, existing or otherwise provided in a database or in a storage medium, permanent or temporary, intended for confidential, proprietary and/or privileged use by a Party (except to the extent that such Information can be shown to have been (i) in the public domain or known to the public through no fault of the receiving Party or its Subsidiaries, (ii) lawfully acquired by the receiving Party or its Subsidiaries from other sources not known to be subject to confidentiality obligations with respect to such Confidential Information or (iii) independently developed by the receiving Party or its Affiliates after the applicable Relevant Time without reference to or use of any Confidential Information). As used herein, by example and without limitation, Confidential Information shall mean any information of a Party marked as confidential, proprietary and/or privileged.

(66) “ Consents ” shall mean any consents, waivers, notices, reports or other filings obtained, made or to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, approvals, authorizations obtained or to be obtained from, or approvals from, or notification requirements to, any Person including a Governmental Entity.

 

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(67) “ Contingent Claim Committee ” shall have the meaning set forth in Section  6.4(a) .

(68) “ Continuing Arrangements ” shall mean those arrangements set forth on Schedule 1.1(68) .

(69) “ Contract ” shall mean any agreement, contract, subcontract, obligation, note, indenture, instrument, option, lease, sublease, promise, arrangement, release, warranty, license, sublicense, insurance policy, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(70) “ Contract Manufacturing Agreements ” shall mean the Contract Manufacturing Agreements set forth on Schedule 1.1(70) .

(71) “ Contribution ” or “ Contributions ” shall mean the MatCo Spin Contribution or the AgCo Spin Contribution, individually or collectively, as the case may be.

(72) “ Conveyancing and Assumption Instruments ” shall mean, collectively, the various Contracts and other documents entered into prior to the Effective Time and to be entered into to effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by this Agreement and the Internal Reorganization, or otherwise relating to, arising out of or resulting from the Transfer of Assets and/or Assumption of Liabilities between members of two Groups, in such form or forms as the applicable parties thereto agree, which shall be on an “as is,” “where is,” and “with all faults” basis, and in the case of Conveyancing and Assumption Instruments relating to real property, subject to the further provisions of Section  2.7 .

(73) “ Corporate Risk Management Document ” shall mean any (a) litigation report, environmental, health and safety report, and ethics and compliance report (or equivalent report) provided to the board of directors (or any committee thereof) of DuPont or Dow since January 1, 2014, and (b) management representation letter and/or litigation representation letter provided to any current or former independent registered public accounting firm of DuPont or Dow since January 1, 2014.

(74) “ Corrective Action Performing Party ” shall have the meaning set forth in Section  8.11(g)(i) .

(75) “ Covered ” means, with respect to any Patent, in the absence of a license granted under an unexpired claim that has not been adjudicated, to be invalid or unenforceable by a final, binding decision of a court or other Governmental Entity of competent jurisdiction that is unappealable or unappealed within the time permitted for appeal of such Patent (or if such Patent is a patent application, a claim in such patent application if such patent application were to issue as a patent), the practice of the applicable invention or technology, or performance of the applicable process, would infringe such claim. For clarity, and by way of example, an issued Patent Covers a product if, in the absence of a license granted under such a claim of such Patent, making, using, selling, offering for sale, importing or exporting such product infringes such claim.

 

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(76) “ Credit Support Instruments ” shall mean any letters of credit, performance bonds, surety bonds, bankers acceptances, or other similar arrangements.

(77) “ Damages ” shall mean any loss, damage, injury, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including reasonable out of pocket attorneys’ or advisors’ fees), charge, cost (including reasonable costs of investigation) or expense of any nature, including any incidental, indirect, special, exemplary, punitive or consequential damages (including lost revenues or profits), and including amounts paid or payable to third parties in respect of any third-party claim for which indemnification hereunder is otherwise required.

(78) “ De Minimis Amount ” shall have the meaning set forth in Section  8.13(c)(i) .

(79) “ De Minimis Threshold ” shall have the meaning set forth in Section  8.13(a)(iii) .

(80) “ Decision on Interim Relief ” shall have the meaning set forth in Section  10.1(c)(viii) .

(81) “ Designated Ancillary Agreements ” shall mean the Employee Matters Agreement, the Intellectual Property Cross-License Agreements, the Transitional House Marks Trademark License Agreements, the Products Marks Trademark License Agreements, the Regulatory Transfer and Support Agreements and the Regulatory Cross License Agreements.

(82) “ Designated DDOB De Minimis Threshold ” shall have the meaning set forth in Section  8.13(b)(i) .

(83) “ Designated Dow DDOB Liabilities ” shall mean any Dow Discontinued and/or Divested Operations and Business Liabilities (other than Off-Site Environmental Liabilities) which arise out of or relate to the abandonment, closure, discontinuation or other cessation (other than from a sale, transfer or other conveyance) at any time prior to Measurement Date; provided , however , that any Dow Discontinued and/or Divested Operations and Business Liabilities set forth on Schedule 1.1(97) or otherwise constituting Materials Science Liabilities pursuant to any clause of the definition of “Materials Science Liability” (other than Section  1.1(198)(x)(a) or Section  1.1(198)(xi) ) shall not constitute a Designated Dow DDOB Liability.

(84) “ Designated DuPont DDOB Liabilities ” shall mean any DuPont Discontinued and/or Divested Operations and Business Liabilities (other than Off-Site Environmental Liabilities) which arise out of or relate to the abandonment, closure, discontinuation or other cessation (other than from a sale, transfer or other conveyance) at any time prior to Measurement Date; provided , however, that any DuPont Discontinued and/or Divested Operations and Business Liabilities set forth on Schedules 1.1(15) , 1.1(18) , 1.1(39) , 1.1(291), 1.1(293) and 1.1(310) or otherwise constituting Agriculture Liabilities pursuant to any clause of the definition of “Agriculture Liability” (other than Section  1.1(38)(ix)(a) or Section  1.1(38)(x) ) or Specialty Products Liabilities pursuant to any clause of the definition of “Specialty Products Liability” (other than Section  1.1(309)(viii)(a) or Section  1.1(309)(ix) ) shall not constitute a Designated DuPont DDOB Liability.

(85) “ Designated Managing Party ” shall have the meaning set forth in Section  6.2(c) .

 

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(86) “ Discontinued and/or Divested Operations and Businesses ” shall mean any (1)(v) company, (w) business, (x) business unit, (y) product line or (z) business operation operated or conducted, and (2) any site or plant (and in each case (clauses (1)(v) through (z) and (2)) any portion thereof) that was owned, leased, occupied or otherwise used by (or on behalf of) any member of any Group (or any predecessor thereto) or any former Subsidiary thereof (or for which any member of any Group has become liable other than to the extent related to the conduct of the Agriculture Business, Specialty Products Business and Materials Science Business) at any time prior to September 1, 2017 (but, in the case of clauses (i)(B) and (i)(C) in the definition of the Specialty Products Business, but not for the Dow Electronic Materials portion thereof, June 30, 2018) (such date, as applicable, the “ Measurement Date ”) and that was not owned, operated or conducted or, with respect to plants and sites, used by (or on behalf of) a member of a Group in the active conduct of the Agriculture Business, Specialty Products Business or Materials Science Business as of the Measurement Date, in each case, whether as a result of sale, transfer, conveyance or other disposition or abandonment, closure, discontinuation or other cessation (other than (i) any temporary cessation or closure set forth on Schedule 1.1(86) and any temporary cessation or closure of a site (or any portion thereof) that has been resolved by the placement of such site or portion thereof back into active use by the Group to which such Asset has been allocated pursuant to this Agreement (but in the case of Assets subject to an Intergroup Lease, by the Lessee Party) prior to the MatCo Distribution (as evidenced in writing prior to the MatCo Distribution) (or that was, prior to the Measurement Date, the subject of (1) a definitive agreement to be sold, transferred or otherwise conveyed to a third party that was subsequently consummated, or (2) an order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity of competent jurisdiction requiring a sale, transfer or other conveyance to a third party) of any (1) (v) company, (w) business, (x) business unit, (y) product line or (z) business operation operated or conducted and (2) any site or plant (and in each case (clauses (1)(v) through (z) and (2)) any portion thereof) and (ii) any Discontinued Closely Linked Product).

(87) “ Discontinued Buildings and Related Improvements ” shall have the meaning set forth in Section  8.12(a) .

(88) “ Discontinued Closely Linked Product ” shall mean any product that (i) was sold, manufactured or otherwise commercialized by (or on behalf of) any member of any Group (or any predecessor thereto) or any former Subsidiary thereof (or for which any member of any Group has become liable other than to the extent related to the conduct of the Agriculture Business, Specialty Products Business and Materials Science Business) at any time prior to the Measurement Date, (ii) was not sold, manufactured or otherwise commercialized by (or on behalf of) a member of a Group in the conduct of the Agriculture Business, Specialty Products Business or Materials Science Business as of the Measurement Date as a result of any abandonment, closure, discontinuation or other cessation (other than (x) from a sale, transfer, conveyance or other disposition and (y) any temporary cessation or closure set forth on Schedule 1.1(86) ) of such product, and (iii) with respect to which another product was sold, manufactured or otherwise commercialized in the conduct of the Agriculture Business, Specialty Products Business or Materials Science Business as of the Measurement Date that (as of the Measurement Date) was (A) identical in composition (other than immaterial differences), (B) sold in substantially similar end markets for substantially similar uses, (C) had the equivalent impact on the environment, health and safety (other than immaterial differences) and (D) had the equivalent

 

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risk profile for unintentional material damage to tangible property (other than immaterial differences); provided , however , that no product underlying any Dow Discontinued and/or Divested Operations and Business Liabilities set forth on Schedule 1.1(97) shall constitute a Discontinued Closely Linked Product, and no product to which any DuPont Discontinued and/or Divested Operations and Business Liabilities set forth on set forth on Schedules 1.1(15) , 1.1(18) , 1.1(39) , 1.1(291) , 1.1(293) and 1.1(310) relates (or from which it arose) shall constitute a Discontinued Closely Linked Product.

(89) “ Dispute ” shall have the meaning set forth in Section  10.1(a) .

(90) “ Dispute Notice ” shall mean (i) the General Dispute Notice, (ii) Non-Compete Dispute Notice (iii) the New Shared Matter Notice, (iv) the AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement Objection Notice, (v) the Managing Party Determination Notice, (vi) the Shared Historical DuPont Assets and Liabilities Notice, (vii) the Privilege Waiver Objection Notice or (viii) Indemnification Notice, as applicable.

(91) “ Distribution ” or “ Distributions ” shall mean the MatCo Distribution or the AgCo Distribution, individually or collectively, as the case may be.

(92) “ Distribution Date ” shall mean (a) the MatCo Distribution Date or (b) the AgCo Distribution Date, as applicable.

(93) “ Distribution Disclosure Documents ” shall mean any registration statement (including any registration statement on Form 10 and all exhibits thereto (including the Information Statement) or on Form S-8 related to securities to be offered under any employee benefit plan) and any current reports on Form 8-K filed or furnished with the Commission by MatCo in connection with the MatCo Distribution or AgCo in connection with the AgCo Distribution or by DowDuPont solely to the extent such documents relate to the MatCo Distribution or AgCo Distribution, but excluding the Financing Disclosure Documents.

(94) “ Dow ” shall mean The Dow Chemical Company, a Delaware corporation.

(95) “ Dow Captive Policies ” shall have the meaning set forth in Section  11.5 .

(96) “ Dow Corporate Contract ” shall have the meaning set forth in Section  1.1(194)(ii) .

(97) “ Dow Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all Liabilities to the extent arising out of or related to any Discontinued and/or Divested Operations and Businesses of any member (at any point in time) of Historical Dow (or any of their respective predecessors), including those set forth on Schedule 1.1(97) .

(98) “ Dow Insurer ” shall mean Dorinco Reinsurance Company and/or Dorintal Reinsurance Limited, as applicable, and any other insurer owned or controlled by the MatCo Group as of the MatCo Distribution, and their respective predecessors and successors. For the avoidance of doubt, Dow Insurer shall be considered a third party for the purposes of this Agreement, except for purposes of Sections 2.6 , 2.8 , 2.11 , 5.1 through 5.4 and 5.6 and Article VIII , Article IX , Article X and Article XII .

 

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(99) “ DowDuPont ” shall have the meaning set forth in the preamble.

(100) “ DowDuPont Common Stock ” shall mean the issued and outstanding shares of common stock, par value $0.01 per share, of DowDuPont.

(101) “ DuPont ” shall mean E. I. du Pont de Nemours and Company, a Delaware corporation.

(102) “ DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all Liabilities to the extent arising out of or related to any Discontinued and/or Divested Operations and Businesses of any member (at any point in time) of Historical DuPont (or any of their respective predecessors), including those set forth on Schedules 1.1(15) , 1.1(18) , 1.1(39) , 1.1(291), 1.1(293) and 1.1(310) .

(103) “ Effective Time ” shall mean 12:00 a.m., New York City Time on April 1, 2019.

(104) “ Emergency Arbitrator ” shall mean an emergency arbitrator appointed by the AAA in accordance with the AAA Rules, as specified in Section  10.1 .

(105) “ Employee Matters Agreement ” shall mean the Employee Matters Agreement effective as of April 1, 2019, by and among SpecCo, MatCo and AgCo.

(106) “ Employee Records ” shall have the meaning set forth in Section 1.15 of the Employee Matters Agreement.

(107) “ Engineering Models and Databases ” shall mean (a) physical property databases, (b) empirical or mathematical dynamic or steady state models of processes, equipment and/or reactions and databases containing data resulting from such models, (c) computations of equipment or unit operation operating conditions including predictive or operational behavior and (d) databases with historical operational data.

(108) “ Environmental Laws ” shall mean all Laws relating to pollution or protection of the environment or, as such relates to exposure to Hazardous Substances, to human health or safety, including Laws relating to the exposure to, or Release, threatened Release or the presence of Hazardous Substances, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, transport or handling of Hazardous Substances and all Laws with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances, and all Laws relating to endangered or threatened species of fish, wildlife and plants and damage to and the protection of natural resources.

(109) “ Environmental Liabilities ” shall mean any Liabilities, arising out of or resulting from any Environmental Law, Contract or agreement relating to the environment, Hazardous Substances or human exposure to Hazardous Substances, including (a) fines, penalties, judgments, awards, settlements, claims, demands, complaints, Damages, losses, costs or expenses, including fees and expenses of counsel, whether or not arising out of, relating to or in

 

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connection with any Actions, (b) costs of defense and other responses to any administrative or judicial action (including notices, claims, complaints, suits and other assertions of liability), (c) responsibility for any investigation, remediation, monitoring or cleanup costs, response costs, removal costs, injunctive relief, natural resource damages, and any other environmental compliance or remedial measures, and (d) costs and expenses relating to correcting violations of or non-compliance with applicable Environmental Laws.

(110) “ Environmental Permit ” shall mean any permit, license, approval or other authorization under any applicable Law or of any Governmental Entity relating to Environmental Laws or Hazardous Substances.

(111) “ Exchange Act ” shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time that reference is made thereto.

(112) “ Final Determination ” shall have the meaning set forth in the Tax Matters Agreement.

(113) “ Final Separation Date ” shall mean the AgCo Distribution Date; provided , that in the event that DowDuPont makes a public announcement that its Board has determined that the shares of AgCo shall not be distributed by DowDuPont to its stockholders, then the “ Final Separation Date ” shall be the MatCo Distribution Date.

(114) “ Financing Disclosure Documents ” shall mean any prospectus, offering memorandum, offering circular (including franchise offering circular or any similar disclosure statement) or similar disclosure document, whether or not filed with the Commission or any other Governmental Entity, which offers for sale or registers the Transfer or distribution of securities or indebtedness of DowDuPont.

(115) “ First Non-Compete Discussion Period ” shall have the meaning set forth in Section  5.6(i) .

(116) “ First Shared Historical DuPont Escalation Negotiation Period ” shall have the meaning set forth in Section  7.1(f) .

(117) “ Force Majeure Event ” shall mean, with respect to a Party, an event beyond the control of such Party (or any Person acting on its behalf), which by its nature could not have been foreseen by such Party (or such Person), or, if it could have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, pandemics, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources or distribution facilities.

(118) “ GAAP ” shall mean United States generally accepted accounting principles.

(119) “ General Dispute Notice ” shall have the meaning set forth in Section  10.1(b)(i) .

 

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(120) “ General Negotiation Period ” shall have the meaning set forth in Section  10.1(b)(i) .

(121) “ General Services Agreements ” shall mean the General Services Agreements (i) effective as of April 1, 2019, by and between a member of the MatCo Group and a member of the AgCo Group, (ii) effective as of April 1, 2019, by and between a member of the MatCo Group and a member of the SpecCo Group and (iii) effective as of the date of the AgCo Distribution, by and between a member of the AgCo Group and a member of the SpecCo Group.

(122) “ Global Product Sales Agreements ” shall mean the Global Product Sales Agreements set forth on Schedule 1.1(122) .

(123) “ Governmental Entity ” shall mean any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.

(124) “ Ground Leases ” shall mean the Ground Leases effective as of April 1, 2019 (other than those between members of the AgCo Group, on the one hand, and members of the SpecCo Group, on the other hand, which are effective as of the date of the AgCo Distribution), by and between members of each of the SpecCo Group, the MatCo Group and/or the AgCo Group, as applicable and as listed on Schedule 1.1(124) .

(125) “ Group ” shall mean (i) with respect to SpecCo, the SpecCo Group, (ii) with respect to MatCo, the MatCo Group and (iii) with respect to AgCo, the AgCo Group.

(126) “ Guaranty Release ” shall have the meaning set forth in Section  2.10(b) .

(127) “ Hazardous Substances ” shall mean (a) any substances defined, listed, classified or regulated as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “pollutants,” “solid wastes,” “contaminants,” “radioactive materials,” “petroleum,” “oils” or designations of similar import under any Environmental Law, or (b) any other chemical, material or substance that is regulated or for which liability can be imposed under any Environmental Law.

(128) “ Historical Dow ” shall mean Dow and its past and then-current Subsidiaries as of immediately prior to Tower Realignment Time.

(129) “ Historical Dow Counsel ” shall have the meaning set forth in Section  9.8(b) .

(130) “ Historical Dow Discontinued Buildings and Related Improvements ” shall have the meaning set forth in Section  8.12(a) .

(131) “ Historical Dow Intergroup Accounts ” shall have the meaning set forth in Section  2.3(a) .

 

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(132) “ Historical Dow Knowledge Group ” shall mean the individuals specified on Schedule 1.1(132) .

(133) “ Historical Dow Selected Intercompany Accounts ” shall have the meaning set forth in Section  2.3(b) .

(134) “ Historical DuPont ” shall mean DuPont and its past and then-current Subsidiaries as of immediately prior to Tower Realignment Time.

(135) “ Historical DuPont Counsel ” shall have the meaning set forth in Section  9.8(a) .

(136) “ Historical DuPont Discontinued Buildings and Related Improvements ” shall have the meaning set forth in Section  8.12(a) .

(137) “ Historical DuPont Intergroup Accounts ” shall have the meaning set forth in Section  2.3(a) .

(138) “ Historical DuPont Knowledge Group ” shall mean the AgCo Knowledge Group and the SpecCo Knowledge Group.

(139) “ Historical DuPont Selected Intercompany Accounts ” shall have the meaning set forth in Section  2.3(b) .

(140) “ Historical DuPont Specified Governmental Action ” shall have the meaning set forth in Section  7.1(c) .

(141) “ Historical DuPont Trade Payables ” shall have the meaning set forth in Section  1.1(38)(xiv)(b) .

(142) “ Incremental Costs ” shall have the meaning set forth in Section  6.2(j) .

(143) “ Indebtedness ” shall mean, with respect to any Person, (i) the principal value, prepayment and redemption premiums and penalties and other breakage costs (if any), unpaid fees and other monetary obligations (including interest) in respect of any indebtedness for borrowed money, whether short term (including overdrawn bank accounts) or long term, and all obligations evidenced by bonds, debentures, notes, other debt securities or similar instruments, (ii) any indebtedness arising under any capital leases (excluding, for the avoidance of doubt, any real estate leases), whether short term or long term, (iii) all liabilities secured by any Security Interest on any assets of such Person, (iv) all liabilities under any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement or other similar agreement designed to protect such Person against fluctuations in interest rates, (v) all interest bearing indebtedness for the deferred purchase price of property or services, (vi) all liabilities under any Credit Support Instruments, (vii) all interest, fees and other expenses owed with respect to indebtedness described in the foregoing clauses (i) through (vi), and (viii) without duplication, all guarantees of indebtedness referred to in the foregoing clauses (i) through (vii).

 

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(144) “ Indemnifiable Loss ” and “ Indemnifiable Losses ” shall mean any and all Damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder).

(145) “ Indemnification Notice ” shall mean any notice delivered to the Indemnifying Party by the Indemnitee pursuant to Section  8.5(a) or Section  8.6 .

(146) “ Indemnifying Party ” shall have the meaning set forth in Section  8.5(a) .

(147) “ Indemnitee ” shall have the meaning set forth in Section  8.5(a) .

(148) “ Indemnity Payment ” shall have the meaning set forth in Section  8.9(a) .

(149) “ Industrial Purpose ” shall mean any of the following purposes: (a) manufacturing or fabrication of any nature (whether or not with respect to chemicals), (b) distribution, sale or use of chemicals or chemical products, (c) treatment, storage or disposal of hazardous waste or industrial waste or wastewater, (d) production, refining or sale of petroleum or its products (or any component of such activities), (e) servicing, refueling or maintenance of motorized vehicles (or any component of such activities), or (f) research in respect of any of the activities described in the foregoing clauses (a) through (e); provided , however , that, for the avoidance of doubt, any of the following purposes shall not be considered an Industrial Purpose: (i) office use (including use of custodial chemicals or office or consumer chemicals in a manner consistent with normal office activities), or (ii) agricultural use (including any use of chemicals or fuels in a manner consistent with normal agricultural activities, but excluding agricultural research involving experimental products).

(150) “ Industrial Real Property Restrictions ” shall have the meaning set forth in Section  2.7(b) .

(151) “ Information ” shall mean information, content, and data in written, oral, electronic, computerized, digital or other tangible or intangible media, including (i) books and records, whether accounting, legal or otherwise; ledgers, studies, reports, surveys, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples and flow charts; marketing plans, customer names and information (including prospects); technical information, including such information relating to the design, operation, maintenance, testing, test results, development, and manufacture of any Party’s or its Group’s product or facilities (including product or facility specifications and documentation; engineering, design, and manufacturing drawings, diagrams, layouts, maps and illustrations; formulations and material specifications; laboratory studies and benchmark tests; quality assurance policies procedures and specifications; maintenance and inspection procedures and records; evaluation and/validation studies; process control and/or shop-floor control strategy, logic or algorithms; assembly code, Software, firmware, programming data, databases, and all information referred to in the same); product costs, margins and pricing; product marketing studies and strategies; product stewardship and

 

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safety; all other Know-How related to research, engineering, development and manufacturing; communications, correspondence, materials, product literature, artwork, files and documents, (ii) information contained in Patents and other Know-How; and (iii) financial and business information, including earnings reports and forecasts, macro-economic reports and forecasts, all cost information (including supplier records and lists), sales and pricing data, business plans, market evaluations, surveys, credit-related information, and other such information as may be needed for reasonable compliance with reporting, disclosure, filing or other requirements, including under applicable securities laws or regulations of securities exchanges.

(152) “ Information Statement ” shall mean the (a) AgCo Information Statement for AgCo and/or the (b) MatCo Information Statement for MatCo, as applicable.

(153) “ Insurance Proceeds ” shall mean those monies (i) received by an insured from an insurer (including the Dow Insurer or any other captive insurer of any Group) or (ii) paid by an insurer (including the Dow Insurer or any other captive insurer of any Group) on behalf of an insured, in either case net of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, or cost of reserve paid or held by or for the benefit of such insured.

(154) “ Intellectual Property ” shall mean all intellectual property and industrial property rights of any kind or nature, including all U.S. and foreign (i) patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, priority rights and extensions thereof (collectively, “ Patents ”), (ii) trademarks, service marks, corporate names, trade names, Internet domain names, social media accounts or handles, logos, slogans, trade dress and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “ Trademarks ”), (iii) copyrights and copyrightable subject matter (collectively, “ Copyrights ”), (iv) rights of privacy and publicity, (v) moral rights and rights of attribution and integrity, (vi) trade secrets and rights in all other confidential and proprietary information, including know-how, inventions, algorithms, logic, standard operating conditions and procedures, proprietary processes, formulae, data, databases and other compilations of data, drawings, models and methodologies, including confidential information set forth in laboratory notebooks, laboratory reports, Plant Operating Documents, and Engineering Models and Databases (except to the extent such information is Covered by any Patents), in each case of the foregoing, to the extent confidential and proprietary (collectively, “ Know-How ”), (vii) all applications and registrations for the foregoing and (viii) all rights and remedies against past, present, and future infringement, misappropriation, or other violation of the foregoing, in each case (with respect to the foregoing clauses (i) through (viii)), excluding all IT Assets.

(155) “ Intellectual Property Cross-License Agreements ” shall mean the Intellectual Property Cross-License Agreements, (i) effective as of the date of the AgCo Distribution, by and among members of the AgCo Group and members of the SpecCo Group, (ii) effective as of April 1, 2019, by and among members of the AgCo Group and members of the MatCo Group and (iii) effective as of April 1, 2019, by and among members of the SpecCo Group and members of the MatCo Group.

(156) “ Intergroup Accounts ” shall have the meaning set forth in Section  2.3(a) .

 

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(157) “ Intergroup Leases ” shall mean the Ground Leases and the Space Leases.

(158) “ Interim Relief ” shall have the meaning set forth in Section  10.1(c)(viii)

(159) “ Internal Reorganization ” shall mean the allocation and transfer or assignment of Assets and Liabilities, including by means of the Conveyancing and Assumption Instruments, resulting in (i) the AgCo Group owning and operating the Agriculture Business and Agriculture Assets and assuming the Agriculture Liabilities, (ii) the MatCo Group owning and operating the Materials Science Business and Materials Science Assets and assuming the Materials Science Liabilities and (iii) the SpecCo Group owning and operating the Specialty Products Business and the Specialty Products Assets and assuming the Specialty Products Liabilities, in each case, clauses (i)–(iii), as described in the Steps Plan.

(160) “ Inventor Remuneration ” means any employee inventor consideration, remuneration or compensation that is required under applicable law for work-for-hire inventions acquired by the employer. Examples may include employee inventions arising in Germany, France, China, Japan, and Korea.

(161) “ IT Assets ” shall mean all (i) Software (including any Copyrights therein), computer systems, public Internet protocol address blocks, telecommunications equipment and other information technology infrastructure (including servers and server equipment, computers (including laptop computers), computer equipment and hardware, printers, telephones (including cell phones and smartphones) and telephone equipment (including headsets), network devices and equipment (including routers, wireless access points, switches and hubs), fiber and backbone cabling and other telecommunications wiring, demarcation points and rooms, computer rooms and telecommunications closets), (ii) documentation, reference, resource and training materials to the extent relating thereto, and (iii) Contracts to the extent relating to any of the foregoing clauses (i) and (ii) (including Software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, public Internet protocol address block agreements, website hosting agreements, Software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements and telecommunications agreements); provided , that, notwithstanding the foregoing, IT Assets shall exclude Know-How contained or stored in any of the items described in the foregoing subsections (i) through (iii) and Patents that claim any such Know-How.

(162) “ Joint SpecCo/AgCo Representative ” shall have the meaning set forth in Section  6.4(a) .

(163) “ Law ” shall mean any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, constitution, law, ordinance, regulation, rule, code, income tax treaty, order, requirement or rule of law (including common law) or other binding directives promulgated, issued, entered into or taken by any Governmental Entity.

(164) “ Liabilities ” shall mean any and all Indebtedness, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, reserved or unreserved, or determined or

 

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determinable, including those arising under any Law (including Environmental Law), Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity and those arising under any Contract or any fines, Damages or equitable relief which may be imposed and including all costs and expenses related thereto. Except as otherwise specifically set forth herein or in the Tax Matters Agreement or Employee Matters Agreement, the rights and obligations of the Parties with respect to Taxes and with respect to liabilities of the nature described in the preceding sentence of this definition that are allocated pursuant to the Employee Matters Agreement (for the avoidance of doubt, the Employee Matters Agreement does not allocate any Liabilities arising out of, related to, or resulting from any Discontinued and/or Divested Business or Operation (except for Liabilities allocated pursuant to Section 1.10(a)-(c) of the Employee Matters Agreement and Section 2.07 of the Employee Matters Agreement)) (“ Employee Related Liabilities ”) shall be governed by the Tax Matters Agreement and Employee Matters Agreement, respectively, and, therefore, Taxes and Employee Related Liabilities shall not be treated as Liabilities governed by this Agreement other than for purposes of indemnification related to the Distribution Disclosure Documents.

(165) “ Liable Party ” shall have the meaning set forth in Section  2.9(b) .

(166) “ Litigation Hold ” shall have the meaning set forth in Section  9.1(b) .

(167) “ Managing Party ” shall have the meaning set forth in Section  6.2(a) and Section  7.1(a) .

(168) “ Managing Party Claimant ” shall have the meaning set forth in Section  6.2(c) .

(169) “ Managing Party Determination Notice ” shall have the meaning set forth in Section  7.2(c)(i) .

(170) “ Managing Party First Discussion ” shall have the meaning set forth in Section  6.2(c) .

(171) “ Managing Party Negotiation Period ” shall have the meaning set forth in Section  7.2(c)(i) .

(172) “ Managing Party Notice ” shall have the meaning set forth in Section  6.2(c) .

(173) “ Manufacturing Product Agreements ” shall mean the Manufacturing Product Agreements set forth on Schedule 1.1(173) .

(174) “ MatCo ” shall have the meaning set forth in the preamble.

(175) “ MatCo Common Stock ” shall have the meaning set forth in the recitals hereto.

(176) “ MatCo CSIs ” shall have the meaning set forth in Section  2.10(d) .

(177) “ MatCo Distribution ” shall mean the distribution on the MatCo Distribution Date to holders of shares of DowDuPont Common Stock as of the MatCo Distribution Record Date of the MatCo Common Stock on the basis of one (1) share of MatCo Common Stock for every three (3) outstanding shares of DowDuPont Common Stock.

 

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(178) “ MatCo Distribution Date ” shall mean April 1, 2019.

(179) “ MatCo Distribution Record Date ” shall mean March 21, 2019.

(180) “ MatCo Group ” shall mean MatCo and each Person (other than any member of the SpecCo Group or the AgCo Group) that is a direct or indirect Subsidiary of MatCo immediately after the Tower Realignment Time, and each Person that becomes a Subsidiary of MatCo after the Tower Realignment Time, which, for the avoidance of doubt, shall include those Persons identified as such on Schedule 1.1(180) (and shall not include the Persons on Schedule 1.1(13) or Schedule 1.1(288) ).

(181) “ MatCo Group DuPont Corporate Contracts ” shall have the meaning set forth in Section  1.1(311) .

(182) “ MatCo Indemnitees ” shall mean each member of the MatCo Group and each of their Affiliates from and after the Effective Time and each member of the MatCo Group’s and their respective Affiliates’ respective current, former and future directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(183) “ MatCo Information Statement ” shall mean the Information Statement attached as an exhibit to the Materials Science Form 10 sent to the holders of shares of DowDuPont Common Stock in connection with the MatCo Distribution, including any amendment or supplement thereto.

(184) “ MatCo Knowledge Group ” shall mean the individuals specified on Schedule 1.1(184) .

(185) “ MatCo Liability Policies ” shall have the meaning set forth in Section  11.2(d) .

(186) “ MatCo Non-Compete Acquirers ” shall have the meaning set forth in Section  5.6(c) .

(187) “ MatCo Non-Compete Target ” shall have the meaning set forth in Section  5.6(b)(i) .

(188) “ MatCo Prohibited Activities ” shall have the meaning set forth in Section  5.6(a) .

(189) “ MatCo Representative ” shall have the meaning set forth in Section  6.4(a) .

(190) “ MatCo Spin Contribution ” shall mean any contribution to MatCo by DowDuPont in connection with, or in anticipation of, the MatCo Distribution.

(191) “ Material Impairment ” shall have the meaning set forth in Section  6.4(c)(iii) .

 

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(192) “ Materials Science Assets ” shall mean any and all right, title and interest in and to the following Assets of (x) any member of the MatCo Group at the time of the MatCo Distribution, (y) any member of the AgCo Group at the time of the MatCo Distribution, and (z) any member of the SpecCo Group at the time of the MatCo Distribution (provided, however, that Materials Science Assets shall not include Tax Assets (as defined in the Tax Matters Agreement), which shall be governed by the Tax Matters Agreement, or Assets allocated pursuant to the Employee Matters Agreement, which shall be governed thereby):

(i) (A) all interests in the capital stock of, or any other equity interests in the members of the MatCo Group (other than MatCo), including those set forth on Schedule 1.1(180) , (B) all interests in the capital stock of, or any other equity interests in the Persons set forth on Schedule 1.1(192)(i)(B) , and (C) the capital stock and other equity interests set forth on Schedule 1.1(192)(i)(C) of certain other Persons and, in each case (clauses (A)-(C)), any and all rights related thereto;

(ii) the Assets set forth on Schedule 1.1(192)(ii) ;

(iii) any and all rights and interests of the MatCo Group under this Agreement;

(iv) (A) all rights, title and interest in and to the owned real property set forth on Schedule 1.1(192)(iv)(A) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(192)(iv)(A) under the heading “Other Parties in Possession”) (the “ Materials Science Specified Owned Real Property ”) and (B) all rights, title and interest in, and to and under the leases or subleases of the real property set forth on Schedule 1.1(192)(iv)(B) , including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(192)(iv)(B) under the heading “Other Parties in Possession”) (the “ Materials Science Specified Leased Real Property ”);

(v) any and all Materials Science Shared Contracts; provided ; however , that any such Materials Science Shared Contracts shall be subject to Section  2.2(d) ;

 

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(vi) (A) the Patents and Patent applications and registrations set forth on Schedule 1.1(192)(vi)(A) , (B)(I) the Dow name and any and all Dow brands, related Trademarks and related Trademark applications and registrations, including those set forth on Schedule 1.1(192)(vi)(B)(I) , and any and all derivations, abbreviations, translations, localizations and other variations of any of the foregoing and any confusingly similar Trademark and Trademark application and registration and (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(192)(vi)(B)(II) , (C) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(192)(vi)(C) and (D) the Know-How set forth on Schedule 1.1(192)(vi)(D) ;

(vii) any and all Assets in respect of accruals, counterclaims, insurance claims, rights to coverage under applicable insurance policies, warranties, contractual indemnities, control rights and other rights similar to the foregoing, in each case, to the extent related to any Materials Science Liability, including those set forth on Schedule 1.1(192)(vii) ;

(viii) the IT Assets set forth on Schedule 1.1(192)(viii) ;

(ix) all Materials Science Contracts;

(x) other than Intellectual Property and IT Assets, any and all (a) Information to the extent related to any Materials Science Asset or Materials Science Liability and (b) corporate or similar legal entity books and records of any Person described in clause (i) of this definition of Materials Science Assets;

(xi) the Applicable Materials Science Percentage of any Specified DowDuPont Shared Asset (clauses (i)–(xi), the “ Specified Materials Science Assets ”);

(xii) unless constituting a Specified Agriculture Asset or a Specified Specialty Products Asset under clauses (i)–(xi) of the definitions thereof:

(a) any and all rights, title and interest in, and to, any Asset (excluding IT Assets and excluding Intellectual Property) owned by Historical Dow that is not related to any Business (other than in a de minimis respect) (e.g. corporate or enterprise-wide Assets), including those set forth on Schedule 1.1(192)(xii)(a) ;

(b) all Intellectual Property owned by Historical Dow that is not related to any Business (other than in a de minimis respect), including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(192)(xii)(b)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(192)(xii)(b)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(192)(xii)(b)(III) and (IV) the Know-How set forth on Schedule 1.1(192)(xii)(b)(IV) ;

 

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(c) (I) subject to Section  3.5 , all Cash and Cash Equivalents, notes, interest receivables and other financial assets owned by any member of the MatCo Group (other than any such Cash and Cash Equivalents, notes, interest receivables and other financial assets constituting Agriculture Factoring Proceeds or Specialty Products Factoring Proceeds (other than the Brazil and Argentina Factoring Proceeds)) (including, for the avoidance of doubt, the Brazil and Argentina Factoring Proceeds) and (II) all derivative instruments of Historical Dow;

(d) (I) all accounts and notes receivable to the extent related to the Materials Science Business and any proceeds from the factoring of any such accounts receivable with a payment date on or after the MatCo Distribution (“ Materials Science Factoring Proceeds ”) ( provided , however , that any such accounts receivable represented by an invoice of less than $1,000,000 shall not constitute Materials Science Assets pursuant to this clause (d) if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Agriculture Business or the Specialty Products Business), and (II) all accounts receivable (other than those not related to any Business in more than a de minimis respect) represented by an invoice of less than $1,000,000 if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Materials Science Business;

(e) all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items, in each case to the extent they are used or held for use in, or arise out of, the operation or conduct of (I) the Materials Science Business (including, for the avoidance of doubt, such portion of any credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items of the AgCo Group or SpecCo Group to the extent they are used or held for use in, or arise out of, the operation or conduct of the Materials Science Business) and/or (II) Historical Dow to the extent such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items are not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(192)(xii)(e)(II) ;

(f) except for furniture, all tangible personal property and interests therein (including machinery, tools, equipment and vehicles), in each case, that is not related to any Business (other than in a de minimis respect) (I) that is set forth on Schedule 1.1(192)(xii)(f) or (II) for which the relevant historical use of such Asset was at any Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property or Materials Science Real Property, other than (1) at any portion leased or subleased by any member of the AgCo Group or SpecCo Group pursuant to an Intergroup Lease and (2) those set forth on Schedule 1.1(31)(xii)(g) or Schedule 1.1(303)(xii)(g) ;

(g) all furniture that is not related to any Business (other than in a de minimis respect) to the extent that the relevant historical use of such furniture was at (I) any Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property (except as provided pursuant to the terms of an Intergroup Lease or lease with any Person other than the Parties and their respective Group members and Affiliates) or Materials Science Real Property other than those set forth on Schedule 1.1(31)(xii)(h) or Schedule 1.1(303)(xii)(h) or (II) any site set forth on Schedule 1.1(192)(xii)(g) ;

 

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(h) any and all Information of Historical Dow (other than (x) Intellectual Property, (y) Information described in clause (xii) of the definition of “ Agriculture Assets ” and clause (xii) of the definition of “ Specialty Products Assets ” and (z) IT Assets) that is not related to any Business (other than in a de minimis respect), including Information set forth on Schedule 1.1(192)(xii)(h) ; and

(i) all rights, claims, causes of action and credits to the extent relating to any Materials Science Asset that do not relate to any Business (other than in a de minimis respect) and do not relate to any Agriculture Liability or Specialty Products Liability (other than in a de minimis respect), including those arising under any guaranty, warranty, indemnity, right of recovery, right of set-off or similar right, including those set forth on Schedule 1.1(192)(xii)(i) ;

(xiii) any and all Assets Related to the Materials Science Business, including in the following categories, but, in each case, excluding IT Assets, the Specified Agriculture Assets, the Specified Specialty Products Assets and the Assets described in clause (xii) of each of the definitions of Agriculture Assets, Materials Science Assets and Specialty Products Assets:

(a) (1) all rights, title and interest in and to the owned real property Related to the Materials Science Business, including those set forth on Schedule 1.1(192)(xiii)(a)(1) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(192)(xiii)(a)(1) under the heading “Other Parties in Possession”) and (2) all rights, title and interest in, and to and under the leases or subleases of the real property Related to the Materials Science Business, including those set forth on Schedule 1.1(192)(xiii)(a)(2) , including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all

 

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easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(192)(xiii)(a)(2) under the heading “Other Parties in Possession”) (the “ Materials Science Real Property ”);

(b) except for IT Assets and MatCo Inventory, any and all tangible personal property and interests therein, including machinery, furniture, tools, equipment, vehicles, in each case that are Related to the Materials Science Business, including those set forth on Schedule 1.1(192)(xiii)(b) ;

(c) any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging, finished goods and products and other inventories, including those set forth on Schedule 1.1(192)(xiii)(c)(i) , (I) related to, or held for the benefit of, the Materials Science Business and not related (other than in a de minimis respect) to any other Business, (II) held at a site subject to a Manufacturing Product Agreement and allocated to the MatCo Group as set forth on Schedule 1.1(192)(xiii)(c)(ii) , (III) related to the Materials Science Business (other than in a de minimis respect) and held at any Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property or Materials Science Real Property (unless at a portion of such site leased to a different Group pursuant to an Intergroup Lease) that is not subject to any Manufacturing Product Agreement, (IV) Related to the Materials Science Business, held at any Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property, Agriculture Real Property, Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property, other than any portion thereof leased by the MatCo Group pursuant to an Intergroup Lease (other than those subject to any Manufacturing Product Agreement), and not related (other than in a de minimis respect) to the Business of the Group to which such real property was allocated, and (V) Related to the Materials Science Business and not held at a real property constituting Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property, Agriculture Real Property, Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property, Materials Science Real Property, Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property (the “ MatCo Inventory ”) (it being understood and agreed that any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging and finished goods referred to under clause (II) or (III) shall constitute an Asset Related to the Materials Science Business);

(d) all Intellectual Property Related to the Materials Science Business, including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(192)(xiii)(d)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(192)(xiii)(d)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(192)(xiii)(d)(III) and (IV) the Know-How set forth on Schedule 1.1(192)(xiii)(d)(IV) ;

 

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(e) any and all Consents, registrations and Regulatory Data, in each case, that is Related to the Materials Science Business, including those set forth on Schedule 1.1(192)(xiii)(e) ;

(f) any and all Information (other than Intellectual Property and IT Assets) that is Related to the Materials Science Business; and

(g) any and all interests in the capital stock of, or other equity interests in, any Person that is not a member of the MatCo Group, SpecCo Group or AgCo Group that is Related to the Materials Science Business, including those set forth on Schedule 1.1(192)(xiii)(g) .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Agriculture Assets and Specialty Products Assets, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Materials Science Asset listed on Schedules 1.1(180) , 1.1(192)(i)(B) , 1.1(192)(i)(C) , 1.1(192)(ii) , 1.1(192)(iv)(A) and (B) (except to the extent otherwise set forth on Schedules 1.1(192)(iv)(A) and (B)  under the heading “Other Parties in Possession”), 1.1(192)(vi)(A) , (B)(I) , (B)(II) , (C) and (D) , 1.1(192)(vii) , 1.1(192)(viii) and 1.1(192)(xiii)(c)(ii) (to the extent allocated to MatCo) constitutes a Materials Science Asset, (ii) any Contract listed on Schedule 1.1(194) constitutes a Materials Science Asset, (iii) any Shared Contract listed on Schedule 1.1(199) constitutes a Materials Science Asset, (iv) (a) any Asset listed on Schedule 1.1(192)(xii)(a) shall give rise to a rebuttable presumption in favor of MatCo that such Asset is owned by Historical Dow and is not related to any Business (other than in a de minimis respect), (b) any Asset listed on Schedules 1.1(192)(xii)(b)(I) , (II) , (III) and (IV)  shall give rise to a rebuttable presumption in favor of MatCo that such Asset is not related to any Business (other than in a de minimis respect) (c) any Asset listed on Schedule 1.1(192)(xii)(e)(II) shall give rise to a rebuttable presumption in favor of MatCo that such Asset is used or held for use in, or arises out of, the operation or conduct of Historical Dow and is not related to any Business (other than in a de minimis respect), (d) any Asset listed on Schedule 1.1(192)(xii)(f) shall give rise to a rebuttable presumption in favor of MatCo that such Asset is not related to any Business (other than in a de minimis respect), (e) any furniture at any site set forth on Schedule 1.1(192)(xii)(g) shall give rise to a rebuttable presumption in favor of MatCo that such furniture is not related to any Business (other than in a de minimis respect), (f) any Asset listed on Schedule 1.1(192)(xii)(h) shall give rise to a rebuttable presumption in favor of MatCo that such Asset of Historical Dow and is not related to any Business (other than in a de minimis respect) and (g) any Asset listed on Schedule 1.1(192)(xii)(i) shall give rise to a rebuttable presumption in favor of MatCo that such Asset is not related to any Business (other than in a de minimis respect) and is not related to any Agriculture Liability or Specialty Products Liability (other than in a de minimis respect), and (v) any Asset listed on any of the Schedules described in Section  1.1(192)(xiii) (other than Schedule 1.1(192)(xiii)(c)(ii) and, in case of Schedules 1.1(192)(xiii)(a)(1) and (2) , except to the extent otherwise set forth on Schedules 1.1(192)(xiii)(a)(1) and (2)  under the heading “Other Parties in Possession”) shall give rise to a rebuttable presumption in favor of MatCo that such Asset is Related to the Materials Science Business. Notwithstanding anything to the contrary herein, this Agreement and the Ancillary Agreements do not purport to transfer ownership of any of the Parties’ insurance policies, and any assignment of rights to coverage under such insurance policies is governed by Article XI herein.

 

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(193) “ Materials Science Business ” shall mean (i) (A) Dow Consumer Solutions (including Dow Corning), Dow Automotive Solutions (reflected in Dow Consumer Solutions), Dow Infrastructure Solutions (including Dow Corning), Dow Performance Materials and Chemicals, Dow Performance Plastics, (B) in each case, all portions of the following business as conducted on December 11, 2015, August 31, 2017 and/or prior to the MatCo Distribution Date, DuPont Performance Materials, including the ethylene cracker and Ethylene Copolymers (ECP), but excluding DuPont Performance Polymers, (ii) all other businesses of Historical Dow as of December 11, 2015 (other than those described in clauses (i), (iii) or (iv) of the definition of “ Agriculture Business ” or clauses (i), (ii) or (iii) of the definition of “ Specialty Products Business ”), (iii) any other business conducted primarily through the use of the Materials Science Assets prior to the Relevant Time (other than that described in clause (i) of the definition of “ Agriculture Business ” and clause (i) of the definition of “ Specialty Products Business ”) and (iv) the businesses and operations of Business Entities acquired or established by or for MatCo or any of its Subsidiaries after the date of this Agreement (other than that described in clause (i) of the definition of “ Agriculture Business ” and clause (i) of the definition of “ Specialty Products Business ”). For the avoidance of doubt, (x) any businesses conducted within those described in clause (i)(B) as of December 11, 2015 or August 31, 2017, shall constitute part of the Materials Science Business irrespective of whether conducted through different segments or business units of DuPont after either or both of such times and (y) the Materials Science Business includes the businesses and operations set forth on Schedule 1.1(193) .

(194) “ Materials Science Contracts ” shall mean Contracts to which DowDuPont or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of their respective Assets is bound, whether or not in writing, which fall within any of the following categories:

(i) any and all Contracts that relate exclusively to the Materials Science Business, the Materials Science Assets and/or the Materials Science Liabilities and are not related in any respect (other than in a de minimis respect) to any other Business, any Agriculture Asset, any Specialty Products Asset, any Agriculture Liability or any Specialty Products Liability, including those set forth on Schedule 1.1(194)(i) ; and

(ii) any and all Contracts to which Historical Dow or any of its Subsidiaries was a party as of the MatCo Distribution Date (and any amendments, extensions or replacements thereof) that are not related in any respect (other than in a de minimis respect) to any Business, including those set forth on Schedule 1.1(194)(ii) (the “ Dow Corporate Contract ”).

(195) “ Materials Science Environmental Liabilities ” shall mean the Liabilities described in clauses (x) and (xvi)(c) of the definition of Materials Science Liabilities.

(196) “ Materials Science Form 10 ” shall mean the registration statement on Form 10 filed by MatCo with the Commission in connection with the MatCo Distribution.

 

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(197) “ Materials Science Known Undisclosed Liabilities ” shall mean any Liability (or Liabilities arising from the same or substantially similar facts underlying such Liability) (other than ordinary course trade payables and ordinary course commercial obligations, in each case incurred on or after the Measurement Date) of Historical DuPont (i) that is Related to the Materials Science Business but is not a Specified Materials Science Liability or described in clauses (xiv)-(xv) of the definition of Materials Science Liabilities, and (ii) (a) for which a member of Historical DuPont (x) has recorded an accrual prior to the MatCo Distribution (other than actual accruals by a member of Historical DuPont recorded in the manner described on Schedule 1.1(197)(ii)(a)  (1) as of or prior to December 31, 2018 or (2) in the ordinary course of business after December 31, 2018 and prior to the MatCo Distribution (the amount of such accrual for a particular Liability or Liabilities arising from the same or substantially similar facts underlying such Liability, the “ Materials Science Accrued Amount ”)), or (y) (other than the Materials Science Accrued Amount therefor, if any) has not recorded an accrual, but in accordance with GAAP was required to have recorded an accrual, prior to the MatCo Distribution, (b) that is described in any Corporate Risk Management Document of DuPont (but not the Materials Science Accrued Amount therefor, if any), (c) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical DuPont Knowledge Group, Historical DuPont is (or based on the actual knowledge (as of the MatCo Distribution Date) of the Historical DuPont Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence (but not the Materials Science Accrued Amount therefor, if any), or (d) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical DuPont Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date (but not the Materials Science Accrued Amount therefor, if any); provided , however , that Materials Science Known Undisclosed Liabilities shall not include any such Liability (A) that has been disclosed (or for which the facts and circumstances underlying such Liability have been disclosed) on Schedule 1.1(197)(A) or on any of the Schedules described in Section  1.1(198) , (B) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the MatCo Knowledge Group, Historical DuPont is (or based on the actual knowledge (as of the MatCo Distribution Date) of the MatCo Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence, or (C) to the actual knowledge (as of the MatCo Distribution Date) of any member of the MatCo Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date; provided , further , that any Liability that would constitute a Materials Science Known Undisclosed Liability but in respect of which (or in respect of a Liability arising from the same or substantially similar facts) an Indemnification Notice has not been provided on or prior to the date that is the third (3 rd ) anniversary of the MatCo Distribution Date shall be deemed to not constitute a Materials Science Known Undisclosed Liability. For the avoidance of doubt, Materials Science Known Undisclosed Liabilities shall exclude the Materials Science Accrued Amount therefor (if any), and if the actual aggregate amount of Indemnifiable Losses resulting from a Liability exceeds the applicable Materials Science Accrued Amount therefor (if any) (the amount of such excess, the “ MatCo Unaccrued Portion ”), whether such Liability constitutes a Materials Science Known

 

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Undisclosed Liability pursuant to clauses (ii)(a)(y) or (ii)(b) – (ii)(d) of this definition and whether such Liability does not constitute a Materials Science Known Undisclosed Liability pursuant to clauses (A)-(C) of the proviso to this definition shall be determined based on the MatCo Unaccrued Portion and the facts and circumstances underlying the MatCo Unaccrued Portion.

(198) “ Materials Science Liabilities ” shall mean any and all Liabilities of (x) any member of the MatCo Group at the time of the MatCo Distribution, (y) any member of the AgCo Group at the time of the MatCo Distribution and/or (z) any member of the SpecCo Group at the time of the MatCo Distribution, in the following categories, in each case, regardless of (i) when or where such Liabilities arose or arise, (ii) where or against whom such Liabilities are asserted or determined, (iii) regardless of whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the AgCo Group, MatCo Group or SpecCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (iv) which entity is named in any Action associated with any Liability (except for Liabilities related to Taxes which are governed exclusively by the Tax Matters Agreement, and Liabilities (other than those to the extent related to, resulting from or arising out of Discontinued and/or Divested Operations and Businesses (except for Liabilities allocated pursuant to Section 1.10(a)-(c) of the Employee Matters Agreement and Section 2.07 of the Employee Matters Agreement)) allocated pursuant to the Employee Matters Agreement, which are governed exclusively thereby):

(i) any and all Liabilities that are expressly assumed by or allocated to the MatCo Group pursuant to this Agreement, including any obligations and Liabilities of any member of the MatCo Group under this Agreement, including those pursuant to Section  12.5 hereof;

(ii) any and all Liabilities (including under applicable federal and state securities Laws) relating to, arising out of or resulting from the Distribution Disclosure Documents, including the Materials Science Form 10, in each case relating to, arising out of or resulting from occurrences prior to the MatCo Distribution, but excluding any statements or omissions made or incorporated by reference in the Distribution Disclosure Documents based on information supplied by Historical DuPont;

(iii) any and all Liabilities arising out of Inventor Remuneration to the extent related to (i) the Intellectual Property constituting a Materials Science Asset (other than any discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of such Intellectual Property by members of the AgCo Group or SpecCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements), or (ii) the discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of Intellectual Property constituting an Agriculture Asset or a Specialty Products Asset by a member of the MatCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements;

 

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(iv) any and all Liabilities relating to, arising out of or resulting from any statements or omissions made or incorporated by reference in the Distribution Disclosure Documents and relating to, arising out of or resulting from occurrences prior to, the AgCo Distribution based on information supplied by Historical Dow (but with respect to any member of Historical Dow that is a member of the AgCo Group or the SpecCo Group, only in respect of information supplied prior to the MatCo Distribution Date);

(v) any and all costs, fees and expenses, including legal fees and costs, incurred in connection with (A) the Transfer of Agriculture Assets of Historical Dow to AgCo or another member of the AgCo Group by Historical Dow (but only for Transfers prior to the Tower Realignment Time or pursuant to Sections 2.5 and 2.6 ), (B) the Transfer of Specialty Products Assets of Historical Dow to SpecCo or another member of the SpecCo Group by Historical Dow (but only for Transfers prior to the Tower Realignment Time or pursuant to Sections 2.5 and 2.6 ) and/or (C) the Transfer of Materials Science Assets of Historical Dow to MatCo or another member of the MatCo Group by Historical Dow (but only for Transfers prior to the Tower Realignment Time or pursuant to Sections 2.5 and 2.6 );

(vi) the Applicable Materials Science Percentage of any Specified DowDuPont Shared Liability;

(vii) any of the Liabilities set forth on Schedule 1.1(198)(vii) ;

(viii) any Agriculture Known Undisclosed Liabilities (other than those described in any Corporate Risk Management Document of Dow) in excess of $125,000,000 in the aggregate, and any Agriculture Known Undisclosed Liabilities described in any Corporate Risk Management Document of Dow;

(ix) any Specialty Products Known Undisclosed Liabilities (other than those described in any Corporate Risk Management Document of Dow) in excess of $125,000,000 in the aggregate, and any Specialty Products Known Undisclosed Liabilities described in any Corporate Risk Management Document of Dow;

(x) (a) any and all Dow Discontinued and/or Divested Operations and Business Liabilities that constitute Environmental Liabilities, (b) Environmental Liabilities set forth on Schedule 1.1(198)(x)(b) , (c) any and all Off-Site Environmental Liabilities of Historical Dow that do not constitute Dow Discontinued and/or Divested Operations and Business Liabilities, including those set forth on Schedule 1.1(198)(x)(c) and (d) any and all Environmental Liabilities of Historical Dow to the extent related to or arising out of occurrences prior to the MatCo Distribution Date that do not constitute Off-Site Environmental Liabilities or Dow Discontinued and/or Divested Operations and Business Liabilities which are not related to any Business (other than in a de minimis respect); provided , in each case (clauses (a)-(d)), that they shall be subject to Section  8.11 ;

(xi) any and all Dow Discontinued and/or Divested Operations and Business Liabilities which do not constitute Environmental Liabilities;

 

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(xii) any and all Liabilities (other than Materials Science Trade Payables and Historical DuPont Trade Payables) primarily related to, arising out of or resulting from any Dow Corporate Contract;

(xiii) any and all Liabilities for Indebtedness of the type described in clauses (i), (iv) and (vii) (but in case of clause (vii) solely with respect to clauses (i) and (iv)) of the definition of Indebtedness of Historical Dow which was incurred by any member of the AgCo Group, SpecCo Group or the MatCo Group (or any such Indebtedness guaranteed by any member of Historical Dow which is a member of the AgCo Group, SpecCo Group or MatCo Group, as applicable) while such member was a Subsidiary of Historical Dow (including that set forth on Schedule 1.1(198)(xiii) ) (clauses (i)-(xiii), the “ Specified Materials Science Liabilities ”);

(xiv) unless constituting a Specified Agriculture Liability or a Specified Specialty Products Liability,

(a) (i) any and all checks issued but not drawn and accounts payable to the extent related (other than in de minimis respects) to the Materials Science Business ( provided , however , that any such accounts payable represented by an invoice of less than $1,000,000 shall not constitute Materials Science Liabilities pursuant to this clause (a) if the aggregate amount of accounts payable represented by such invoice is Related to the Agriculture Business or the Specialty Products Business), and (ii) all accounts payable represented by an invoice of less than $1,000,000 if the aggregate amount of accounts payable represented by such invoice is Related to the Materials Science Business (except for any such accounts payable represented by such invoice that are not related to any Business in more than a de minimis respect); and

(b) Liabilities for any and all checks issued but not drawn and accounts payable of Historical Dow or its Subsidiaries, which are not related to any Business (other than in a de minimis respect) (the “ Materials Science Trade Payables ”);

(xv) unless constituting a Specified Agriculture Liability or a Specified Specialty Products Liability, any and all Liabilities to the extent relating to, arising out of or resulting from a general corporate matter of Historical Dow or any of its Subsidiaries (which Subsidiaries were Subsidiaries of Historical Dow immediately prior to the Tower Realignment Time, but only while such Subsidiaries were Subsidiaries of Historical Dow) incurred on or prior to the MatCo Distribution Date, including any Liabilities (including under applicable federal and state securities Laws) to the extent relating to, arising out of or resulting from:

(a) claims made by or on behalf of holders of any of Historical Dow’s securities (including debt securities), in their capacities as such;

(b) any form, report, statement, certifications or other document (including all exhibits, amendments and supplements thereto) (other than a

 

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Distribution Disclosure Document) filed by Dow or any of its Subsidiaries with the Commission on or prior to the MatCo Distribution, including the financial statements included therein (other than for Liabilities related to any such forms, reports, statements, certifications or other documents, in each case filed in connection with the Internal Reorganization, specifically relating to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be);

(c) the maintenance of Historical Dow’s books and records, Historical Dow’s corporate compliance and other corporate-level actions and oversight of Historical Dow;

(d) (x) indemnification obligations to any current or former director or officer of Historical Dow in their capacity as such in respect of occurrences prior to the MatCo Distribution Date or (y) any claims for breach of fiduciary duties brought against any current or former directors or officers of Historical Dow, in their capacities as such, in respect of occurrences prior to the MatCo Distribution Date, in each case, relating to any acts, omissions or events on or prior to the Final Separation Date;

(xvi) any and all Liabilities Related to the Materials Science Business, including in the following categories and including those set forth on Schedule 1.1(198)(xvi) , but in each case, excluding the Specified Agriculture Liabilities, the Specified Specialty Products Liabilities, the Liabilities described in clauses (xiv) and (xv) of each of the definitions of Agriculture Liabilities and Materials Science Liabilities and the Liabilities described in clauses (xiii) and (xiv) of the definition of the Specialty Products Liabilities:

(a) any and all Liabilities arising out of or resulting from any Action Related to the Materials Science Business, including such Actions listed on Schedule 1.1(198)(xvi)(a) ;

(b) any and all Liabilities arising under any of the Materials Science Contracts (except in the case of a Contract constituting a Materials Science Contract because it is exclusively related to a Materials Science Asset, any such Liabilities Related to the Agriculture Business or Specialty Products Business); and

(c) any Environmental Liability that is Related to the Materials Science Business, including those set forth on Schedule 1.1(198)(xvi)(c) ; provided , that any such Environmental Liability shall be subject to Section  8.11 .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Agriculture Liabilities and Specialty Products Liabilities, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Materials Science Liability listed on Schedules 1.1(97) , 1.1(198)(vii) , 1.1(198)(x)(b) and (c)  and 1.1(198)(xiii) constitutes a Materials Science Liability and (ii) any Liability listed on Schedules 1.1(198)(xvi) , 1.1(198)(xvi)(a) and 1.1(198)(xvi)(c)

 

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shall give rise to a rebuttable presumption in favor of AgCo and SpecCo that such Liability Relates to the Materials Science Business and/or the Materials Science Assets. In addition, the allocation set forth in clauses (x) and (xvi)(c) is not intended to affect or impact the share of any such Environmental Liability attributable to third parties.

(199) “ Materials Science Shared Contract ” shall mean any and all Shared Contracts that are primarily related to the Materials Science Business including those set forth on Schedule 1.1(199) , but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract; provided , however , such Dow Corporate Contracts set forth on Schedule 1.1(199)(i) shall constitute a Materials Science Shared Contract.

(200) “ Materials Science Specified Permitted Activities ” shall mean the matters set forth on Schedule 1.1(200) .

(201) “ Measurement Date ” shall have the meaning set forth in Section  1.1(86) .

(202) “ MOD 5 (ROFAN) License Agreements ” shall mean the MOD 5 Computerized Process Control Software Agreement License and Services, (i) effective as of April 1, 2019, by and between Rofan Services LLC and a member of the AgCo Group and (ii) effective as of April 1, 2019, by and between Rofan Services LLC and a member of the SpecCo Group.

(203) “ Negotiation Period ” shall mean (i) the General Negotiation Period, (ii) the Second Non-Compete Discussion Period, (iii) the Shared Liability Escalation Discussions, (iv), the Second Shared Historical DuPont Escalation Negotiation Period, (v) the Managing Party Negotiation Period, (vi) the Shared Historical DuPont Assets and Liabilities Determination Period or (vii) the Privilege Waiver Negotiation Period, as applicable.

(204) “ New Shared Matter ” shall have the meaning set forth in Section  6.2(a) .

(205) “ New Shared Matter Notice ” shall have the meaning set forth in Section  6.2(b) .

(206) “ Non-Assumable Third Party Claims ” shall have the meaning set forth in Section  8.5(b) .

(207) “ Non-Compete Dispute Notice ” shall have the meaning set forth in Section  5.6(i) .

(208) “ Non-Compete Escalation Notice ” shall have the meaning set forth in Section  5.6(i) .

(209) “ Non-Compete Period ” shall have the meaning set forth in Section  5.6(a) .

(210) “ Non-Performing Impacted Party ” shall have the meaning set forth in Section  8.11(c)(i) .

(211) “ Non-Performing Site Controller ” shall have the meaning set forth in Section  8.11(c)(ii) .

 

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(212) “ Non-Shared Contract ” shall mean the Contracts described on Schedule 1.1(212) .

(213) “ Non-Transferred Permit ” shall have the meaning set forth in Section  5.5(a) .

(214) “ Notice Recipient ” shall have the meaning set forth in Section  2.2(d)(vi) .

(215) “ Notifying Party ” shall have the meaning set forth in Section  2.2(d)(vi) .

(216) “ NYSE ” shall mean the New York Stock Exchange.

(217) “ Off-Site Environmental Liabilities ” shall mean any and all Environmental Liabilities arising or associated with any third-party location that is not as of the Relevant Time nor has ever been owned, leased or operated by Historical DuPont or Historical Dow to the extent arising out of occurrences prior to the Relevant Time, provided, for purposes of clarification, that Off-Site Environmental Liabilities shall not include Liability arising or associated with any third-party locations or environmental media that have been impacted by Hazardous Substances Released from any property owned, leased or operated by Historical DuPont or Historical Dow at the Relevant Time or prior to the Relevant Time.

(218) “ Operating Services Agreements ” shall mean the Operating Services Agreements set forth on Schedule 1.1(218) .

(219) “ Operating Systems and Tools License Agreements ” shall mean the Operating Systems and Tools License Agreements, (i) effective as of April 1, 2019, by and between a member of the AgCo Group and a member of the MatCo Group and (ii) effective as of April 1, 2019, by and between a member of the SpecCo Group and a member of the MatCo Group.

(220) “ Other Parties’ Auditors ” shall have the meaning set forth in Section  5.1(b) .

(221) “ Other Party ” shall have the meaning set forth in Section  2.9(a) .

(222) “ Other Surviving Intergroup Accounts ” shall have the meaning set forth in Section  2.3(a) .

(223) “ Other Surviving Selected Intercompany Accounts ” shall have the meaning set forth in Section  2.3(b) .

(224) “ Partial Assignment ” shall have the meaning set forth in Section  2.2(d)(i) .

(225) “ Party ” or “ Parties ” shall have the meaning set forth in the preamble.

(226) “ Performing Party ” shall have the meaning set forth in Section  8.11(b) .

(227) “ Permit Transferee ” shall mean AgCo, SpecCo, or MatCo, or another member of their respective Group, that requires a permit, including any Environmental Permit, to be transferred or issued to it with respect to the properties, businesses, and operations being conveyed or Transferred to it pursuant to this Agreement.

 

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(228) “ Permit Transferor ” shall mean each of AgCo, SpecCo or MatCo or another member of its respective Group, as applicable, that currently holds a permit, including any Environmental Permit, that must be transferred, or in respect of which a new permit must be issued, to a member of the AgCo Group, SpecCo Group or MatCo Group, or a relevant subsidiary, in connection with the transfer of any properties, businesses, or operations of the AgCo Group, SpecCo Group or MatCo Group, respectively.

(229) “ Person ” shall mean any natural person, firm, individual, corporation, business trust, joint venture, association, bank, land trust, trust company, company, limited liability company, partnership or other organization or entity, whether incorporated or unincorporated, or any Governmental Entity.

(230) “ Pilot Plant Services Agreement ” shall mean the Pilot Plant Services Agreements (i) effective as of April 1, 2019, by and between DDP Specialty Products Germany GmbH & Co. KG, as provider, and Dow Deutschland Anlagengesellschaft mbH, as recipient and (ii) effective as of April 1, 2019, by and between The Dow Chemical Company, as provider, and DuPont Specialty Products USA, LLC, as recipient.

(231) “ Plant Operating Documents ” shall mean (a) plot plans, (b) construction, technical, engineering, electrical, instrument drawings, as-built or as-modified drawings including piping and instrument diagrams, 3-D (three-dimensional) models, wiring diagrams, flowsheets, structural designs, map and physical layouts, (c) process flow diagrams, (d) process control schematics, process control and/or shop-floor control strategies, logic or algorithms, (e) standard operating procedures, maintenance and inspection procedures and records, safety audit reports, investigations, safety incident investigation reports, process hazard reviews, capital projects, upgrades, improvements, designs for such projects, upgrades and/or improvements and (f) standard operating instructions and operating data (including product quality and safety data and maintenance and inspection data).

(232) “ Policies ” shall mean insurance policies and insurance Contracts of any kind (other than life and benefits policies or Contracts), including primary, excess and umbrella policies, comprehensive general liability policies, director and officer liability, fiduciary liability, automobile, aircraft, property and casualty, workers’ compensation and employee dishonesty insurance policies, bonds and captive insurance company arrangements, including those issued by or on behalf of the Dow Insurer, together with the rights, benefits and privileges thereunder.

(233) “ Pre-Acquisition MatCo Business ” shall have the meaning set forth in Section  5.6(b)(i) .

(234) “ Pre-Acquisition MatCo Entities ” shall have the meaning set forth in Section  5.6(c) .

(235) “ Pre-Acquisition SpecCo Business ” shall have the meaning set forth in Section  5.6(e)(i) .

(236) “ Pre-Acquisition SpecCo Entities ” shall have the meaning set forth in Section  5.6(f) .

 

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(237) “ Privilege ” shall have the meaning set forth in Section  9.7(a) .

(238) “ Privilege Waiver Negotiation Period ” shall have the meaning set forth in Section  9.7(c)(iv) .

(239) “ Privilege Waiver Objection Notice ” shall have the meaning set forth in Section  9.7(c)(i) .

(240) “ Privileged Information ” shall have the meaning set forth in Section  9.7(a) .

(241) “ Product Marks Trademark License Agreements ” shall mean the Product Marks Trademark License Agreements, (i) effective as of April 1, 2019, by and between a member of the MatCo Group, as licensor, and a member of the SpecCo Group, as licensee and (ii) effective as of April 1, 2019, by and between a member of the SpecCo Group, as licensor, and a member of the MatCo Group, as licensee.

(242) “ Proposal ” shall have the meaning set forth in Section  6.2(g) or Section  7.1(d) , as applicable.

(243) “ Public Reports ” shall have the meaning set forth in Section  5.1(d) .

(244) “ Purchase for Resale Agreements ” shall mean the Purchase for Resale Agreements set forth on Schedule 1.1(244) .

(245) “ Qualifying Historical Dow AgCo Closing Cash ” means an amount equal to: the amount of Cash and Cash Equivalents with a posting date on or before March 31, 2019 (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for each bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 of the members of Historical Dow that are members of the AgCo Group and incorporated or otherwise organized in a specific country (converted into US Dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on April 1, 2019), excluding (1) those amounts of Cash and Cash Equivalents constituting the Historical Dow AgCo Group Pre-MatCo Spin Payroll Amount and (2) those amounts of Cash and Cash Equivalents set forth on Schedule 1.1(245)(A) (such amounts, (clauses (1) and (2)) the “ Historical Dow AgCo Required Cash ”); provided , that in respect of any country, the amount of Cash and Cash Equivalents owned by all members of Historical Dow that are members of the AgCo Group and incorporated or otherwise organized in such country shall be reduced by the aggregate amount of (a) third party Indebtedness of such members that is outstanding or incurred as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, and (b) any payments on April 1, 2019 by such members to any other member of Historical Dow pursuant to the Pre-Agreed Historical Dow Wires; provided , further , that in no event shall the Qualifying Historical Dow AgCo Closing Cash for any particular country exceed the maximum amount set forth for such country on Schedule 1.1(245)(B) .

(246) “ Qualifying Historical Dow SpecCo Closing Cash ” means an amount equal to: the amount of Cash and Cash Equivalents with a posting date on or before March 31, 2019 (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for each bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of

 

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such bank account) on March 31, 2019 of the members of Historical Dow that are members of the SpecCo Group and incorporated or otherwise organized in a specific country (converted into US Dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on April 1, 2019), excluding (1) those amounts of Cash and Cash Equivalents constituting the Historical Dow SpecCo Group Pre-MatCo Spin Payroll Amount and (2) those amounts of Cash and Cash Equivalents set forth on Schedule 1.1(246) (such amounts, (clauses (1) and (2)) the “ Historical Dow SpecCo Required Cash ”); provided , that in respect of any country, the amount of Cash and Cash Equivalents owned by all members of Historical Dow that are members of the SpecCo Group and incorporated or otherwise organized in such country shall be reduced by the aggregate amount of (a) third party Indebtedness of such members that is outstanding or incurred as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, and (b) any payments on April 1, 2019 by such members to any other member of Historical Dow pursuant to the Pre-Agreed Historical Dow Wires; provided , further , that in no event shall the Qualifying Historical Dow SpecCo Closing Cash for any particular country exceed the maximum amount set forth for such country on Schedule 1.1(245)(B) .

(247) “ Qualifying Historical DuPont MatCo Closing Cash ” means an amount equal to: the amount of Cash and Cash Equivalents with a posting date on or before March 31, 2019 (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for each bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 of the members of Historical DuPont that are members of the MatCo Group and incorporated or otherwise organized in a specific country (converted into US Dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on April 1, 2019), excluding (1) those amounts of Cash and Cash Equivalents constituting the Historical DuPont MatCo Group Pre-MatCo Spin Payroll Amount and (2) those amounts of Cash and Cash Equivalents set forth on Schedule 1.1(247) (such amounts, (clauses (1) and (2)) the “ Historical DuPont MatCo Required Cash ”); provided , that in respect of any country, the amount of Cash and Cash Equivalents owned by all members of Historical DuPont that are members of the MatCo Group and incorporated or otherwise organized in such country shall be reduced by the aggregate amount of (a) third party Indebtedness of such members that is outstanding or incurred as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, and (b) any payments on April 1, 2019 by such members to any other member of Historical DuPont pursuant to the Pre-Agreed Historical DuPont Wires; provided , further , that in no event shall the Qualifying Historical DuPont MatCo Closing Cash for any particular country exceed the maximum amount set forth for such country on Schedule 1.1(245)(B) .

(248) “ Records ” shall mean any Contracts, documents, books, records or files.

(249) “ Regulatory Cross License Agreements ” shall mean the Regulatory Cross License Agreements, (i) effective as of the date of the AgCo Distribution, by and between AgCo and SpecCo, (ii) effective as of April 1, 2019, by and between MatCo and members of the AgCo Group and (iii) effective as of April 1, 2019, by and between SpecCo and MatCo.

(250) “ Regulatory Data ” shall mean any and all regulatory data (including studies, data, raw data, efficacy data, reports, physical samples, reviews (including business risk reviews), opinions, self-GRAS determinations, information or other compliance requirements, including safety, risk and exposure assessments and modeling for product contamination or impurity

 

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issues) in written, electronic, computerized, digital, or other tangible or intangible media, actually submitted to, or maintained to support a submission to (whether submitted or not), a Governmental Entity or a third party to seek, obtain or maintain a Consent from a Governmental Entity or demonstrate regulatory compliance.

(251) “ Regulatory Transfer and Support Agreements ” shall mean the Regulatory Transfer and Support Agreements, (i) effective as of the date of the AgCo Distribution, by and between AgCo, as transferor, and SpecCo, as transferee, (ii) effective as of April 1, 2019, by and between AgCo, as transferor, and MatCo, as transferee, (iii) effective as of April 1, 2019, by and between MatCo, as transferor, and AgCo, as transferee, (iv) effective as of April 1, 2019, by and between MatCo, as transferor, and SpecCo, as transferee, (v) effective as of the date of the AgCo Distribution, by and between SpecCo, as transferor, and AgCo, as transferee and (vi) effective as of April 1, 2019, by and between SpecCo, as transferor, and MatCo, as transferee.

(252) “ Related ”, with respect to any Business, shall mean primarily related to, primarily used in or primarily held for use in the conduct of such Business.

(253) “ Release ” shall mean any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or property.

(254) “ Relevant Time ” shall mean, (i) as between any member of the MatCo Group, on the one hand, and any member of the AgCo Group or SpecCo Group, on the other hand, the time of the MatCo Distribution and (ii) as between any member of the SpecCo Group and any member of the AgCo Group, the time of the AgCo Distribution.

(255) “ Representative ” shall mean (i) after the MatCo Distribution, but prior to the AgCo Distribution, (A) in the case of MatCo, the MatCo Representative and (B) in the case of SpecCo and AgCo, the Joint SpecCo/AgCo Representative and (ii) after the Final Separation Date, (A) in the case of SpecCo, the SpecCo Representative, (B) in the case of MatCo, the MatCo Representative and (C) in the case of AgCo, the AgCo Representative.

(256) “ Requisite Approval ” shall have the meaning set forth in Section  6.4(c)(iii) or Section  7.2(c)(v) , as applicable.

(257) “ Response Action ” shall have the meaning set forth in Section  8.11(b) .

(258) “ Rules ” shall have the meaning set forth in Section  10.1(c) .

(259) “ Second Non-Compete Discussion Period ” shall have the meaning set forth in Section  5.6(i) .

(260) “ Second Shared Historical DuPont Escalation Negotiation Period ” shall have the meaning set forth in Section  7.1(f) .

(261) “ Section  8.13(c) Basket ” shall have the meaning set forth in Section  8.13(c) .

 

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(262) “ Section  9.8 Matters ” shall have the meaning set forth in Section  9.8(a) .

(263) “ Security Interest ” shall mean any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-entry, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws and licenses of Intellectual Property.

(264) “ Selected Intercompany Accounts ” shall have the meaning set forth in Section  2.3(b) .

(265) “ Separation Expenses ” shall have the meaning set forth in Section  12.5 .

(266) “ Settling Party ” shall have the meaning set forth in Section  6.2(j) or Section  7.2(f) , as applicable.

(267) “ Shared Contract ” shall mean, after giving effect to the Schedule 1.1(212) and Sections 1.1(40)(ii) and 1.1(311)(ii) , any Contract, other than an Agriculture Contract, a Materials Science Contract or a Specialty Products Contract, of (1) a member of the SpecCo Group that inures in part to the benefit or burden of any member of the MatCo Group, as of the MatCo Distribution Date and/or the AgCo Group, as of the AgCo Distribution Date, as the case may be, (2) a member of the MatCo Group that inures in part to the benefit or burden of any member of the SpecCo Group, as of the MatCo Distribution Date, and/or the AgCo Group, as of the MatCo Distribution Date. as the case may be or (3) a member of the AgCo Group that inures in part to the benefit or burden of any member of the SpecCo Group, as of the AgCo Distribution Date, and/or the MatCo Group, as of the MatCo Distribution Date, as the case may be.

(268) “ Shared Historical DuPont Assets ” shall mean any and all Assets of Historical DuPont (i) described in Section  1.1(31)(xii)(d) and Section  1.1(31)(xii)(f) of the definition of Agriculture Assets and (ii) described in Section  1.1(303)(xii)(d) and Section  1.1(303)(xii)(f) of the definition of Specialty Products Assets.

(269) “ Shared Historical DuPont Assets and Liabilities Determination Period ” shall have the meaning set forth in Section  7.2(c)(iii) .

(270) “ Shared Historical DuPont Assets and Liabilities Notice ” shall have the meaning set forth in Section  7.2(c)(iii) .

(271) “ Shared Historical DuPont Claim Committee ” shall have the meaning set forth in Section  7.2(a) .

(272) “ Shared Historical DuPont Escalation Committee ” shall have the meaning set forth in Section  7.1(f) .

(273) “ Shared Historical DuPont Liabilities ” shall mean (1) any and all Liabilities of Historical DuPont (i) described in clauses (iv), (viii), (xiii), (xiv)(b) and (xv) of the definition of Agriculture Liabilities and (ii) described in clauses (ii), (vii), (xii), (xiii)(b) and (xiv) of the definition of Specialty Products Liabilities, (2) AgCo Group Excess DuPont Discontinued and/or

 

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Divested Operations and Business Liabilities and SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities (but with respect those described in clause (i) of the definition of AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities and SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities, solely from and after such time as both the AgCo Hurdle and SpecCo Hurdle have been met) and (3) those obligations identified as constituting Shared Historical DuPont Liabilities in Section  2.3(a) .

(274) “ Shared Historical DuPont Liability Settlement Cap ” shall have the meaning set forth in Section  7.2(f) .

(275) “ Shared Historical DuPont Percentage ” shall mean (i) the Agriculture Shared Historical DuPont Percentage or (ii) the Specialty Products Shared Historical DuPont Percentage, as applicable.

(276) “ Shared Liability Escalation Committee ” shall have the meaning set forth in Section  6.2(c) .

(277) “ Shared Liability Escalation Discussion Period ” shall have the meaning set forth in Section  6.2(c) .

(278) “ Shared Liability Escalation Discussions ” shall have the meaning set forth in Section  6.2(c) .

(279) “ Shared Policies ” shall mean all Policies, current or past, which are owned or maintained by or on behalf of DowDuPont or any of its Subsidiaries which relate to one or more of the Agriculture Business, the Materials Science Business or the Specialty Products Business.

(280) “ Site Access Agreements ” shall mean the Site Access Agreements effective as of April 1, 2019, by and between members of the SpecCo Group, MatCo Group and/or AgCo Group, as applicable and as listed on Schedule 1.1(280) .

(281) “ Site Services Agreements ” shall mean the Site Services Agreements effective as of April 1, 2019, by and between members of the SpecCo Group, MatCo Group and/or AgCo Group, as applicable and as listed on Schedule 1.1(281) .

(282) “ Software ” shall mean all computer programs (whether in source code, object code, or other form), software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials related to any of the foregoing.

(283) “ Sole Benefit Services ” shall have the meaning set forth in Section  9.7(a) .

(284) “ Space Leases ” shall mean the Space Leases set forth on Schedule 1.1(284) .

(285) “ SpecCo ” shall have the meaning set forth in the preamble.

(286) “ SpecCo CSIs ” shall have the meaning set forth in Section  2.10(d) .

 

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(287) “ SpecCo Designated Dow DDOB Deductible Amount ” shall have the meaning set forth in Section  8.13(b)(i) .

(288) “ SpecCo Group ” shall mean SpecCo and each Person (other than any member of the MatCo Group or the AgCo Group) that is a direct or indirect Subsidiary of SpecCo immediately after the Tower Realignment Time, and each Business Entity that becomes a Subsidiary of SpecCo after the Tower Realignment Time, which, for the avoidance of doubt, shall include those entities identified as such on Schedule 1.1(288) (and shall not include the entities on Schedule 1.1(13) or Schedule 1.1(180) ).

(289) “ SpecCo Group DuPont Corporate Contracts ” shall have the meaning set forth in Section  1.1(311) .

(290) “ SpecCo Group DuPont Divested Business Liability Basket ” shall have the meaning set forth in Section  8.13(a)(ii) .

(291) “ SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean (i) any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the SpecCo Group other than (w) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (x) AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, (y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, including those set forth on Schedule 1.1(291) and, solely to the extent in excess of the amount set forth therefor on Schedule 1.1(293) , those set forth on Schedule 1.1(293) ; provided , however , in the case of this clause (i), that from and after the time that both the SpecCo Hurdle (as defined in Section  8.13(a)(i) ) and the AgCo Hurdle (as defined in Section  8.13(a)(ii) ) have been met, “ SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean, with respect to additional DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group or SpecCo Group, the Specialty Products Shared Historical DuPont Percentage of any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the AgCo Group or SpecCo Group other than (W) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (X) AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, (Y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (Z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities and (ii) the Specialty Products Shared Historical DuPont Percentage of any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the MatCo Group other than (w) Agriculture Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (x) AgCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities, (y) Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities and (z) SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities.

(292) “ SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement ” has the meaning set forth in Section  7.1(f) .

 

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(293) “ SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all DuPont Discontinued and/or Divested Operations and Business Liabilities of any member of the SpecCo Group set forth on Schedule 1.1(293) , but, in each case, solely to the extent of the amount therefor set forth on Schedule 1.1(293) .

(294) “ SpecCo Hurdle ” shall have the meaning set forth in Section  8.13(a)(i) .

(295) “ SpecCo Indemnitees ” shall mean each member of the SpecCo Group and each of their Affiliates from and after the Effective Time and each member of the SpecCo Group’s and their respective Affiliates’ respective current, former and future directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.

(296) “ SpecCo Knowledge Group ” shall mean the individuals specified on Schedule 1.1(296) .

(297) “ SpecCo Liability Policies ” shall have the meaning set forth in Section  11.2(a) .

(298) “ SpecCo Non-Compete Acquirers ” shall have the meaning set forth in Section  5.6(f) .

(299) “ SpecCo Non-Compete Target ” shall have the meaning set forth in Section  5.6(e)(i) .

(300) “ SpecCo Prohibited Activities ” shall have the meaning set forth in Section  5.6(d) .

(301) “ SpecCo Representative ” shall have the meaning set forth in Section  6.4(a) .

(302) “ SpecCo Specified Permitted Activities ” shall mean the matters set forth on Schedule 1.1(302) .

(303) “ Specialty Products Assets ” shall mean any and all right, title and interest in and to the following Assets of (x) any member of the MatCo Group at the applicable Relevant Time, (y) any member of the AgCo Group at the applicable Relevant Time, and (z) any member of the SpecCo Group at the applicable Relevant Time (provided, however, that Specialty Products Assets shall not include Tax Assets (as defined in the Tax Matters Agreement), which shall be governed by the Tax Matters Agreement, or Assets allocated pursuant to the Employee Matters Agreement, which shall be governed thereby):

(i) (A) all interests in the capital stock of, or any other equity interests in the members of the SpecCo Group (other than SpecCo), including those set forth on Schedule 1.1(288) , (B) all interests in the capital stock of, or any other equity interests in the Persons set forth on Schedule 1.1(303)(i)(B) , and (C) the capital stock and other equity interests set forth on Schedule 1.1(303)(i)(C) of certain other Persons and, in each case (clauses (A)-(C)), any and all rights related thereto;

(ii) the Assets set forth on Schedule 1.1(303)(ii) ;

 

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(iii) any and all rights and interests of the SpecCo Group under this Agreement;

(iv) (A) all rights, title and interest in and to the owned real property set forth on Schedule 1.1(303)(iv)(A) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(303)(iv)(A) under the heading “Other Parties in Possession”) (the “ Specialty Products Specified Owned Real Property ”) and (B) all rights, title and interest in, and to and under the leases or subleases of the real property set forth on Schedule 1.1(303)(iv)(B) including, in each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(303)(iv)(B) under the heading “Other Parties in Possession”) (the “ Specialty Products Specified Leased Real Property ”);

(v) any and all Specialty Products Shared Contracts; provided ; however , that any such Specialty Products Shared Contracts shall be subject to Section  2.2(d) ;

(vi) (A) the Patents and Patent applications and registrations set forth on Schedule 1.1(303)(vi)(A), (B)(I) the DuPont name and any and all DuPont brands, related Trademarks and related Trademark applications and registrations, including those set forth on Schedule 1.1(303)(vi)(B)(I) , and any and all derivations, abbreviations, translations, localizations and other variations of any of the foregoing and any confusingly similar Trademark and Trademark application and registration and (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(303)(vi)(B)(II) , (C) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(303)(vi)(C) and (D) the Know-How set forth on Schedule 1.1(303)(vi)(D);

(vii) any and all Assets in respect of accruals, counterclaims, insurance claims, rights to coverage under applicable insurance policies, warranties, contractual indemnities, control rights and other rights similar to the foregoing, in each case, to the extent related to any Specialty Products Liability, including those set forth on Schedule 1.1(303)(vii) ;

 

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(viii) the IT Assets set forth on Schedule 1.1(303)(viii) ;

(ix) all Specialty Products Contracts;

(x) other than Intellectual Property and IT Assets, any and all (a) Information to the extent related to any Specialty Products Asset or Specialty Products Liability and (b) corporate or similar legal entity books and records of any Person described in clause (i) of this definition of Specialty Products Assets;

(xi) the Applicable Specialty Products Percentage of any Specified DowDuPont Shared Asset (clauses (i)–(xi), the “ Specified Specialty Products Assets ”);

(xii) unless constituting a Specified Agriculture Asset or a Specified Materials Science Asset under clauses (i)–(xi) of the definitions thereof:

(a) any and all rights, title and interest in, and to, any Asset (excluding IT Assets and excluding Intellectual Property) of Historical DuPont that is not related to any Business (other than in a de minimis respect) (e.g. corporate or enterprise-wide Assets) (I) owned by a member of the SpecCo Group, including those set forth on Schedule 1.1(303)(xii)(a)(I) and (II) owned by a member of the MatCo Group while such entity was part of Historical DuPont, including those set forth on Schedule 1.1(303)(xii)(a)(II) ;

(b) all Intellectual Property owned by Historical DuPont that is not related to any Business (other than in a de minimis respect), including that set forth on Schedule 1.1(303)(xii)(b) , including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(303)(xii)(b)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(303)(xii)(b)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(303)(xii)(b)(III) and (IV) the Know-How set forth on Schedule 1.1(303)(xii)(b)(IV) ;

(c) (I) subject to Section  3.5 , all Cash and Cash Equivalents, notes, interest receivables and other financial assets owned by any member of the SpecCo Group (other than any such Cash and Cash Equivalents, notes, interest receivables and other financial assets constituting Agriculture Factoring Proceeds or Materials Science Factoring Proceeds); (II) all derivative instruments of Historical DuPont owned by any member of the SpecCo Group, and (III) the Specialty Products Shared Historical DuPont Percentage of all derivative instruments of Historical DuPont owned by a member of the MatCo Group while such entity was a part of Historical DuPont;

(d) (I) all accounts and notes receivable to the extent related to the Specialty Products Business and any proceeds from the factoring of any such accounts receivable with a payment date on or after the MatCo Distribution

 

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(“ Specialty Products Factoring Proceeds ”) ( provided , however , that any such accounts receivable represented by an invoice of less than $1,000,000 shall not constitute Specialty Products Assets pursuant to this clause (d) if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Agriculture Business or the Materials Science Business), and (II) all accounts receivable (other than those not related to any Business in more than a de minimis respect) represented by an invoice of less than $1,000,000 if the aggregate amount of accounts receivable related to any Business in more than a de minimis respect represented by such invoice is Related to the Specialty Products Business;

(e) the Specialty Products Shared Historical DuPont Percentage of all accounts and notes receivable in respect of goods or services sold or provided by Historical DuPont that are not related to any Business (other than in a de minimis respect);

(f) all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items, in each case to the extent they are used or held for use in, or arise out of, the operation or conduct of (I) the Specialty Products Business (including, for the avoidance of doubt, such portion of any credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items of the MatCo Group or AgCo Group to the extent they are used or held for use in, or arise out of, the operation or conduct of the Specialty Products Business), (II) Historical DuPont to the extent such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items are owned by a member of the SpecCo Group, and are not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(303)(xii)(f)(II) , and/or (III) Historical DuPont to the extent such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items were recorded by a member of the MatCo Group while such entity was a part of Historical DuPont, and are not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(303)(xii)(f)(III) ; provided , however , that, in the case of clause (III), “ Specialty Products Assets ” shall include only the Specialty Products Shared Historical DuPont Percentage of any and all such credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and prepaid items;

(g) except for furniture, all tangible personal property and interests therein (including machinery, tools, equipment and vehicles), in each case, that is not related to any Business (other than in a de minimis respect) (I) that is set forth on Schedule 1.1(303)(xii)(g) or (II) for which the relevant historical use of such Asset was at any Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property, other than (1) at any portion leased or subleased by any member of the AgCo Group or MatCo Group pursuant to an Intergroup Lease and (2) those set forth on Schedule 1.1(31)(xii)(g) or Schedule 1.1(192)(xii)(f) ;

 

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(h) all furniture that is not related to any Business (other than in a de minimis respect) to the extent that the relevant historical use of such furniture was at (I) any Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property (except as provided pursuant to the terms of an Intergroup Lease or lease with any Person other than the Parties and their respective Group members and Affiliates) or Specialty Products Real Property other than those set forth on Schedule 1.1(31)(xii)(h) or Schedule 1.1(192)(xii)(g) or (II) any site set forth on Schedule 1.1(303)(xii)(h) ;

(i) any and all Information of Historical DuPont (other than (x) Intellectual Property, (y) Information described in clause (xii) of the definition of “ Agriculture Assets ” and clause (xii) of the definition of “ Materials Science Assets ” and (z) IT Assets) that is not related to any Business (other than in a de minimis respect) (I) owned by a member of the SpecCo Group, including Information set forth on Schedule 1.1(303)(xii)(i)(I) or (II) owned by a member of the MatCo Group while such entity was a part of Historical DuPont, including Information set forth on Schedule 1.1(303)(xii)(i)(II) ; and

(j) all rights, claims, causes of action and credits to the extent relating to any Specialty Products Asset that do not relate to any Business (other than in a de minimis respect) and do not relate to any Agriculture Liability or a Materials Science Liability (other than in a de minimis respect), including those arising under any guaranty, warranty, indemnity, right of recovery, right of set-off or similar right, including those set forth on Schedule 1.1(303)(xii)(j) ;

(xiii) any and all Assets Related to the Specialty Products Business, including in the following categories, but, in each case, excluding IT Assets, the Specified Materials Science Assets, the Specified Agriculture Assets and the Assets described in clause (xii) of each of the definitions of Agriculture Assets, Materials Science Assets and Specialty Products Assets:

(a) (1) all rights, title and interest in and to the owned real property Related to the Specialty Products Business, including those set forth on Schedule 1.1(303)(xiii)(a)(1) , including, in each case, all land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances located thereon or associated therewith (except to the extent otherwise set forth on Schedule 1.1(303)(xiii)(a)(1) under the heading “Other Parties in Possession”) and (2) all rights, title and interest in, and to and under the leases or subleases of the real property Related to the Specialty Products Business, including those set forth on Schedule 1.1(303)(xiii)(a)(2) , including, in

 

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each case, to the extent provided for in such leases, any land and land improvements, structures, buildings and building improvements, tidelands or other marine leases, other improvements, fixtures, rights of ingress and egress, rights under any covenants, conditions and/or restrictions, all contract rights, if any, relating to the operation of the land or any improvements thereon, all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the land, and any and all licenses, permits, registrations, approvals and authorizations which have been issued by any Governmental Entity related to the land and all easements and rights of way pertaining thereto or accruing to the benefit thereof and appurtenances (except to the extent otherwise set forth on Schedule 1.1(303)(xiii)(a)(2) under the heading “Other Parties in Possession”) (the “ Specialty Products Real Property ”);

(b) except for IT Assets and SpecCo Inventory, any and all tangible personal property and interests therein, including machinery, furniture, tools, equipment, vehicles, in each case that are Related to the Specialty Products Business, including those set forth on Schedule 1.1(303)(xiii)(b) ;

(c) any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging, finished goods and products and other inventories, including those set forth on Schedule 1.1(303)(xiii)(c)(i) , (I) related to, or held for the benefit of, the Specialty Products Business and not related (other than in a de minimis respect) to any other Business, (II) held at a site subject to a Manufacturing Product Agreement and allocated to the SpecCo Group as set forth on Schedule 1.1(303)(xiii)(c)(ii) , (III) related to the Specialty Products Business (other than in a de minimis respect) and held at any Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property (unless at a portion of such site leased to a different Group pursuant to an Intergroup Lease) that is not subject to any Manufacturing Product Agreement, (IV) Related to the Specialty Products Business, held at any Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property, Materials Science Real Property, Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property or Agriculture Real Property, other than any portion thereof leased by the SpecCo Group pursuant to an Intergroup Lease (other than those subject to any Manufacturing Product Agreement), and not related (other than in a de minimis respect) to the Business of the Group to which such real property was allocated, and (V) Related to the Specialty Products Business and not held at a real property constituting Agriculture Specified Owned Real Property, Agriculture Specified Leased Real Property, Agriculture Real Property, Materials Science Specified Owned Real Property, Materials Science Specified Leased Real Property, Materials Science Real Property, Specialty Products Specified Owned Real Property, Specialty Products Specified Leased Real Property or Specialty Products Real Property (the “ SpecCo Inventory ”) (it being understood and agreed that any and all raw materials, works-in-process, supplies, ingredients, inputs, parts, packaging and finished goods referred to under clause (II) or (III) shall constitute an Asset Related to the Specialty Products Business);

 

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(d) all Intellectual Property Related to the Specialty Products Business, including (I) the Patents and Patent applications and registrations set forth on Schedule 1.1(303)(xiii)(d)(I) , (II) the Trademarks and Trademark applications and registrations set forth on Schedule 1.1(303)(xiii)(d)(II) , (III) the Copyrights and Copyright applications and registrations set forth on Schedule 1.1(303)(xiii)(d)(III) and (IV) the Know-How set forth on Schedule 1.1(303)(xiii)(d)(IV) ;

(e) any and all Consents, registrations and Regulatory Data, in each case, that is Related to the Specialty Products Business, including those set forth on Schedule 1.1(303)(xiii)(e) ;

(f) any and all Information (other than Intellectual Property and IT Assets) that is Related to the Specialty Products Business; and

(g) any and all interests in the capital stock of, or other equity interests in, any Person that is not a member of the MatCo Group, SpecCo Group or AgCo Group that is Related to the Specialty Products Business, including those set forth on Schedule 1.1(303)(xiii)(g) .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Materials Science Assets and Agriculture Assets, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Specialty Products Asset listed on Schedules 1.1(288) , 1.1(303)(i)(B) , 1.1(303)(i)(C), 1.1(303)(ii) , 1.1(303)(iv)(A) and (B) (except to the extent otherwise set forth on Schedules 1.1(303)(iv)(A) and (B)  under the heading “Other Parties in Possession”), 1.1(303)(vi)(A) , (B)(I) , (B)(II) , (C) and (D) , 1.1(303)(vii) , 1.1(303)(viii) and 1.1(303)(xiii)(c)(ii) (to the extent allocated to SpecCo) constitutes a Specialty Products Asset, (ii) any Contract listed on Schedule 1.1(305) constitutes a Specialty Products Asset, (iii) any Shared Contract listed on Schedule 1.1(311), constitutes a Specialty Products Asset, (iv) (a) any Asset listed on Schedules 1.1(303)(xii)(a)(I) and (II)  shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is owned by Historical DuPont and is not related to any Business (other than in a de minimis respect), (b) any Asset listed on Schedules 1.1(303)(xii)(b)(I) , (II) , (III) and (IV)  shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is not related to any Business (other than in a de minimis respect), (c) any Asset listed on Schedule 1.1(303)(xii)(f)(II) shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is used or held for use in, or arises out of, the operation or conduct of Historical DuPont, is owned by a member of the SpecCo Group and is not related to any Business (other than in a de minimis respect), (d) any Asset listed on Schedule 1.1(303)(xii)(f)(III) shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is used or held for use in, or arises out of, the operation or conduct of Historical DuPont, was recorded by a member of the MatCo Group while such entity was part of Historical DuPont and is not related to any Business (other than in a de minimis respect), (e) any Asset listed on Schedule 1.1(303)(xii)(g) shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is not related to any Business (other than in a de minimis respect), (f) any furniture at any site set forth on Schedule 1.1(303)(xii)(h) shall give rise to a rebuttable presumption in favor of MatCo that such furniture is not related to any Business (other than in a de minimis respect), (g) any Asset listed on Schedules

 

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1.1(303)(xii)(i)(I) and (II)  shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is of Historical DuPont and is not related to any Business (other than in a de minimis respect) and (h) any Asset listed on Schedule 1.1(303)(xii)(j) shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is not related to any Business (other than in a de minimis respect) and is not related to any Agriculture Liability or Materials Science Liability (other than in a de minimis respect), and (v) any Asset listed on any of the Schedules described in Section  1.1(303)(xiii) (other than Schedule 1.1(303)(xiii)(c)(ii) and, in case of Schedules 1.1(303)(xiii)(a)(1) and (2) , except to the extent otherwise set forth on Schedules 1.1(303)(xiii)(a)(1) and (2)  under the heading “Other Parties in Possession”) shall give rise to a rebuttable presumption in favor of SpecCo that such Asset is Related to the Specialty Products Business. Notwithstanding anything to the contrary herein, this Agreement and the Ancillary Agreements do not purport to transfer ownership of any of the Parties’ insurance policies, and any assignment of rights to coverage under such insurance policies is governed by Article XI herein.

(304) “ Specialty Products Business ” shall mean (i) (A) DuPont Nutrition and Health (including the businesses acquired from FMC Corporation), DuPont Industrial Biosciences, DuPont Protection Solutions, DuPont Sustainable Solutions, DuPont Electronics & Communications, DuPont Performance Polymers, (B) in each case, all portions of the following businesses as conducted on December 11, 2015, August 31, 2017 and/or prior to the MatCo Distribution Date, Dow Electronic Materials, the Adhesives business and the Fluids portion of the Performance Solutions business of Dow Automotive Systems, Dow Pharma and Food Solutions (including, with respect to Dow Pharma and Food Solutions, the Industrial Specialties and Nitrocellulose businesses and excluding the Hydroxyethyl cellulose business), Dow Energy and Water Solutions (including Dow Microbial Control and Dow Water and Process Solutions and excluding the Oil, Gas and Mining and Dow Solar businesses thereof), the Building Solutions business (including Great Stuff TM ) and Building & Construction Royalties of Dow Building and Construction, Dow Corning Medical, Dow Corning Electronic Materials (Semiconductor Fabrication, Semiconductor Packaging, Consumer & Communication (Display), Compound Semiconductor, Solar, LED Packaging (Display), and Industrial LED), (C) in each case, all portions of the following businesses as conducted on December 11, 2015, August 31, 2017 and/or prior to the MatCo Distribution Date, Dow Corning Trichlorosilanes, Dow Corning Molykote, Dow Corning Multibase and Dow’s Hemlock Semiconductor business (including the production of polycrystalline silicon (polysilicon) for use in the semiconductor and solar industries), (ii) any other business conducted primarily through the use of the Specialty Products Assets prior to the Relevant Time (other than that described in clause (i) of the definition of “ Agriculture Business ” and clause (i) the definition of “ Materials Science Business ”) and (iii) the businesses and operations of Business Entities acquired or established by or for SpecCo or any of its Subsidiaries after the date of this Agreement (other than that described in clause (i) and clause (ii) of the definition of “ Agriculture Business ” and clause (i) the definition of “ Materials Science Business ”). For the avoidance of doubt, (x) any businesses conducted within those described in clauses (i)(B) or (i)(C) as of December 11, 2015 or August 31, 2017, shall constitute part of the Specialty Products Business irrespective of whether conducted through different segments or business units of Dow after either or both such times and (y) the Specialty Products Business includes the businesses and operations set forth on Schedule 1.1(304) .

 

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(305) “ Specialty Products Contracts ” shall mean Contracts to which DowDuPont or any of its Subsidiaries is a party or by which it or any of its Subsidiaries or any of their respective Assets is bound, whether or not in writing, which fall within any of the following categories:

(i) any and all Contracts that relate exclusively to the Specialty Products Business, the Specialty Products Assets and/or the Specialty Products Liabilities and are not related (other than in a de minimis respect) to any other Business, any Agriculture Asset, any Materials Science Asset, any Agriculture Liability or any Materials Science Liability, including those set forth on Schedule 1.1(305)(i) ;

(ii) any and all Contracts to which Historical DuPont or any of its Subsidiaries was a party as of the Relevant Time (and any amendments, extensions or replacements thereof) that are not related in any respect (other than in a de minimis respect) to any Business and are set forth on Schedule 1.1(305)(ii) (the “ Specified Specialty Products DuPont Corporate Contracts ”); and

(iii) any and all Contracts to which DowDuPont was a party as of the Relevant Time (and any amendments, extensions or replacements thereof) that are not related in any respect to any Business (other than in a de minimis respect).

(306) “ Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean, collectively, (a) the Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities, (b) the SpecCo Group Specified DuPont Discontinued and/or Divested Operations and Business Liabilities and (c) the SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities.

(307) “ Specialty Products Environmental Liabilities ” shall mean the Liabilities described in clauses (viii) and (xv)(c) of the definition of Specialty Products Liabilities.

(308) “ Specialty Products Known Undisclosed Liabilities ” shall mean any Liability (or Liabilities arising from the same or substantially similar facts underlying such Liability) (other than ordinary course trade payables and ordinary course commercial obligations, in each case incurred on or after the Measurement Date) of Historical Dow (i) that is Related to the Specialty Products Business but is not a Specified Specialty Products Liability or described in clauses (xiii)-(xiv) of the definition of Specialty Products Liabilities, and (ii) (a) for which a member of Historical Dow (x) has recorded an accrual prior to the MatCo Distribution (other than actual accruals by a member of Historical Dow recorded in the manner described on Schedule 1.1(308)(ii)(a)  (1) as of or prior to December 31, 2018 or (2) in the ordinary course of business after December 31, 2018 and prior to the MatCo Distribution (the amount of such accrual for a particular Liability or Liabilities arising from the same or substantially similar facts underlying such Liability, the “ Specialty Products Accrued Amount ”)), or (y) (other than the Specialty Products Accrued Amount therefor, if any) has not recorded an accrual, but in accordance with GAAP was required to have recorded an accrual, prior to the MatCo Distribution, (b) that is described in any Corporate Risk Management Document of Dow (but not the Specialty Products Accrued Amount therefor, if any), (c) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical Dow Knowledge Group, Historical

 

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Dow is (or based on the actual knowledge (as of the MatCo Distribution Date) of the Historical Dow Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence (but not the Specialty Products Accrued Amount therefor, if any), or (d) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the Historical Dow Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date (but not the Specialty Products Accrued Amount therefor, if any); provided , however , that Specialty Products Known Undisclosed Liabilities shall not include any such Liability (A) that has been disclosed (or for which the facts and circumstances underlying such Liability have been disclosed) on Schedule 1.1(308)(A) or on any of the Schedules described in Section  1.1(308) , (B) in respect of which, to the actual knowledge (as of the MatCo Distribution Date) of any member of the SpecCo Knowledge Group, Historical Dow is (or based on the actual knowledge (as of the MatCo Distribution Date) of the SpecCo Knowledge Group, would be) required by applicable Law to retain or otherwise preserve any Information, Records, tangible material or other evidence, or (C) to the actual knowledge (as of the MatCo Distribution Date) of any member of the SpecCo Knowledge Group, there is (as of the MatCo Distribution Date) a reasonably apparent and significant danger to human health or safety that would reasonably be expected to manifest by the date that is two (2) years after the MatCo Distribution Date; provided , further , that any Liability that would constitute a Specialty Products Known Undisclosed Liability but in respect of which (or in respect of a Liability arising from the same or substantially similar facts) an Indemnification Notice has not been provided on or prior to the date that is the third (3 rd ) anniversary of the MatCo Distribution Date shall be deemed to not constitute a Specialty Products Known Undisclosed Liability. For the avoidance of doubt, Specialty Products Known Undisclosed Liabilities shall exclude the Specialty Products Accrued Amount therefor (if any), and if the actual aggregate amount of Indemnifiable Losses resulting from a Liability exceeds the applicable Specialty Products Accrued Amount therefor (if any) (the amount of such excess, the “ SpecCo Unaccrued Portion ”), whether such Liability constitutes a Specialty Products Known Undisclosed Liability pursuant to clauses (ii)(a)(y) or (ii)(b) – (ii)(d) of this definition and whether such Liability does not constitute a Specialty Products Known Undisclosed Liability pursuant to clauses (A)-(C) of the proviso to this definition shall be determined based on the SpecCo Unaccrued Portion and the facts and circumstances underlying the SpecCo Unaccrued Portion.

(309) “ Specialty Products Liabilities ” shall mean any and all Liabilities of (x) any member of the MatCo Group at the applicable Relevant Time, (y) any member of the AgCo Group at the applicable Relevant Time and/or (z) any member of the SpecCo Group at the applicable Relevant Time, in the following categories, in each case, regardless of (i) when or where such Liabilities arose or arise, (ii) where or against whom such Liabilities are asserted or determined, (iii) regardless of whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the AgCo Group, MatCo Group or SpecCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates and (iv) which entity is named in any Action associated with any Liability (except for Liabilities related to Taxes which are governed exclusively by the Tax Matters Agreement, and Liabilities (other than those to the extent related to, resulting from or arising out of Discontinued and/or Divested Operations and Businesses (except for Liabilities allocated pursuant to Section 1.10(a)-(c) of the Employee Matters Agreement and Section 2.07 of the Employee Matters Agreement)) allocated pursuant to the Employee Matters Agreement, which are governed exclusively thereby):

 

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(i) any and all Liabilities that are expressly assumed by or allocated to the SpecCo Group pursuant to this Agreement, including any obligations and Liabilities of any member of the SpecCo Group under this Agreement, including those pursuant to Section  12.5 hereof;

(ii) the Specialty Products Shared Historical DuPont Percentage of Liabilities relating to, arising out of or resulting from any statements or omissions made or incorporated by reference in the Distribution Disclosure Documents and relating to, arising out of or resulting from occurrences prior to, the MatCo Distribution based on information supplied by Historical DuPont;

(iii) any and all Liabilities arising out of Inventor Remuneration to the extent related to (i) the Intellectual Property constituting a Specialty Products Asset (other than any discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of such Intellectual Property by members of the AgCo Group or MatCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements), or (ii) the discrete and reasonably identifiable part thereof solely attributable to the use or sublicense of Intellectual Property constituting an Agriculture Asset or a Materials Science Asset by a member of the SpecCo Group as Licensees (as such term is defined in the Intellectual Property Cross-License Agreements) under the Intellectual Property Cross-License Agreements;

(iv) the Specialty Products Shared Historical DuPont Percentage of any and all costs, fees and expenses, including legal fees and costs, in connection with (A) the Transfer of Materials Science Assets of Historical DuPont (but only for Transfers prior to the Tower Realignment Time or pursuant to Sections 2.5 and 2.6 ) and/or (B) the Transfer of Agriculture Assets or Specialty Products Assets of Historical DuPont (but only for Transfers prior to the AgCo Distribution or pursuant to Sections 2.5 and 2.6 );

(v) the Applicable Specialty Products Percentage of any Specified DowDuPont Shared Liability;

(vi) any of the Liabilities set forth on Schedule 1.1(309)(vi) ;

(vii) the Specialty Products Shared Historical DuPont Percentage of any Materials Science Known Undisclosed Liabilities (other than those described in any Corporate Risk Management Document of DuPont) in excess of $125,000,000 in the aggregate, and the Specialty Products Shared Historical DuPont Percentage of any Materials Science Known Undisclosed Liabilities described in any Corporate Risk Management Document of DuPont;

 

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(viii) (a) any and all Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities that constitute Environmental Liabilities, (b) Environmental Liabilities set forth on Schedule 1.1(309)(viii)(b) , (c) any and all Off-Site Environmental Liabilities of Historical DuPont (that do not constitute Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities of Historical DuPont) that are Related to the Specialty Products Business, including those set forth on Schedule 1.1(309)(viii)(c) , (d) the Specialty Products Shared Historical DuPont Percentage of any and all Off-Site Environmental Liabilities of Historical DuPont (that do not constitute Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities of Historical DuPont) that are Related to the Materials Science Business, including those set forth on Schedule 1.1(38)(ix)(d)(I) or (II) not related to any Business (other than in a de minimis respect), including those set forth on Schedule 1.1(38)(ix)(d)(II) , (e) any and all Environmental Liabilities of Historical DuPont to the extent related to or arising out of occurrences prior to the Relevant Time that do not constitute Off-Site Environmental Liabilities or DuPont Discontinued and/or Divested Operations and Business Liabilities which are not related to any Business (other than in a de minimis respect) to the extent arising out of or related to any Specialty Products Real Property, Specialty Products Specified Owned Real Property or Specialty Products Specified Leased Real Property owned by Historical DuPont prior to the AgCo Distribution Date and (f) the Specialty Products Shared Historical DuPont Percentage of any and all Environmental Liabilities of Historical DuPont to the extent arising out of or related to occurrences prior to the Relevant Time that do not constitute Off-Site Environmental Liabilities or DuPont Discontinued and/or Divested Operations and Business Liabilities which are not related to any Business (other than in a de minimis respect) to the extent arising out of or related to any Materials Science Real Property, Materials Science Specified Owned Real Property or Materials Science Specified Leased Real Property owned by Historical DuPont prior to the Tower Realignment Time; provided , in each case (clauses (a)-(f)), that they shall be subject to Section  8.11 ;

(ix) any and all Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities which do not constitute Environmental Liabilities;

(x) any and all Liabilities (other than Materials Science Trade Payables and Historical DuPont Trade Payables) primarily related to, arising out of or resulting from the Specified Specialty Products DuPont Corporate Contracts;

(xi) any and all Liabilities for Indebtedness of the type described in clauses (i), (iv) and (vii) (but in case of clause (vii) solely with respect to clauses (i) and (iv)) of the definition of Indebtedness of (A) Historical DuPont that was incurred by any member of the SpecCo Group (and any such Indebtedness guaranteed by any member of Historical DuPont that is a member of the SpecCo Group), including those set forth on Schedule 1.1(309)(xi)(A) or (B) of DowDuPont set forth on Schedule 1.1(309)(xi)(B) or incurred by DowDuPont after the MatCo Distribution;

(xii) the Specialty Products Shared Historical DuPont Percentage of any and all Indebtedness of the type described in clauses (i), (iv) and (vii) (but in case of clause (vii) solely with respect to clauses (i) and (iv)) of the definition of Indebtedness of Historical DuPont that was incurred by any member of the MatCo Group prior to the time such entity became a Subsidiary of MatCo (and any such Indebtedness guaranteed by any member of Historical DuPont that is a member of the MatCo Group), but is not set forth on Schedule 1.1(198)(xiii) , if any (clauses (i)-(xii) of this Section  1.1(309) , the “ Specified Specialty Products Liabilities ”);

 

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(xiii) unless constituting a Specified Agriculture Liability or a Specified Materials Science Liability,

(a) (i) any and all checks issued but not drawn and accounts payable to the extent related (other than in de minimis respects) to the Specialty Products Business ( provided , however , that any such accounts payable represented by an invoice of less than $1,000,000 shall not constitute Specialty Products Liabilities pursuant to this clause (a) if the aggregate amount of accounts payable represented by such invoice is Related to the Agriculture Business or the Materials Science Business), and (ii) all accounts payable represented by an invoice of less than $1,000,000 if the aggregate amount of accounts payable represented by such invoice is Related to the Specialty Products Business (except for any such accounts payable represented by such invoice that are not related to any Business in more than a de minimis respect); and

(b) the Specialty Products Shared Historical DuPont Percentage of the Liabilities of Historical DuPont for Historical DuPont Trade Payables;

(xiv) unless constituting a Specified Agriculture Liability or a Specified Materials Science Liability, the Specialty Products Shared Historical DuPont Percentage of any and all Liabilities to the extent relating to, arising out of or resulting from a general corporate matter of Historical DuPont or any of its Subsidiaries (which Subsidiaries were Subsidiaries of Historical DuPont immediately prior to the Tower Realignment Time, but only while such Subsidiaries were Subsidiaries of Historical DuPont) incurred on or prior to the AgCo Distribution, including any Liabilities (including under applicable federal and state securities Laws) to the extent relating to, arising out of or resulting from:

(a) claims made by or on behalf of holders of any of Historical DuPont’s securities (including debt securities), in their capacities as such;

(b) any form, report, statement, certifications or other document (including all exhibits, amendments and supplements thereto) (other than a Distribution Disclosure Document) filed by DuPont or any of its Subsidiaries with the Commission on or prior to the AgCo Distribution, including the financial statements included therein (other than for Liabilities related to any such forms, reports, statements, certifications or other documents, in each case filed in connection with the Internal Reorganization, specifically relating to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be);

(c) the maintenance of Historical DuPont’s books and records, Historical DuPont’s corporate compliance and other corporate-level actions and oversight of Historical DuPont; and

 

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(d) (x) indemnification obligations to any current or former director or officer of Historical DuPont in their capacity as such in respect of occurrences prior to the AgCo Distribution Date or (y) any claims for breach of fiduciary duties brought against any current or former directors or officers of Historical DuPont, in their capacities as such in respect of occurrences prior to the AgCo Distribution Date, in each case, relating to any acts, omissions or events on or prior to the Final Separation Date;

(xv) any and all Liabilities Related to the Specialty Products Business, including in the following categories and including those set forth on Schedule 1.1(309)(xv) , but in each case, excluding the Specified Materials Science Liabilities, the Specified Agriculture Liabilities, the Liabilities described in clauses (xiv) and (xv) of each of the definitions of Agriculture Liabilities and Materials Science Liabilities and the Liabilities described in clauses (xiii) and (xiv) of the definition of Specialty Products Liabilities:

(a) any and all Liabilities arising out of or resulting from any Action Related to the Specialty Products Business, including such Actions listed on Schedule 1.1(309)(xv)(a) ;

(b) any and all Liabilities arising under any of the Specialty Products Contracts (except in the case of a Contract constituting a Specialty Products Contract because it is exclusively related to a Specialty Products Asset, any such Liabilities Related to the Agriculture Business or Materials Science Business); and

(c) any Environmental Liability that is Related to the Specialty Products Business, including those set forth on Schedule 1.1(309)(xv)(c) ; provided , that any such Environmental Liability shall be subject to Section  8.11 .

In the event of any inconsistency or conflict which may arise in the application or interpretation of any of the foregoing provisions and the provisions of the definition of Materials Science Liabilities and Agriculture Liabilities, such inconsistency shall be resolved using the following order of precedence: (i) any Specified Specialty Products Liability listed on Schedules 1.1(291) , 1.1(293) , 1.1(309)(vi) , 1.1(309)(viii)(b) and (c) , 1.1(309)(xi)(A) and (B) , and 1.1(310) constitutes a Specialty Products Liability (in the case of Schedules 1.1(291) and 1.1(293) , subject to the proviso in Section  1.1(291) ), (ii) the Specialty Products Shared Historical DuPont Percentage of any Specified Specialty Products Liability listed on Schedules 1.1(38)(ix)(d)(I) and (II)  constitutes a Specialty Products Liability and (iii) any Liability listed on Schedules 1.1(309)(xv) , 1.1(309)(xv)(a ) and 1.1(309)(xv)(c ) shall give rise to a rebuttable presumption in favor of AgCo and MatCo that such Liability Relates to the Specialty Products Business and/or the Specialty Products Assets. In addition, the allocation set forth in clauses (viii) and 1.1(309)(xv)(c) is not intended to affect or impact the share of any such Environmental Liability attributable to third parties.

 

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(310) “ Specialty Products Related DuPont Discontinued and/or Divested Operations and Business Liabilities ” shall mean any and all DuPont Discontinued and/or Divested Operations and Business Liabilities that are primarily related to the conduct prior to the Measurement Date of the Specialty Products Business of Historical DuPont (for purposes of measuring such relationship only, viewing the Specialty Products Business as it was conducted on or after January 1, 2015 but prior to the Measurement Date), including those set forth on Schedule 1.1(310) .

(311) “ Specialty Products Shared Contracts ” shall mean (i) any and all Shared Contracts that are primarily related to the Specialty Products Business including those set forth on Schedule 1.1(311) , but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract, (ii) prior to the AgCo Distribution Date, any and all Contracts (and any amendments, extensions or replacements thereof) entered into by a member of the SpecCo Group while such member was a subsidiary of Historical DuPont that are not related in any respect (other than in a de minimis respect) to any Business (“ SpecCo Group DuPont Corporate Contracts ”), but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract and (iii) prior to the AgCo Distribution Date, any and all Contracts (and any amendments, extensions or replacements thereof) entered into by a member of the MatCo Group while such member was a subsidiary of Historical DuPont that are not related in any respect (other than in a de minimis respect) to any Business (“ MatCo Group DuPont Corporate Contracts ”), but excluding any Specified Agriculture DuPont Corporate Contract, any Specified Specialty Products DuPont Corporate Contract or any Dow Corporate Contract; provided, however, in each case (clauses (ii) and (iii)), such SpecCo Group DuPont Corporate Contract and MatCo Group DuPont Corporate Contract shall be deemed to not inure to the burden or benefit of the MatCo Group, except for such SpecCo Group DuPont Corporate Contracts and MatCo Group DuPont Corporate Contracts set forth on Schedule 1.1(311)(iii) .

(312) “ Specialty Products Shared Historical DuPont Percentage ” shall mean seventy one percent (71%).

(313) “ Specified Contingent Governmental Action ” shall have the meaning set forth in Section  6.2(f) .

(314) “ Specified DowDuPont Shared Asset ” shall mean the Assets set forth on Schedule 1.1(314) .

(315) “ Specified DowDuPont Shared Liabilities ” shall mean:

(i) any and all Liabilities set forth on Schedule 1.1(315)(i) ;

(ii) any and all Liabilities of DowDuPont to the extent relating to, arising out of or resulting from a general corporate matter of DowDuPont related to occurrences on or prior to the Final Separation Date, including any such Liabilities (including under applicable federal and state securities Laws) to the extent relating to, arising out of or resulting from:

(a) claims made by or on behalf of holders of any of DowDuPont’s securities, in their capacities as such;

 

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(b) any (x) form, report, statement, certifications or other document (including all exhibits, amendments and supplements thereto) (other than a Distribution Disclosure Document) filed by DowDuPont with the Commission on or prior to the Final Separation Date, including the financial statements included therein (other than for Liabilities related to any such forms, reports, statements, certifications or other documents, in each case filed in connection with the Internal Reorganization, specifically relating to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be) or (y) Financing Disclosure Documents in respect of occurrences prior to the Final Separation Date;

(c) the maintenance of DowDuPont’s books and records, DowDuPont’s corporate compliance and other corporate-level actions and oversight of DowDuPont; and

(d) (x) indemnification obligations to any current or former director or officer of DowDuPont in their capacity as such in respect of occurrences prior to the Final Separation Date or (y) any claims for breach of fiduciary duties brought against any current or former directors or officers of DowDuPont, in their capacities as such in respect of occurrences prior to the Final Separation Date, in each case, relating to any acts, omissions or events on or prior to the Final Separation Date.

(iii) any Separation Expenses not allocated to a Party (and not otherwise constituting an Agriculture Liability pursuant to clause (v) of the definition thereof, a Materials Science Liability pursuant to clause (v) of the definition thereof or a Specialty Products Liability pursuant to clause (iv) of the definition thereof) in Section  12.5 .

In the case of any Liability a portion of which relates to occurrences on or prior to the Final Separation Date and a portion of which relates to occurrences after the Final Separation Date, only that portion that relates to occurrences on or prior to the Final Separation Date shall be considered a Specified DowDuPont Shared Liability; and with respect to the portion of such Liability that relates to occurrences after the Final Separation Date, such Liability shall be allocated in accordance with the definitions of Agriculture Liability, Materials Science Liability or Specialty Products Liability, as the case may be. For purposes of clarification of the foregoing, the Parties agree that no Liability relating to, arising out of or resulting from any obligation of any Person to perform the executory portion of any Contract existing as of the Final Separation Date shall be deemed to be a Specified DowDuPont Shared Liability.

Notwithstanding anything to the contrary herein, Specified DowDuPont Shared Liabilities shall not include (i) any Liabilities that are related or attributable to or arising in connection with Taxes or Tax Returns, (ii) any and all Liabilities to the extent relating to, arising out of or resulting from a general corporate matter of Historical DuPont set forth in clause (xv) of the definition of Agriculture Liabilities or clause (xiv) of the definition of Specialty Products Liabilities and (iii) any and all Liabilities to the extent relating to, arising out of or resulting from a general corporate matter of Historical Dow set forth in clause (xv) of the definition of Materials Science Liabilities.

 

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(316) “ Specified Tier 1 Dow DDOB Liability ” shall mean any Designated Dow DDOB Liability to the extent relating to, arising out of or resulting from less than an entire discontinued company or business (unless constituting an entire business unit or product line or business operation), but excluding any Specified Tier 2 Dow DDOB Liability.

(317) “ Specified Tier 2 Dow DDOB Liability ” shall mean any Designated Dow DDOB Liability to the extent relating to, arising out of or resulting from less than an entire discontinued site (unless (x) constituting an entire plant or (y) part of an entire discontinued company, business, business unit or business operation).

(318) “ Specified Tier 1 DuPont DDOB Liability ” shall mean any Designated DuPont DDOB Liability to the extent relating to, arising out of or resulting from less than an entire discontinued company or business (unless constituting an entire business unit or product line or business operation), but excluding any Specified Tier 2 DuPont DDOB Liability.

(319) “ Specified Tier 2 DuPont DDOB Liability ” shall mean any Designated DuPont DDOB Liability to the extent relating to, arising out of or resulting from less than an entire discontinued site (unless (x) constituting an entire plant or (y) part of an entire discontinued company, business, business unit or business operation).

(320) “ Steps Plan ” shall mean the steps plan set forth on Exhibit A hereto.

(321) “ Subsidiary ” shall mean with respect to any Person (i) a corporation, fifty percent (50%) or more of the voting or capital stock of which is, as of the time in question, directly or indirectly owned by such Person and (ii) any other partnership, joint venture, association, joint stock company, trust, unincorporated organization or other entity in which such Person, directly or indirectly, owns fifty percent (50%) or more of the equity or economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such entity or otherwise has control over such entity (e.g., as the managing partner of a partnership).

(322) “ Tax ” or “ Taxes ” shall have the meaning set forth in the Tax Matters Agreement.

(323) “ Tax Contest ” shall have the meaning set forth in the Tax Matters Agreement.

(324) “ Tax Matters Agreement ” shall mean the Tax Matters Agreement effective as of April 1, 2019, by and among SpecCo, MatCo and AgCo.

(325) “ Tax Return ” shall have the meaning set forth in the Tax Matters Agreement.

(326) “ Taxing Authority ” shall have the meaning set forth in the Tax Matters Agreement.

(327) “ Telone Distribution Agreement ” shall mean the Telone Distribution Agreement, effective as of April 1, 2019, by and between The Dow Chemical Company and Dow AgroSciences LLC.

 

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(328) “ Temporary Managing Party ” shall have the meaning set forth in Section  7.2(c)(ii) , as applicable.

(329) “ Third Party Claim ” shall have the meaning set forth in Section  8.5(a).

(330) “ Third Party Proceeds ” shall have the meaning set forth in Section  8.9(a) .

(331) “ TMODS License Agreement ” shall mean the DuPont TMODS Dynamic Process Simulation Software Agreement License and Services, effective as of April 1, 2019, by and between SpecCo and MatCo.

(332) “ Tower Realignment Time ” shall mean the time at which the following occur: (i) the direct or indirect Transfer by Historical Dow to a member of the AgCo Group or SpecCo Group that is not a member of Historical Dow of all interests in the capital stock of, or any other equity interests in, all of the members of Historical Dow that are to be members of the AgCo Group or SpecCo Group, as applicable, (ii) the matters set forth on Schedule 1.1(332)(ii) and (iii) the direct or indirect Transfer by Historical DuPont to a member of the MatCo Group of all interests in the capital stock of, or any other equity interests in, all of the members of Historical DuPont that are to be members of the MatCo Group to a member of the MatCo Group that is not a member of Historical DuPont, as applicable, have been completed.

(333) “ Trademarks ” shall have the meaning set forth in the definition of “ Intellectual Property .”

(334) “ Transaction Expenses ” shall have the meaning set forth in Section  12.5 .

(335) “ Transfer ” shall have the meaning set forth in Section  2.2(b)(i) and the term “ Transferred ” shall have its correlative meaning.

(336) “ Transferred Industrial Real Property ” shall have the meaning set forth in Section  2.7(b) .

(337) “ Transitional House Marks Trademark License Agreements ” shall mean the Transitional House Marks Trademark License Agreements, (i) effective as of April 1, 2019, by and between a member of the MatCo Group, as licensor, and a member of the AgCo Group, as licensee, (ii) effective as of April 1, 2019, by and between a member of the MatCo Group, as licensor, and a member of the SpecCo Group, as licensee, (iii) effective as of the date of the AgCo Distribution, by and between a member of the SpecCo Group, as licensor, and a member of the AgCo Group, as licensee and (iv) effective as of April 1, 2019, by and between a member of the SpecCo Group, as licensor, and a member of the MatCo Group, as licensee.

(338) “ Umbrella Secrecy Agreement ” shall mean the Umbrella Secrecy Agreements, (i) effective as of the date of the AgCo Distribution, among AgCo, SpecCo and the other signatories thereto, (ii) effective as of April 1, 2019, among AgCo, MatCo and the other signatories thereto and (iii) effective as of April 1, 2019, among SpecCo, MatCo and the other signatories thereto.

 

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(339) “ USA-Subject Ancillary Agreements ” shall mean the Intellectual Property Cross-License Agreements, the Transitional House Marks Trademark License Agreements, the Product Marks Trademark License Agreements, the Regulatory Transfer and Support Agreements, the Regulatory Cross License Agreements, MOD 5 (ROFAN) License Agreements, TMODS License Agreement, Global Product Sales Agreements, Operating Systems and Tools License Agreements, Manufacturing Product Agreements, Contract Manufacturing Agreements, and Pilot Plant Services Agreement.

Section 1.2 References; Interpretation . For the purposes of this Agreement, (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) the Parties have each participated in the negotiation and drafting of this Agreement, except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (i) a reference to any Person includes such Person’s successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (l) any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (m) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (n) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (o) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (p) any consent given by any party hereto pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “AgCo” shall also be deemed to refer to the applicable member of the AgCo Group, references to “MatCo” shall also be deemed to refer to the applicable member of the MatCo Group, references to “SpecCo” shall also be deemed to refer to the applicable member of the SpecCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by AgCo, MatCo or SpecCo shall be deemed to require AgCo, MatCo or SpecCo, as the case may be, to cause the applicable members of the AgCo Group, the MatCo Group or the SpecCo Group, respectively, to take, or refrain from taking, any such action.

Section 1.3 Effective Time; Suspension .

(a) This Agreement shall be effective as of the Effective Time.

 

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(b) Notwithstanding Section  1.3(a) above, solely as between any of the Parties that are Affiliates, the provisions of, and the obligations under, this Agreement shall be suspended as between such Parties until the applicable Relevant Time, other than for Sections 2.1 , 2.2 , 2.3 and 2.8 each of which will be effective as of the Effective Time.

ARTICLE II

THE SEPARATION

Section 2.1 General . Subject to the terms and conditions of this Agreement, each Party shall use, and shall cause the other members of its Group and its respective then-Affiliates to use, their respective reasonable best efforts to consummate the transactions contemplated hereby (including the Internal Reorganization), a portion of which have already been implemented prior to the date hereof.

Section 2.2 Transfer of Assets; Assumption and Satisfaction of Liabilities .

(a) Prior to the Effective Time, the Parties shall and shall cause the other members of its Group and its respective then-Affiliates to complete the Internal Reorganization (other than as set forth on Schedule 2.2 ).

(b) Prior to the applicable Relevant Time and, in each case, in accordance with the Steps Plan and pursuant to the Conveyancing and Assumption Instruments and, in connection with the Internal Reorganization:

(i) Subject to Section  2.5 (Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time) and Section  2.2(d) (Treatment of Shared Contracts), SpecCo shall, and shall cause the other members of its Group to, as applicable, transfer, contribute, assign and/or convey or cause to be transferred, contributed, assigned and/or conveyed (“ Transfer ”) to (i) MatCo or another member of the MatCo Group all of its and the other members of its Group’s right, title and interest in and to the Materials Science Assets and (ii) AgCo or another member of the AgCo Group all of its and the other members of its Group’s right, title and interest in and to the Agriculture Assets and the applicable member(s) of the MatCo Group and/or AgCo Group, as applicable, shall accept from SpecCo and the applicable members of the SpecCo Group, all of SpecCo’s and the other members of the SpecCo Group’s respective direct or indirect rights, title and interest in and to the Materials Science Assets and the Agriculture Assets, respectively;

(ii) Subject to Section  2.5 (Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time) and Section  2.2(d) (Treatment of Shared Contracts), MatCo shall, and shall cause the other members of its Group to, as applicable, Transfer to (i) SpecCo or another member of the SpecCo Group all of its and the other members of its Group’s right, title and interest in and to the Specialty Products Assets and (ii) AgCo or another member of the AgCo Group all of its and the other members of its Group’s right, title and interest in and to the Agriculture Assets and the applicable member(s) of the SpecCo Group and/or AgCo Group, as

 

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applicable, shall accept from MatCo and the applicable members of the MatCo Group, all of MatCo’s and the other members of the MatCo Group’s respective direct or indirect rights, title and interest in and to the Specialty Products Assets and the Agriculture Assets, respectively; and

(iii) Subject to Section  2.5 (Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time) and Section  2.2(d) (Treatment of Shared Contracts), AgCo shall, and shall cause the other members of its Group to, as applicable, Transfer to (i) MatCo or another member of the MatCo Group all of its and the other members of its Group’s right, title and interest in and to the Materials Science Assets and (ii) SpecCo or another member of the SpecCo Group all of its and the other members of its Group’s right, title and interest in and to the Specialty Products Assets and the applicable member(s) of the MatCo Group and/or SpecCo Group, as applicable, shall accept from AgCo and the applicable members of the AgCo Group, all of AgCo’s and the other members of the AgCo Group’s respective direct or indirect rights, title and interest in and to the Materials Science Assets and the Specialty Products Assets, respectively.

(c) Assumption of Liabilities . Subject to Section  2.5 (Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time) and Section  2.2(d) (Treatment of Shared Contracts), (a) SpecCo shall, or shall cause a member of the SpecCo Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“ Assume ”), all of the Specialty Products Liabilities, (b) MatCo shall, or shall cause a member of the MatCo Group to, Assume all of the Materials Science Liabilities and (c) AgCo shall, or shall cause a member of the AgCo Group to, Assume all of the Agriculture Liabilities.

(d) Treatment of Shared Contracts . Without limiting the generality of the obligations set forth in Section  2.2(b) :

(i) Unless the benefits of a Shared Contract are conveyed to the applicable Party (or member of its Group) pursuant to an Ancillary Agreement, (A) any Contract that is a Shared Contract, shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended, bifurcated, replicated or otherwise modified prior to, on or after the Effective Time, so that each Party or the members of their respective Groups shall be entitled to the rights and benefits, and shall Assume the related portion of any Liabilities, inuring to their respective Businesses (each, a “ Partial Assignment ”); provided , however , that (x) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended or otherwise modified) by its terms (including any terms imposing Consents or conditions on an assignment where such Consents or conditions have not been obtained or fulfilled) (including those set forth on Schedule 2.2(d)) or under applicable Law and (y) if any Shared Contract cannot be so partially assigned by its terms or otherwise, cannot be amended or otherwise modified or if such assignment or amendment or modification would impair the benefit the parties thereto derive from such Shared Contract, (A) the Parties shall, and shall cause each of

 

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their respective Subsidiaries to, take such other reasonable and permissible actions to cause a member of the SpecCo Group, the MatCo Group or the AgCo Group as the case may be, to, in each case, (I) receive the benefit of that portion of each Shared Contract that relates to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be (in each case, to the extent so related) as if such Shared Contract had been assigned to (or amended or otherwise modified for the benefit of) a member of the applicable Group pursuant to this Section  2.2(d) (including, enforcing on the applicable Group’s behalf any and all of such Group’s rights against such third party under such Shared Contract solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof)) and (II) bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement) as if such Liabilities had been Assumed by a member of the applicable Group pursuant to this Section  2.2(d) , including expenses related to enforcing rights under such Shared Contract against the third party counterparty thereto solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof); and indemnifying each other Group against all Indemnifiable Losses to the extent arising out of any actions (or omissions to act) taken by such other Group with respect to such Shared Contract at the direction of such first Party (except to the extent arising out of or related to gross negligence, fraud or willful misconduct by such other Group) (for the avoidance of doubt, in the event that any rights in connection with a Force Majeure Event or similar event are exercised under a Shared Contract, the benefits and burdens with respect to such Shared Contract (as modified by such Force Majeure Event or similar event) shall, if reasonably practicable, be shared proportionally or, if not reasonably practicable, in such other manner as would be most equitable, among the Groups related to such Contract (or in any other manner as may be agreed in good faith by the relevant Parties whose Group is related to such contract), in each case, to the extent so related to the Agriculture Business, the Materials Science Business or the Specialty Products Business) and (B) to the extent that the Parties cannot effect a Partial Assignment in accordance with this Section  2.2(d) , or cannot implement the arrangements set forth in clause (A), within 180 days of the MatCo Distribution Date, the Parties shall use commercially reasonable efforts to, if requested by any Party, seek mutually acceptable alternative arrangements for the purpose of allocating rights and obligations to each Group under such Shared Contract reflecting the principles set forth in clause (A) of this provision (an “ Acceptable Alternative Arrangement ”).

(ii) Each Party shall, and shall cause the other members of its Group to, use its commercially reasonable efforts to obtain the required Consents to complete a Partial Assignment of any Shared Contract as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Partial Assignment of any Shared Contract or Acceptable Alternative Arrangement shall be completed if it would violate any applicable Law or the rights of any third party to such Shared Contract.

(iii) To the extent permitted by applicable Law, each of SpecCo, MatCo and AgCo shall, and shall cause the members of its respective Group to, (A) treat for all Tax purposes the portion of each Shared Contract inuring to its respective Businesses as Assets owned by, and/or Liabilities of, as applicable, such Party not later than the applicable Relevant Time and (B) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest relating to income Taxes).

 

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(iv) With respect to Liabilities pursuant to, under or relating to a Shared Contract to the extent relating to occurrences from and after the Relevant Time, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or any Ancillary Agreement, be allocated among SpecCo, MatCo and AgCo as follows:

(1) If such Liability is incurred (x) exclusively in respect of the Agriculture Business, such Liability shall be allocated to AgCo or its applicable Subsidiary, (y) exclusively in respect of the Materials Science Business, such Liability shall be allocated to MatCo or the applicable member of its Group or (z) exclusively in respect of the Specialty Products Business, such Liability shall be allocated to SpecCo or the applicable member of its Group;

(2) If such Liability cannot be so allocated under clause (1) above, such Liability shall be allocated to SpecCo, MatCo or AgCo, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the date of the MatCo Distribution (for apportioning between MatCo, on the one hand, and AgCo and SpecCo on the other hand) or the AgCo Distribution (for apportioning between AgCo and SpecCo)) by the Agriculture Business, the Materials Science Business or the Specialty Products Business, respectively, under the relevant Shared Contract after the Relevant Time; and

(3) Notwithstanding the foregoing in this clause (3), each of AgCo, MatCo or SpecCo shall be responsible for any and all such Liabilities to the extent arising from its (or its Subsidiary’s) breach after the Relevant Time of the relevant Shared Contract.

(v) None of SpecCo, MatCo, AgCo or any of the members of their respective Group or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party to (x) obtain any new Contract or Partial Assignment with respect to any Shared Contract, as the case may be or (y) obtain any Consent necessary to enter into an Acceptable Alternative Arrangement; provided , however , any Party to which the benefit of a new Contract, Partial Assignment or Acceptable Alternative Arrangement would inure pursuant to this Section  2.2(d) may request that the Party that is allocated such Shared Contract as an Agriculture Asset, Materials Science Asset or Specialty Products Asset commence litigation, which request shall be considered in good faith by such Party; provided , further , that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section  2.2(d)(v) , but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with Section  2.2(d)(v) .

 

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(vi) From and after the Relevant Time, the Party to whose Group a Shared Contract has been allocated shall not (and shall cause the other members of its Group not to), without the consent of the other applicable Party or Parties (such consent not to be unreasonably withheld, conditioned or delayed) (x) waive any rights under such Shared Contract to the extent related to the Business, Assets or Liabilities of such other Party, (y) terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (1) the expiration of such Shared Contract in accordance with its terms (it being understood, for the avoidance of doubt, that sending a notice of non-renewal to the counterparty to such Shared Contract in accordance with the terms of such Shared Contract is expressly permitted) or (2) a partial termination of such Shared Contract that would not reasonably be expected to impact any rights under such Shared Contract related to the Business, Assets or Liabilities of such other Party or Parties or any of its or their respective Subsidiaries, or (z) amend, modify or supplement such Shared Contract in a manner material (relative to the existing rights and obligations related to such other Party’s Business, Assets or Liabilities under such Shared Contract) and adverse to the Business, Assets or Liabilities of such other Party or Parties or any of its or their respective Subsidiaries. From and after the MatCo Distribution or AgCo Distribution, as applicable, if a member of a Group (the “ Notice Recipient ”) receives from a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notice Recipient shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than five (5) Business Days following receipt of such notice) and the Parties shall consult with respect to the actions proposed to be taken regarding the alleged breach. If a Group (the “ Notifying Party ”) sends to a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notifying Party shall provide written notice to the other Party as soon as reasonably practicable (and in any event no less than five (5) Business Days prior to sending such notice of breach to the counterparty), and the Parties shall consult with each other regarding such alleged breach. From and after the MatCo Distribution or the AgCo Distribution, as applicable, no Party shall (and shall cause the other members of its Group not to) breach any Shared Contract to the extent such breach would reasonably be expected to result in a loss of rights, or acceleration of obligations, of any member of another Party’s Group (or related to its Business, Assets or Liabilities under such Shared Contract) pursuant to (X) such Shared Contract, (Y) any Partial Assignment related to such Shared Contract or (Z) any other Contract with the counterparty to such Shared Contract (or any of its Affiliates) in existence at the time of the applicable MatCo Distribution or AgCo Distribution that contains cross-default or similar provisions related to such Shared Contract.

(e) If any Party believes in good faith that it (or a member of its Group) was intended to have access to all or certain rights or benefits under a Non-Shared Contract pursuant to the efforts by each Group prior to the Relevant Time to separate, replace, replicate, mirror and/or bifurcate Non-Shared Contracts but such Non-Shared Contract is deemed not to inure in part to the benefit or burden of that Party (or a member of its Group) pursuant to Schedule 1.1(212), then such Party may request that the Party whose Group is a party to such Non-Shared Contract enter into a Partial Assignment or Acceptable Alternative Arrangement in accordance with Section  2.2(d)(i) and such other Party shall consider such request in good faith. With respect to any Contract that is (x) a Dow Corporate Contract, (y) a Specified Agriculture DuPont Corporate Contract or (z) a Specified Specialty Products DuPont Corporate Contract, then, (1) in the case of a Dow Corporate Contract, which inures in part to the benefit or burden of

 

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any member of the SpecCo Group or the AgCo Group, as the case may be, each of SpecCo or AgCo, as the case may be, may request, in good faith, that MatCo arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract pursuant to Section  2.2(d)(i) which request shall be considered in good faith by MatCo and, if MatCo agrees to arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract, MatCo shall provide AgCo or SpecCo, as the case may be, reasonable support in arranging such Partial Assignment or Acceptable Alternative Arrangement, (2) in the case of a Specified Agriculture DuPont Corporate Contract which inures in part to the benefit or burden of any member of the SpecCo Group or the MatCo Group, as the case may be, each of SpecCo or MatCo, as the case may be, may request, in good faith, that AgCo arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract pursuant to Section  2.2(d)(i) which request shall be considered in good faith by AgCo and, if AgCo agrees to arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract, AgCo shall provide MatCo or SpecCo, as the case may be, reasonable support in arranging such Partial Assignment or Acceptable Alternative Arrangement and (3) in the case of a Specified Specialty Products DuPont Corporate Contract which inures in part to the benefit or burden of any member of the AgCo Group or the MatCo Group, as the case may be, each of AgCo or MatCo, as the case may be, may request, in good faith, that SpecCo arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract pursuant to Section  2.2(d)(i) which request shall be considered in good faith by SpecCo and, if SpecCo agrees to arrange a Partial Assignment or an Acceptable Alternative Arrangement of such Contract, SpecCo shall provide AgCo or MatCo, as the case may be, reasonable support in arranging such Partial Assignment or Acceptable Alternative Arrangement. The failure to enter into, or arrange, a Partial Assignment or an Acceptable Alternative Arrangement shall not in and of itself constitute a breach of this Section  2.2(e) ; provided , that the foregoing shall not preclude consideration of a party’s efforts in pursuing such consent or approval for purposes of determining compliance with this Section  2.2(e) .

(f) Consents . Each Party shall, and shall cause each member of its respective Group to, use its commercially reasonable efforts to obtain the required Consents for the Transfer of any Assets, Contracts, licenses, permits and authorizations issued by any Governmental Entity or parts thereof as contemplated by this Agreement, including those Consents set forth on Schedule 2.2(f) . Notwithstanding anything herein to the contrary, no Contract or other Asset shall be transferred if it would violate applicable Law or, in the case of any Contract, the rights of any third party to such Contract; provided that Sections 2.2(d) and 2.5 , to the extent provided therein, shall apply thereto.

(g) Each party understands and agrees on behalf of itself and each member of its Group that certain of the Transfers referenced in Section  2.2(b) or Assumptions referenced in Section  2.2(c) have heretofore occurred and, as a result, no additional Transfers or Assumptions by any member of the SpecCo Group, MatCo Group or AgCo Group, as applicable, shall be deemed to occur upon the execution of this Agreement with respect thereto. To the extent that a member of the SpecCo Group, the MatCo Group or the AgCo Group, as applicable, owns a Specialty Products Asset, Materials Science Asset or Agriculture Asset, respectively, as of the Effective Time, there shall be no need for such member to Transfer such Asset in connection with the operation of Section  2.2(b) . Moreover, to the extent that a member of the SpecCo Group, the MatCo Group or the AgCo Group, as applicable, is liable for any Specialty Products Liability, Materials Science Liability or Agriculture Liability, respectively, at the Effective Time, there shall be no need for such member to Assume such Liability in connection with the operation of Section  2.2(c) .

 

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Section 2.3 Intergroup Accounts; Intercompany Accounts .

(a) Except as set forth in Section  8.1(b) , any and all intercompany receivables, payables, loans and balances (other than (x) as specifically provided for under this Agreement, under any Ancillary Agreement, under any Continuing Arrangements as set forth on Schedule 1.1(68) or (y) as otherwise set forth on Schedule 2.3(a) (the matters set forth on Schedule 2.3(a) , the “ Other Surviving Intergroup Accounts ”)) (i) between any member of (A) the SpecCo Group or (B) the AgCo Group, in each case (clauses (A) and (B)), that was a member of Historical DuPont, on the one hand, and any member of the MatCo Group that was a member of Historical DuPont, on the other hand, which exist as of immediately prior to the Tower Realignment Time, (ii) between any member of the AgCo Group that was a member of Historical DuPont, on the one hand, and any member of the SpecCo Group that was a member of Historical DuPont, on the other hand, as of immediately prior to the AgCo Distribution Date (clauses (i) and (ii), the “ Historical DuPont Intergroup Accounts ”) or (iii) between any member of the MatCo Group that was a member of Historical Dow, on the one hand, and any member of (x) the AgCo Group that was a member of Historical Dow or (y) the SpecCo Group that was a member of Historical Dow, on the other hand, or between any member of the AgCo Group that was a member of Historical Dow or any member of the SpecCo Group that was a member of Historical Dow, in each case, which exist as of immediately prior to the Tower Realignment Time (the “ Historical Dow Intergroup Accounts ” and together with the Historical DuPont Intergroup Accounts, the “ Intergroup Accounts ”) shall, prior to the Tower Realignment Time (or, in the case of clause (ii) prior to the AgCo Distribution Date), be caused by Historical Dow (in the case of clause (iii)) and Historical DuPont (in the case of clauses (i) and (ii)) to be settled immediately prior to the Tower Realignment Time, by means of cash payments, a dividend, capital contribution, a combination of the foregoing or otherwise. For the avoidance of doubt, the Other Surviving Intergroup Accounts (i) shall be an obligation of the relevant Party (or the relevant member of such Party’s Group), each responsible for fulfilling its (or a member of such Party’s Group’s) obligations in accordance with the terms and conditions applicable to such obligation or if such terms and conditions are not set forth in writing, such obligation shall be satisfied within the payment terms set forth therefor on Schedule 2.3(a) or thirty (30) days of a written request by the beneficiary of such obligation given to the corresponding obligor thereunder, and (ii) shall be for each relevant Party (or the relevant member of such Party’s Group) an obligation to a third party and shall no longer be an intercompany account. The covenants and agreements of Historical Dow under clause (iii) of the first sentence of this Section  2.3(a) shall constitute Materials Science Liabilities and the covenants and agreements of Historical DuPont under clause (i)(A) of the first sentence of this Section  2.3(a) shall constitute Specialty Products Liabilities and those under clause (i)(B) of the first sentence of this Section  2.3(a) shall constitute Agriculture Liabilities and those under clause (ii) of the first sentence of this Section  2.3(a) shall constitute Shared Historical DuPont Liabilities.

(b) Except as set forth in Section  8.1(b) , all intercompany receivables, payables, loans and balances (other than (x) as specifically provided for under this Agreement or (y) as otherwise set forth on Schedule 2.3(b)(1) (the matters set forth on Schedule 2.3(b)(1) , the “ Other Surviving Selected Intercompany Accounts ”)) (i) between two or more members of the

 

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SpecCo Group that were members of Historical Dow, (ii) between any two or more members of the AgCo Group that were members of Historical Dow (together with those described in clause (i), the “ Historical Dow Selected Intercompany Accounts ”) or (iii) between two or more members of the MatCo Group that were members of Historical DuPont (the “ Historical DuPont Selected Intercompany Accounts ”), in each case, which exist as of the Tower Realignment Time (collectively, clauses (i)-(iii), the “ Selected Intercompany Accounts ”) shall, prior to the Tower Realignment Time, be caused by Historical Dow (in the case of Historical Dow Selected Intercompany Accounts) and Historical DuPont (in the case of clause Historical DuPont Selected Intercompany Accounts) to be settled, by means of cash payments, a dividend, capital contribution, a combination of the foregoing or otherwise; provided , however , that the Other Surviving Selected Intercompany Accounts shall remain an obligation of the relevant Party (or the relevant member of such Party’s Group), each responsible for fulfilling its (or a member of such Party’s Group’s) obligations in accordance with the terms and conditions applicable to such obligation or if such terms and conditions are not set forth in writing, such obligation shall be satisfied within the payment terms set forth therefor on Schedule 2.3(b)(1) or thirty (30) days of a written request by the beneficiary of such obligation given to the corresponding obligor thereunder. The covenants and agreements of Historical Dow under clauses (i) and (ii) shall constitute Materials Science Liabilities and the covenants and agreements of Historical DuPont under clause (iii) shall constitute Shared Historical DuPont Liabilities; provided , however , that each Party’s (and each Indemnitee’s) rights to indemnification for Taxes as set forth in the Tax Matters Agreement with respect to any failure to settle, prior to the Tower Realignment Time, any of the Selected Intercompany Accounts set forth on Schedule 2.3(b)(2) (the matters set forth on Schedule 2.3(b)(2) , the “ Scheduled Selected Intercompany Accounts ”) shall be governed exclusively by the Tax Matters Agreement; provided , further , that the Indemnitee shall use its commercially reasonable efforts, to the extent practicable, to mitigate any Indemnifiable Losses (other than Taxes) due to a breach of this covenant by a Party (but this shall not require the Indemnitee to pay any money to a third party or settle any Selected Intercompany Accounts).

(c) All receivables, payables, loans and balances (other than as specifically provided for under this Agreement) between a member of Historical Dow and a member of Historical DuPont (the “ Intertower Accounts ”) that are due prior to April 1, 2019, and would, after the MatCo Distribution, be receivables, payables, loans and balances (w) between members of the MatCo Group, (x) between members of the AgCo Group, (y) between members of the SpecCo Group or (z) between a member of Historical Dow that is a member of the AgCo Group (on the one hand) and a member of Historical Dow that is a member of the SpecCo Group (on the other hand), in each case (clauses (w)-(z)), which exist as of the Tower Realignment Time shall, prior to the Tower Realignment Time, be caused by Historical Dow (in the case of Intertower Accounts for which a member of Historical Dow is the obligor) and Historical DuPont (in the case of Intertower Accounts for which a member of Historical DuPont is the obligor) to be settled, by means of cash payments. The covenants and agreements of Historical Dow under the preceding sentence shall constitute Materials Science Liabilities and the covenants and agreements of Historical DuPont under the preceding sentence shall constitute Shared Historical DuPont Liabilities.

 

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Section 2.4 Limitation of Liability; Intergroup Contracts .

(a) No Party shall have any Liability to any other Party in the event that any information exchanged or provided pursuant to this Agreement (but excluding any such information included in a Distribution Disclosure Document or Financing Disclosure Document) which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate.

(b) Except as set forth in Section  2.4(c) , no Party or any other member of its Group shall be liable to any other Party or any other member of such other Party’s Group based upon, arising out of or resulting from any Contract, arrangement, course of dealing or understanding existing on or prior to the Relevant Time (other than this Agreement, the Ancillary Agreements, the Continuing Arrangements, the Other Surviving Intergroup Accounts, and the Other Surviving Selected Intercompany Accounts) and each Party (on behalf of itself and each other member of its Group) hereby terminates any and all Contracts, arrangements, course of dealings or understandings between or among it or any of its other Group members, on the one hand, and any other Party or any of its respective Group members, on the other hand, effective as of the Relevant Time (other than this Agreement, the Ancillary Agreements, the Continuing Arrangements, the Other Surviving Intergroup Accounts, the Other Surviving Selected Intercompany Accounts and the Conveyancing and Assumption Instruments). No such terminated Contract, arrangement, course of dealing or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the applicable Relevant Time. The Parties shall, and shall cause the other members of their respective Groups to, execute and deliver such agreements, instruments and other papers as may be required to terminate any such Contract, arrangement, course of dealing or understanding pursuant to this Section  2.4(b) if so requested by a Party.

(c) The provisions of Section  2.4(b) shall not apply to any of the following Contracts, arrangements, course of dealings or understandings (or to any of the provisions thereof): any agreements, arrangements, commitments or understandings to which any Person other than the Parties and their respective Affiliates is a Party (it being understood that (x) to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts constitute Agriculture Assets or Agriculture Liabilities, Materials Science Assets or Materials Science Liabilities, or Specialty Products Assets or Specialty Products Liabilities, such Contracts shall be assigned or retained pursuant to Article II and (y) the obligations of any member of a Group to any other Group shall be deemed terminated as of the Relevant Time with no further liability to any Group as a result thereof).

(d) If any Contract, arrangement, course of dealing or understanding is terminated pursuant to Section  2.4(b) , and, but for the mistake or oversight of any Party, would have been listed as continuing and is reasonably necessary for such affected Party to be able to continue to operate its Business in substantially the same manner in which such Businesses were operated prior to the applicable Relevant Time, then, at the request of such affected Party made within fifteen (15) months following the applicable Relevant Time, the Parties shall negotiate in good faith to determine whether and to what extent (including the terms and conditions relating thereto), if any, notwithstanding such termination, such Contract, arrangement, course of dealing or understanding should continue, or as appropriate, be re-instated, following the applicable Relevant Time; provided , however, that any Party may determine, in its sole discretion, not to re-instate or otherwise continue any such Contract, arrangement, course of dealing or understanding.

 

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Section 2.5 Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time .

(a) To the extent that any Transfers or Assumptions contemplated by this Article II , including the Transfers of certain Assets and Assumptions of certain Liabilities set forth on Schedule 2.5 , shall not have been consummated at or prior to the Effective Time, the Parties shall use commercially reasonable efforts to effect such Transfers or Assumptions as promptly following the Effective Time as shall be practicable. Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the Assumption of any Liabilities which by their terms or operation of Law cannot be Transferred; provided , however , that the Parties and their respective Subsidiaries shall cooperate and use commercially reasonable efforts to seek to obtain, in accordance with applicable Law, any necessary Consents for the Transfer of all Assets and Assumption of all Liabilities contemplated to be Transferred and Assumed pursuant to this Article II to the fullest extent permitted by applicable Law, including the Consents set forth on Schedule 2.2(f) . In the event that any such Transfer of Assets or Assumption of Liabilities has not been consummated, from and after the Effective Time (i) the Party (or relevant member in its Group) retaining such Asset shall thereafter hold (or shall cause such member in its Group to hold) such Asset in trust for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto) and (ii) the Party intended to Assume such Liability shall, or shall cause the applicable member of its Group to, pay or reimburse the Party retaining such Liability for all amounts paid or incurred in connection with the retention of such Liability. To the extent the foregoing applies to any Contracts (other than Shared Contracts, which shall be governed solely by Section  2.2(d) ) to be assigned for which any necessary Consents are not received prior to the Effective Time, the treatment of such Contracts shall, for the avoidance of doubt, also be subject to Section  2.9 and Section  2.10 , to the extent applicable. In addition, the Party retaining such Asset or Liability (or relevant member of its Group) shall (or shall cause such member in its Group to) treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Asset or Liability in the ordinary course of business and take such other actions as may be reasonably requested by the Party to which such Asset is to be Transferred or by the Party responsible for Assuming such Liability in order to place such Party, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset or Liability had been Transferred or Assumed as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Effective Time to the relevant member or members of the SpecCo Group, MatCo Group or AgCo Group entitled to the receipt of such Asset or required to Assume such Liability. In furtherance of the foregoing, each Party agrees (on behalf of itself and each other member of its Group) that, as of the Effective Time, subject to Section  2.2(c) and Section  2.9(b) , each Party and/or each member of its Group shall (i) be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have Assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to Assume pursuant to the

 

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terms of this Agreement and (ii) (A) enforce at another Party’s (or relevant member of its Group’s) request, or allow another Party’s Group to enforce in a commercially reasonable manner, any rights of the Party or its Group under such Assets and Liabilities against any other Persons, (B) not waive any rights related to such Assets or Liabilities to the extent related to the Business, Assets or Liabilities of another Party’s Group (C) not terminate (or consent to be terminated by the counterparty) any Contract that constitutes such Asset except in connection with the expiration of such Contract in accordance with its terms, (D) not amend, modify or supplement any Contract that constitutes such Asset and (E) provide written notice to the applicable other Party as soon as reasonably practicable (and in no event later than five (5) Business Days following receipt) after receipt of any formal notice of breach received from a counterparty to any Contract that constitutes such Asset; provided , that the costs and expenses incurred by the responding Party or its Group in respect of any request by another Party in respect of such Assets or Liabilities shall be borne solely by the requesting Party or its Group.

(b) If and when the Consents and/or conditions, the absence or non-satisfaction of which caused the deferral of Transfer of any Asset or deferral of the Assumption of any Liability pursuant to Section  2.5(a) , are obtained or satisfied, the Transfer, assignment, Assumption or novation of the applicable Asset or Liability shall be effected without further consideration in accordance with and subject to the terms of this Agreement (including Sections 2.2 and 2.5 ) and/or the applicable Ancillary Agreement, and shall, to the extent possible without the imposition of any undue cost on any Party, be deemed to have become effective as of the Effective Time.

(c) The Party (or relevant member of its Group) retaining any Asset or Liability due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability pursuant to Section  2.5(a) or otherwise shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability, other than reasonable attorneys’ fees and recording or similar or other incidental fees, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be. Except as otherwise expressly provided herein, none of SpecCo, MatCo or AgCo or any of their respective Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party with respect to any Assets or Liabilities not Transferred as of the Effective Time; provided , however , that any Party to which such Asset or Liability has not been Transferred or Assumed, respectively, due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability may request that the Party retaining such Asset or Liability commence litigation, which request shall be considered in good faith by the Party retaining such Asset or Liability; provided , further , that a Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section  2.5(c) , but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with this Section  2.5(c) .

 

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(d) Notwithstanding anything else set forth in this Section  2.5 to the contrary, (A) neither SpecCo nor any of its Subsidiaries shall be required by this Section  2.5 to take any action that may, in the good faith judgment of SpecCo, (x) result in a violation of any obligation which SpecCo or any such Subsidiary has to any third party or (y) violate applicable Law, (B) neither MatCo nor any of its Subsidiaries shall be required by this Section  2.5 to take any action that may, in the good faith judgment of MatCo, (x) result in a violation of any obligation which MatCo or any such Subsidiary has to any third party or (y) violate applicable Law and (C) neither AgCo nor any of its Subsidiaries shall be required by this Section  2.5 to take any action that may, in the good faith judgment of AgCo, (x) result in a violation of any obligation which AgCo or any such Subsidiary has to any third party or (y) violate applicable Law.

(e) The failure to obtain a Consent shall not in and of itself constitute a breach of this Agreement; provided , that the foregoing shall not preclude consideration of a Party’s efforts in pursuing such Consent for purposes of determining compliance with this Section  2.5 .

(f) To the extent permitted by applicable Law, with respect to Assets and Liabilities described in Section  2.5(a) , each of SpecCo, MatCo and AgCo shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes (A) the deferred Assets as assets having been Transferred to and owned by the Party entitled to such Assets not later than the applicable Relevant Time and (B) the deferred Liabilities as liabilities having been Assumed and owned by the Person intended to be subject to such Liabilities not later than the applicable Relevant Time and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest).

Section 2.6 Wrong Pockets; Mail  & Other Communications; Payments .

(a) Subject to Section  2.5 (Transfers Not Effected On or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time) and Section  2.2(d) (Treatment of Shared Contracts), (i) if at any time within twenty-four (24) months after the applicable Relevant Time any Party discovers that any Agriculture Asset is held by any member of the SpecCo Group, the MatCo Group or any of their respective then-Affiliates, SpecCo and MatCo shall, and shall cause the other members of their respective Group and its and their respective then-Affiliates to, use their respective reasonable best efforts to promptly procure the transfer of the relevant Agriculture Asset to AgCo or an Affiliate of AgCo designated by AgCo for no additional consideration, (ii) if at any time within twenty-four (24) months after the MatCo Distribution, any Party discovers that any Materials Science Asset is held by SpecCo, AgCo or any of their respective Affiliates, SpecCo and AgCo shall use their respective reasonable best efforts to promptly procure the transfer of the relevant Materials Science Asset to MatCo or an Affiliate of MatCo designated by MatCo for no additional consideration; or (iii) if at any time within twenty-four (24) months after the applicable Relevant Time, any Party discovers that any Specialty Products Asset is held by MatCo, AgCo or any of their respective Affiliates, MatCo and AgCo shall use their respective reasonable best efforts to promptly procure the transfer of the relevant Specialty Products Asset to SpecCo or an Affiliate of SpecCo designated by SpecCo for no additional consideration; provided that in the case of clause (i),

 

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neither SpecCo or MatCo nor any of their respective Affiliates, in the case of clause (ii), neither SpecCo or AgCo nor any of their respective Affiliates, or in the case of clause (iii), neither MatCo or AgCo nor any of their respective Affiliates, shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party. If reasonably practicable and permitted under applicable Law, such Transfer may be effected by rescission of the applicable portion of a Conveyancing and Assumption Instrument as may be agreed by the relevant Parties.

(b) On and prior to the twenty-four (24) month anniversary following the applicable Relevant Time, if any Party or any member of its Group or (or any of its or their respective then-Affiliates) owns any Asset, that, although not Transferred pursuant to this Agreement, is agreed by such Party and the other applicable Party in their good faith judgment to be an Asset that more properly belongs to such other Party or a member of its Group, or is an Asset that such other Party or a member of its Group was intended to have the right to continue to use (other than (for the avoidance of doubt), as between any two Parties, or any Asset acquired from an unaffiliated third party by a Party or member of such Party’s Group following the applicable Relevant Time), then the Party or a member of its Group (or applicable then-Affiliate) owning such Asset shall, as applicable (i) Transfer any such Asset to the Party or a member of its Group identified as the appropriate transferee and following such Transfer, such Asset shall be an Agriculture Asset, Materials Science Asset or Specialty Products Asset, as the case may be, or (ii) grant such mutually agreeable rights with respect to such Asset to permit such continued use, subject to, and consistent with this Agreement, including with respect to Assumption of associated Liabilities. If reasonably practicable and permitted under applicable law, such Transfer may be effected by rescission of the applicable portion of a Conveyancing and Assumption Instrument as may be agreed by the relevant Parties.

(c) After the Effective Time, each Party (or any member of its Group and any of its or their respective then-Affiliates) may receive mail, packages and other communications properly belonging to another Party (or any member of its Group). Accordingly, at all times after the Effective Time, each Party (or any member of its Group and any of its or their respective then-Affiliates) is hereby authorized to receive and, to the extent reasonably necessary to identify the proper recipient in accordance with this Section  2.6(c) , open all mail, packages and other communications received by such Party (or member of its Group or its or their then-Affiliate) that belongs to such other Party (or member of such other Party’s Group), and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall as promptly as reasonably practicable deliver or cause to be delivered such mail, packages or other communications (or, in case the same also relates to the business of the receiving Party or another Party, copies thereof) to such other Party as provided for in Section  12.6 ; provided that, if a Party (or any member of its Group and any of its or their respective then-Affiliates) receives any claim or demand against any other Party (or any member of such other Party’s Group), or any notice or other communication regarding any Action involving any other Party (or any member of such other Party’s Group), such Party shall and shall cause the other members of its Group to, as promptly as practicable (and, in any event, use commercially reasonable efforts to do so within fifteen (15) days after receipt thereof) notify such other Party (including such other Party’s legal department) of the receipt of such claim, demand, notice or other communication, and shall promptly deliver such claim, demand, notice or other communication (or, in case the same also relates to the business of the receiving Party or another Party, copies

 

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thereof) to such other Party provided, however, that the failure to provide such notice shall not constitute a breach of this Section  2.6(c) except to the extent that any such Party shall have been actually prejudiced as a result of such failure. The provisions of this Section  2.6(c) are not intended to, and shall not, be deemed to constitute an authorization by any Party or any other member of any Group (or any of their Affiliates from time to time) to permit the other to accept service of process on its behalf and no Party is or shall be deemed to be the agent of any other Party or any other member of any Group or any of their respective then-Affiliates for service of process purposes.

(d) After the MatCo Distribution, each of SpecCo and AgCo shall, and shall cause the other members of its Group and its and any of their respective then-Affiliates to, promptly pay or deliver to MatCo (or its designee) any monies or checks that have been received by SpecCo or AgCo (or another member of its Group or its or their respective then-Affiliates) after the MatCo Distribution to the extent they are (or represent the proceeds of) a Materials Science Asset (it being understood and agreed that any such amounts shall be paid and delivered on a monthly basis, in each case to the applicable members of the applicable Group; provided, that if the aggregate amount not yet paid or delivered by the SpecCo Group or the AgCo Group, as applicable, exceeds $100,000 before such monthly payment and delivery, such amount shall be paid and delivered to the applicable members of the MatCo Group within seven (7) days).

(e) After the MatCo Distribution, MatCo shall, or shall cause the other members of its Group and its and any of its respective then-Affiliates to, promptly pay or deliver to SpecCo (or its designee) any monies or checks that have been received by MatCo (or another member of its Group or its or its respective then-Affiliates) after the MatCo Distribution to the extent they are (or represent the proceeds of) a Specialty Products Asset (it being understood and agreed that any such amounts shall be paid and delivered on a monthly basis, in each case to the applicable members of the SpecCo Group; provided, that if the aggregate amount not yet paid or delivered exceeds $100,000 before such monthly payment and delivery, such amount shall be paid and delivered to the applicable members of the SpecCo Group within seven (7) days).

(f) After the MatCo Distribution, MatCo shall, or shall cause the other members of its Group and its and any of its respective then-Affiliates to, promptly pay or deliver to AgCo (or its designee) any monies or checks that have been received by MatCo (or another member of its Group or its or its respective then-Affiliates) after the MatCo Distribution to the extent they are (or represent the proceeds of) an Agriculture Asset (it being understood and agreed that any such amounts shall be paid and delivered on a monthly basis, in each case to the applicable members of the AgCo Group; provided, that if the aggregate amount not yet paid or delivered exceeds $100,000 before such monthly payment and delivery, such amount shall be paid and delivered to the applicable members of the AgCo Group within seven (7) days).

(g) After the AgCo Distribution, SpecCo shall, or shall cause the other members of its Group and its and any of its respective then-Affiliates to, promptly pay or deliver to AgCo (or its designee) any monies or checks that have been received by SpecCo (or another member of its Group or its or its respective then-Affiliates) after the AgCo Distribution to the extent they are (or represent the proceeds of) an Agriculture Asset (it being understood and agreed that any such amounts shall be paid and delivered on a monthly basis, in each case to the applicable members of the AgCo Group; provided, that if the aggregate amount not yet paid or delivered exceeds $100,000 before such monthly payment and delivery, such amount shall be paid and delivered to the applicable members of the AgCo Group within seven (7) days).

 

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(h) After the AgCo Distribution, AgCo shall, or shall cause the other members of its Group and its and any of its respective then-Affiliates to, promptly pay or deliver to SpecCo (or its designee) any monies or checks that have been received by AgCo (or another member of its Group or its or its respective then-Affiliates) after the AgCo Distribution to the extent they are (or represent the proceeds of) a Specialty Products Asset (it being understood and agreed that any such amounts shall be paid and delivered on a monthly basis, in each case to the applicable members of the SpecCo Group; provided, that if the aggregate amount not yet paid or delivered exceeds $100,000 before such monthly payment and delivery, such amount shall be paid and delivered to the applicable members of the SpecCo Group within seven (7) days).

(i) Notwithstanding Sections 2.5 and 5.2 of this Agreement, MatCo acknowledges on behalf of itself and the other members of its Group that (i) the Transfer or delivery of the Agriculture Assets owned or possessed by members of the MatCo Group, (ii) the provision of access to Information that AgCo has, pursuant to this Agreement or any Designated Ancillary Agreement, the right to access and (iii) the provision of access to Information that AgCo has, pursuant to this Agreement or any Ancillary Agreement, the right to use, in each case (clauses (i)-(iii)), as set forth on Schedule 2.6(i) , has not been consummated at or prior to the Effective Time and MatCo shall effect such Transfers, delivery and provision of access to AgCo (or its designee) as promptly following the Effective Time as shall be practicable (and in any event, prior to the time set forth therefor on Schedule 2.6(i) ) and otherwise in accordance with Section  2.6(a) (in respect of the Transfer of the Agriculture Assets) and the other applicable provisions of this Agreement and the applicable Ancillary Agreements (including the Service Addendum regarding Access to Information and Records set forth in each of the General Services Agreements).

(j) Notwithstanding Sections 2.5 and 5.2 of this Agreement, MatCo acknowledges on behalf of itself and the other members of its Group that (i) the Transfer or delivery of the Specialty Products Assets owned or possessed by members of the MatCo Group, (ii) the provision of access to Information that SpecCo has, pursuant to this Agreement or any Designated Ancillary Agreement, the right to access, and (iii) the provision of access to Information that SpecCo has, pursuant to this Agreement or any Ancillary Agreement, the right to use, in each case (clauses (i)-(iii)), as set forth on Schedule 2.6(j) , has not been consummated at or prior to the Effective Time and MatCo shall effect such Transfers, delivery and provision of access to SpecCo (or its designee) as promptly following the Effective Time as shall be practicable (and in any event, prior to the time set forth therefor on Schedule 2.6(j) ) and otherwise in accordance with Section  2.6(a) (in respect of the Transfer of the Specialty Products Assets) and the other applicable provisions of this Agreement and the applicable Ancillary Agreements (including the Service Addendum regarding Access to Information and Records set forth in each of the General Services Agreements).

(k) Notwithstanding Sections 2.5 and 5.2 of this Agreement, each of AgCo and SpecCo acknowledges on behalf of itself and the other members of its Group that (i) the Transfer or delivery of the Materials Science Assets owned or possessed by either members of the AgCo Group or members of the SpecCo Group, respectively, (ii) the provision of access to

 

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Information that MatCo has, pursuant to this Agreement or any Designated Ancillary Agreement, the right to access, and (iii) the provision of access to Information that MatCo has, pursuant to this Agreement or any Ancillary Agreement, the right to use, in each case (clauses (i)-(iii)), as set forth on Schedule 2.6(k) has not been consummated at or prior to the Effective Time and each of AgCo and SpecCo, respectively, shall effect such Transfers, delivery and provision of access to MatCo (or its designee) as promptly following the Effective Time as shall be practicable (and in any event, prior to the time set forth therefor on Schedule 2.6(k) ) and otherwise in accordance with Section  2.6(a) (in respect of the Transfer of the Materials Science Assets) and the other applicable provisions of this Agreement and the applicable Ancillary Agreements (including the Service Addendum regarding Access to Information and Records set forth in each of the General Services Agreements).

Section 2.7 Conveyancing and Assumption Instruments .

(a) In connection with, and in furtherance of, the Transfers of Assets and the acceptance and Assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, on or prior to the Relevant Time, by the appropriate entities, the Conveyancing and Assumption Instruments necessary to evidence the valid and effective Assumption by the applicable Party of its Assumed Liabilities and the valid Transfer to the applicable Party or member of such Party’s Group of all right, title and interest in and to its accepted Assets, in substantially the form contemplated hereby for Transfers and Assumptions to be effected pursuant to Delaware Law or the Laws of one of the other states of the United States or, if not appropriate for a given Transfer or Assumption, and for Transfers and Assumptions to be effected pursuant to non-U.S. Laws, in such other form as the Parties shall reasonably agree; provided that Section  8.5(f) shall apply to each Transfer and Assumption contemplated by this Agreement.

(b) With respect to the transfer, directly or indirectly, in connection with the transactions contemplated hereby, of real property (or any portion thereof) that is, or at any time has been, used for any Industrial Purpose, whether or not of record (the portion of such real property that is or has been used for an Industrial Purpose, the “ Transferred Industrial Real Property ”), the restrictions set forth on Exhibit C attached hereto (the “ Industrial Real Property Restrictions ”) shall apply unless (A) the transferee of such Transferred Industrial Real Property reasonably determines that compliance with one or more of the Industrial Real Property Restrictions is not necessary based on the facts and circumstances existing at the time and notifies the applicable transferor thereof, and (B) such transferor consents in writing thereto (such consent not to be unreasonably withheld, conditioned or delayed). In furtherance of the foregoing, prior to the Tower Realignment Time, the transferor of any Transferred Industrial Real Property shall be entitled to, in its reasonable discretion, taking into account applicable Law and practicality, exclude or modify to be less stringent any or all of the Industrial Real Property Restrictions from the respective Conveyancing and Assumption Instrument. With respect to any Transferred Industrial Real Property that constitutes an Agriculture Asset, Materials Science Asset or Specialty Products Asset, AgCo (or the applicable member of its Group), MatCo (or the applicable member of its Group) or SpecCo (or the applicable member of its Group), respectively may, in its discretion, request that the transferor of such Transferred Industrial Real Property remove one or more Industrial Real Property Restrictions in the event that facts and circumstances reasonably warrant such removal, and, provided that the transferor of such

 

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Transferred Industrial Real Property consents in writing to such removal (such consent not to be unreasonably withheld, conditioned or delayed), the transferor shall (or if the transferor is a member of a Party’s Group, that Party shall cause such transferor to), at the expense of the requesting Party (or applicable member of its Group), reasonably cooperate to remove such Industrial Real Property Restrictions. Unless and until the Industrial Real Property Restrictions have been removed, each Party shall, and shall cause the other members of its Group and its and their respective transferees to, comply with the Industrial Real Property Restrictions, unless in the reasonable discretion of the Parties, enforcement of the applicable Industrial Real Property Restrictions is not necessary based on the facts and circumstances existing at the time.

Section 2.8 Further Assurances .

(a) In addition to and without limiting the actions specifically provided for elsewhere in this Agreement and subject to the limitations expressly set forth in this Agreement, including Section  2.5 , each of the Parties shall, and shall cause the other members of its Group to, cooperate with each other and use commercially reasonable efforts, on and after the Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement.

(b) Without limiting the foregoing, on and after the Effective Time, each Party shall, and shall cause the other members of its Group to, cooperate with the other Parties (or the relevant member of its Group), and without any further consideration, but at the expense (unless allocated to the Group of the requested Party pursuant to the other terms of this Agreement) of the requesting Party (or the relevant member of its Group) (except as provided in Sections 2.2(d)(v) and 2.5(c) ) from and after the Effective Time, to execute and deliver, or use commercially reasonable efforts to cause to be executed and delivered, all instruments, including instruments of Transfer, and to make all filings with, and to obtain all Consents, any permit, license, Contract, indenture or other instrument (including any Consents), and to take all such other actions as such Party (or the relevant member of its Group) may reasonably be requested to take by any other Party (or the relevant member of its Group) from time to time, consistent with the terms of this Agreement, in order to effectuate the provisions and purposes of this Agreement and the Transfers of the applicable Assets and the assignment and Assumption of the applicable Liabilities and the other transactions contemplated hereby. Without limiting the foregoing, each Party shall, and shall cause the other members of its Group to, at the reasonable request, cost and expense (unless allocated to the Group of the requested Party (or other member of its Group) pursuant to the other terms of this Agreement) of any other Party, take such other actions as may be reasonably necessary to vest in such other Party (or other member of its Group) such title and such rights as possessed by the transferring Party (or its Group) to the Assets allocated to such Party (or member of its Group) under this Agreement, free and clear of any Security Interest.

Section 2.9 Novation of Liabilities .

(a) Each Party, at the request of another Party (such other Party, the “ Other Party ”), shall use commercially reasonable efforts to obtain, or to cause to be obtained, any Consent, release, substitution or amendment required to novate or assign to the fullest extent permitted by Law all obligations under Contracts (other than Shared Contracts, which shall be

 

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governed by Section  2.2(d) ), and other obligations or Liabilities (other than with regard to guarantees or Credit Support Instruments, which shall be governed by Section  2.10 ) for which a member of such Party’s Group and a member of the Other Party’s Group are jointly or severally liable and that do not constitute Liabilities of such Other Party as provided in this Agreement, or to obtain in writing the unconditional release of the applicable Other Party to such arrangements (other than any member of the Group who Assumed or retained such Liability as set forth in this Agreement), so that, in any such case, the members of the applicable Group will be solely responsible for such Liabilities; provided , however , that no Party shall be obligated to pay any consideration therefor to any third party from whom any such Consent, substitution or amendment is requested (unless such Party is fully reimbursed by the requesting Party). For the purposes of complying with the terms set forth in this Section  2.9 , not more than thirty (30) Business Days after the end of each of the first six (6) fiscal quarters after the applicable Relevant Time, each of AgCo, MatCo and SpecCo shall deliver to the other Parties a list of the Consents, releases, substitutions or amendments required to novate or assign to the fullest extent permitted by Law all obligations under Contracts (other than Shared Contracts, which shall be governed by Section  2.2(d) ), and other obligations or Liabilities (other than with regard to guarantees or Credit Support Instruments, which shall be governed by Section  2.10 ) for which a member of such Party’s Group and a member of the Other Party’s Group are jointly or severally liable and that do not constitute Liabilities of such Other Party as provided in this Agreement, along with the status and anticipated timing for obtaining such Consents, releases, substitutions or amendments required.

(b) If the Parties are unable to obtain, or to cause to be obtained, any such required Consent, release, substitution or amendment, the Other Party or a member of such Other Party’s Group shall continue to be bound by such Contract or other obligation that does not constitute a Liability of such Other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who Assumed or retained such Liability as set forth in this Agreement (the “ Liable Party ”) shall, or shall cause a member of its Group to, directly pay, perform and discharge fully all the obligations or other Liabilities of such Other Party or member of such Other Party’s Group thereunder from and after the Effective Time. The Other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such Other Party pursuant to this Agreement). If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease or other rights or obligations shall otherwise become assignable or able to be novated, the Other Party shall promptly Transfer all rights, obligations and other Liabilities thereunder of any member of such Other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall Assume such rights and Liabilities. Each of the applicable Parties shall, and shall cause their respective Subsidiaries to, take all actions and do all things reasonably necessary on its part, or such Subsidiaries’ part, under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Section  2.9(b) .

 

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Section 2.10 Guarantees .

(a) (i) SpecCo shall, and shall cause the other members of its Group to, (with the reasonable cooperation of the applicable other Party) use commercially reasonable efforts to have all members of the MatCo Group and all members of the AgCo Group removed as guarantor of or obligor for any Specialty Products Liability to the fullest extent permitted by applicable Law, including in respect of the guarantees set forth on Schedule 2.10(a)(i) , (ii) MatCo shall, and shall cause the other members of its Group to, (with the reasonable cooperation of the applicable Party) use commercially reasonable efforts to have all members of the SpecCo Group and all members of the AgCo Group removed as guarantor of or obligor for any Materials Science Liability to the fullest extent permitted by applicable Law, including in respect of those guarantees set forth on Schedule 2.10(a)(ii) and (iii) AgCo shall, and shall cause the other members of its Group to, (with the reasonable cooperation of the applicable Party) use commercially reasonable efforts to have all members of the SpecCo Group and all members of the MatCo Group removed as guarantor of or obligor for any Agriculture Liability to the fullest extent permitted by applicable Law, including in respect of those guarantees set forth on Schedule 2.10(a)(iii) , in each case (clauses (i)-(iii)), on or prior to the Relevant Time or as soon as reasonably practicably thereafter. Except as otherwise provided in Section  2.10(b) , no member of the AgCo Group, SpecCo Group or MatCo Group or any of their respective Affiliates from time to time shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party with respect to any such guarantees.

(b) On or prior to the Relevant Time or as soon as reasonably practicable thereafter, to the extent required to obtain a release from a guaranty (a “ Guaranty Release ”) (i) of any member of the SpecCo Group, MatCo and/or AgCo shall, and shall cause the other members of their respective Groups to, as applicable, execute a guaranty agreement in the form of the existing guaranty, except to the extent that such existing guaranty contains representations, covenants or other terms or provisions either (A) with which any member of the MatCo Group or AgCo Group, as the case may be, would be reasonably unable to comply or (B) which would be reasonably expected to be breached, (ii) of any member of the MatCo Group, SpecCo and/or AgCo shall, and shall cause the other members of their respective Groups to, as applicable, execute a guaranty agreement in the form of the existing guaranty, except to the extent that such existing guaranty contains representations, covenants or other terms or provisions either (A) with which any member of the SpecCo Group or the AgCo Group, as the case may be, would be reasonably unable to comply or (B) which would be reasonably expected to be breached and (iii) of any member of the AgCo Group, SpecCo and/or MatCo shall, and shall cause the other members of their respective Groups to, as applicable, execute a guaranty agreement in the form of the existing guaranty, except to the extent that such existing guaranty contains representations, covenants or other terms or provisions either (A) with which SpecCo or MatCo, as the case may be, would be reasonably unable to comply or (B) which would be reasonably expected to be breached.

 

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(c) If any of SpecCo, MatCo or AgCo is unable to obtain, or to cause to be obtained, any such required removal as set forth in clauses (a)  and (b) of this Section  2.10 , (i) the Party whose Group is relevant beneficiary shall indemnify and hold harmless the guarantor or obligor for any Indemnifiable Loss arising from or relating thereto (in accordance with the provisions of Article VIII ) and shall or shall cause one of the other members of its Group, as agent or subcontractor for such guarantor or obligor to pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder, (ii) each of SpecCo, MatCo and AgCo agrees not to renew or extend the term of, increase its obligations under, or Transfer to a third party, any guarantees or Credit Support Instruments, for which another Party is or may be liable unless all obligations of such other Party and the other members of such Party’s Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such Party; provided , however , with respect to guarantees included in leases for real property, in the event a Guaranty Release is not obtained and such Party wishes to extend the term of such guaranteed lease, then such Party shall have the option of extending the term until the fourth (4th) anniversary of the Relevant Time if it provides such security as is reasonably satisfactory to the guarantor under such guaranteed lease and (iii) the relevant beneficiary shall pay to the guarantor or obligor a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding amount of the obligation underlying such guarantee or obligation during such quarter.

(d) Each Party shall, and shall cause the other members of their respective Groups to cooperate and (i) MatCo shall, and shall cause the other members of its Group to, use reasonable best efforts to replace all Credit Support Instruments issued by SpecCo or other members of the SpecCo Group or by AgCo or other members of the AgCo Group on behalf of or in favor of any member of the MatCo Group or the Materials Science Business, including in respect of those Credit Support Instruments set forth on Schedule 2.10(d)(i) (the “ MatCo CSIs ”) as promptly as practicable with Credit Support Instruments from MatCo or a member of the MatCo Group as of the Effective Time, (ii) AgCo shall, and shall cause the other members of its Group to, use reasonable best efforts to replace all Credit Support Instruments issued by SpecCo or other members of the SpecCo Group or by MatCo or other members of the MatCo Group on behalf of or in favor of any member of the AgCo Group or the Agriculture Business, including in respect of those Credit Support Instruments set forth on Schedule 2.10(d)(ii) (the “ AgCo CSIs ”) as promptly as practicable with Credit Support Instruments from AgCo or a member of the AgCo Group as of the Effective Time and (iii) SpecCo shall, and shall cause the other members of its Group to, use reasonable best efforts to replace all Credit Support Instruments issued by AgCo or other members of the AgCo Group or by MatCo or other members of the MatCo Group on behalf of or in favor of any member of the SpecCo Group or the Specialty Products Business, including in respect of those Credit Support Instruments set forth on Schedule 2.10(d)(iii) (the “ SpecCo CSIs ”) as promptly as practicable with Credit Support Instruments from SpecCo or a member of the SpecCo Group as of the Effective Time:

(i) With respect to any MatCo CSIs that remain outstanding after the Effective Time (x) MatCo shall, and shall cause the members of the MatCo Group to, jointly and severally indemnify and hold harmless the AgCo Indemnitees and SpecCo Indemnitees for any Liabilities arising from or relating to the such MatCo CSIs, including, any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the beneficiaries of such MatCo CSIs in accordance with the terms thereof, (y) MatCo shall pay to SpecCo and AgCo, as applicable, a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding balance during such quarter of any outstanding MatCo CSIs issued by SpecCo or any member of the SpecCo Group or by

 

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AgCo or any member of the AgCo Group, respectively, and (z) without the prior written consent of SpecCo or AgCo, as applicable, MatCo shall not, and shall not permit any member of the MatCo Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which SpecCo or any member of the SpecCo Group or AgCo or any member of the AgCo Group, respectively, has issued any Credit Support Instruments which remain outstanding. None of SpecCo, the members of the SpecCo Group, AgCo and the members of the AgCo Group will have any obligation to renew any Credit Support Instruments issued on behalf of or in favor of any member of the MatCo Group or the Materials Science Business after the expiration of such MatCo CSI.

(ii) With respect to any AgCo CSIs that remain outstanding after the Effective Time (x) AgCo shall, and shall cause the members of the AgCo Group to, jointly and severally indemnify and hold harmless the MatCo Indemnitees and SpecCo Indemnitees for any Liabilities arising from or relating to the such AgCo CSIs, including any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the beneficiaries of such AgCo CSIs in accordance with the terms thereof, (y) AgCo shall pay to SpecCo and MatCo, as applicable, a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding balance during such quarter of any outstanding AgCo CSIs issued by SpecCo or any member of the SpecCo Group or by MatCo or any member of the MatCo Group, respectively, and (z) without the prior written consent of SpecCo or MatCo, as applicable, AgCo shall not, and shall not permit any member of the AgCo Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which SpecCo or any member of the SpecCo Group or MatCo or any member of the MatCo Group, respectively, has issued any Credit Support Instruments which remain outstanding. None of SpecCo, the members of the SpecCo Group, MatCo and the members of the MatCo Group will have any obligation to renew any Credit Support Instruments issued on behalf of or in favor of any member of the AgCo Group or the Agriculture Business after the expiration of such AgCo CSI.

(iii) With respect to any SpecCo CSIs that remain outstanding after the Effective Time (x) SpecCo shall, and shall cause the members of the SpecCo Group to, jointly and severally indemnify and hold harmless the AgCo Indemnitees and MatCo Indemnitees for any Liabilities arising from or relating to the such SpecCo CSIs, including any fees in connection with the issuance and maintenance thereof and any funds drawn by (or for the benefit of), or disbursements made to, the beneficiaries of such SpecCo CSIs in accordance with the terms thereof, (y) SpecCo shall pay to MatCo and AgCo, as applicable, a fee payable at the end of each calendar quarter based on a rate of 0.65% per annum on the average outstanding balance during such quarter of any outstanding SpecCo CSIs issued by MatCo or any member of the MatCo Group or by AgCo or any member of the AgCo Group, respectively, and (z) without the prior written consent of MatCo or AgCo, as applicable, SpecCo shall not, and shall not permit any member of the SpecCo Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MatCo or any member of the MatCo Group or AgCo or any

 

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member of the AgCo Group, respectively, has issued any Credit Support Instruments which remain outstanding. None of MatCo, the members of the MatCo Group, AgCo and the members of the AgCo Group will have any obligation to renew any Credit Support Instruments issued on behalf of or in favor of any member of the SpecCo Group or the Specialty Products Business after the expiration of such SpecCo CSI.

Section 2.11 Disclaimer of Representations and Warranties . EACH OF SPECCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE SPECCO GROUP), MATCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MATCO GROUP) AND AGCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE AGCO GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENTS OR OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES, INFORMATION OR LIABILITIES CONTRIBUTED, TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR THEREIN, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, WITHOUT LIABILITIES OR WARRANTIES EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST OR OTHER MATTER WHETHER OR NOT OF RECORD AND (II) ANY NECESSARY CONSENTS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

ARTICLE III

CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTIONS

Section 3.1 Certificate of Incorporation; Bylaws .

(a) At or prior to the MatCo Distribution, all necessary actions shall be taken to adopt the form of Certificate of Incorporation and Bylaws filed by MatCo with the Commission as exhibits to the Materials Science Form 10.

 

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(b) At or prior to the AgCo Distribution, all necessary actions shall be taken to adopt the form of Certificate of Incorporation and Bylaws filed by AgCo with the Commission as exhibits to the Agriculture Form 10.

(c) At or prior to the MatCo Distribution, all necessary actions shall be taken to adopt the form of Bylaws of DowDuPont attached hereto as Exhibit B to be effective as of the MatCo Distribution.

Section 3.2 Directors .

(a) At or prior to the MatCo Distribution, DowDuPont shall take all necessary action to cause the Board of Directors of MatCo to consist of the individuals identified in the MatCo Information Statement as directors of MatCo.

(b) At or prior to the AgCo Distribution, DowDuPont shall take all necessary action to cause the Board of Directors of AgCo to consist of the individuals identified in the AgCo Information Statement as directors of AgCo.

Section 3.3 Officers .

(a) At or prior to the MatCo Distribution, DowDuPont shall take all necessary action to cause the individuals identified as such in the Information Statement to be officers of MatCo as of the MatCo Distribution Date.

(b) At or prior to the AgCo Distribution, DowDuPont shall take all necessary action to cause the individuals identified as such in the Information Statement to be officers of AgCo as of the AgCo Distribution Date.

Section 3.4 Resignations .

(a) Subject to Section  3.4(c) , at or prior to the MatCo Distribution, (i) each of SpecCo and AgCo shall cause all its employees and all employees of its respective Subsidiaries (excluding any employees of any member of the MatCo Group) to resign, effective as of the MatCo Distribution, from all positions as officers or directors of any member of the MatCo Group (and any other Person where such position is as a designee or representative of the MatCo Group) in which they serve, and (ii) MatCo shall cause all its employees and all employees of its Subsidiaries to resign, effective as of the MatCo Distribution, from all positions as officers or directors of any members of the SpecCo Group (and any other Person where such position is as a designee or representative of the SpecCo Group) or the AgCo Group (and any other Person where such position is as a designee or representative of the AgCo Group) in which they serve.

(b) Subject to Section  3.4(c) , at or prior to the AgCo Distribution, (i) SpecCo and MatCo shall cause all its employees and all employees of its respective Subsidiaries (excluding any employees of any member of the AgCo Group) to resign, effective as of the AgCo Distribution, from all positions as officers or directors of any member of the AgCo Group (and any other Person where such position is as a designee or representative of the AgCo Group) in which they serve, and (ii) AgCo shall cause all its employees and all employees of its Subsidiaries to resign, effective as of the AgCo Distribution, from all positions as officers or directors of any members of the SpecCo Group (and any other Person where such position is as a designee or representative of the SpecCo Group) in which they serve.

 

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(c) No Person shall be required by any Party to resign from any position or office with another Party if such Person is disclosed in the applicable Information Statement as the Person who is to hold such position or office following the applicable Distribution.

Section 3.5 Delayed Partial Cash Sweep .

(a) On or before June 21, 2019, the Parties shall discuss in good faith the calculation of the Aggregate Qualifying Historical Dow AgCo Closing Cash, Aggregate Qualifying Historical Dow SpecCo Closing Cash and Aggregate Qualifying Historical DuPont MatCo Closing Cash (and all such discussions related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable state statutes, and evidence of such discussions shall not be admissible in the Actions between the Parties).

(b) On July 1, 2019:

(i) AgCo shall pay to MatCo (if greater than zero) an amount equal to (i) the Aggregate Qualifying Historical Dow AgCo Closing Cash minus (ii) the Agriculture Shared Historical DuPont Percentage multiplied by the Aggregate Qualifying Historical DuPont MatCo Closing Cash.

(ii) SpecCo shall pay to MatCo (if greater than zero) an amount equal to (i) the Aggregate Qualifying Historical Dow SpecCo Closing Cash minus (ii) the Specialty Products Shared Historical DuPont Percentage multiplied by the Aggregate Qualifying Historical DuPont MatCo Closing Cash.

(iii) MatCo shall pay to AgCo (if greater than zero) an amount equal to (i) the Agriculture Shared Historical DuPont Percentage multiplied by the Aggregate Qualifying Historical DuPont MatCo Closing Cash minus (ii) the Aggregate Qualifying Historical Dow AgCo Closing Cash.

(iv) MatCo shall pay to SpecCo (if greater than zero) an amount equal to (i) the Specialty Products Shared Historical DuPont Percentage multiplied by the Aggregate Qualifying Historical DuPont MatCo Closing Cash minus (ii) the Aggregate Qualifying Historical Dow SpecCo Closing Cash.

Section 3.6 Certain Wires .

(a) On April 1, 2019, MatCo, AgCo and SpecCo shall, and shall cause the other members of their respective Groups to, have a Heritage Dow MatCo Employee (as defined in the Employee Matters Agreement) and a Heritage DuPont AgCo Employee or Heritage DuPont SpecCo Employee (each as defined in the Employee Matters Agreement) jointly issue instructions to the relevant banks to make the wire payments set forth on Schedule 3.6(a) in the applicable local currency, which, for purposes of calculating the impact of any such

 

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wire in other provisions of this Agreement, shall be converted into U.S. dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on April 1, 2019; provided that in no event shall the amount of any such payment exceed the amount of Cash and Cash Equivalents reflected as available (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for the applicable bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 (less, for the applicable member of the AgCo Group, the Historical Dow AgCo Required Cash and, for the applicable member of the SpecCo Group, the Historical Dow SpecCo Required Cash) (the “ Pre-Agreed Historical Dow Wires ”).

(b) On April 1, 2019, SpecCo or AgCo (as applicable) and MatCo shall, and shall cause the other members of their respective Groups to, have either a Heritage DuPont AgCo Employee or Heritage DuPont SpecCo Employee and a Heritage Dow MatCo Employee jointly issue instructions to the relevant banks to make the wire payments set forth on Schedule 3.6(b) in the applicable local currency, which, for purposes of calculating the impact of any such wire in other provisions of this Agreement, shall be converted into U.S. dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on April 1, 2019; provided that in no event shall the amount of any such payment exceed the amount of Cash and Cash Equivalents reflected as available (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for the applicable bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 (less, for the applicable member of the MatCo Group, the Historical DuPont MatCo Required Cash) (the “ Pre-Agreed Historical DuPont Wires ”).

Section 3.7 Certain Bank Accounts and Instructions .

(a) MatCo Obligations.

(i) MatCo shall cause there to be for each member of Historical Dow that is a member of the AgCo Group or SpecCo Group, as of 12:00 a.m. (using the local time zone for the jurisdiction of the bank account from which such payment would be drawn) on April 1, 2019, no wire initiated, check dated, or other payment method initiated that has not been settled and reflected on the bank account statement for such bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 that is either (x) to any member of Historical DuPont that is a member of the MatCo Group, (y) to any member of Historical Dow or (z) in respect of any Materials Science Liability, except for the Pre-Agreed Historical Dow Wires (“ Unauthorized Historical Dow Instructions ”).

(ii) From and after 11:59 p.m. (using the local time zone for the jurisdiction of the bank account from which such payment would be drawn) on March 31, 2019, MatCo shall not, and shall cause each other member of Historical Dow not to, initiate any wire, check, or other payment method from a bank account of any member of Historical Dow that is a member of the AgCo Group or SpecCo Group (x) to any member of Historical DuPont that is a member of the MatCo Group, (y) to any member of Historical Dow or (z) in respect of any Materials Science Liability, except for the Pre-Agreed Historical Dow Wires; provided , however , (x) MatCo shall have no obligation to

 

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prevent any such action taken by any Heritage Dow AgCo Employee or Heritage Dow SpecCo Employee from and after the Tower Realignment Time and (y) MatCo shall be relieved from its performance obligations on a legal entity by legal entity, bank account by bank account, basis from and after such time as all employees of the MatCo Group have been removed as both directors and officers of such member of Historical Dow that is a member of the AgCo Group or SpecCo Group and as individuals authorized to give instructions or initiate transactions for such bank account (“ Unauthorized Historical Dow Payments ”).

(iii) The amount of any payment made pursuant to Unauthorized Historical Dow Instructions or Unauthorized Historical Dow Payments shall constitute Materials Science Liabilities, and MatCo shall reimburse (or cause to be reimbursed by the applicable member of the MatCo Group) (in the same currency and amount) any and all such amounts to the bank account of the applicable payor member of the AgCo Group or SpecCo Group from which such payment was made, as applicable, within two (2) Business Days.

(b) AgCo and SpecCo Obligations.

(i) AgCo and SpecCo shall cause there to be for each member of Historical DuPont that is a member of the MatCo Group, as of 12:00 a.m. (using the local time zone for the jurisdiction of the bank account from which such payment would be drawn) on April 1, 2019, no wire initiated, check dated, or other payment method initiated that has not been settled and reflected on the bank account statement for such bank account measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019 that is either (x) to any member of Historical Dow that is a member of the AgCo Group or SpecCo Group, (y) to any member of Historical DuPont or (z) in respect of any Agriculture Liability or Specialty Products Liability, except for the Pre-Agreed Historical DuPont Wires (“ Unauthorized Historical DuPont Instructions ”).

(ii) From and after 11:59 p.m. (using the local time zone for the jurisdiction of the bank account from which such payment would be drawn) on March 31, 2019, AgCo and SpecCo shall not, and shall cause each other member of Historical DuPont not to, initiate any wire, check, or other payment method from a bank account of any member of Historical DuPont that is a member of the MatCo Group (x) to any member of Historical Dow that is a member of the AgCo Group or SpecCo Group, (y) to any member of Historical DuPont or (z) in respect of any Agriculture Liability or Specialty Products Liability, except for the Pre-Agreed Historical DuPont Wires; provided , however , (x) AgCo and SpecCo shall have no obligation to prevent any such action taken by any Heritage DuPont MatCo Employee from and after the Tower Realignment Time and (y) AgCo and SpecCo shall be relieved from their performance obligations on a legal entity by legal entity, bank account by bank account, basis from and after such time as all employees of the AgCo Group and SpecCo Group have been removed as both directors and officers of such member of Historical DuPont that is a member of the MatCo Group and as individuals authorized to give instructions or initiate transactions for such bank account (“ Unauthorized Historical DuPont Payments ”).

 

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(iii) The amount of any payment made pursuant to Unauthorized Historical DuPont Instructions or Unauthorized Historical DuPont Payments to a member of the AgCo Group or in respect of any Agriculture Liability shall constitute an Agriculture Liability, and AgCo shall reimburse (or cause to be reimbursed by the applicable member of the AgCo Group) (in the same currency and amount) any and all such amounts to the bank account of the applicable payor member of the MatCo Group from which such payment was made, as applicable, within two (2) Business Days.

(iv) The amount of any payment made pursuant to Unauthorized Historical DuPont Instructions or Unauthorized Historical DuPont Payments to a member of the SpecCo Group or in respect of any Specialty Products Liability shall constitute a Specialty Products Liability, and SpecCo shall reimburse (or cause to be reimbursed by the applicable member of the SpecCo Group) (in the same currency and amount) any and all such amounts to the bank account of the applicable payor member of the MatCo Group from which such payment was made, as applicable, within two (2) Business Days.

Section 3.8 Certain Payroll Balances Payable in the Ordinary Course of Business Prior to April  1, 2019 .

(a) MatCo Obligations.

(i) MatCo shall cause there to be an amount of Cash and Cash Equivalents reflected as available (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for the applicable bank account from which payroll is paid, measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, of the members of Historical Dow that are members of the AgCo Group equal to the amount of salary/base pay, annual cash incentive compensation earned or accrued for the fiscal year 2018, overtime and other employee cash wages, accrued vacation to be paid out in connection with the MatCo Distribution and any withholding Taxes and employer portion of payroll Taxes related thereto, in each case that would in the ordinary course of business have been paid prior to April 1, 2019 but have not yet been paid by such member of the AgCo Group in respect of the period prior to April 1, 2019 (“ Historical Dow AgCo Group Pre-MatCo Spin Payroll Amount ”).

(ii) MatCo shall cause there to be an amount of Cash and Cash Equivalents reflected as available (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for the applicable bank account from which payroll is paid, measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, of the members of Historical Dow that are members of the SpecCo Group equal to the amount of salary/base pay, annual cash incentive compensation earned or accrued for the fiscal year 2018, overtime and other employee cash wages, accrued vacation to be paid out in connection with the MatCo Distribution and any withholding Taxes and employer portion of payroll Taxes related thereto, in each case that would in the ordinary course of business have been paid prior to April 1, 2019 but have not yet been paid by such member of the SpecCo Group in respect of the period prior to April 1, 2019 (“ Historical Dow SpecCo Group Pre-MatCo Spin Payroll Amount ”).

 

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(iii) The obligations set forth in this Section 3.8(a) shall constitute Materials Science Liabilities. If MatCo does not perform such obligations in full with respect to any bank account of any member of Historical Dow that is a member of the AgCo Group or SpecCo Group, MatCo shall pay (or cause another member of the MatCo Group to pay) the amount of each such shortfall (in the same currency and amount) to the applicable bank account of each such member of the AgCo Group and SpecCo Group.

(b) AgCo and SpecCo Obligations.

(i) AgCo and SpecCo shall cause there to be an amount of Cash and Cash Equivalents reflected as available (which, for the avoidance of doubt, excludes cash in transit) on the bank account statement for the applicable bank account from which payroll is paid, measured as of 11:59 p.m. (using the local time zone for the jurisdiction of such bank account) on March 31, 2019, of the members of Historical DuPont that are members of the MatCo Group equal to the amount of salary/base pay, annual cash incentive compensation earned or accrued for the fiscal year 2018, overtime and other employee cash wages, accrued vacation to be paid out in connection with the MatCo Distribution and any withholding Taxes and employer portion of payroll Taxes related thereto, in each case that would in the ordinary course of business have been paid prior to April 1, 2019 but have not yet been paid by such member of the MatCo Group in respect of the period prior to April 1, 2019 (“ Historical DuPont MatCo Group Pre-MatCo Spin Payroll Amount ”).

(ii) The obligations set forth in this Section 3.8(b) shall constitute Shared Historical DuPont Liabilities. If AgCo and SpecCo do not perform such obligations in full with respect to any bank account of any member of Historical DuPont that is a member of the MatCo Group, (x) AgCo shall pay (or cause another member of the AgCo Group to pay) Agriculture Shared Historical DuPont Percentage of the amount of each such shortfall (in the same currency and amount) to the applicable bank account of each such member of the MatCo Group and (y) SpecCo shall pay (or cause another member of the SpecCo Group to pay) Specialty Products Shared Historical DuPont Percentage of the amount of each such shortfall (in the same currency and amount) to the applicable bank account of each such member of the MatCo Group.

(c) Interpretation; Benefit Remittances.

(i) For the purpose of this Section  3.8 , the phrase “that would in the ordinary course of business have been paid prior to April 1, 2019” does not include the following: (A) wages or benefits earned or accrued prior to April 1, 2019 that are payable to the applicable wage earner or contributable to the applicable third-party payroll agent in the ordinary course of business on or after April 1, 2019 or (B) amounts withheld from wages for any purpose prior to April 1, 2019 that would be remitted in the ordinary course of business to the applicable Taxing Authority, Governmental Entity, employee benefit plan or third-party plan administrator on or after April 1, 2019.

 

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(ii) For any payroll period that includes work days both prior to and on and after April 1, 2019, the Parties shall cause any amounts withheld from wages for benefit plan purposes to be allocated to the applicable benefit plan in which the applicable employee participated (or to the third-party plan administrator for such benefit plan) prior to the MatCo Distribution on the basis of the portion of wages earned for such payroll period prior to April 1, 2019, and to the applicable benefit plan (or to the third-party plan administrator for such benefit plan) in which the employee participates on and after the MatCo Distribution on the basis of the portion of the wages earned on and after April 1, 2019.

Section 3.9 Ancillary Agreements . On or prior to the Effective Time, each of SpecCo, MatCo and AgCo shall enter into, and/or (where applicable) shall cause a member or members of their respective Group to enter into, the Ancillary Agreements and any other Contracts in respect of the Distributions reasonably necessary or appropriate in connection with the transactions contemplated hereby and thereby.

ARTICLE IV

THE DISTRIBUTIONS

Section 4.1 Stock Dividends to DowDuPont

(a) In connection with the MatCo Distribution, (i) on or prior to the MatCo Distribution Date, MatCo shall issue to DowDuPont, as a stock dividend, such number of shares of MatCo Common Stock (or DowDuPont and MatCo shall take or cause to be taken such other appropriate actions to ensure that DowDuPont has the requisite number of shares of MatCo Common Stock) as will be required so that the total number of shares of MatCo Common Stock held by DowDuPont immediately prior to the MatCo Distribution is equal to the total number of shares of MatCo Common Stock distributable in the MatCo Distribution and (ii) on the MatCo Distribution Date, subject to the conditions and other terms set forth in this Article IV , DowDuPont shall cause the Agent to distribute all of the then issued and outstanding shares of MatCo Common Stock to holders of DowDuPont Common Stock on the MatCo Distribution Record Date, and to credit the appropriate class and number of such shares of MatCo Common Stock to book entry accounts for each such holder or designated transferee or transferees of such holder of MatCo Common Stock. For stockholders of DowDuPont who own DowDuPont Common Stock through a broker or other nominee, their shares of MatCo Common Stock will be credited to their respective accounts by such broker or nominee. Each holder of DowDuPont Common Stock on the MatCo Distribution Record Date (or such holder’s designated transferee or transferees) will be entitled to receive in the MatCo Distribution one (1) share of MatCo Common Stock for every three (3) shares of DowDuPont Common Stock held by such stockholder. No action by any such stockholder (or such stockholder’s designated transferee or transferees) shall be necessary for such stockholder (or such stockholder’s designated transferee or transferees) to receive the applicable number of shares of (and, if applicable, cash in lieu of any fractional shares) MatCo Common Stock such stockholder is entitled to in the MatCo Distribution.

 

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(b) In connection with the AgCo Distribution, (i) on or prior to the AgCo Distribution Date, AgCo shall issue to DowDuPont, as a stock dividend, such number of shares of AgCo Common Stock (or DowDuPont and AgCo shall take or cause to be taken such other appropriate actions to ensure that DowDuPont has the requisite number of shares of AgCo Common Stock) as will be required so that the total number of shares of AgCo Common Stock held by DowDuPont immediately prior to the AgCo Distribution is equal to the total number of shares of AgCo Common Stock distributable in the AgCo Distribution and (ii) on the AgCo Distribution Date, subject to the conditions and other terms set forth in this Article IV , DowDuPont shall cause the Agent to distribute all of the then issued and outstanding shares of AgCo Common Stock to holders of DowDuPont Common Stock on the AgCo Distribution Record Date, and to credit the appropriate class and number of such shares of AgCo Common Stock to book entry accounts for each such holder or designated transferee or transferees of such holder of AgCo Common Stock. For stockholders of DowDuPont who own DowDuPont Common Stock through a broker or other nominee, their shares of AgCo Common Stock will be credited to their respective accounts by such broker or nominee. Each holder of DowDuPont Common Stock on the AgCo Distribution Record Date (or such holder’s designated transferee or transferees) will be entitled to receive in the AgCo Distribution a number of shares of AgCo Common Stock (to be determined by the board of directors of DowDuPont prior to the AgCo Distribution) for every one (1) share of DowDuPont Common Stock held by such stockholder. No action by any such stockholder (or such stockholder’s designated transferee or transferees) shall be necessary for such stockholder (or such stockholder’s designated transferee or transferees) to receive the applicable number of shares of (and, if applicable, cash in lieu of any fractional shares) AgCo Common Stock such stockholder is entitled to in the AgCo Distribution.

Section 4.2 Fractional Shares . DowDuPont stockholders holding a number of shares of DowDuPont Common Stock, on the AgCo Distribution Record Date or the MatCo Distribution Record Date, as applicable, which would entitle such stockholders to receive less than one whole share of MatCo Common Stock or AgCo Common Stock, as the case may be, in the applicable Distribution, will receive cash in lieu of fractional shares. Fractional shares of MatCo Common Stock or AgCo Common Stock will not be distributed in the Distributions nor credited to book-entry accounts. The applicable Agent shall, as soon as practicable after the MatCo Distribution Date or the AgCo Distribution Date, as applicable (a) determine the number of whole shares and fractional shares of MatCo Common Stock or AgCo Common Stock allocable to each holder of record or beneficial owner of DowDuPont Common Stock as of close of business on the AgCo Distribution Record Date or the MatCo Distribution Record Date, as applicable, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions, in each case, at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder or owner’s ratable share of the net proceeds of such sale, based upon the average gross selling price per share of MatCo Common Stock or AgCo Common Stock, as the case may be, after making appropriate deductions for any amount required to be withheld for U.S. federal income tax purposes, for applicable transfer Taxes and for the costs and expenses of such sale and distribution, including brokers fees and commissions. None of DowDuPont, MatCo, AgCo or the

 

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applicable Agent will guarantee any minimum sale price for the fractional shares of MatCo Common Stock or AgCo Common Stock. None of DowDuPont, MatCo or AgCo will pay any interest on the proceeds from the sale of fractional shares. The Agent acting on behalf of the applicable Party will have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the Agent nor the broker-dealers through which the aggregated fractional shares are sold shall be Affiliates of DowDuPont, MatCo or AgCo.

Section 4.3 Sole Discretion of DowDuPont . DowDuPont shall, in its sole and absolute discretion, determine the MatCo Distribution Date and the AgCo Distribution Date and all other terms of the Distributions, including the form, structure and terms of any transactions and/or offerings to effect each Distribution and the timing of and conditions to the consummation thereof. In addition, DowDuPont may, in accordance with Section  12.11 , at any time and from time to time until the completion of each Distribution decide to abandon any or all of the Distributions or modify or change the terms of each Distribution, including by accelerating or delaying the timing of the consummation of all or part of any Distribution. Without limiting the foregoing and notwithstanding anything to the contrary in this Agreement, DowDuPont shall have the right not to complete any Distributions if, at any time prior to the applicable Relevant Time, the Board shall have determined, in its sole discretion, that any Distribution is not in the best interests of DowDuPont or its stockholders, that a sale or other alternative is in the best interests of DowDuPont or its stockholders or that it is not advisable at that time for the Materials Science Business or the Agriculture Business to separate from DowDuPont.

Section 4.4 Conditions to Distributions .

(a) Subject to Section  4.3 , the obligation of DowDuPont to consummate the MatCo Distribution is subject to the prior or simultaneous satisfaction, or, to the extent permitted by applicable Law, waiver by DowDuPont, in its sole and absolute discretion, of the following conditions. None of MatCo or any other member of the MatCo Group or any third party shall have any right or claim to require the consummation of the MatCo Distribution, which shall be effected at the sole discretion of the Board. Any determination made by DowDuPont prior to the MatCo Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section  4.4(a) shall be conclusive and binding on the Parties hereto. The conditions are for the sole benefit of DowDuPont and shall not give rise to or create any duty on the part of DowDuPont or the Board to waive or not waive any such condition. Each Party will use its commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the following conditions:

(i) the Commission shall have declared effective the Materials Science Form 10, of which the MatCo Information Statement forms a part, and no stop order relating to the registration statement will be in effect, no proceedings seeking such stop order shall be pending before or threatened by the Commission, and the MatCo Information Statement (or the Notice of Internet Availability of the MatCo Information Statement) shall have been distributed to holders of DowDuPont Common Stock;

 

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(ii) the MatCo Common Stock to be delivered in the MatCo Distribution shall have been approved for listing on the NYSE, subject to official notice of distribution;

(iii) DowDuPont shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, in form and substance satisfactory to DowDuPont (in its sole discretion), substantially to the effect that, among other things, the MatCo Distribution, together with the MatCo Spin Contribution, will qualify as a tax-free transaction under Section 355 and Section 368(a)(1)(D) of the Code;

(iv) MatCo shall have received an opinion of Weil, Gotshal & Manges LLP and Ernst & Young LLP, in form and substance satisfactory to MatCo (in its sole discretion), substantially to the effect that, among other things, the MatCo Distribution, together with the MatCo Spin Contribution, will qualify as a tax-free transaction under Section 355 and Section 368(a)(1)(D) of the Code;

(v) the Internal Revenue Service shall not have revoked its U.S. federal income tax ruling issued to DowDuPont in connection with the MatCo Spin Contribution and the MatCo Distribution, and the AgCo Spin Contribution and the AgCo Distribution, dated as of February 14, 2017 (including any amendment or supplement to such ruling);

(vi) DowDuPont shall have received an opinion from the independent appraisal firm set forth on Schedule 4.4(a)(vi) or another independent appraisal firm as determined by the Board, in form and substance satisfactory to DowDuPont confirming that (i) following the MatCo Distribution, DowDuPont, on the one hand, and MatCo on the other hand, will be solvent and adequately capitalized and (ii) DowDuPont has adequate surplus under Delaware Law to declare the MatCo Distribution;

(vii) no order, injunction, or decree issued by any Governmental Entity of competent jurisdiction, or other legal restraint or prohibition preventing the consummation of all or any portion of the MatCo Distribution or any of the related transactions shall be pending, threatened, issued or in effect, and no other event outside the control of DowDuPont shall have occurred or failed to occur that prevents the consummation of all or any portion of the MatCo Distribution;

(viii) the Internal Reorganization shall have been effectuated prior to the MatCo Distribution (other than certain elements thereof solely related to members of the AgCo Group and SpecCo Group that were members of Historical DuPont);

(ix) the Board shall have declared the MatCo Distribution and approved all related transactions, which approval may be given or withheld at its absolute and sole discretion (and such declaration or approval shall not have been withdrawn);

 

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(x) DowDuPont shall have elected the board of directors of MatCo, as described in the Materials Science Form 10, immediately prior to the MatCo Distribution;

(xi) the directors of DowDuPont set forth on Schedule 4.4(a)(xi) shall have resigned from the Board effective upon the MatCo Distribution;

(xii) (x) MatCo shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party, (y) AgCo shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party and (z) DowDuPont shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party; and

(xiii) no events or developments shall have occurred or shall exist that, in the sole and absolute judgment of the Board, make it inadvisable to effect the MatCo Distribution or would result in the MatCo Distribution and related transactions not being in the best interest of DowDuPont or its stockholders.

(b) Subject to Section  4.3 , the obligation of DowDuPont to consummate the AgCo Distribution is subject to the prior or simultaneous satisfaction, or, to the extent permitted by applicable Law, waiver by DowDuPont, in its sole and absolute discretion, of the following conditions. None of AgCo or any other member of the AgCo Group with respect to the AgCo Distribution or any third party shall have any right or claim to require the consummation of the AgCo Distribution, which shall be effected at the sole discretion of the Board. Any determination made by DowDuPont prior to the AgCo Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section  4.4(b) shall be conclusive and binding on the Parties. The conditions are for the sole benefit of DowDuPont and shall not give rise to or create any duty on the part of DowDuPont or the Board to waive or not waive any such condition. Each Party will use its commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the following conditions:

(i) the Commission shall have declared effective the Agriculture Form 10, of which the AgCo Information Statement forms a part, and no stop order relating to the registration statement will be in effect, no proceedings seeking such stop order shall be pending before or threatened by the Commission, and the AgCo Information Statement (or the Notice of Internet Availability of the AgCo Information Statement) shall have been distributed to holders of DowDuPont Common Stock;

(ii) the AgCo Common Stock to be delivered in the AgCo Distribution shall have been approved for listing on the NYSE, subject to official notice of distribution;

 

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(iii) DowDuPont shall have received an opinion from Skadden, Arps, Slate, Meagher & Flom LLP, in form and substance satisfactory to DowDuPont (in its sole discretion), substantially to the effect that, among other things, the AgCo Distribution, together with the AgCo Spin Contribution, will qualify as a tax-free transaction under Section 355 and Section 368(a)(1)(D) of the Code;

(iv) the Internal Revenue Service shall not have revoked its U.S. federal income tax ruling issued to DowDuPont in connection with the MatCo Spin Contribution and the MatCo Distribution, and the AgCo Spin Contribution and the AgCo Distribution, dated as of February 14, 2017 (including any amendment or supplement to such ruling);

(v) DowDuPont shall have received an opinion from the independent appraisal firm set forth on Schedule 4.4(b)(v) or another independent appraisal firm as determined by the Board, in form and substance satisfactory to DowDuPont confirming that (i) following the AgCo Distribution, DowDuPont, on the one hand, and AgCo, on the other hand, will be solvent and adequately capitalized and (ii) DowDuPont has adequate surplus under Delaware Law to declare the AgCo Distribution;

(vi) no order, injunction, or decree issued by any Governmental Entity of competent jurisdiction, or other legal restraint or prohibition preventing the consummation of all or any portion of the AgCo Distribution or any of the related transactions shall be pending, threatened, issued or in effect, and no other event outside the control of DowDuPont shall have occurred or failed to occur that prevents the consummation of all or any portion of the AgCo Distribution;

(vii) the Internal Reorganization shall have been effectuated prior to the AgCo Distribution, except for such steps (if any) as DowDuPont in its sole discretion shall have determined need not be completed or may be completed after the Effective Time;

(viii) the Board shall have declared the AgCo Distribution and approved all related transactions, which approval may be given or withheld at its absolute and sole discretion (and such declaration or approval shall not have been withdrawn);

(ix) DowDuPont shall have elected the board of directors of AgCo, as described in the Agriculture Form 10, immediately prior to the AgCo Distribution;

(x) the directors of DowDuPont set forth on Schedule 4.4(b)(x) shall have resigned from the Board effective upon the AgCo Distribution;

(xi) (x) MatCo shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party, (y) AgCo shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party and (z) DowDuPont shall have, and shall have caused its applicable Subsidiaries to have, entered into all Ancillary Agreements to which it and/or such Subsidiary is contemplated to be a party; and

 

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(xii) no events or developments shall have occurred or shall exist that, in the sole and absolute judgment of the Board, make it inadvisable to effect the AgCo Distribution or would result in the AgCo Distribution and related transactions not being in the best interest of DowDuPont or its stockholders.

Section 4.5 Effectiveness of Distributions . Unless otherwise determined by DowDuPont prior to the MatCo Distribution, the MatCo Distribution shall be deemed to occur at 5:00 p.m., New York City Time, on the MatCo Distribution Date. Unless otherwise determined by DowDuPont prior to the AgCo Distribution, the AgCo Distribution shall be deemed to occur at 12:01 a.m. on the AgCo Distribution Date.

ARTICLE V

CERTAIN COVENANTS

Section 5.1 Auditors and Audits; Annual and Quarterly Financial Statements and Accounting . Each Party agrees (on behalf of itself and each other member of its Group) that, following the applicable Relevant Time until the completion of each Party’s audit for the fiscal year ending December 31, 2021 and in any event solely with respect to (x) any statutory audit with respect to any fiscal year ending prior to the Relevant Time or for any portion of a fiscal year prior to the Relevant Time, in each case, in respect of which the Party requesting such reasonable assistance and access was an Affiliate (or relevant member of its Group) of the other Party’s Group, (y) the preparation and audit of each of the Party’s financial statements for the year ended December 31, 2019 or amendments thereto, (or the printing, filing and public dissemination thereof) and (z) the audit of each Party’s internal controls over financial reporting and management’s assessment thereof and management’s assessment of each Party’s disclosure controls and procedures in respect of the year ended December 31, 2019; provided , that in the event that any Party changes its auditors within one (1) year of the completion of each Party’s audit for the fiscal year ending December 31, 2021, then such Party may request reasonable access on the terms set forth in this Section  5.1 for a period of up to one hundred and eighty (180) days from such change; provided , further , that, notwithstanding the foregoing, access of the type described in this Section  5.1 shall be afforded by and to each of the Parties (from time to time following the applicable Relevant Time), as applicable, to the extent reasonably necessary to respond (and for the limited purpose of responding) to any written request or official comment from a Governmental Entity, such as in connection with responding to a comment letter from the Commission, or as reasonably necessary to meet a filing, reporting or similar obligation required under applicable Law (including under Public Reports):

(a) Date of Auditors’ Opinion . (i) each of MatCo and AgCo shall use commercially reasonable efforts to enable their auditors to complete their audit for the fiscal year ending December 31, 2019 such that they shall date their opinion on the audited annual financial statements on the same date that SpecCo’s auditors date their opinion on SpecCo’s audited annual financial statements, and to enable SpecCo to meet its timetable for the printing, filing and public dissemination of SpecCo’s annual financial statements for the fiscal year ending December 31, 2019, (ii) each of SpecCo and AgCo shall use commercially reasonable efforts to enable their auditors to complete their audit for the fiscal year ending December 31, 2019 such that they shall date their opinion on the audited annual financial statements on the same date that

 

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MatCo’s auditors date their opinion on MatCo’s audited annual financial statements, and to enable MatCo to meet its timetable for the printing, filing and public dissemination of MatCo’s annual financial statements for the fiscal year ending December 31, 2019 and (iii) each of MatCo and SpecCo shall use commercially reasonable efforts to enable their auditors to complete their audit for the fiscal year ending December 31, 2019 such that they shall date their opinion on the audited annual financial statements on the same date that AgCo’s auditors date their opinion on AgCo’s audited annual financial statements, and to enable AgCo to meet its timetable for the printing, filing and public dissemination of AgCo’s annual financial statements for the fiscal year ending December 31, 2019;

(b) Annual Financial Statements . (i) each Party shall provide or provide access to each other Party on a timely basis all Information reasonably required to meet such other Party’s schedule for the preparation, printing, filing, and public dissemination of such other Party’s annual financial statements for the fiscal year ending December 31, 2019 and for management’s assessment of the effectiveness of such Party’s disclosure controls and procedures and its internal controls over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and, to the extent applicable to such Party, its auditor’s audit of its internal controls over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the Commission’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder, if required (such assessments and audit being referred to as the “ 2018/2019 Internal Control Audit and Management Assessments ”) for the fiscal year ending December 31, 2019 and (ii) without limiting the generality of the foregoing clause (i), each Party shall provide all required financial and other Information with respect to itself and its Subsidiaries to its auditors in a sufficient and reasonable time and in sufficient detail to permit its auditors to take all steps and perform all reviews necessary to provide sufficient assistance to each other Party’s auditors (each such other Party’s auditors, collectively, the “ Other Parties Auditors ”) with respect to Information to be included or contained in such other Party’s annual financial statements for the fiscal year ending December 31, 2019 and to permit the Other Parties’ Auditors and management to complete the 2018/2019 Internal Control Audit and Management Assessments, if required;

(c) Access to Personnel and Records . Subject to the confidentiality provisions of this Agreement, (i) each Party shall authorize and request its respective auditors to make reasonably available to the Other Parties’ Auditors both the personnel who performed or are performing the annual audits of such audited Party (each such Party with respect to its own audit, the “ Audited Party ”) and work papers related to the annual audits of such Audited Party, in all cases within a reasonable time prior to such Audited Party’s auditors’ opinion date, so that the Other Parties’ Auditors are able to perform the procedures they reasonably consider necessary to take responsibility for the work of the Audited Party’s auditors as it relates to their auditors’ report on such other Party’s financial statements, all within sufficient time to enable such other Party to meet its timetable for the printing, filing and public dissemination of its annual financial statements with the Commission for the fiscal year ending December 31, 2019, and (ii) each Party shall use commercially reasonable efforts to make reasonably available to the Other Parties’ Auditors and management its personnel and Records in a reasonable time prior to the Other Parties’ Auditors’ opinion date and other Parties’ management’s assessment date so that the Other Parties’ Auditors and other Parties’ management are able to perform the procedures they reasonably consider necessary to conduct the 2018/2019 Internal Control Audit and Management Assessments;

 

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(d) Current, Quarterly and Annual Reports . (i) at least three (3) Business Days prior to the earlier of public dissemination or filing with the Commission, each Party shall deliver to each other Party a reasonably complete draft of any earnings news release or any filing with the Commission containing financial statements for the years 2018 and 2019, including current reports on Form 8-K, quarterly reports on 10-Q and annual reports on Form 10-K or any other annual report purporting to fulfill the requirements of 17 CFR 240-14c-3 (such reports, collectively, the “ Public Reports ”); provided , however , that each of SpecCo, MatCo and AgCo may continue to revise its respective Public Report prior to the filing thereof, which changes will be delivered to each other Party as soon as reasonably practicable; provided , further , that each Party’s personnel will actively consult with each other Party’s personnel regarding any changes which they may consider making to its respective Public Report and related disclosures prior to the anticipated filing with the Commission, with particular focus on any changes which would reasonably be expected to have an effect upon each other Party’s financial statements or related disclosures, (ii) each Party shall notify the other Parties, as soon as reasonably practicable after becoming aware thereof, of any material accounting differences between the financial statements to be included in such Party’s annual report on Form 10-K and the pro-forma financial statements included, as applicable, in the Form 10 or the Form 8-K to be filed by DowDuPont with the Commission on or about the time of each Distribution and (iii) if any such differences are notified by any Party, the Parties shall confer and/or meet as soon as reasonably practicable thereafter, and in any event prior to the filing of any Public Report, to consult with each other in respect of such differences and the effects thereof on the Parties’ applicable Public Reports; and

(e) to the extent (i) AgCo’s 2019 or 2020 proxy statement or Form 10-K for the fiscal year ended December 31, 2019 discusses compensation programs of (A) SpecCo, it shall substantially conform such discussion to SpecCo’s proxy statement and/or Form 10-K for the applicable period or (B) MatCo, it shall substantially conform such discussion to MatCo’s proxy statement and/or Form 10-K for the applicable period; (ii) SpecCo’s 2019 or 2020 proxy statement or Form 10-K for the fiscal year ended December 31, 2019 discusses compensation programs of (A) AgCo, it shall substantially conform such discussion to AgCo’s proxy statement and/or Form 10-K for the applicable period or (B) MatCo, it shall substantially conform such discussion to MatCo’s proxy statement and/or Form 10-K for the applicable period; and (iii) MatCo’s 2019 or 2020 proxy statement or Form 10-K for the fiscal year ended December 31, 2019 discusses compensation programs of (A) SpecCo, it shall substantially conform such discussion to SpecCo’s proxy statement and/or Form 10-K for the applicable period or (B) AgCo, it shall substantially conform such discussion to AgCo’s proxy statement and/or Form 10-K for the applicable period.

Nothing in this Section  5.1 shall require any Party to violate any agreement with any third party regarding the confidentiality of confidential and proprietary Information relating to that third party or its business; provided , however , that in the event that a Party is required under this Section  5.1 to disclose any such Information, such Party shall use commercially reasonable efforts to seek to obtain such third party’s written consent to the disclosure of such Information.

 

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Section 5.2 Separation of Information .

(a) Except as set forth on Schedule 5.2(a) , MatCo shall, and shall cause the other members of the MatCo Group to, use commercially reasonable efforts to deliver to SpecCo (or its designee) or AgCo (or its designee) by June 30, 2020 all Information that constitutes a Specialty Products Asset, in the case of SpecCo, or an Agriculture Asset, in the case of AgCo, but is commingled in any member of the MatCo Group’s current records or archives (whether stored with a third party or directly by any member of the MatCo Group) (for the avoidance of doubt, MatCo may redact Information that is a Materials Science Asset to which a member of the SpecCo Group or AgCo Group, as applicable, does not have a license pursuant to any Ancillary Agreement (to the extent such Information is not reasonably necessary to exercise a license pursuant to any Ancillary Agreement) or access pursuant to any Designated Ancillary Agreement); provided , that with respect to any Information to which a member of the SpecCo Group or AgCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement.

(b) If SpecCo or AgCo identifies in writing particular Information (whether in written, electronic documentary or other archival documentary form) that SpecCo or AgCo reasonably believes constitutes a Specialty Products Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of SpecCo, or an Agriculture Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of AgCo, but is held by or on behalf of any member of the MatCo Group (or any transferee thereof), MatCo shall, and shall cause any other applicable member of the MatCo Group to, request that the archive holder deliver such item to MatCo for review as soon as reasonably practicable, and MatCo shall review such request and deliver the requested material to SpecCo or AgCo, as applicable, as promptly as reasonably practicable and in any event within five (5) Business Days of receiving the material from the archive holder; provided , that if the requested material is not specific and requires a longer period of review in light of the breadth of the request, MatCo shall deliver the material to SpecCo or AgCo, as applicable, as promptly as reasonably practicable and shall notify SpecCo or AgCo, as applicable, of the expected timeframe to allow SpecCo or AgCo, as applicable, to narrow such request if desired; provided , further , that with respect to any Information to which a member of the SpecCo Group or AgCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement; provided , further , that if such requested material does not constitute a Specialty Products Asset (and a member of the SpecCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of SpecCo, or an Agriculture Asset (and a member

 

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of the AgCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of AgCo, MatCo shall not deliver the material to SpecCo or AgCo, as applicable, but shall provide SpecCo or AgCo, as applicable, with an explanation in reasonable detail of such determination and discuss with SpecCo or AgCo, as applicable, in good faith.

(c) Except as set forth on Schedule 5.2(c) , AgCo shall, and shall cause the other members of the AgCo Group to, use commercially reasonable efforts to deliver to SpecCo (or its designee) or MatCo (or its designee) by June 30, 2020 all Information that constitutes a Specialty Products Asset, in the case of SpecCo, or a Materials Science Asset, in the case of MatCo, but is commingled in any member of the AgCo Group’s current records or archives (whether stored with a third party or directly by any member of the AgCo Group) (for the avoidance of doubt, AgCo may redact Information that is an Agriculture Asset to which a member of the MatCo Group or SpecCo Group, as applicable, does not have a license pursuant to an Ancillary Agreement (to the extent such Information is not reasonably necessary to exercise a license pursuant to any Ancillary Agreement) or access thereto pursuant to a Designated Ancillary Agreement); provided , that with respect to any Information to which a member of the SpecCo Group or MatCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement.

(d) If SpecCo or MatCo identifies in writing particular Information (whether in written, electronic documentary or other archival documentary form) that SpecCo or MatCo reasonably believes constitutes a Specialty Products Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of SpecCo, or a Materials Science Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of MatCo, but is held by or on behalf of any member of the AgCo Group (or any transferee thereof), AgCo shall, and shall cause any other applicable member of the AgCo Group to, request that the archive holder deliver such item to AgCo for review as soon as reasonably practicable, and AgCo shall review such request and deliver the requested material to SpecCo or MatCo, as applicable, as promptly as reasonably practicable and in any event within five (5) Business Days of receiving the material from the archive holder; provided , that if the requested material is not specific and requires a longer period of review in light of the breadth of the request, AgCo shall deliver the material to SpecCo or MatCo, as applicable, as promptly as reasonably practicable and shall notify SpecCo or MatCo, as applicable, of the expected timeframe to allow SpecCo or MatCo, as applicable, to narrow such request if desired; provided , further , that with respect to any Information to which a member of the SpecCo Group or MatCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such

 

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reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement; provided , further , that if such requested material does not constitute a Specialty Products Asset (and a member of the SpecCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of SpecCo, or a Materials Science Asset (and a member of the MatCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of MatCo, AgCo shall not deliver the material to SpecCo or MatCo, as applicable, but shall provide SpecCo or MatCo, as applicable, with an explanation in reasonable detail of such determination and discuss with SpecCo or MatCo, as applicable, in good faith.

(e) Except as set forth on Schedule 5.2(e) , SpecCo shall, and shall cause the other members of the SpecCo Group to, use commercially reasonable efforts to deliver to MatCo (or its designee) or AgCo (or its designee) by June 30, 2020 all Information that constitutes a Materials Science Asset, in the case of MatCo, or an Agriculture Asset, in the case of AgCo, but is commingled in any member of the SpecCo Group’s current records or archives (whether stored with a third party or directly by any member of the SpecCo Group) (for the avoidance of doubt, SpecCo may redact Information that is a Specialty Products Asset to which a member of the AgCo Group or MatCo Group, as applicable, does not have a license pursuant to an Ancillary Agreement (to the extent such Information is not reasonably necessary to exercise a license pursuant to any Ancillary Agreement) or access thereto pursuant to a Designated Ancillary Agreement); provided , that with respect to any Information to which a member of the MatCo Group or AgCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement.

(f) If MatCo or AgCo identifies in writing particular Information (whether in written, electronic documentary or other archival documentary form) that MatCo or AgCo reasonably believes constitutes a Materials Science Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of MatCo, or an Agriculture Asset (or to which a member of its Group has a license pursuant to an Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of AgCo, but is held by or on behalf of any member of the SpecCo Group (or any transferee thereof), SpecCo shall, and shall cause any other applicable member of the SpecCo Group to, request that the archive holder deliver such item to SpecCo for review as soon as reasonably practicable, and SpecCo shall review such request and deliver the requested material to MatCo or AgCo, as applicable, as promptly as reasonably practicable and in any event within five (5) Business Days of receiving the material from the archive holder; provided , that if the requested material is not specific and requires a longer period of review in light of the breadth of the request, SpecCo shall deliver the material to MatCo or AgCo, as applicable, as promptly as reasonably practicable and shall notify MatCo or AgCo, as applicable, of the expected timeframe

 

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to allow MatCo or AgCo, as applicable, to narrow such request if desired; provided , further , that with respect to any Information to which a member of the MatCo Group or AgCo Group, as applicable, has a license pursuant to any Ancillary Agreement (or such Information is reasonably necessary to exercise such license) or access pursuant to any Designated Ancillary Agreement, such Information shall be delivered only to the extent of such license (or such reasonable need for related Information) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement; provided , further , that if such requested material does not constitute a Materials Science Asset (and a member of the MatCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of MatCo, or an Agriculture Asset (and a member of the AgCo Group is not otherwise granted a license pursuant to an Ancillary Agreement (and such Information is not reasonably necessary to exercise such license) or access thereto pursuant to a Designated Ancillary Agreement), in the case of AgCo, SpecCo shall not deliver the material to MatCo or AgCo, as applicable, but shall provide MatCo or AgCo, as applicable, with an explanation in reasonable detail of such determination and discuss with MatCo or AgCo, as applicable, in good faith.

Section 5.3 Nonpublic Information . Each Party acknowledges on behalf of itself and the other members of its Group that Information provided under Section  5.1 may constitute material, nonpublic information, and trading in the securities of a member of any Group (or the securities of such Person’s Affiliates, or partners) while in possession of such material, nonpublic material information may constitute a violation of the U.S. federal securities Laws.

Section 5.4 Cooperation . From the applicable Relevant Time until June 1, 2024, and subject to the terms and limitations contained in this Agreement and the Ancillary Agreements, each Party shall, and shall cause the other members of its Group, their respective then-Affiliates, each of its and their respective Affiliates and its and their employees to (a) provide reasonable cooperation and assistance to each other Party (and any member of such Party’s Group) in connection with the completion of the Internal Reorganization and the transactions contemplated herein and in each Ancillary Agreement (including assisting in the preparation of the Distributions (for the avoidance of doubt, MatCo shall provide reasonable assistance, including reasonable access to its properties, records, other Information and personnel, subject to Section  9.6 , to DowDuPont, AgCo and their respective auditors in preparation of the Agriculture Form 10 and the AgCo Information Statement until the AgCo Distribution Date)), (b) provide knowledge transfer in reasonable detail at the request of another Party regarding the Business, Assets or Liabilities of such other Party (for the avoidance of doubt, knowledge transfer is not required pursuant to this Section  5.4 (b) with respect to Intellectual Property or Information constituting an Asset of the requested Party’s Group (unless a license or access thereto has been granted to a member of the requesting Party’s Group pursuant to an Ancillary Agreement or Designated Ancillary Agreement (but in such case, Information shall be delivered only to the extent of such license (or to the extent reasonably necessary to exercise such license) or access and otherwise subject to the terms of the applicable Ancillary Agreement or Designated Ancillary Agreement))),(c) reasonably assist each Party (or member of its respective Group) in the orderly and efficient transition in becoming an independent company, (d) reasonably assist each other Party (or member of its respective Group)

 

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to the extent such Party (or member of such Party’s Group) is providing or has provided services, as applicable, pursuant to the General Services Agreement or the applicable Site Services Agreements, in connection with requests for Information from, audits or other examinations of, such other Party (or member of such Party’s Group) by a Governmental Entity and (e) provide reasonable cooperation and assistance to each other Party (and any member of its respective Group) in (x) seeking and obtaining all Consents of Governmental Entities under applicable Law with respect to (A) the transactions contemplated by this Agreement and (B) the transactions contemplated by the Agreement and Plan of Merger, dated as of December 11, 2015, by and among Diamond-Orion HoldCo, Inc., Dow, Diamond Merger Sub, Inc., Orion Merger Sub, Inc. and DuPont, as amended, and (y) gathering, preparing and submitting any information or documentary material that may be requested by any Governmental Entity in connection with obtaining such Consents, in each case ( clauses (a) - (e) ), at no additional cost to the Party (or member of such Party’s Group) requesting such assistance other than for the actual out-of-pocket costs (which shall not include the costs of salaries and benefits of employees of such Party (or its Group) or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing) incurred by any such Party (or its Group), if applicable. The cooperation and assistance provided for in this Section  5.4 shall not be required to the extent such cooperation and assistance would result in an undue burden on any Party (or any member of its Group) or would unreasonably interfere with any of its employees’ normal functions and duties. In furtherance of, and without limiting, the foregoing, each Party shall, and shall cause the other members of its Group (or their then-current Affiliates) to, make reasonably available those employees with particular knowledge of any function or service of which another Party was not allocated the employees involved in such function or service in connection with the Internal Reorganization (including employee benefits functions, risk management, etc.).

Section 5.5 Permits and Financial Assurance .

(a) Prior to the applicable Relevant Time, the Permit Transferor shall be responsible for preparing and submitting, on a timely basis, all filings required to effect, as applicable (i) the Transfer to the applicable Permit Transferee of all permits, including Environmental Permits, that constitute Assets that are allocated to the Permit Transferee’s Group pursuant to this Agreement, and (ii) the issuance of all permits, including Environmental Permits, necessary for the conduct of the Business of the Permit Transferee’s Group as it is conducted as of the applicable Relevant Time after giving effect to the Ancillary Agreements. The Permit Transferee shall cooperate with the Permit Transferor with respect to the filing of such transfer or reissuance requests, including executing any necessary forms as required and providing information in the Permit Transferee’s possession to the Permit Transferor that is necessary for any such transfer or reissuance request. Following the applicable Relevant Time, the Permit Transferor shall, and shall cause the other members of its Group to, use commercially reasonable efforts to (A) assist the Permit Transferee by providing any information necessary to allow the Permit Transferee to apply to the applicable Governmental Entity for issuance of a new permit, including Environmental Permits, to the Permit Transferee, to the extent that such application was not submitted prior to the Relevant Time pursuant to this Section  5.5(a) , (B) maintain each permit, including any Environmental Permit, that was not Transferred to the Permit Transferee prior to the applicable Relevant Time (a “ Non-Transferred Permit ”), in full force and effect in all material respects in the ordinary course of business consistent with past practice (or, if greater,

 

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the level of effort agreed to maintain and administer its own permits, including any Environmental Permit) and taking into account the transactions contemplated by this Agreement, until such time as the permit has been transferred or reissued to the Permit Transferee, provided, that the Permit Transferor’s obligation hereunder is conditioned on the Permit Transferee undertaking prompt action to apply for and prosecute the reissuance or a transfer of said Non-Transferred Permit, (C) cooperate in any reasonable and lawful arrangement designed to provide to the Permit Transferee the benefits arising under each Non-Transferred Permit, including accepting such reasonable direction as the Permit Transferee shall request of the Permit Transferor, and (D) enforce at the Permit Transferee’s reasonable request, or allow the Permit Transferee to enforce in a commercially reasonable manner, any rights of the Permit Transferor under such Non-Transferred Permit (to the extent related to the Business of the Permit Transferee); provided , that, (x) the costs and expenses incurred by the Permit Transferor related to the foregoing clauses (A)-(B) shall be borne solely by the Permit Transferor and (y) the costs and expenses incurred by the Permit Transferor related to the foregoing clauses (C) – (D) shall be borne solely by the Permit Transferee. Following the applicable Relevant Time, the Permit Transferee shall be responsible for compliance by the Business of its Group with all of the terms and conditions of any permit, including any Environmental Permit, which is a Non-Transferred Permit. The Permit Transferee shall be responsible for all Liabilities related thereto and shall indemnify the Permit Transferor pursuant to Article VIII for all Indemnifiable Losses to the extent relating to or arising in connection with or resulting from a permit, including any Environmental Permit, which is a Non-Transferred Permit due to the Business of its Group, including fines or penalties arising from violations by its Group of any terms and/or conditions of the Non-Transferred Permit. The covenants and agreements set forth in this Section  5.5(a) of (x) Permit Transferor that were members of Historical Dow shall constitute Materials Science Liabilities and those of Permit Transferors that were members of Historical DuPont shall be: (I) in the case of members of the AgCo Group, Agriculture Liabilities, (II) in the case of members of the SpecCo Group, Specialty Products Liabilities, and (III) in the case of members of the MatCo Group, Shared Historical DuPont Liabilities and (y) the covenants and agreements of Permit Transferees that are members of the AgCo Group, MatCo Group or SpecCo Group shall constitute Agriculture Liabilities, Materials Science Liabilities and Specialty Products Liabilities, respectively.

(b) Subject to Article VIII , as required by applicable Law and as soon as practicable after the Relevant Time, but in any event no later than thirty (30) days after the Relevant Time unless otherwise permitted under applicable Law, each of AgCo, MatCo and SpecCo, as the case may be, shall, or shall cause another member of its Group to, submit to the appropriate regulatory agencies documentation satisfactory to such agencies that it has procured financial assurance, in compliance with applicable Laws, to replace the financial assurance provided by members of the other Parties’ Groups in respect of Environmental Liabilities that constitute Agriculture Liabilities, Materials Science Liabilities or Specialty Products Liabilities, respectively, pursuant to such Laws. A schedule of the financial assurance related to Environmental Liabilities required to be obtained by each of the AgCo Group, MatCo Group and SpecCo Group as of the date of this Agreement is set forth on Schedule 5.5 . Subject to Article VIII , to the extent that the Environmental Liability underlying such financial assurance is an Agriculture Liability, Materials Science Liability or Specialty Products Liability, AgCo, MatCo or SpecCo, respectively, shall remain liable for the costs and expenses associated with maintaining such financial assurance, even in circumstances where an Indemnitee is required as a matter of applicable Law to obtain such financial assurance.

 

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Section 5.6 Non -Competition .

(a) For a period of thirty (30) months from the MatCo Distribution Date (the “ Non-Compete Period ”), no member of the MatCo Group shall, directly or indirectly, own, manage, operate or engage in (including by licensing or otherwise granting a third party rights to engage in, or by causing or directing any third party to, on behalf of any member of the MatCo Group, own, manage, operate or engage in) the business of developing, manufacturing, marketing or selling (i) poly(ethylene) oxide polymers having a weight average molecular weight greater than or equal to 50,000 g/mol or cellulosic polymers, in each case, for uses in the Food Business or the Pharmaceuticals Business; (ii) poly(ethylene) oxide polymers having a weight average molecular weight greater than or equal to 50,000 g/mol, or Specified IS Cellulosics, in each case, for uses in the Restricted Industrial Specialties Business; (iii) nitrocellulose for any and all uses; and (iv) silicone elastomers and/or silicone-based materials purified for uses in the Medical Devices Business or, in each case (in respect of the foregoing clauses (i)  through (iv) ), hold any ownership interest in any Person who engages in such business (for the respective applicable uses set forth in clauses (i)  through (iv) ) (including developing, designing, manufacturing, marketing, distributing or offering for sale any product specified on Schedule 5.6(a) ) (the “ MatCo Prohibited Activities ”).

(b) Notwithstanding the foregoing MatCo Prohibited Activities, the Parties agree that nothing herein shall:

(i) prohibit MatCo or any of its Affiliates from acquiring (whether by merger, consolidation, stock or asset purchase, joint venture or other similar transaction), holding shares of capital stock or a partnership or other equity interest or investing in any Person, or the assets thereof, if less than fifteen percent (15%) of each of the gross revenues, assets and income of such Person (based on such Person’s latest annual audited consolidated financial statements) were derived from (or in the case of assets, primarily related to) any of the MatCo Prohibited Activities (the “ MatCo Non-Compete Target ”); provided , that, during the Non-Compete Period, MatCo shall, and shall cause its Affiliates to, hold separate the business and Assets of MatCo and its Affiliates immediately prior to the time of such acquisition, holding of equity interests or investment (the “ Pre-Acquisition MatCo Business ”) from the portions of the MatCo Non-Compete Target’s business engaged directly or indirectly in the MatCo Prohibited Activities and shall not otherwise integrate the MatCo Non-Compete Target’s business engaged in the MatCo Prohibited Activities into its business and shall not in any way use or accept for use, or otherwise allow access to any Assets or Information of the Pre-Acquisition MatCo Business by the portion of the MatCo Non-Compete Target’s business engaged in the MatCo Prohibited Activities;

 

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(ii) prohibit MatCo or any of its Affiliates from acquiring (x) passive ownership, solely as an investment, of fifteen percent (15%) or less of the securities or other outstanding equity interests of any Person and (y) any interest in any Person, regardless of the relative size of the ownership interest or revenues derived from MatCo Prohibited Activities, through any pension trust or similar benefit plan investment vehicle (or agent thereof in their capacity as such) of MatCo or any of its Affiliates, as applicable, so long as such investments are passive investments in securities in the ordinary course of its respective operations;

(iii) prohibit MatCo or any of its Affiliates from conducting any of the Materials Science Specified Permitted Activities; or

(iv) apply with respect to any actions by (x) customers or distributors of MatCo or (y) any other Person that is not a member of the MatCo Group (other than as set forth in Section  5.6(b)(i) and Section  5.6(c) , as applicable), in each case, so long as no member of the MatCo Group has (A) induced any such Person to own, manage, operate or engage in, or (B) caused or directed any such Person to, on behalf of any member of the MatCo Group, own, manage, operate or engage in, in each case, any activity that, if conducted by MatCo, would constitute a MatCo Prohibited Activity.

(c) Notwithstanding anything to the contrary contained herein, if MatCo undergoes a Change of Control after the MatCo Distribution and prior to the end of the Non-Compete Period, then in connection with the entry into an agreement providing for such Change of Control, MatCo shall cause the acquiring third party to enter into an agreement that subjects the acquired operations and activities of MatCo and its Affiliates (other than the third party and its Affiliates prior to such acquisition to the extent not already Affiliates of MatCo) (the “ Pre-Acquisition MatCo Entities ”) to the restrictions set forth in this Section  5.6 to the same extent as they apply to Pre-Acquisition MatCo Entities immediately prior to the consummation of such Change of Control for the remainder of the Non-Compete Period. For the avoidance of doubt, the acquiring third party or surviving entity or parent of such acquiring third party or its Subsidiaries and Affiliates (but not Pre-Acquisition MatCo Entities or any of their respective Subsidiaries) (the “ MatCo Non-Compete Acquirers ”) may engage in the MatCo Prohibited Activities to the extent not Affiliates of MatCo prior to such acquisition; provided , that, during the Non-Compete Period, the MatCo Non-Compete Acquirers shall hold separate the business and Assets of Pre-Acquisition MatCo Entities immediately prior to such time from the portions of the MatCo Non-Compete Acquirers’ business engaged directly or indirectly in the MatCo Prohibited Activities and shall not otherwise integrate Pre-Acquisition MatCo Entities’ business into the portions of its business engaged directly or indirectly in any MatCo Prohibited Activity and shall not in any way use or accept for use, or otherwise allow access to any Assets or Information of Pre-Acquisition MatCo Entities’ business by the portion of the MatCo Non-Compete Acquirers’ business engaged in the MatCo Prohibited Activities.

(d) For the Non-Compete Period, no member of the SpecCo Group shall, directly or indirectly, own, manage, operate or engage in (including by licensing or otherwise granting a third party rights to engage in, or by causing or directing any third party to, on behalf of any member of the SpecCo Group, own, manage, operate or engage in) the business of developing, manufacturing, marketing or selling Specified C&I Cellulosics, in each case, for uses in the Construction and Infrastructure Business or hold any ownership interest in any Person who engages in such business for uses in the Construction and Infrastructure Business (including developing, designing, manufacturing, marketing, distributing or offering for sale any product specified on Schedule 5.6(d) ) (the “ SpecCo Prohibited Activities ”).

 

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(e) Notwithstanding the foregoing SpecCo Prohibited Activities, the Parties agree that nothing herein shall:

(i) prohibit SpecCo or any of its Affiliates from acquiring (whether by merger, consolidation, stock or asset purchase, joint venture or other similar transaction), holding shares of capital stock or a partnership or other equity interest or investing in any Person, or the assets thereof, if less than fifteen percent (15%) of each of the gross revenues, assets and income of such Person (based on such Person’s latest annual audited consolidated financial statements) were derived from (or in the case of assets, primarily related to) any of the SpecCo Prohibited Activities (the “ SpecCo Non-Compete Target ”); provided , that, during the Non-Compete Period, SpecCo shall, and shall cause its Affiliates to, hold separate the business and Assets of SpecCo and its Affiliates immediately prior to the time of such acquisition, holding of equity interests or investment (the “ Pre-Acquisition SpecCo Business ”) from the portions of the SpecCo Non-Compete Target’s business engaged directly or indirectly in the SpecCo Prohibited Activities and shall not otherwise integrate the SpecCo Non-Compete Target’s business engaged in the SpecCo Prohibited Activities into its business and shall not in any way use or accept for use, or otherwise allow access to any Assets or Information of the Pre-Acquisition SpecCo Business by the portion of the SpecCo Non-Compete Target’s business engaged in the SpecCo Prohibited Activities;

(ii) prohibit SpecCo or any of its Affiliates from acquiring (x) passive ownership, solely as an investment, of fifteen percent (15%) or less of the securities or other outstanding equity interests of any Person and (y) any interest in any Person, regardless of the relative size of the ownership interest or revenues derived from SpecCo Prohibited Activities, through any pension trust or similar benefit plan investment vehicle (or agent thereof in their capacity as such) of SpecCo or any of its Affiliates, as applicable, so long as such investments are passive investments in securities in the ordinary course of its respective operations;

(iii) prohibit SpecCo or any of its Affiliates from conducting any SpecCo Specified Permitted Activities; or

(iv) apply with respect to any actions by (x) customers or distributors of SpecCo or (y) any other Person that is not a member of the SpecCo Group (other than as set forth in Section  5.6(e)(i) and Section  5.6(f) , as applicable), in each case, so long as no member of the SpecCo Group has (A) induced any such Person to own, manage, operate or engage in, or (B) caused or directed any such Person to, on behalf of any member of the SpecCo Group, own, manage, operate or engage in, in each case, any activity that, if conducted by SpecCo, would constitute a SpecCo Prohibited Activity.

 

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(f) Notwithstanding anything to the contrary contained herein, if SpecCo undergoes a Change of Control after the MatCo Distribution and prior to the end of the Non-Compete Period, then in connection with the entry into an agreement providing for such Change of Control, SpecCo shall cause the acquiring third party to enter into an agreement that subjects the acquired operations and activities of SpecCo and its Affiliates (other than the third party and its Affiliates prior to such acquisition to the extent not already Affiliates of SpecCo) (the “ Pre-Acquisition SpecCo Entities ”) to the restrictions set forth in this Section  5.6 to the same extent as they apply to Pre-Acquisition SpecCo Entities immediately prior to the consummation of such Change of Control for the remainder of the Non-Compete Period. For the avoidance of doubt, the acquiring third party or surviving entity or parent of such acquiring third party or its Subsidiaries and Affiliates (but not Pre-Acquisition SpecCo Entities or any of their respective Subsidiaries) (the “ SpecCo Non-Compete Acquirers ”) may engage in the SpecCo Prohibited Activities to the extent not Affiliates of SpecCo prior to such acquisition; provided , that, during the Non-Compete Period, the SpecCo Non-Compete Acquirers shall hold separate the business and Assets of Pre-Acquisition SpecCo Entities immediately prior to such time from the portions of the SpecCo Non-Compete Acquirers’ business engaged directly or indirectly in the SpecCo Prohibited Activities and shall not otherwise integrate Pre-Acquisition SpecCo Entities’ business into the portions of its business engaged directly or indirectly in any SpecCo Prohibited Activity and shall not in any way use or accept for use, or otherwise allow access to any Assets or Information of Pre-Acquisition SpecCo Entities’ business by the portion of the SpecCo Non-Compete Acquirers’ business engaged in the SpecCo Prohibited Activities.

(g) Each Party agrees (on behalf of itself and each member of its Group) that, notwithstanding anything herein to the contrary, (i) the provisions of Section  5.6 shall not prohibit MatCo or any member of the MatCo Group from performing its (and their, as applicable) obligations under this Agreement (including Section  2.2(d) and Section  2.5 ), any Ancillary Agreement or any Continuing Arrangement as in effect on the MatCo Distribution Date or as may be amended after the MatCo Distribution Date in a writing executed by a member of the SpecCo Group, and (ii) the provisions of Section  5.6 shall not prohibit SpecCo or any member of the SpecCo Group from performing its (and their, as applicable) obligations under this Agreement (including Section  2.2(d) and Section  2.5 ), any Ancillary Agreement or any Continuing Arrangement as in effect on the MatCo Distribution Date or as may be amended after the MatCo Distribution Date in a writing executed by a member of the MatCo Group;

(h) Each of SpecCo and MatCo, on behalf of itself and of each member of their respective Group, acknowledges and agrees that this Section  5.6 constitutes an independent covenant and shall not be affected by performance or nonperformance of any other provision of this Agreement by the other Party. Each of SpecCo and MatCo further acknowledges and agrees on behalf of itself and of each member of its respective Group that the restrictive covenants and other agreements contained in this Section  5.6 are an essential part of this Agreement and the transactions contemplated hereby. It is the intent of SpecCo and MatCo that the provisions of this Section  5.6 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. Each of SpecCo and MatCo has independently consulted with its counsel and after such consultation agrees that the covenants set forth in this Section  5.6 are intended to be reasonable and proper in scope, duration and geographical area and in all other respects. Subject to the terms of Article XII , each of SpecCo and MatCo acknowledges and agrees on behalf of itself and of each member of its respective Group that irreparable harm would occur in the event that the SpecCo or any member of the SpecCo Group or MatCo or any member of the MatCo Group, as applicable, does not perform, or cause to be performed, any provision of this Section  5.6 in

 

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accordance with its specific terms or otherwise breach this Section  5.6 and the remedies at law for any breach or threatened breach of this Section  5.6 , including monetary damages, are inadequate compensation for any Indemnifiable Loss. Accordingly, from and after the Effective Time, in the event of any actual or threatened default in, or breach of, any of the terms and provisions of this Section  5.6 , each of SpecCo and MatCo agrees on behalf of itself and of each member of its respective Group that the Party (or its Group) who is or is to be thereby aggrieved shall, subject and pursuant to the terms of Article XII (including for the avoidance of doubt, after compliance with all notice and negotiation provisions in Article XII ), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. Each of SpecCo and MatCo agrees on behalf of itself and each member of its respective Group that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of the Arbitral Tribunal, Emergency Arbitrator and the court or any other Governmental Entity of competent jurisdiction, each of SpecCo and MatCo agrees on behalf of itself and each member of its respective Group that: (i) such determination shall not affect the validity or enforceability of (x) the offending term or provision in any other situation or in any other jurisdiction, or (y) the remaining terms and provisions of this Section  5.6 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the Arbitral Tribunal, Emergency Arbitrator and court or Governmental Entity making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section  5.6 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section  5.6 shall be enforceable as so modified.

(i) (i) If MatCo believes in good faith that one of its ongoing activities prior to the MatCo Distribution was inadvertently omitted from Schedule 1.1(200) or if MatCo believes the SpecCo Group has breached its obligations pursuant to this Section  5.6 or (ii) SpecCo believes in good faith that one of its ongoing activities prior to the MatCo Distribution was inadvertently omitted from Schedule 1.1(302) or if SpecCo believes that the MatCo Group has breached its obligations pursuant to this Section  5.6 , either MatCo or SpecCo may deliver a written notice (a “ Non-Compete Dispute Notice ”) to the other. As soon as reasonably practicable after the date of receipt by the relevant Party of the Non-Compete Dispute Notice, the general counsels and applicable business presidents of MatCo and SpecCo shall discuss such matter in good faith for a reasonable period of time; provided , however , that such reasonable period shall not, unless otherwise agreed by MatCo and SpecCo in writing, exceed fifteen (15) days from the date of receipt by the relevant Party of the Non-Compete Dispute Notice (the “ First Non-Compete Discussion Period ”). If the matter has not been resolved for any reason as of the expiration of the First Non-Compete Discussion Period, such matter shall be escalated to the chief executive officers of MatCo and SpecCo by the delivery of a written notice from either MatCo or SpecCo to the other (the “ Non-Compete Escalation Notice ”), and such chief executive officers shall, as soon as reasonably practicable after the date of receipt by the relevant Party of

 

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the Non-Compete Escalation Notice, discuss such matter in good faith for a reasonable period of time; provided , however , that such reasonable period of time shall not exceed fifteen (15) days from the date of receipt by the relevant Party of the Non-Compete Escalation Notice (the “ Second Non-Compete Discussion Period ”). If, for any reason, the matter has not been resolved, such disagreement shall be submitted to final and binding arbitration pursuant to the procedures set forth in Article X of this Agreement.

(j) Each of the Parties acknowledges and agrees on behalf of itself and each other member of its Group that this Section  5.6 (i) is solely for the benefit of, and enforceable by, MatCo and SpecCo and (ii) shall not be deemed to confer upon any other Person (including the AgCo Group after the AgCo Distribution) any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever.

(k) For the purposes of this Section  5.6 , the following terms shall have the following meanings:

 

(i)

Construction and Infrastructure Business ” shall mean construction chemical raw materials and blends thereof for construction or infrastructure applications including concrete, cement, cement plaster, gypsum, mortars, repair mortars, skim coats, exterior insulated finishing systems, cement-based tile adhesives, elastomeric roof coatings, roof tiles and siding, sport grounds and tape joint compounds, manually or mechanically applied renders, floor levelling compositions, spraycrete compositions, screeds, cement or lime/sandstone extrudates, internal curing aids, mineral or polymer bound building materials, filler compositions or distempers, excluding , in all cases: (i) coatings (other than elastomeric roof coatings), (ii) paints, primers, paint removers, lacquers and varnishes (other than HEMC lacquers and varnishes), dispersions and emulsions, (iii) weatherization (including flashings), (iv) Class B polyisocyanurate insulation foam (which is sold under the name TUFF-R as of the date hereof), (v) the Restricted Industrial Specialties Business, (viii) adhesives in wallpaper and furniture glue, (vi) agriculture and feed applications, (vii) batteries, energy and heat storage, (viii) extruded ceramics preparations for electronics, automotive, electric cooling and isolation devices and energy supply, (ix) electronic materials, (x) fuel gels, (xi) inks and pastes for graphical and electronics printing (including capacitors, OLED, labels and sensors), (xii) optical films, (xiii) powder metallurgy and metals, (xiv) pulp and paper, (xv) PVC polymerization suspension stabilizers, (xvi) textile and leather, (xvii) water treatment, (xviii) oil, gas and mining, (xix) fire protection, (xx) recycling of finished articles and optimization of finished articles for recycling. For purposes of this definition, “infrastructure applications” shall mean applications of the above-mentioned construction chemical raw materials and formulations for roads, bridges, ports, airports, railways, tunnels, dams, waterways and similar physical structures and facilities (for the avoidance of doubt, excluding components therein such as piping, wiring, electronics and control systems).

 

(ii)

Food Business ” shall mean food or beverages, including food and beverage ingredients, fermented foods, food cultures, feed, nutraceuticals and dietary supplements and any and all dosage and delivery forms thereof, flavoring agents, thickening agents, texture and flavor enhancers, ingredients for fat, gluten or meat replacement or reduction, probiotics, chelating agents, humectants, preservatives, stabilizers, mold control and other agents that extend or otherwise maintain or extend shelf-life, antimicrobials and antioxidants, in each case, for use in food and beverages.

 

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(iii)

Medical Devices Business ” shall mean (A) medical tubing and tubing used in the manufacture of pharmaceuticals and biopharmaceuticals, sleep apnea respiratory care systems, transdermal and topical drug delivery devices, and materials for wound care, regardless of whether such products are regulated by a Governmental Entity, and (B) medical devices and pharmaceutical products that are regulated by the United States Food and Drug Agency as medical devices or pharmaceutical drugs under Title 21 of the Code of Federal Regulations or similar regulations outside of the United States, in each case, as in force as of August 1, 2018.

 

(iv)

Pharmaceuticals Business ” shall mean products for the treatment, prevention, diagnosis or curing of any human or veterinary disease or condition; including the discovery, manufacture, research, development and commercialization of medical devices, pharmaceutical products (whether prescription or non-prescription), biologics and biological products (including active and inactive pharmaceutical or biological ingredients, excipients, formulations and solubility enhancers), and any and all dosage and delivery forms of the foregoing, but excluding non-prescription grade products for topical delivery.

 

(v)

Restricted Industrial Specialties Business ” shall mean: (A) emission control systems, including for use in ceramic extrusion molded for automotive honeycomb; (B) PVC suspension polymerization; (C) combustion tapes; (D) energy storage (including lithiumion batteries); electronics, lighting and photovoltaics; and (E) multilayer ceramic capacitors.

 

(vi)

Specified C&I Cellulosics ” shall mean: Cellulose carrying at least one of the following substituents: (A) methyl, (B) ethyl, (C) carboxymethyl (and/or salts thereof), (D) hydroxyethyl, and (E) hydroxypropyl.

 

(vii)

Specified IS Cellulosics ” shall mean: Cellulose carrying at least one of the following substituents: (A) methyl, (B) ethyl, (C) carboxymethyl (and/or salts thereof), (D) hydroxyethyl, and (E) hydroxypropyl.

Section 5.7 Inventor Remuneration . Each Party shall, and shall cause the members of its respective Group to, reasonably cooperate with each other and shall use commercially reasonable efforts, on and after the Effective Time, to take, or cause to be taken, and without any further consideration, from and after the Effective Time to provide assistance and deliver, and cause to be delivered, all information, Contracts, reports, records and other materials reasonably necessary to determine and pay Inventor Remuneration, including (i) the Inventor Remuneration due to each such inventor, (ii) the calculations of such Inventor Remuneration, (iii) the last available contact information of each such inventor, (iv) when such Inventor Remuneration is or was due to be paid, (v) the milestones at which each such inventor was or is owed such Inventor Remuneration and the payments due at such milestones, and (vi) any pending or threatened Action arising out of such Inventor Remuneration. At the request of a Party, the other Parties shall, and shall cause the other members of their respective Groups to, reasonably cooperate to maintain such information as confidential, including by permitting such information to be provided directly to the inventor and permitting a Party or a member of its Group to directly compensate such inventor, and permitting such inventor to be subject to reasonable confidentiality arrangements.

 

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ARTICLE VI

SPECIFIED DOWDUPONT SHARED ASSETS AND SPECIFIED DOWDUPONT SHARED LIABILITIES

Section 6.1 Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities .

(a) Specified DowDuPont Shared Assets . To the extent that a Party or any member of its Group (or any of its or their respective then-Affiliates) receives from a third party any proceeds of any kind arising out of a Specified DowDuPont Shared Asset, to the extent necessary, such Party shall, or shall cause the applicable member of its Group (or any of its or their respective then-Affiliates) to, promptly (but in no event later than thirty (30) days following receipt thereof), unless there is a good faith open question as to whether such proceeds are in fact Specified DowDuPont Shared Assets and the matter has been submitted for resolution pursuant to the terms of this Agreement, in which case, promptly following the final determination thereof, transfer such amounts to the applicable Party or Parties, pursuant to and in accordance with their respective Applicable Percentage; provided , further, that so long as AgCo is still an Affiliate of SpecCo, SpecCo shall be entitled to all of AgCo’s Applicable Percentage of the proceeds realized from a Specified DowDuPont Shared Asset. In furtherance of the foregoing, the applicable Managing Party (and the Party or Parties providing assistance to the applicable Managing Party pursuant to Section  6.3(b) ) shall be entitled to such reimbursement of any out-of-pocket costs and expenses (which shall not include the costs of salaries and benefits of employees who are managing such Specified DowDuPont Shared Asset or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as managing the Specified DowDuPont Shared Asset) related to or arising out of prosecuting or managing any such Specified DowDuPont Shared Asset from the other Parties, as applicable, from time to time when invoiced, in advance of a final determination or resolution with respect to such Specified DowDuPont Shared Asset (and each such Party shall be liable for its Applicable Percentage of such costs and expenses). Without limiting any other provision of this Agreement, the Parties shall, and shall cause each other member of its Group to, use commercially reasonable efforts to cause any Specified DowDuPont Shared Asset to be assigned to each Party in accordance with such Parties’ Applicable Percentage. In the event that any Specified DowDuPont Shared Asset is not assignable in accordance with its terms and cannot otherwise be assigned to the Groups to whom ownership of such assets has otherwise been conveyed pursuant to this Agreement, then the Party (or member of its Group) who owns such Specified DowDuPont Shared Asset shall cause such Specified DowDuPont Shared Assets to be held in trust on behalf of the applicable Parties. To the extent that any such Specified DowDuPont Shared Assets are held in trust by the applicable Party or any other member of its Group (or any of its or their respective then-Affiliates) (as described in the foregoing sentences), then to the extent that any cash proceeds are actually received in connection with such Specified DowDuPont Shared Assets, such Party shall, or shall cause the applicable member of its Group (or its or their respective then-Affiliates) to, transfer or contribute such proceeds to the other applicable Parties in accordance with such Parties’ Applicable Percentage.

 

 

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(b) Specified DowDuPont Shared Liabilities . Except as otherwise expressly set forth in this Article VI and without limiting the indemnification provisions of Article VIII , each of the Parties shall be responsible for its respective Applicable Percentage of any costs and expenses (in addition to, without duplication, each such Party’s share of any Indemnifiable Losses in respect of any such Specified DowDuPont Shared Liabilities pursuant to and in accordance with the relevant provisions of Article VIII ) related to or arising out of any Specified DowDuPont Shared Liability; provided , that so long as AgCo is still an Affiliate of SpecCo, SpecCo shall be responsible for AgCo’s Applicable Percentage of any such Specified DowDuPont Shared Liability. Any amounts owed in respect of any Specified DowDuPont Shared Liabilities (including reimbursement for the out-of-pocket costs and expenses of defending, managing or providing assistance to the Managing Party pursuant to Section  6.3(b) with respect to any Third Party Claim that is a Specified DowDuPont Shared Liability, which shall include any amounts with respect to a bond, prepayment or similar security or obligation required (or determined to be advisable by the Managing Party) to be posted by the Managing Party in respect of any claim) shall be remitted promptly after the Party entitled to such amount provides an invoice (including reasonable supporting information with respect thereto) to the Party or Parties owing such amount and such costs and expenses shall be included in the calculation of the amount of the applicable Specified DowDuPont Shared Liability in determining the reimbursement obligations of the other Parties with respect thereto. In furtherance of the foregoing, the Managing Party (and the Party providing assistance to the Managing Party pursuant to Section  6.3(b) ) shall be entitled to reimbursement by the other Parties (in an amount equal to their respective Applicable Percentages) of any out-of-pocket costs and expenses (which shall not include the costs of salaries and benefits of employees who are managing such Specified DowDuPont Shared Liability or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as managing the Specified DowDuPont Shared Liability) related to or arising out of defending or managing any such Specified DowDuPont Shared Liability from the applicable Parties, from time to time when invoiced, in advance of a final determination or resolution of any Action related to a Specified DowDuPont Shared Liability. It shall not be a defense to any obligation by any Party to pay any amounts, whether pursuant to this Article VI or in respect of Indemnifiable Losses pursuant to Article VIII , in respect of any Specified DowDuPont Shared Liability that (i) such Party was not consulted in the defense or management thereof, (ii) that such Party’s views or opinions as to the conduct of such defense were not accepted or adopted, (iii) that such Party does not approve of the quality or manner of the defense thereof or (iv) that such Specified DowDuPont Shared Liability was incurred by reason of a settlement rather than by a judgment or other determination of Liability (even if, subject in each case to Sections 6.4 and 8.5(e) , such settlement was effected without the consent or over the objection of such Party); it being understood that if such obligations arose in connection with any settlement of a Specified DowDuPont Shared Liability, and such settlement is of a type that required Requisite Approval of the Contingent Claim Committee and such Requisite Approval has not been obtained, then (to the extent such right exists) a Party may assert as a defense that the provisions of this Article VI have not been complied with.

 

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Section 6.2 Management of Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities .

(a) For purposes of this Article VI , “ Managing Party ” shall mean with respect to the Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities known by the Parties as of the date hereof, (i) SpecCo with respect to the matters designated as such on Schedule 6.2(a)(i) , (ii) AgCo with respect to the matters designated as such on Schedule 6.2(a)(ii) and (iii) MatCo with respect to the matters designated as such on Schedule 6.2(a)(iii) ; provided , however , that subject to Section  6.2(f) , the Managing Party with respect to any particular Specified DowDuPont Shared Asset and/or Specified DowDuPont Shared Liability not set forth in any of Schedules 6.2(a)(i) , 6.2(a)(ii) or 6.2(a)(iii) (any such Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability, a “ New Shared Matter ”) shall be determined in accordance with Section  6.2(c) and Section  6.2(f) .

(b) If any Party or any member of such Party’s Group shall receive notice or otherwise learn of an Asset or of a Liability or Third Party Claim that may reasonably be determined to be a New Shared Matter, such Party shall give the other Parties and the Contingent Claim Committee written notice (the “ New Shared Matter Notice ”) thereof promptly (and in any event within fifteen (15) days) after such Person becomes aware of such Asset, Liability or Third Party Claim; provided, however, that the failure to provide such notice shall not release any Party from any of its obligations under this Article VI or under Article VIII except and solely to the extent that any such Party shall have been actually prejudiced as a result of such failure. Thereafter, the Party shall deliver to the applicable Managing Party, promptly (and in any event within five (5) Business Days) after the Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group relating to the matter.

(c) Subject to Section  6.2(f) , the Party that shall serve as the Managing Party with respect to any New Shared Matter shall be determined on a rotating basis, with MatCo serving as the Managing Party for the first New Shared Matter, SpecCo serving as the Managing Party for the second New Shared Matter, AgCo serving as the Managing Party for the third New Shared Matter, AgCo serving as the Managing Party for the fourth New Shared Matter, SpecCo serving as the Managing Party for the fifth New Shared Matter and MatCo serving as the Managing Party for the sixth New Shared Matter (with the foregoing rotation being duplicated for any subsequent New Shared Matters) (such Party serving as the Managing Party, the “ Designated Managing Party ”). Within fifteen (15) days of a New Shared Matter Notice, another Party may give the Contingent Claim Committee notice that, although such Party is not the Designated Managing Party pursuant to the first sentence of this Section  6.2(c) , such Party believes in good faith that it should serve as the Managing Party (a “ Managing Party Notice ” and the Party delivering such notice, the “ Managing Party Claimant ”). The Contingent Claim Committee shall meet to discuss the appropriate Managing Party promptly (and in any event within five (5) days of such Managing Party Notice) (such discussions, the “ Managing Party First Discussion ”). In the event that the Designated Managing Party and the Managing Party Claimant agree, the Managing Party Claimant shall then serve as the Managing Party. In the event that the Designated Managing Party and the Managing Party Claimant cannot reach a unanimous determination as to the appropriate Managing Party, the issue shall be submitted to the general counsels of the Designated Managing Party and the Managing Party Claimant and/or

 

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such other executive officer(s) designated by the Designated Managing Party and the Managing Party Claimant in writing (the “ Shared Liability Escalation Committee ”). The Shared Liability Escalation Committee shall thereupon discuss for a reasonable period of time to settle such issue; provided, however, that such reasonable period shall not, unless otherwise agreed by each of the Designated Managing Party and the Managing Party Claimant in writing, exceed five (5) Business Days from the date on which the matter was submitted to the Shared Liability Escalation Committee (the “ Shared Liability Escalation Discussion Period ” and such discussions, the “ Shared Liability Escalation Discussions ”). In resolving which Party shall act as the Managing Party with respect to any such Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability, the Shared Liability Escalation Committee shall consider (i) the allocation of Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities reflected in Schedules 6.2(a) (i), 6.2(a) (ii) and 6.2(a) (iii), whereby the Parties have assigned control of matters known as of the date of this Agreement, which may have precedential value for allocation of similar New Shared Matters, (ii) whether the designation of a Party as the Managing Party, would reasonably be expected to materially and adversely prejudice the position of another Party or a member of such Party’s Group in any other Action or matter arising out of substantially similar facts or circumstances and (iii) in the case of a Third Party Claim, whether the Third Party Claim names two or more Parties (or any member of such Parties’ respective Groups) as defendants, in which case, the Shared Liability Escalation Committee shall consider whether two or more of such impacted Parties may jointly act as the Managing Party. If the issue has not been resolved for any reason as of the expiration of the Shared Liability Escalation Discussion Period, the Designated Managing Party shall serve as the Managing Party.

(d) Notwithstanding anything to the contrary in Section  6.1 and subject to (x) the matters expressly allocated to the Contingent Claim Committee pursuant to Section  6.4(c) and (y)  Section  6.2(f) , the applicable Managing Party shall, on behalf of itself and the other Parties, have sole and exclusive authority to commence, prosecute, manage, control, conduct or defend (or assume the defense of) or otherwise determine all matters whatsoever (including, as applicable, litigation strategy and choice of legal counsel or other professionals) with respect to any Specified DowDuPont Shared Asset and, on behalf of itself and the other Parties and the other members of each Group, any Action or Third Party Claim with respect to a Specified DowDuPont Shared Liability (including with respect to those Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities set forth on Schedule 1.1(314) and Schedule 1.1(315)(i)) . The applicable Managing Party shall promptly notify the other Parties in the event that it commences an Action with respect to a Specified DowDuPont Shared Asset.

(e) Each of the Parties acknowledges that the applicable Managing Party may, in its reasonable judgment after consultation with the other Parties, elect not to pursue any Specified DowDuPont Shared Asset (including due to a different assessment of the merits of any Action, claim or right than the other Parties or any business reasons that may be in the best interests of the Parties as a whole, without regard to the best interests of any individual Party or member of any other Party’s Group) and that no member of any Group shall have any Liability to any Person (including any member of the other Groups, as applicable) as a result of any such determination.

 

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(f) Notwithstanding Section  6.2(a) , each of SpecCo, MatCo and AgCo shall have the primary right to assume and manage, as Managing Party, the defense of any Action with respect to a Specified DowDuPont Shared Liability that is brought against any member of the SpecCo Group, any member of the MatCo Group and any member of the AgCo Group, respectively, by any Governmental Entity (a “ Specified Contingent Governmental Action ”); provided , that without limiting the terms of this Section  6.2(f) , such party’s defense and management of any Specified Contingent Governmental Action shall be with the full consultation of the Contingent Claim Committee, and such party, in its capacity as Managing Party, shall, in good faith, take into account any recommendation made by or actions proposed by the Contingent Claim Committee.

(g) The applicable Managing Party shall be responsible for proposing settlements, resolutions or dispositions of Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities to the Contingent Claim Committee (for the purposes of this Section  6.2 , a “ Proposal ”) which shall be resolved by the Requisite Approval of the Contingent Claim Committee as set forth in Section  6.4 . In addition, the Managing Party shall as soon as reasonably practicable (and, in any event, no later than five (5) Business Days after receipt thereof) inform the Contingent Claim Committee as soon as reasonably practicable of any offer of settlement or disposition of a Specified DowDuPont Shared Liability made by a third party.

(h) The applicable Managing Party shall on a monthly basis, or if a material development occurs (including if a settlement proposal has been made) as soon as reasonably practicable (and, in any event, no later than five (5) Business Days) thereafter, fully inform the members of the Contingent Claim Committee of the status of and developments relating to any matter involving a Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability, provide copies of any material document, notices or other materials related to such matters and shall, and shall cause the other members of its Group (and its and their respective then-Affiliates) to, cooperate with each Party and consider in good faith any request of such Party with respect to the management of procedural and administrative matters impacting such other Party. Each Party shall, and shall cause the other members of its Group (and its and their respective then-Affiliates) to, cooperate fully with the applicable Managing Party in its management of any of such Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability and shall take such actions in connection therewith that the Managing Party reasonably requests (including providing access to such Party’s Records and employees (and those of the other members of its Group and its and their respective then-Affiliates) as set forth in Section  6.3 ).

(i) Each of SpecCo, MatCo or AgCo shall, and shall cause the other members of its respective Group (and its and their respective then-Affiliates) to, reasonably cooperate with the applicable Managing Party, including with respect to any action (including the commencement any Action) by such Party (or any member of its Group and its and their respective then-Affiliates) and omitting from taking any action that would be reasonably likely to interfere with or adversely affect the rights and powers of such Managing Party pursuant to this Article VI .

 

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(j) Whether a Proposal is formally submitted to the Contingent Claim Committee for approval shall be in the sole discretion of the applicable Managing Party. In the event that (A) a third party makes a Proposal in respect of a Specified DowDuPont Shared Liability that solely involves monetary damages (B) either (x) the applicable Managing Party determines not to formally put such Proposal before the Contingent Claim Committee for the purposes of voting on such proposal or (y) such Proposal is put to a vote of the Contingent Claim Committee and Requisite Approval is not obtained, and (C) AgCo (if MatCo or SpecCo is the applicable Managing Party), SpecCo (if MatCo or AgCo is the applicable Managing Party) or MatCo (if AgCo or SpecCo is the applicable Managing Party) (for purposes of this Article VI , each a “ Settling Party ”), as applicable, affirmatively states in writing, within the later of ten (10) Business Days following receipt of notice of such Proposal from the applicable Managing Party (as described in clause (x)) or ten (10) Business Days following such meeting of the Contingent Claim Committee (as described in clause (y)), that it desires to accept such Proposal (and, in the case of Proposals where clause (y) applies, such Settling Party’s Representative voted to approve such Proposal), then the maximum amount of Liability (including the costs of defense thereof) that such Settling Party shall have with respect to such Specified DowDuPont Shared Liability shall be capped at its respective Applicable Percentage of such Proposal and the costs and expenses incurred in respect of such Specified DowDuPont Shared Liability to the date of such Proposal (the “ Cap ”) (with the applicable Managing Party and, if applicable, the other Party or Parties that did not accept the Proposal being responsible for any amounts in excess of the applicable Cap(s) established pursuant to the foregoing (to the extent applicable, in proportion to their respective Applicable Percentages)); provided , that if, following a failure to accept the Proposal, the Settling Party’s Applicable Percentage of the final settlement, resolution or disposition (including the total costs of the defense thereof) of the applicable Action is less than the Cap, the Settling Party shall be required to bear 100% of the additional costs (the “ Incremental Costs ”) of the defense from the date of the Proposal through the date of final settlement, resolution or disposition; provided , however , that the amount of Incremental Costs so borne by the Settling Party shall be capped so that aggregate of the amount of Incremental Costs borne by the Settling Party plus such Settling Party’s Applicable Percentage of the final settlement, resolution or disposition (including the total costs of the defense thereof) shall not exceed the Cap, and such Incremental Costs, as borne by the Settling Party, shall be deducted from the total amount subject to allocation pursuant to the Applicable Percentage(s) of the applicable non-settling Party or Parties. In addition, following such time as a Settling Party chooses to Cap its potential Liability with respect to any such matter, such Settling Party’s Representative on the Contingent Claim Committee shall not have any voting right with respect to such matter unless any resolution thereof would reasonably be expected to impose a Material Impairment on such Settling Party.

(k) In the event of any dispute as to whether any Asset or Liability is a Specified DowDuPont Shared Asset and/or a Specified DowDuPont Shared Liability as set forth in Section  6.5(b) , the applicable Managing Party may, but shall not be obligated to, commence prosecution or other assertion of such claim or right pending resolution of such dispute. In the event that the applicable Managing Party commences any such prosecution or assertion and, upon resolution of the dispute (pursuant to Article X or otherwise), it is determined that such Asset or Liability is not a Specified DowDuPont Shared Asset or a Specified DowDuPont Shared Liability and that such Asset or Liability belongs to the SpecCo Group, MatCo Group or AgCo Group, as applicable, pursuant to the provisions of this Agreement, the applicable Managing Party shall cease the prosecution or assertion of such right or claim and the applicable Parties shall cooperate to transfer the control thereof to SpecCo, MatCo or AgCo, as applicable (unless

 

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otherwise agreed in writing by the Party to whose Group such Asset or Liability belongs and the applicable Managing Party). In such event, SpecCo, MatCo or AgCo, as applicable, shall promptly reimburse the applicable Managing Party for all out-of-pocket costs and expenses incurred to such date in connection with the prosecution or assertion of such claim or right.

Section 6.3 Access to Information; Certain Services; Expenses .

(a) Access to Information and Employees by the Managing Party . In connection with the management and disposition of any Specified DowDuPont Shared Asset and/or any Specified DowDuPont Shared Liability, each of the Parties shall make readily available to and afford to the Managing Party and its authorized accountants, counsel and other designated representatives reasonable access, subject to appropriate restrictions for classified, privileged or confidential information, to the employees, properties, and Information of such Party and the members of such Party’s Group insofar as such access relates to the relevant Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability; it being understood by the Parties that such access as well as any services provided pursuant to Section  6.3(b) may require a significant time commitment on the part of such Party’s employees and that any such commitment shall not otherwise limit any of the rights or obligations set forth in this Article VI . Nothing in this Section  6.3(a) shall require any Party to violate any Law or any Contract with any third party regarding the confidentiality of confidential and proprietary information relating to that third party or its business; provided , however , that in the event that access to or the provision of any such Information would violate a Contract with a third party, such Party shall use commercially reasonable efforts to seek to obtain such third party’s Consent to the disclosure of such information.

(b) Certain Services . Each of SpecCo, MatCo and AgCo shall make available to the others, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees and agents to assist in the management (including, if applicable, as witnesses in any Action) of any Specified DowDuPont Shared Liabilities and Specified DowDuPont Shared Assets to the extent that such Persons may reasonably be required in connection with the prosecution, defense or day-to-day management of any Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability.

(c) Costs and Expenses Relating to Access by the Managing Party . Except as otherwise provided in any Ancillary Agreement, the provision of access and other services pursuant to this Section  6.3 shall be at no additional cost or expense of the Managing Party or any other Party (other than for (i) actual out-of-pocket costs and expenses which shall be allocated as set forth in Section  6.1 and (ii) costs incurred directly or indirectly by such Party affording such access and other services which shall be the responsibility of such Party).

Section 6.4 Contingent Claim Committee .

(a) Without limiting the rights given to the Managing Party in Sections 6.1 and 6.2 , the Parties shall form a committee consisting of one Representative from each of MatCo (the “ MatCo Representative ”), AgCo (the “ AgCo Representative ”) and SpecCo (the “ SpecCo Representative ”) with the powers enumerated below (the “ Contingent Claim Committee ”), and the initial MatCo Representative, initial AgCo Representative and initial

 

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SpecCo Representative shall be the applicable individuals set forth on Schedule 6.4(a) ; provided, that, prior to the AgCo Distribution, Stacy L. Fox shall serve as the joint representative of AgCo and SpecCo (the “ Joint SpecCo/AgCo Representative ”). Except as set forth in Section  6.2(j) with respect to a Settling Party, each of the MatCo Representative, AgCo Representative and SpecCo Representative shall have one vote with respect to all matters submitted to the Contingent Claim Committee for resolution; provided , that for so long as AgCo remains an Affiliate of SpecCo, each of the Joint SpecCo/AgCo Representative and the MatCo Representative shall have one vote with respect to all matters submitted to the Contingent Claim Committee for resolution.

(b) Each Party has the exclusive right to appoint and remove its respective Representative to the Contingent Claim Committee and in the event of such removal and/or replacement the applicable Party shall provide written notice to the other Parties of such replacement.

(c) Authority of Contingent Claim Committee .

(i) The Contingent Claim Committee shall have the sole authority to approve or consent to any settlement, resolution or other disposition in connection with and in respect of any Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability. The approval and adoption of any matter submitted to the Contingent Claim Committee for resolution shall require the Requisite Approval of the members of the Contingent Claim Committee. In the event that any settlement, resolution or other disposition is approved by the Contingent Claim Committee and involves a release (or any agreement with similar import) of the Managing Party and/or any other Party or members of their respective Groups, then, in such event, such settlement, resolution or disposition shall also provide for a substantially similar release (or agreement with similar import) of each other applicable Party and members of its respective Group.

(ii) Any such settlement, resolution or other disposition approved by the Requisite Approval of the members of the Contingent Claim Committee (which shall be made within thirty (30) days of such referral, unless a shorter time period is necessary due to the terms of such settlement, resolution or other disposition, in which case, within such shorter time period) shall be binding on all of the Parties and the other members of each Group (and each of their respective Affiliates at the time of such settlement, resolution or other disposition) and their respective successors and assigns.

(iii) For the purposes of this Article VI , “ Requisite Approval ” shall mean (a) if prior to the AgCo Distribution, the unanimous approval of the Joint SpecCo/AgCo Representative and the MatCo Representative and (b) if after the AgCo Distribution, the approval of a majority of the Representatives entitled to vote on such matter (i.e., two out of the three voting members); provided , that in the case of any Specified Contingent Governmental Action described in Section  6.2(f) , if the effect of any proposed settlement, resolution or other disposition thereof provides solely for non-monetary relief against the Managing Party (or solely non-monetary relief against the Managing Party and monetary relief that the Managing Party has agreed to directly bear and waive any claim to indemnification related thereto pursuant to this Agreement) (and

 

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the non-Managing Parties would not reasonably be expected to be significantly adversely impacted thereby), then only the approval of the Representative of the Managing Party shall be required. Notwithstanding the foregoing, if the effect of a settlement of any matter is (i) to permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, that would reasonably be expected to materially impair the business or Assets of a Party or a member of its Group (other than procedural requirements and releases that are reasonable and customary for the settlement of the type of Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability being addressed) or (ii) would reasonably be expected to materially and adversely prejudice the position of a Party or a member of such Party’s Group in any other Action or matter arising out of substantially similar facts or circumstances (e.g., a civil action arising out of the same situation that is the subject of an Action by a Governmental Entity) (each, a “ Material Impairment ”), then in any such matter submitted for approval by the Contingent Claim Committee, the approval of the Representative of such affected Party shall also be required.

(d) Meetings of the Contingent Claim Committee . (i) Each Representative shall be entitled to notice of all meetings of the Contingent Claim Committee, (ii) unless otherwise agreed by the Parties, the Contingent Claim Committee shall meet at least once every calendar quarter (either in person, telephonically or by other electronic means) and (iii) any Party entitled to vote on a particular Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability may call a special meeting of the Contingent Claim Committee, from time to time, for the purpose of discussing any such Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability by written notice to the other members setting forth in reasonable detail the matter(s) to be discussed and the time of such meeting.

Section 6.5 Notice Relating to Specified DowDuPont Shared Assets and Specified DowDuPont Shared Liabilities .

(a) In addition to the New Shared Matter Notice, in the event that any Party or any member of such Party’s Group (or any of their respective then-Affiliates), becomes aware of any matter reasonably relevant to the Managing Party’s ongoing or future management, prosecution, defense and/or administration of any Specified DowDuPont Shared Liability or Specified DowDuPont Shared Asset, such Party shall promptly (but in any event within thirty (30) days of becoming aware, unless, by its nature the subject matter of such notice would require earlier notice) notify each of the relevant Managing Party and the Contingent Claim Committee of any such matter (setting forth in reasonable detail the subject matter thereof); provided , however , that the failure to provide such notice shall not release any Party from any of its obligations under this Article VI or under Article VIII except and solely to the extent that such Party (or a member of its Group) shall have been actually prejudiced as a result of such failure.

(b) In the event that any of SpecCo, MatCo or AgCo disagrees whether a claim, obligation, Asset and/or Liability is a Specified DowDuPont Shared Asset or a Specified DowDuPont Shared Liability or whether such claim, obligation, Asset or Liability is an Asset or Liability allocated to one of the Parties (or its Group) pursuant to this Agreement, then such matter shall be resolved pursuant to and in accordance with the dispute resolution provisions set forth in Article X .

 

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Section 6.6 Cooperation with Governmental Entity . If, in connection with any Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability, a Party (or any member of its Group or its or their respective then-Affiliates) is required by Law to respond to and/or cooperate with a Governmental Entity, such Party (and/or any applicable member of its Group and any of its or their respective and applicable then-Affiliates) shall be entitled to cooperate and respond to such Governmental Entity after, to the extent practicable under the specific circumstances, consultation with the Managing Party of such Specified DowDuPont Shared Asset or Specified DowDuPont Shared Liability; provided , that to the extent such consultation was not practicable such Party shall promptly inform the Managing Party and Contingent Claim Committee of such cooperation and/or response to the Governmental Entity and the subject matter thereof.

Section 6.7 Default . In the event that one or more of the Parties defaults in any full or partial payment in respect of any Specified DowDuPont Shared Liability (as provided in this Article VI and in Article VIII ), including the payment of the costs and expenses of the Managing Party, then each non-defaulting Party shall be required to pay an equal portion of the amount in default; provided , however , that any such payment by a non-defaulting Party shall in no way release the defaulting Party from its obligations to pay its obligations in respect of such Specified DowDuPont Shared Liability (both for past and future obligations) and any non-defaulting Party may exercise any available legal remedies available against such defaulting Party; provided , further , that interest shall accrue on any such defaulted amounts at a rate per annum equal to the then applicable LIBOR plus 3% (or the maximum legal rate, whichever is lower). In connection with the foregoing, it is expressly understood that any defaulting Party’s share of the proceeds from any Specified DowDuPont Shared Asset may be used via a right of offset to satisfy, in whole or in part, the obligations of such defaulting Party; such rights of offset shall be applied in favor of the non-defaulting Party or Parties in proportion to the additional amounts paid by any such non-defaulting Party.

ARTICLE VII

SHARED HISTORICAL DUPONT ASSETS AND SHARED HISTORICAL DUPONT LIABILITIES

Section 7.1 Management of Shared Historical DuPont Assets and Shared Historical DuPont Liabilities .

(a) For purposes of this Article VII , subject to Section  7.1(c) , “ Managing Party ” shall mean with respect to the Shared Historical DuPont Assets and Shared Historical DuPont Liabilities known by AgCo, SpecCo or any other member of its Group as of the date hereof, (i) AgCo, with respect to the matters designated as such on Schedule 7.1(a)(i) and (ii) SpecCo, with respect to the matters designated as such on Schedule 7.1(a)(ii) ; provided , however , that subject to Section  7.1(c) , the Managing Party with respect to any particular Shared Historical DuPont Asset or Shared Historical DuPont Liability not set forth in any of Schedule 7.1(a)(i) or Schedule 7.1(a)(ii) , shall be determined in accordance with Section  7.2(c) and Section  7.1(c) .

 

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(b) Subject to (x) the matters expressly allocated to the Shared Historical DuPont Claim Committee pursuant to Section  7.2(c) and (y)  Section  7.1(c) , the applicable Managing Party shall, on behalf of the other Party, have sole and exclusive authority to commence, prosecute, manage, control, conduct or defend (or assume the defense of) or otherwise determine all matters whatsoever (including, as applicable, litigation strategy and choice of legal counsel or other professionals) on behalf of the other Party, with respect to any Shared Historical DuPont Asset and, on behalf of itself and the other Party, any Action or Third Party Claim with respect to a Shared Historical DuPont Liability.

(c) Notwithstanding Section  7.1(b) , each of AgCo and SpecCo shall have the right to assume and manage the defense of any Action with respect to a Shared Historical DuPont Liability that is brought against any member of the AgCo Group or any member of the SpecCo Group, respectively, by any Governmental Entity (a “ Historical DuPont Specified Governmental Action ”); provided , that without limiting the terms of this Section  7.1(c) , such Party’s defense and management of any Historical DuPont Specified Governmental Action shall be with the full consultation of the Shared Historical DuPont Claim Committee, and such Party, in its capacity as Managing Party, shall, in good faith, take into account any recommendation made by or actions proposed by the Shared Historical DuPont Claim Committee.

(d) The applicable Managing Party shall be responsible for proposing settlements, resolutions or dispositions of Shared Historical DuPont Assets and Shared Historical DuPont Liabilities to the Shared Historical DuPont Claim Committee (for purposes of this Article VII , a “ Proposal ”) which shall be resolved by the Shared Historical DuPont Claim Committee as set forth in Section  7.2 . In addition, the Managing Party shall as soon as reasonably practicable (and, in any event, no later than five (5) Business Days after receipt thereof) inform the Shared Historical DuPont Claim Committee as soon as reasonably practicable of (i) any offer of settlement or disposition of a Shared Historical DuPont Liability made by a third party and (ii) in the event that AgCo or SpecCo or any member of such Party’s Group, becomes aware of (1) any Asset that may be a Shared Historical DuPont Asset, (2) any Liability that may be a Shared Historical DuPont Liability, (3) any matter or occurrence that has given or would reasonably be expected to give rise to a Shared Historical DuPont Asset or Shared Historical DuPont Liability or (4) any matter reasonably relevant to the Managing Party’s ongoing or future management, prosecution, defense and/or administration of any Shared Historical DuPont Asset or Shared Historical DuPont Liability.

(e) The applicable Managing Party shall on a monthly basis, or if a material development occurs (including if a settlement proposal has been made) as soon as reasonably practicable (and, in any event, no later than five (5) Business Days) thereafter, fully inform the members of the Shared Historical DuPont Claim Committee of the status of and developments relating to any matter involving Shared Historical DuPont Asset or Shared Historical DuPont Liability, provide copies of any material document, notices or other materials related to such matters and shall, and shall cause the other members of its Group (and its and their respective then-Affiliates) to, cooperate with each other Party and consider in good faith

 

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any request of such Party with respect to the management of procedural and administrative matters impacting such other Party. Each Party shall, and shall cause the other members of its Group (and its and their respective then-Affiliates) to, cooperate fully with the applicable Managing Party in its management of any of such Shared Historical DuPont Asset or Shared Historical DuPont Liability and shall take such actions in connection therewith that the Managing Party reasonably requests (including providing access to such Party’s Records and employees (and those of the other members of its Group and its and their respective then-Affiliates) as set forth in Section  7.3 ).

(f) Not more than thirty (30) Business Days after the end of a fiscal quarter, the AgCo Representative shall deliver to the SpecCo Representative, and the SpecCo representative shall deliver to the AgCo Representative, a statement of out-of-pocket expenses incurred in respect of any and all AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities (in the case of AgCo) (the “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement ”) or any and all SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities (in the case of SpecCo) (the “ SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement ”), but in each case, without giving effect to the AgCo Hurdle or the SpecCo Hurdle, including a calculation of the amount (if any) for which the other party is then liable pursuant to Section  8.13 and copies of all statements, invoices, bills and other documents related to each such expense. SpecCo, in the case of each AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement, and AgCo, in the case of each AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement, shall have fifteen (15) days following delivery of each to object to any amount set forth therein by delivering a written statement of its objections to AgCo or SpecCo, respectively (the “ AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement Objection Notice ”). If SpecCo does not object to any amount set forth in the AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement within such fifteen (15) day period, the AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement will be final, conclusive and binding on the parties. If AgCo does not object to any amount set forth in the SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement within such fifteen (15) day period, the SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement will be final, conclusive and binding on the parties. If SpecCo, in the case of each AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement, and AgCo, in the case of each AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability Statement, objects to any amount set forth in such statement within such fifteen (15) day period, the AgCo Representative and SpecCo Representative shall negotiate in good faith to resolve such objections at the next scheduled meeting of the Shared Historical DuPont Claim Committee (the “ First Shared Historical DuPont Escalation Negotiation Period ”). In the event that the Shared Historical DuPont Claim Committee cannot reach a unanimous resolution regarding the objections, the issue shall be submitted to the general counsels of AgCo and SpecCo and/or such other executive officer designated by AgCo and SpecCo in writing (the “ Shared Historical DuPont Escalation Committee ”). The Shared Historical DuPont Escalation Committee shall thereupon negotiate for a reasonable period of time to settle such issue; provided , however , that such reasonable period shall not, unless otherwise agreed by AgCo and

 

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SpecCo in writing, exceed thirty (30) days from the date on which the matter was submitted to the Shared Historical DuPont Escalation Committee (the “ Second Shared Historical DuPont Escalation Negotiation Period ”). If the issue has not been resolved for any reason as of the expiration of the Second Shared Historical DuPont Escalation Negotiation Period, such disagreement shall be submitted to final and binding arbitration pursuant to the procedures set forth in Article X of this Agreement. The outcome of the arbitration pursuant to Article X shall be final and binding on all parties and their respective successors and assigns.

(g) Each of SpecCo or AgCo shall, and shall cause the other members of its respective Group (and its and their respective then-Affiliates) to, reasonably cooperate with the applicable managing party, including with respect to any action (including the commencement of any Action) by such Party or any member of its Group and its and their respective then-Affiliates and omitting from taking any action that would be reasonably likely to interfere with or adversely affect the rights and powers of such Managing Party pursuant to this Article VII .

Section 7.2 Shared Historical DuPont Claim Committee .

(a) Without limiting the rights given to the Managing Party in Section  7.1 , the Parties shall form a committee consisting of the AgCo Representative and the SpecCo Representative with the powers enumerated below (the “ Shared Historical DuPont Claim Committee ”). Each member of the Shared Historical DuPont Claim Committee shall have one vote with respect to all matters submitted to the Shared Historical DuPont Claim Committee for resolution.

(b) Each Party has the exclusive right to appoint and remove its respective Representative to the Shared Historical DuPont Claim Committee and in the event of such removal and/or replacement the applicable Party shall provide written notice to the other Parties of such replacement.

(c) Authority of Shared Historical DuPont Claim Committee .

(i) Subject to Section  7.1(c) , the Shared Historical DuPont Claim Committee shall have the sole authority to designate the Managing Party for Shared Historical DuPont Assets or Shared Historical DuPont Liabilities not set forth in Schedule 7.1(a)(i) or Schedule 7.1(a)(ii) . If any Party or any member of such Party’s Group shall receive notice or otherwise learn of an Asset that may reasonably be determined to be a Shared Historical DuPont Asset or a Liability or Third Party Claim that may reasonably be determined to be a Shared Historical DuPont Liability (including any Third Party Claim brought against AgCo and/or SpecCo for any AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities or any SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities that would reasonably be expected to cause the AgCo Hurdle and SpecCo Hurdle to be met), not identified in the schedules to this Agreement, such Party shall give the other Party and the Shared Historical DuPont Claim Committee written notice (the “ Managing Party Determination Notice ”) thereof promptly (and in any event within fifteen (15) days) after such Person becomes aware of such Asset, Liability or Third Party Claim.

 

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Thereafter, the Party shall deliver to the Shared Historical DuPont Claim Committee, promptly (and in any event within five (5) Business Days) after the Party’s (or its Group’s or its or their respective then-Affiliates) receipt thereof, copies of all notices and documents (including court papers) received by the Party or the member of such Party’s Group (or its or their respective then-Affiliates) relating to the matter. The Shared Historical DuPont Claim Committee’s determination as to the appropriate Managing Party (which shall be made within thirty (30) days of such referral, unless a shorter time period is necessary due to the nature of the Asset, Liability or Third Party Claim, in which case, within a shorter time period reasonably appropriate for such Asset, Liability or Third Party Claim), if unanimous, shall be binding on all of the Parties and their respective successors and assigns. In the event that the Shared Historical DuPont Claim Committee cannot reach a unanimous determination as to the appropriate Managing Party, the issue shall be submitted to the Shared Historical DuPont Escalation Committee. The Shared Historical DuPont Escalation Committee shall thereupon negotiate for a reasonable period of time to settle such issue; provided , however , that such reasonable period shall not, unless otherwise agreed by AgCo and SpecCo in writing, exceed thirty (30) days from the date on which the matter was submitted to the Shared Historical DuPont Escalation Committee (the “ Managing Party Negotiation Period ”). If the issue has not been resolved for any reason as of the expiration of the Managing Party Negotiation Period, such disagreement shall be submitted to final and binding arbitration pursuant to the procedures set forth in Article X of this Agreement. The outcome of the arbitration pursuant to Article X shall be final and binding on all Parties and their respective successors and assigns. In resolving which Party shall act as the Managing Party with respect to any such Shared Historical DuPont Asset or Shared Historical DuPont Liability, the Shared Historical DuPont Claim Committee shall consider (i) the allocation of Shared Historical DuPont Assets or Shared Historical DuPont Liabilities reflected in Schedule 7.1(a)(i) and Schedule 7.1(a)(ii) , whereby the Parties have assigned control of matters known as of the date of this Agreement, which may have precedential value for allocation of similar matters that were not known as of the date of this Agreement, (ii) whether the designation of a Party as the Managing Party, would reasonably be expected to materially and adversely prejudice the position of another Party or a member of such Party’s Group in any other Action or matter arising out of substantially similar facts or circumstances and (iii) in the case of a Third Party Claim, whether the Third Party Claim names both AgCo and SpecCo (or any member of such Parties’ respective Groups) as defendants, in which case, the Shared Historical DuPont Claim Committee shall consider whether both AgCo and SpecCo may jointly act as the Managing Party.

(ii) Prior to the time at which a Party is finally designated as the Managing Party pursuant to this Section  7.2(c) , AgCo shall serve as the temporary Managing Party; provided , that, in the event that the matter is an Action or Third Party Claim in connection with a Shared Historical DuPont Asset or a Shared Historical DuPont Liability for which AgCo is not named, SpecCo will serve as the temporary Managing Party (such Party acting pursuant to this Section  7.2(c)(ii) , the “ Temporary Managing Party ”). The applicable Temporary Managing Party shall, on behalf of itself and the other Party, have sole and exclusive authority to defend (or assume the defense of) and determine all matters whatsoever (including, as applicable, litigation strategy and

 

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choice of legal counsel or other professionals) with respect to any Action or Third Party Claim with respect to a Shared Historical DuPont Asset or a Shared Historical DuPont Liability until a Party is finally designated as the Managing Party pursuant to Section  7.2(c)(i) ; provided , however , that (i) the Temporary Managing Party shall deliver to each other Party a reasonably complete draft of any submission (formal or informal) at least seven (7) Business Days prior to filing such submission with a court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority (unless a shorter time period is necessary due to the nature of the Action or Third Party Claim, in which case, the Temporary Managing Party shall use its reasonable best efforts to provide the submission to the other Party within a time period reasonably appropriate for such Action or Third Party Claim) and (ii) the Temporary Managing Party shall not admit any liability with respect to, consent to entry of any judgment of, or settle, compromise or discharge, the Action or Third Party Claim without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided , further , that in the case of clause (i), that the Temporary Managing Party’s Representative will use its reasonable best efforts to actively consult with each other Party’s Representative regarding any changes, which it shall consider in good faith making to the submission, with particular focus on any changes the omission of which would reasonably be expected to (x) materially prejudice the other Party’s obligations, rights or remedies with respect to the subject matter underlying such Action or Third Party Claim or (y) have a significant adverse impact (financial or non-financial) on the other Party, including a significant adverse impact on the other Party’s rights, obligations, operations, standing or reputation (unless such consultation is not possible due to the nature of the Action or Third Party Claim or the other Party’s failure to respond to the submission within three (3) Business Days after receipt of the submission, in which case, the Temporary Managing Party may file the submission if the Temporary Managing Party determines in good faith that the filing will not materially prejudice the other Party’s rights or remedies); provided , still , further , that the Temporary Managing Party shall not be obligated to provide the other Party with the opportunity to review the submission if such submission contains solely disclosure with respect to the applicable Shared Historical DuPont Asset or Shared Historical DuPont Liability that is substantially similar in all respects to disclosure previously made in accordance with the terms hereof.

(iii) Either AgCo or SpecCo may refer by written notice to the other Party and the Shared Historical DuPont Claim Committee (the “ Shared Historical DuPont Assets and Liabilities Notice ”) any potential claim, right, Asset or Liability to the Shared Historical DuPont Claim Committee for the purpose of resolving whether any claim, right, Asset or Liability is a Shared Historical DuPont Asset or a Shared Historical DuPont Liability and the Shared Historical DuPont Claim Committee’s determination (which shall be made within thirty (30) days of such referral, unless a shorter time period is necessary due to the nature of the claim, right, Asset or Liability, in which case, within a shorter time period reasonably appropriate for such claim, right, Asset or Liability (the “ Shared Historical DuPont Assets and Liabilities Determination Period ”)), if unanimous, shall be binding on AgCo, SpecCo and their respective successors and assigns.

 

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(1) In the event that the Shared Historical DuPont Claim Committee cannot reach a unanimous determination as to the nature or status of any such claim, right, Asset or Liability within thirty (30) days after such referral, the issue will be submitted for arbitration pursuant to the procedures set forth in Article X of this Agreement. The outcome of the arbitration pursuant to Article X shall be final and binding on both Parties and their respective successors and assigns.

(2) In the event that either AgCo or SpecCo commences arbitration, upon resolution of the dispute (pursuant to Article X or otherwise), if it is determined that such Asset or Liability is not a Shared Historical DuPont Asset or a Shared Historical DuPont Liability and that such Asset or Liability belongs to the SpecCo Group or the AgCo Group, as applicable, pursuant to the provisions of this Agreement, then AgCo and SpecCo shall cooperate to transfer the control thereof to SpecCo or AgCo, as applicable (unless otherwise agreed in writing by the Party to whose Group such Asset or Liability belongs and the applicable Managing Party). In such event, SpecCo or AgCo, as applicable, shall promptly reimburse the Party which commenced the arbitration for all out-of-pocket costs and expenses incurred to such date in connection with the assertion of such claim or right.

(iv) The Shared Historical DuPont Claim Committee shall have the sole authority to approve or consent to any settlement, resolution or other disposition in connection with and in respect of any Shared Historical DuPont Asset or Shared Historical DuPont Liability. The approval and adoption of any matter submitted to the Shared Historical DuPont Claim Committee for resolution shall require the Requisite Approval of the members of the Shared Historical DuPont Claim Committee. In the event that any settlement, resolution or other disposition is approved by the Shared Historical DuPont Claim Committee and involves a release (or any agreement with similar import) of the Managing Party and/or any other Party or members of their respective Groups, then, in such event, such settlement, resolution or disposition shall also provide for a substantially similar release (or agreement with similar import) of each other applicable Party and members of its respective Group. Any such settlement, resolution or other disposition approved by the Requisite Approval of the members of the Shared Historical DuPont Claim Committee (which shall be made within thirty (30) days of such referral) shall be binding on all of the Parties and the other members of each Group (and each of their respective Affiliates at the time of such settlement, resolution or other disposition) and their respective successors and assigns.

 

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(v) For the purposes of this Section  7.2 , “ Requisite Approval ” means the approval of all Representatives entitled to vote on such matter; provided , that in the case of any Historical DuPont Specified Governmental Action described in Section  7.1(c) , if the effect of any proposed settlement, resolution or other disposition thereof provides solely for non-monetary relief against the Managing Party (or solely non-monetary relief against the Managing Party and monetary relief that the Managing Party has agreed to directly bear and waive any claim to indemnification related thereto pursuant to this Agreement (and the non-Managing Party would not reasonably be expected to be significantly adversely impacted thereby)), then only the approval of the Representative of the Managing Party shall be required. Notwithstanding the foregoing, if the effect of a settlement of any matter is (i) to permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, that would reasonably be expected to materially impair the business or Assets of a Party or a member of its Group (other than procedural requirements and releases that are reasonable and customary for the settlement of the type of Shared Historical DuPont Asset or Shared Historical DuPont Liability addressed) or (ii) would reasonably be expected to materially and adversely prejudice the position of a Party or a member of such Party’s Group in any other Action or matter arising out of substantially similar facts or circumstances (e.g., a civil action arising out of the same situation that is the subject of an Action by a Governmental Entity), then in any such matter submitted for approval by the Shared Historical DuPont Claim Committee, the approval of the Representative of such affected Party shall also be required.

(d) Meetings of the Shared Historical DuPont Claim Committee . (i) Each Representative shall be entitled to notice of all meetings of the Shared Historical DuPont Claim Committee, (ii) unless otherwise agreed by the Parties, the Shared Historical DuPont Claim Committee shall meet at least once every calendar quarter (either in person, telephonically or by other electronic means) and (iii) any Party entitled to vote on a particular Shared Historical DuPont Liability may call a special meeting of the Shared Historical DuPont Claim Committee, from time to time, for the purpose of discussing any such Shared Historical DuPont Liability by written notice to the other members setting forth in reasonable detail the matter(s) to be discussed and the time of such meeting.

(e) All Proposals must be submitted to the Shared Historical DuPont Claim Committee for approval (unless such Proposal is solely for monetary damages and is in respect of either an AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability or a SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liability, in which case, whether the Proposal is formally submitted to the Shared Historical DuPont Claim Committee for approval shall be in the sole discretion of AgCo or SpecCo, as applicable, provided that the Proposal would not result in the aggregate amount of AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities or SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities, exceeding the AgCo Group DuPont Divested Business Liability Basket or SpecCo Group DuPont Divested Business Liability Basket, as applicable, in which case such Proposal must be submitted to the Shared Historical DuPont Claim Committee for approval).

 

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(f) In the event that a third party makes a Proposal in respect of a Shared Historical DuPont Asset or Shared Historical DuPont Liability that solely involves monetary damages and such Proposal is put to a vote of the Shared Historical DuPont Claim Committee and Requisite Approval is not obtained, if AgCo (if SpecCo is the applicable Managing Party) or SpecCo (if AgCo is the applicable Managing Party) (for purposes of this Section  7.2(f) , each a “ Settling Party ”) affirmatively states in writing, within ten (10) Business Days following such meeting of the Shared Historical DuPont Claim Committee that such Settling Party’s Representative voted to approve such Proposal, then the maximum amount of Liability (including the costs of defense thereof) that such Settling Party shall have with respect to such Shared Historical DuPont Liability shall be capped at its respective Shared Historical DuPont Percentage of such Proposal and the costs and expenses incurred in respect of such Shared Historical DuPont Liability to the date of such Proposal (the “ Shared Historical DuPont Liability Settlement Cap ”) (with the applicable Managing Party and, if applicable, the other Party that did not accept the Proposal being responsible for any amounts in excess of the applicable Shared Historical DuPont Liability Settlement Cap(s) established pursuant to the foregoing (to the extent applicable, in proportion to their respective Shared Historical DuPont Percentage)); provided , that if, following a failure to accept the Proposal, the Settling Party’s Shared Historical DuPont Percentage of the final settlement, resolution or disposition (including the total costs of the defense thereof) of the applicable Action is less than the Shared Historical DuPont Liability Settlement Cap, the Settling Party shall be required to bear 100% of the Incremental Costs of the defense from the date of the Proposal through the date of final settlement, resolution or disposition; provided , however , that the amount of Incremental Costs so borne by the Settling Party shall be capped so that aggregate of the amount of Incremental Costs borne by the Settling Party plus such Settling Party’s Shared Historical DuPont Percentage of the final settlement, resolution or disposition (including the total costs of the defense thereof) shall not exceed the Shared Historical DuPont Liability Settlement Cap, and such Incremental Costs, as borne by the Settling Party, shall be deducted from the total amount subject to allocation pursuant to the Shared Historical DuPont Percentage of the applicable non-settling Party. In addition, following such time as a Settling Party chooses to cap its potential Liability with respect to any such matter, such Settling Party’s Representative on the Shared Historical DuPont Claim Committee shall not have any voting right with respect to such matter unless any resolution thereof would reasonably be expected to impose a non-monetary impairment on such Settling Party.

Section 7.3 Access; Reimbursement; Limitation on Liability .

(a) Access to Information and Employees by the Managing Party . In connection with the management and disposition of any Shared Historical DuPont Asset and/or any Shared Historical DuPont Liability, each of AgCo and SpecCo shall make readily available to and afford to the Managing Party and its authorized accountants, counsel and other designated representatives reasonable access, subject to appropriate restrictions for classified, privileged or confidential information, to the employees, properties, and Information of such Party and the members of such Party’s Group insofar as such access relates to the relevant Shared Historical DuPont Asset or Shared Historical DuPont Liability; it being understood by the Parties that such access as well as any services provided pursuant to Section  7.3(b) may require a significant time commitment on the part of such Party’s employees and that any such commitment shall not otherwise limit any of the rights or obligations set forth in this Article VII . Nothing in this Section  7.3(a) shall require any Party to violate any Law or any Contract with any third party regarding the confidentiality of confidential and proprietary information relating to that third party or its business; provided , however , that in the event that access to, or the provision of, any such Information would violate a Contract with a third party, such Party shall use commercially reasonable efforts to seek to obtain such third party’s Consent to the disclosure of such information.

 

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(b) Certain Services . Each of SpecCo and AgCo shall make available to the others, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees and agents to assist in the management (including, if applicable, as witnesses in any Action) of any Shared Historical DuPont Asset or Shared Historical DuPont Liability to the extent that such Persons may reasonably be required in connection with the prosecution, defense or day-to-day management of any Shared Historical DuPont Asset or Shared Historical DuPont Liability.

(c) Costs and Expenses Relating to Access by the Managing Party . Except as otherwise provided in any Ancillary Agreement, the provision of access and other services pursuant to Section  7.3(a) - (c) shall be at no additional cost or expense of the Managing Party or any other Party (other than for (i) actual out-of-pocket costs and expenses which shall be allocated as set forth in Section  7.3(d) and (ii) costs incurred directly or indirectly by such Party affording such access and other services which shall be the responsibility of such Party).

(d) Any amounts owed in respect of any Shared Historical DuPont Liability (including reimbursement for the out-of-pocket costs and expenses of defending, managing or providing assistance to the Managing Party with respect to any Third Party Claim that is a Shared Historical DuPont Liability, which shall include any amounts with respect to a bond, prepayment or similar security or obligation required (or determined to be advisable by the Managing Party) to be posted by the Managing Party in respect of any claim) shall be remitted promptly pursuant to Section  12.12 (for the avoidance of doubt, such amount and such costs and expenses shall be included in the calculation of the amount of the applicable Shared Historical DuPont Liability in determining the reimbursement obligations of the other Party with respect thereto).

(e) It shall not be a defense to any obligation by AgCo or SpecCo to pay any amounts, whether pursuant to this Section  7.3(e) or in respect of Indemnifiable Losses pursuant to Article VIII , in respect of any Shared Historical DuPont Liability that (i) that such Party does not approve of the quality or manner of the defense thereof or (ii) that such Shared Historical DuPont Liability was incurred by reason of a settlement rather than by a judgment or other determination of Liability (even if, subject in each case to Sections 7.2 and 8.5(e) , such settlement was effected without the consent or over the objection of such Party); it being understood that if such obligations arose in connection with any settlement of a Shared Historical DuPont Liability, and such settlement is of a type that required Requisite Approval of the Shared Historical DuPont Claim Committee and such Requisite Approval has not been obtained, then (to the extent such right exists) a Party may assert as a defense that the provisions of this Article VII have not been complied with.

Section 7.4 Cooperation with Governmental Entities . If, in connection with any Shared Historical DuPont Asset or Shared Historical DuPont Liability, any Party (or any member of its Group or its or their respective then-Affiliates) is required by Law to respond to and/or cooperate with any Governmental Entity, such Party (and/or any applicable member of its

 

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Group and any of its or their respective and applicable then-Affiliates) shall, prior to cooperating and responding to such Governmental Entity, consult with the Managing Party of such Shared Historical DuPont Asset or Shared Historical DuPont Liability, to the extent practicable under the specific circumstances; provided , that to the extent such consultation was not practicable such Party shall promptly inform the Managing Party and Shared Historical DuPont Claim Committee of such cooperation and/or response to the Governmental Entity and the subject matter thereof.

Section 7.5 Default . In the event that one or more of the Parties defaults in any full or partial payment in respect of any Shared Historical DuPont Asset or Shared Historical DuPont Liability (as provided in this Article VII and in Article VIII ), including the payment of the costs and expenses of the Managing Party, then each non-defaulting Party shall be required to pay an equal portion of the amount in default; provided , however , that any such payment by a non-defaulting Party shall in no way release the defaulting Party from its obligations to pay its obligations in respect of such Shared Historical DuPont Asset or Shared Historical DuPont Liability (both for past and future obligations) and any non-defaulting Party may exercise any available legal remedies available against such defaulting Party; provided , further , that interest shall accrue on any such defaulted amounts at a rate per annum equal to the then applicable LIBOR plus 3% (or the maximum legal rate, whichever is lower).

Section 7.6 No Effect on MatCo . For the avoidance of doubt, (a) the provisions set forth in this Article VII are effective only as between AgCo and SpecCo (and the other members of their respective Groups), (b) this Article VII does not apply with respect to any Materials Science Asset or Materials Science Liability and (c) nothing in this Article VII shall (i) affect any provisions of, or any obligations under, this Agreement that are for the benefit of MatCo or any member of the MatCo Group, or prejudice any rights of MatCo or any member of the MatCo Group pursuant to the other Articles of this Agreement or (ii) create any independent Liability of, or impose any independent Liability on, MatCo or any member of its Group.

ARTICLE VIII

INDEMNIFICATION

Section 8.1 Release of Pre-Distribution Claims .

(a) Except (i) as provided in Section  8.1(b) , (ii) as may be otherwise expressly provided in this Agreement and (iii) for any matter for which any Indemnitee is entitled to indemnification pursuant to this Article VIII , each Party, on behalf of itself and each member of its Group, and to the extent permitted by Law, all Persons who at any time prior to the Relevant Time were directors, officers, agents or employees of any member of its respective Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, do hereby remise, release and forever discharge the other Parties and the other members of such other Parties’ Group and their respective successors and all Persons who at any time prior to the Relevant Time were shareholders, directors, officers or employees of any member of such other Parties’ Group (in their capacity as such), in each case, together with their respective heirs, executors, administrators, successors and assigns from any and all Liabilities whatsoever, whether at Law

 

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or in equity, whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Relevant Time, including in connection with the Internal Reorganization, MatCo Distribution and AgCo Distribution and any of the other transactions contemplated hereunder and under the Ancillary Agreements; provided , however , that no employee shall be remised, released and discharged to the extent that such Liability relates to, arises out of or results from intentional misconduct by such employee.

(b) Nothing contained in this Agreement, including Section  8.1(a) or Section  2.4 shall impair or otherwise affect any right of any Party, any member of any Group, or any Party’s or member of a Group’s respective heirs, executors, administrators, successors and assigns to enforce this Agreement, any Ancillary Agreement, any Continuing Arrangements or any agreements, arrangements, commitments or understandings that continue in effect after the Relevant Time pursuant to the terms of this Agreement or any Ancillary Agreement. In addition, nothing contained in Section  8.1(a) shall release any Person from:

(i) any Liability Assumed, Transferred or allocated to a Party or a member of such Party’s Group pursuant to or as contemplated by, or any other Liability of any member of such Group under, this Agreement or any Ancillary Agreement including (A) with respect to AgCo, any Agriculture Liability, (B) with respect to MatCo, any Materials Science Liability and (C) with respect to SpecCo, any Specialty Products Liability;

(ii) any Specified DowDuPont Shared Liability;

(iii) any Shared Historical DuPont Liability;

(iv) any Liability under any Continuing Arrangements, any Other Surviving Intergroup Account, and Other Surviving Selected Intercompany Accounts;

(v) any Liability that the Parties may have with respect to indemnification pursuant to this Agreement or any Ancillary Agreement or otherwise for claims or Actions brought against any Indemnitee by third Persons, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article VIII or, in the case of any Liability arising out of an Ancillary Agreement, the applicable provisions of the Ancillary Agreement; or

(vi) any Liability the release of which would result in a release of any Person other than the Persons released in Section  8.1(a) ; provided that the Parties agree not to bring any Action or permit any other member of their respective Group to bring any Action against a Person released in Section  8.1(a) with respect to such Liability.

In addition, nothing contained in Section  8.1(a) shall release (x) SpecCo from indemnifying any director, officer or employee of MatCo and AgCo who was a director, officer or employee of SpecCo or any of its Subsidiaries on or prior to the MatCo Distribution or AgCo Distribution, as

 

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applicable, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to then-existing obligations; it being understood that if the underlying obligation giving rise to such Action is a Materials Science Liability or Agriculture Liability, MatCo or AgCo, as applicable, shall indemnify SpecCo for such Liability (including SpecCo’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VIII , (y) MatCo from indemnifying any director, officer or employee of SpecCo and AgCo who was a director, officer or employee of MatCo or any of its Subsidiaries on or prior to the MatCo Distribution, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to then-existing obligations; it being understood that if the underlying obligation giving rise to such Action is a Specialty Products Liability or Agriculture Liability, SpecCo or AgCo, as applicable, shall indemnify MatCo for such Liability (including MatCo’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VIII and (z) AgCo from indemnifying any director, officer or employee of MatCo and SpecCo who was a director, officer or employee of AgCo or any of its Subsidiaries on or prior to the MatCo Distribution or the AgCo Distribution, as the case may be, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to then-existing obligations; it being understood that if the underlying obligation giving rise to such Action is a Materials Science Liability or Specialty Products Liability, MatCo or SpecCo, as applicable, shall indemnify AgCo for such Liability (including AgCo’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VIII .

(c) Each Party shall not, and shall not permit any member of its Group to make, any claim, demand or offset, or commence any Action asserting any claim, demand or offset, including any claim for indemnification, against any other Party or any member of any other Party’s Group, or any other Person released pursuant to Section  8.1(a) or their respective successors with respect to any Liabilities released pursuant to Section  8.1(a) .

(d) It is the intent of each Party, by virtue of the provisions of this Section  8.1 , to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Relevant Time, whether known or unknown, between or among any Party (and/or a member of such Party’s Group), on the one hand, and any other Party or Parties (and/or a member of such Party’s or parties’ Group), on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Relevant Time), except as specifically set forth in Sections 8.1(a) and 8.1(b) . At any time, at the reasonable request of any other Party, each Party shall cause each member of its respective Group and, to the extent practicable each other Person on whose behalf it released Liabilities pursuant to this Section  8.1 to execute and deliver releases reflecting the provisions hereof.

(e) Each of AgCo and SpecCo, on behalf of itself and the members of Historical DuPont, and MatCo, on behalf of itself and the members of Historical Dow, hereby waives any claims, rights of termination and any other rights under any Continuing Arrangement related to or arising out of the Internal Reorganization, the MatCo Distribution and the AgCo

 

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Distribution (including with respect to any of “change of control” or similar provision or any failure of (x) in the case of MatCo, any member of Historical Dow that is a member of the AgCo Group or the SpecCo Group no longer being an Affiliate of any member of Historical Dow that is a member of the MatCo Group and (y) in case of SpecCo and AgCo , any member of Historical DuPont that is (i) a member of the AgCo Group no longer being an Affiliate of any member of Historical DuPont that is a member of the SpecCo Group or the MatCo Group or (ii) a member of the SpecCo Group no longer being an Affiliate of any member of Historical DuPont that is a member of the AgCo Group or the MatCo Group, and agrees that any change in rights or obligations that would automatically be effective as a result thereof be deemed amended to no longer apply (and that Section  2.8 shall apply in respect of such amendments).

Section 8.2 Indemnification by SpecCo . In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement, following (a) the MatCo Distribution Date (with respect to the MatCo Indemnitees) and (b) the AgCo Distribution Date (with respect to the AgCo Indemnitees), SpecCo shall and shall cause the other members of the SpecCo Group to indemnify, defend and hold harmless the MatCo Indemnitees and the AgCo Indemnitees from and against any and all Indemnifiable Losses of the MatCo Indemnitees and the AgCo Indemnitees, respectively, to the extent relating to, arising out of or resulting from (i) the Specialty Products Liabilities or any Third Party Claim that would, if resolved in favor of the claimant, constitute a Specialty Products Liability or (ii) any breach by SpecCo of any provision of this Agreement.

Section 8.3 Indemnification by MatCo . In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement, MatCo shall and shall cause the other members of the MatCo Group to indemnify, defend and hold harmless the SpecCo Indemnitees and the AgCo Indemnitees from and against any and all Indemnifiable Losses of the SpecCo Indemnitees and the AgCo Indemnitees, respectively, to the extent relating to, arising out of or resulting from (i) the Materials Science Liabilities or any Third Party Claim that would, if resolved in favor of the claimant, constitute a Materials Science Liability or (ii) any breach by MatCo of any provision of this Agreement.

Section 8.4 Indemnification by AgCo . In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement, AgCo shall and shall cause the other members of the AgCo Group to indemnify, defend and hold harmless the SpecCo Indemnitees and the MatCo Indemnitees from and against any and all Indemnifiable Losses of the SpecCo Indemnitees and the MatCo Indemnitees, respectively, to the extent relating to, arising out of or resulting from (i) the Agriculture Liabilities or any Third Party Claim that would, if resolved in favor of the claimant, constitute an Agriculture Liability or (ii) any breach by AgCo of any provision of this Agreement.

 

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Section 8.5 Procedures for Third Party Claims .

(a) If a claim or demand is made against a SpecCo Indemnitee, a MatCo Indemnitee or an AgCo Indemnitee (each, an “ Indemnitee ”) by any Person who is not a member of the AgCo Group, SpecCo Group or MatCo Group (a “ Third Party Claim ”) as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party (and, if applicable, the Contingent Claim Committee and/or the Shared Historical DuPont Claim Committee) which is or may be required pursuant to this Article VIII to make such indemnification (the “ Indemnifying Party ”) in writing, and in reasonable detail, of the Third Party Claim as promptly as practicable (and in any event within fifteen (15) days) after receipt by such Indemnitee of written notice of the Third Party Claim. If any Party shall receive notice or otherwise learn of the assertion of a Third Party Claim which may reasonably be determined to be a Specified DowDuPont Shared Liability or a Shared Historical DuPont Liability, such Party, as appropriate, shall give the Contingent Claim Committee and/or the Shared Historical DuPont Claim Committee (as determined pursuant to Article VI or Article VII , as applicable) written notice thereof within fifteen (15) days after such Person becomes aware of such Third Party Claim; provided , however , that the failure to provide notice of any such Third Party Claim pursuant to this or the preceding sentence shall not release the Indemnifying Party from any of its obligations under this Article VIII except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. Thereafter, the Indemnitee shall deliver to the Indemnifying Party (and, as applicable, to the Managing Party, the Contingent Claim Committee and the Shared Historical DuPont Claim Committee), as promptly as practicable (and in any event within five (5) 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.

(b) Other than in the case of (i) Taxes addressed in the Tax Matters Agreement, which shall be addressed as set forth therein, (ii) indemnification by a beneficiary Party of a guarantor Party pursuant to Section  2.10(c) (the defense of which shall be controlled by the beneficiary Party), (iii) a Specified DowDuPont Shared Liability (the defense of which shall be controlled by the Managing Party as provided for in Article VI ) or (iv) a Shared Historical DuPont Liability (the defense of which shall be controlled by the Managing Party as provided for in Article VII ), (A) an Indemnifying Party shall be entitled (but shall not be required) to assume and control the defense of any Third Party Claim, and (B) if it does not assume the defense of such Third Party Claim, to participate in the defense of such Third Party Claim, in each case, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel that is reasonably acceptable to the applicable Indemnitees (after consultation in good faith with the applicable Indemnitees), if it gives notice of its intention to do so to the applicable Indemnitees within thirty (30) days of the receipt of such notice from such Indemnitees; provided , however , that the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is an allegation of a criminal violation, (y) seeks injunctive, equitable or other relief other than monetary damages against the Indemnitee (provided that such Indemnitee shall reasonably cooperate with the Indemnifying Party, at the request of the Indemnifying Party, in seeking to separate any such claims from any related claim for monetary damages if this clause (y) is the sole reason that such Third Party Claim is a Non-Assumable Third Party Claim) or (z) is made by a Governmental Entity (clauses (x), (y) and (z), the “ Non-Assumable Third Party Claims ”). After notice from an Indemnifying Party to an Indemnitee of the Indemnifying Party’s election to assume the defense of a Third Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, at its own expense and, in any event, shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all

 

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witnesses, pertinent Information, materials and other information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided , however , that in the event a conflict of interest exists, or is reasonably likely to exist, that would make it inappropriate in the reasonable judgment of the applicable Indemnitee(s) for the same counsel to represent both the Indemnifying Party and the applicable Indemnitee(s), such Indemnitee(s) shall be entitled to retain, at the Indemnifying Party’s expense, separate counsel as required by the applicable rules of professional conduct with respect to such matter. In the event that the Indemnifying Party exercises the right to assume and control the defense of a Third Party Claim as provided above, (1) the Indemnifying Party shall keep the Indemnitee(s) apprised of all material developments in such defense, (2) the Indemnifying Party shall not withdraw from the defense of such Third Party Claim without providing advance notice to the Indemnitee(s) reasonably sufficient to allow the Indemnitee(s) to prepare to assume the defense of such Third Party Claim, and (3) the Indemnifying Party shall conduct the defense of the Third Party Claim actively and diligently, including the posting of bonds or other security required in connection with the defense of such Third Party Claim.

(c) Other than in the case of a Specified DowDuPont Shared Liability, a Shared Historical DuPont Liability or a Non-Assumable Third Party Claim, if an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim or fails to notify an Indemnitee of its election as provided in Section  8.5(b) , or if the Indemnifying Party fails to actively and diligently defend the Third Party Claim (including by withdrawing or threatening to withdraw from the defense thereof), the applicable Indemnitee(s) may defend such Third Party Claim at the cost and expense of the Indemnifying Party. If the Indemnitee is conducting the defense of any Third Party Claim, the Indemnifying Party shall cooperate with the Indemnitee in such defense and make available to the Indemnitee, at the Indemnifying Party’s expense, all witnesses, pertinent Information, material and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee.

(d) Other than any Third Party Claim that is in respect of (x) a Specified DowDuPont Shared Liability, which shall be governed by Article VI or (y) a Shared Historical DuPont Liability, which shall be governed by Article VII , no Indemnitee may admit any liability with respect to, consent to entry of any judgment of, or settle, compromise or discharge any Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.

(e) In the case of a Third Party Claim (except for any Third Party Claim that is in respect of (x) a Specified DowDuPont Shared Liability which, with respect to the subject matter of this Section  8.5(e) , shall be governed by Article VI or (y) a Shared Historical DuPont Liability which, with respect to the subject matter of this Section  8.5(e) , shall be governed by Article VII ), the Indemnifying Party shall not admit any liability with respect to, consent to entry of any judgment of, or settle, compromise or discharge, the Third Party Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (A) completely and unconditionally releases the Indemnitee in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnitee of any wrongdoing or violation of Law.

 

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(f) Notwithstanding anything herein or in any Ancillary Agreement or any Conveyancing and Assumption Instrument to the contrary, other than (x) as set forth in the Dow Captive Policies and (y) as provided in Section  12.19 with respect to this Agreement, (i) the indemnification provisions of this Article VIII shall be the sole and exclusive remedy of the Parties, the parties to the Conveyancing and Assumption Instruments and any Indemnitee for any breach of this Agreement or any Conveyancing and Assumption Instrument and for any failure to perform and comply with any covenant or agreement in this Agreement or in any Conveyancing and Assumption Instrument; (ii) each party hereto and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies it may have with respect to the foregoing other than under this Article VIII and the Dow Captive Policies against any Indemnifying Party; (iii) none of the Parties, the members of their respective Groups or any other Person may bring a claim under any Conveyancing and Assumption Instrument; (iv) any and all claims arising out of, resulting from, or in connection with the Internal Reorganization or the other transactions contemplated in this Agreement must be brought under and in accordance with the terms of this Agreement (or under an applicable Dow Captive Policy); and (v) no breach of this Agreement or any Conveyancing and Assumption Instrument shall give rise to any right on the part of any party hereto or thereto, after the consummation of the MatCo Distribution, to rescind this Agreement, any Conveyancing and Assumption Instrument or any of the transactions contemplated hereby or thereby, except as expressly provided in Section  2.6(a) and Section  2.6(b) ; provided , however , that with respect to the transactions contemplated by this Agreement (including the Internal Reorganization and Distributions), the Parties may also bring claims arising under the Tax Matters Agreement under and in accordance with the Tax Matters Agreement and claims arising under the Employee Matters Agreement under and in accordance with the Employee Matters Agreement. Each Party shall cause the members of its Group to comply with this Section  8.5(f) .

(g) The provisions of this Article VIII shall apply to Third Party Claims that are already pending or asserted as well as Third Party Claims brought or asserted after the date of this Agreement. There shall be no requirement under this Section  8.5 to give a notice with respect to any Third Party Claim that exists as of the Effective Time. Each Party on behalf of itself and each other member of its Group acknowledges that Liabilities for Actions (regardless of the parties to the Actions) may be partly Specialty Products Liabilities, partly Materials Science Liabilities and partly Agriculture Liabilities. If the Parties cannot agree on the allocation of any such Liabilities for Actions, they shall resolve the matter pursuant to the procedures set forth in Article X . No Party shall, nor shall any Party permit the other members of its Group (or their respective then-Affiliates) to, file Third Party Claims or cross-claims against any other Party or any members of another Group in an Action in which a Third Party Claim is being resolved.

(h) For purposes of this Section  8.5 , any claim or demand that is made against any member of the SpecCo Group or AgCo Group or any of their respective then-Affiliates as to which any member of the SpecCo Group or AgCo Group or such then-Affiliate, as applicable, is or may be entitled to insurance coverage for more than 50% of the total related costs and liabilities by the Dow Insurer pursuant to Section  11.5 , shall be considered a “Third Party Claim” and MatCo shall be considered the “Indemnifying Party” and the applicable member of the AgCo Group or SpecCo Group, or such applicable then-Affiliate, as applicable, shall be considered the “Indemnitee” with respect thereto, each with the rights and

 

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responsibilities set forth in this Section  8.5 . With respect to those claims or demands for which any member of the SpecCo Group or AgCo Group, or any of their respective then-Affiliates, is or may be entitled to coverage for 50% or less of the total related costs and liabilities, their relationship with the Dow Insurer shall be governed by the terms and conditions of the relevant insurance policy(ies), in accordance with historical claim-handling practices of said insurer, without regard to the terms of this Section  8.5 .

Section 8.6 Procedures for Direct Claims. An Indemnitee shall give the Indemnifying Party written notice of any matter that an Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section  8.5(a) ), within thirty (30) days of such determination, stating the amount of the Indemnifiable Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided , however , that the failure to provide such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.

Section 8.7 Cooperation In Defense and Settlement .

(a) With respect to any Third Party Claim (other than in respect of (x) a Specified DowDuPont Shared Liability or (y) a Shared Historical DuPont Liability that does not implicate any MatCo Indemnitees) that implicates two or more Parties in a material respect, including due to the allocation of Liabilities, the reasonably foreseeable impact on the Businesses of the relief sought or the responsibilities for management of defense and related indemnities pursuant to this Agreement, the applicable Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for all Parties any Privilege). The Party that is not responsible for managing the defense of any such Third Party Claim shall be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense of such claims. Notwithstanding the foregoing, nothing in this Section  8.7 shall derogate from any Party’s rights to control the defense of any Action in accordance with Section  8.5 .

(b) (i) Notwithstanding anything to the contrary in this Agreement, with respect to any Third Party Claim where the resolution of such Third Party Claim by order, judgment, settlement or otherwise, would reasonably be expected to include any condition, limitation or other stipulation that would, in the reasonable judgment of SpecCo, significantly and adversely impact the conduct of the Specialty Products Business or result in a significant adverse change to any member of the SpecCo Group at shared locations where any member of the MatCo Group and any member of the SpecCo Group or any member of the AgCo Group and any member of the SpecCo Group, as applicable, have operating agreements, governmental permits or joint obligations to a Governmental Entity with interdependencies, SpecCo shall have, at SpecCo’s expense, the reasonable opportunity to consult, advise and comment in all preparation, planning and strategy regarding any such Third Party Claim, including with regard to any drafts of notices and other conferences and communications to be provided or submitted by any member of the MatCo Group or any member of the AgCo Group to any third party involved in such Third Party Claim (including any Governmental Entity), to the extent that

 

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SpecCo’s participation does not affect any Privilege in a material and adverse manner; provided that to the extent that any such Third Party Claim requires the submission by any member of the MatCo Group or any member of the AgCo Group of any Information relating to any current or former officer or director of any member of the SpecCo Group, such Information will only be submitted in a form approved by SpecCo in its reasonable discretion, (ii) notwithstanding anything to the contrary in this Agreement, with respect to any Third Party Claim where the resolution of such Third Party Claim by order, judgment, settlement or otherwise, would reasonably be expected to include any condition, limitation or other stipulation that would, in the reasonable judgment of MatCo, significantly and adversely impact the conduct of the Materials Science Business or result in a significant adverse change to any member of the MatCo Group at shared locations where any member of the MatCo Group and any member of the SpecCo Group or any member of the MatCo Group and any member of the AgCo Group, as applicable, have operating agreements, governmental permits or joint obligations to a Governmental Entity with interdependencies, MatCo shall have, at MatCo’s expense, the reasonable opportunity to consult, advise and comment in all preparation, planning and strategy regarding any such Third Party Claim, including with regard to any drafts of notices and other conferences and communications to be provided or submitted by any member of the SpecCo Group or any member of the AgCo Group to any third party involved in such Third Party Claim (including any Governmental Entity), to the extent that MatCo’s participation does not affect any Privilege in a material and adverse manner; provided that to the extent that any such Third Party Claim requires the submission by any member of the SpecCo Group or any member of the AgCo Group of any Information relating to any current or former officer or director of any member of the MatCo Group, such Information will only be submitted in a form approved by MatCo in its reasonable discretion and (iii) notwithstanding anything to the contrary in this Agreement, with respect to any Third Party Claim where the resolution of such Third Party Claim by order, judgment, settlement or otherwise, would reasonably be expected to include any condition, limitation or other stipulation that would, in the reasonable judgment of AgCo, significantly and adversely impact the conduct of the Agriculture Business or result in a significant adverse change to any member of the AgCo Group at shared locations where any member of the AgCo Group and any member of the SpecCo Group or any member of the AgCo Group and any member of the MatCo Group, as applicable, have operating agreements, governmental permits or joint obligations to a Governmental Entity with interdependencies, AgCo shall have, at AgCo’s expense, the reasonable opportunity to consult, advise and comment in all preparation, planning and strategy regarding any such Third Party Claim, including with regard to any drafts of notices and other conferences and communications to be provided or submitted by any member of the MatCo Group or any member of the SpecCo Group to any third party involved in such Third Party Claim (including any Governmental Entity), to the extent that AgCo’s participation does not affect any Privilege in a material and adverse manner; provided that to the extent that any such Third Party Claim requires the submission by any member of the MatCo Group or any member of the SpecCo Group of any Information relating to any current or former officer or director of any member of the AgCo Group, such Information will only be submitted in a form approved by AgCo in its reasonable discretion. (I) With regard to the matters specified in the preceding clause (i), SpecCo shall have a right to consent to any compromise or settlement related thereto by any member of the AgCo Group or any member of the MatCo Group to the extent that the effect on any member of the SpecCo Group would reasonably be expected to result in a significant adverse effect on the financial condition or results of operations of SpecCo and its Subsidiaries at

 

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such time or the Specialty Products Business conducted thereby at such time, taken as a whole, and such significant adverse effect would reasonably be expected to be greater with respect to the SpecCo Group, taken as a whole, than the effect on either the MatCo Group, taken as a whole, or the AgCo Group, taken as a whole, (II) with regard to the matters specified in the preceding clause (ii), MatCo shall have a right to consent to any compromise or settlement related thereto by any member of the AgCo Group or any member of the SpecCo Group to the extent that the effect on any member of the MatCo Group would reasonably be expected to result in a significant adverse effect on the financial condition or results of operations of MatCo and its Subsidiaries at such time or the Materials Science Business conducted thereby at such time, taken as a whole, and such significant adverse effect would reasonably be expected to be greater with respect to the MatCo Group, taken as a whole, than the effect on either the AgCo Group, taken as a whole, or the SpecCo Group, taken as a whole, and (III) with regard to the matters specified in the preceding clause (iii), AgCo shall have a right to consent to any compromise or settlement related thereto by any member of the MatCo Group or any member of the SpecCo Group to the extent that the effect on any member of the AgCo Group would reasonably be expected to result in a significant adverse effect on the financial condition or results of operations of AgCo and its Subsidiaries at such time or the Agriculture Business conducted thereby at such time, taken as a whole, and such significant adverse effect would reasonably be expected to be greater with respect to the AgCo Group, taken as a whole, than the effect on either the MatCo Group, taken as a whole, or the SpecCo Group, taken as a whole.

(c) Each of SpecCo, MatCo and AgCo agrees on behalf of itself and the other members of its Group that at all times from and after the Effective Time, if an Action is commenced by a third party naming two (2) or more Parties (or any member of such Parties’ respective Groups or their respective then-Affiliates) as defendants and with respect to which one or more named Parties (or any member of such Party’s respective Group or their respective then-Affiliates) is a nominal defendant and/or such Action is otherwise not a Liability allocated to such named Party under this Agreement, then the other Party or Parties shall use, and shall cause the other members of its respective Group to use, commercially reasonable efforts to cause such nominal defendant to be removed from such Action, as soon as reasonably practicable (including using commercially reasonable efforts to petition the applicable court to remove such Party (or member of its Group or their respective then-Affiliates) as a defendant to the extent such Action relates solely to Assets or Liabilities that another Party (or Group) has been allocated pursuant to this Agreement). In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or Indemnifying Party shall so request, each Party shall, and shall cause the other members of its Group to, endeavor to substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, management of the Action shall be determined as set forth in this Article VIII .

Section 8.8 Indemnification Payments . Indemnification required by this Article VIII shall be made by periodic payments of the amount of Indemnifiable Loss in a timely fashion during the course of the investigation or defense, as and when bills are received or an Indemnifiable Loss or Liability incurred. The applicable Indemnitee shall deliver to the Indemnifying Party, upon request, reasonably satisfactory documentation setting forth the basis for the amount of such payments, including documentation with respect to calculations made and consideration of any Insurance Proceeds or Third Party Proceeds that actually reduce the amount

 

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of such Indemnifiable Losses; provided , that the delivery of such documentation shall not be a condition to the payments described in the first sentence of this Section  8.8 , but the failure to deliver such documentation may be the basis for the Indemnifying Party to contest whether the applicable Indemnifiable Loss or Liability was incurred by the applicable Indemnitee.

Section 8.9 Indemnification Obligations Net of Insurance Proceeds and Other Amounts .

(a) Any Indemnifiable Loss subject to indemnification pursuant to this Article VIII including, for the avoidance of doubt, in respect of any Specified DowDuPont Shared Liability and any Shared Historical DuPont Liability, shall be calculated (i) net of Insurance Proceeds that actually reduce the amount of the Indemnifiable Loss and (ii) net of any proceeds received by the Indemnitee from any third party for such Liability that actually reduce the amount of the Indemnifiable Loss (“ Third Party Proceeds ”). Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Article VIII to any Indemnitee pursuant to this Article VIII shall be reduced by any Insurance Proceeds or Third Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Indemnifiable Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any Indemnifiable Loss (an “ Indemnity Payment ”) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made.

(b) The Parties hereby agree that an insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto and, solely by virtue of the indemnification provisions hereof, shall not have any subrogation rights with respect thereto, and that no insurer or any other third party shall be entitled to a “windfall” (e.g., a benefit it would not otherwise be entitled to receive, or the reduction or elimination of an insurance coverage obligation that it would otherwise have, in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement. The Indemnitee shall use commercially reasonable efforts to seek to collect or recover any Insurance Proceeds and any Third Party Proceeds to which the Indemnitee is entitled in connection with any Indemnifiable Loss for which the Indemnitee seeks indemnification pursuant to this Article VIII ; provided , that the Indemnitee’s inability, following such efforts, to collect or recover any such Insurance Proceeds or Third Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder.

(c) No Indemnitee shall be entitled to any payment or indemnification more than once with respect to the same Indemnifiable Loss.

(d) In addition to the provisions of Section  8.9(a) , any Indemnifiable Loss subject to indemnification pursuant to this Article VIII (including, for the avoidance of doubt, in respect of any Specified DowDuPont Shared Liability or any Shared Historical DuPont Liability), shall (i) be reduced by the amount of any reduction in Taxes for which the Indemnitee is responsible under the Tax Matters Agreement actually realized as a result of the event giving

 

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rise to the payment by the end of the taxable year in which the payment is made, and (ii) be increased if and to the extent necessary to ensure that, after all required Taxes on the payment are paid (including Taxes attributable to any increases in the payment under this Section  8.9(d) ), the Indemnitee receives the amount it would have received if the payment was not taxable or did not result in an increase in Taxes.

Section 8.10 Additional Matters; Survival of Indemnities .

(a) The indemnity agreements contained in this Article VIII shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; (ii) the knowledge by the Indemnitee of Indemnifiable Losses for which it might be entitled to indemnification hereunder; and (iii) any termination of this Agreement. The indemnity agreements contained in this Article VIII shall survive the Distribution.

(b) The rights and obligations of any member of the SpecCo Group, any member of the MatCo Group, or any member of the AgCo Group in each case, under this Article VIII shall survive the sale or other Transfer by any Party or its respective Subsidiaries of any Assets or businesses or the assignment by it of any Liabilities, with respect to any Indemnifiable Loss of any Indemnitee related to such Assets, businesses or Liabilities.

Section 8.11 Environmental Matters .

(a) Substitution . AgCo, MatCo and SpecCo, as the case may be, shall use their reasonable best efforts to obtain any Consents, transfers, assignments, assumptions, waivers or other legal instruments necessary to cause such party or a member of its Group to be fully substituted for any member of the Group of any other Party with respect to any order, decree, judgment, agreement or Action that is in effect as of the Relevant Time in connection with any Agriculture Environmental Liability, any Materials Science Environmental Liability or any Specialty Products Environmental Liability, respectively. AgCo, MatCo or SpecCo, as the case may be, shall inform third parties associated with such matter, including Governmental Entities, about the assumption of such liability by the Party to which it has been allocated and request that such Persons direct all communications, requirements, notifications and/or official letters related to such matters to the Party to which it has been allocated. The members of such other Groups (and their successors) shall use commercially reasonable efforts to provide necessary assistance or signatures to AgCo, MatCo or SpecCo, as the case may be, to achieve the purposes of this Section  8.11(a) . Until such time as the substitutions outlined above have been completed, AgCo, MatCo or SpecCo, as the case may be, shall comply with the terms and conditions of all such orders, decrees, judgments, agreements and Actions in respect of which it has been allocated Environmental Liabilities pursuant to this Agreement.

(b) Remediation Procedures . Except as provided below, the Parties shall follow the general procedures for indemnification set forth in this Article VIII with respect to any claim for indemnification pursuant to Sections 8.2 , 8.3 or 8.4 , relating to remediation of contaminated environmental media, where the owner or primary tenant of the impacted property is not a member of the Group of the Party to which such liability for remediation has been allocated. For such matters, if the Indemnifying Party acknowledges in writing that it is obligated

 

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to provide indemnification pursuant to this Section  8.11(b) with respect to such remediation Liability, such Party (and members of its Group) shall be entitled (but shall not be required) to undertake the response action or actions (including investigation, remediation and monitoring) relating to such contamination (“ Response Action ”). The Party (and members of its Group) performing the Response Action shall be referred to as the “ Performing Party .”

(c) If the Performing Party is not both (x) the owner of the real property and (y) the only Party whose Group is using such real property, the following conditions shall apply to the performance of any Response Action:

(i) The Performing Party shall take reasonable precautions to minimize any interference with or disruption of the operations of the property owners and/or any other parties that have operations at the site (including third-parties) (each such party that is a member of any Group, a “ Non-Performing Impacted Party ”), including obtaining the owner’s and/or the other operating parties’, as applicable, prior written Consent to any Response Action that would reasonably be expected to substantially interfere with or disrupt the operations of such Person at the affected real property, which Consent shall not be unreasonably withheld, conditioned or delayed;

(ii) If a member of a Group other than that of the Performing Party is the owner of the real property or otherwise has operational control of the impacted property (a “ Non-Performing Site Controller ”), such Non-Performing Site Controller shall, and shall cause the other members of the Group to, provide reasonable access to, and reasonably cooperate with, the Performing Party in its performance of such Response Action, it being understood that such cooperation shall in no event in and of itself require any Non-Performing Impacted Party or Non-Performing Site Controller to incur any out-of-pocket expenses.

(iii) The Performing Party shall use reasonable efforts to avoid and minimize any harm to any persons or damage to real or personal property, and shall be responsible for any harm or damages resulting from the performance of any such Response Action, except to the extent such harm or damage results from the negligence or willful misconduct of such other Party or any member of its Group or any of their respective representatives; and

(iv) All required Response Actions shall be diligently and expeditiously performed in compliance with all applicable Laws, including Environmental Laws and worker health and safety Laws.

(d) The Performing Party shall (i) notify each Non-Performing Impacted Party and Non-Performing Site Controller prior to commencing or performing any Response Actions, (ii) keep each Non-Performing Impacted Party and Non-Performing Site Controller reasonably informed of the progress of any Response Actions and provide copies of any final, proposed response, remediation, investigation or sampling plans and the results of sampling and analysis (including any final status reports of work in progress or other final reports), in each case required to be submitted to any Governmental Entity or third party, (iii) provide each Non-Performing Impacted Party and Non-Performing Site Controller, at such

 

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Non-Performing Impacted Party and Non-Performing Site Controller’s sole cost and expense, with a reasonable opportunity to review and comment on any material proposed response, remediation, investigation or sampling plans prior to submission to a Governmental Entity, (iv) provide each Non-Performing Impacted Party and Non-Performing Site Controller with the opportunity to attend, at such Non-Performing Impacted Party and Non-Performing Site Controller’s sole cost and expense, any planned meeting with any Governmental Entity regarding a Response Action ( provided , that the Governmental Entity does not object) and (v) provide each Non-Performing Impacted Party and Non-Performing Site Controller an opportunity to observe, at such Non-Performing Impacted Party and Non-Performing Site Controller’s sole cost and expense, any Response Action (other than Response Actions consisting of routine sampling, monitoring, maintenance or similar activities performed in the ordinary course) and to obtain, at such Non-Performing Impacted Party and Non-Performing Site Controller’s sole cost and expense, splits of any samples obtained in the course of conducting any Response Action.

(e) Subject to Section  8.11(f) , all Response Actions subject to this Section  8.11 shall meet the least stringent applicable standards, regulations, or requirements of applicable Law, including applicable Environmental Law or, where an applicable Governmental Entity with or asserting jurisdiction is supervising such Response Action, required by such Governmental Entity, and be consistent with the use of the property as of the Effective Time and any applicable terms of the relevant lease or similar site-specific agreement as such terms are in effect as of the Effective Time (the “ Appropriate Remediation Standard ”). In furtherance of and to the extent consistent with the foregoing, the parties agree to utilize institutional controls and engineering controls (including capping, signs, fences and deed restrictions on the use of real property, soils or groundwater) to satisfy the Appropriate Remediation Standard and to cooperate in obtaining all necessary approvals of the use of such controls; provided , that such controls do not prevent or materially interfere with the continued operation or reasonable future expansion of the operations on such real property. Once a notice of no further action or equivalent determination with respect to such matter has been issued by a Governmental Entity (or, if the Governmental Entity has delegated authority to conduct and certify the completion of a Response Action to a licensed professional, upon notice of the applicable Governmental Entity’s receipt and acceptance of such licensed professional’s certification), the Indemnifying Party shall have no further obligations with respect to such matter, other than with respect to any Indemnifiable Losses arising out of (1) any Third Party Claims relating to such matter and (2) the performance of and any costs associated with any ongoing operations and maintenance, if any, required with respect to the Response Action, including inspections and repair of any engineering controls, ongoing pumping and treating of impacted groundwater (including any material equipment or system repairs, replacements or required upgrades), ongoing groundwater monitoring and related reporting, and the provision of any required financial assurance, provided , that the Indemnitee shall be responsible for the performance of and any costs associated with any and all ongoing operations and maintenance relating to the following obligations: (i) any institutional controls, including any deed restrictions or land use controls and reporting obligations related to the same; (ii) monitoring, maintenance, repair and reporting associated with a cap used as part of the remedy, but only to the extent that the cap consists of (x) the buildings at the site, (y) asphalt or similar materials already present at the site or that are used at the site for purposes in addition to the Response Action (i.e., parking), or (z) landscaping; and (iii) groundwater monitoring associated with a natural monitored attenuation remedy. The

 

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Indemnifying Party shall have the right to transfer to the Indemnitee (upon payment of the amount set forth in this sentence as mutually agreed in writing by the Indemnifying Party and Indemnitee or determined pursuant to the procedures set forth in Article X ) its obligations for its ongoing operations and maintenance costs, if any, with respect to engineering controls approved as part of a no further action, equivalent determination or certification if the Indemnifying Party agrees to pay to the Indemnitee a sum equal to the present value of the reasonably estimated future costs of said engineering controls (where the period of time used for such present value calculation shall be the entire period for which it is reasonably anticipated that such continuing obligations will be performed, but no more than thirty (30) years, and the discount rate shall be reasonable). For the avoidance of doubt, if the Indemnifying Party and the Indemnitee cannot mutually agree in writing on the amount set forth in the preceding sentence, such disagreement shall be resolved in accordance with the procedures set forth in Article X of this Agreement. In the event that any Governmental Entity reopens or otherwise modifies any determination related to the notice of no further action or equivalent determination, or notice of receipt and acceptance of the licensed professional’s certification, such that additional Response Actions are required, the Indemnifying Party shall indemnify the Indemnitee for any Liabilities associated with the reopening or modification of such determination that would have otherwise constituted Indemnifiable Losses of such Indemnitee.

(f) The Indemnifying Party shall not be responsible or liable to the Indemnitee for any Indemnifiable Losses associated with any Response Action to the extent:

(i) incurred by or on behalf of the Indemnitee to achieve compliance with standards in excess of the Appropriate Remediation Standards;

(ii) incurred for Response Actions not required under or to achieve compliance with applicable Laws or required by a Governmental Entity with or asserting jurisdiction, unless undertaken as a result of a reasonable belief that there exists a condition that, if unabated, poses a risk of reasonable possibility of harm to human health and safety, or to property of any third party; or

(iii) resulting from the exacerbation after the Relevant Time of any Release or threat of Release of or exposure to Hazardous Substances which first occurred prior to the Relevant Time; provided, that this clause (iii) shall in no way relieve the Indemnifying Party of any Liability for Indemnifiable Losses associated with a Response Action if the exacerbation of a Release that occurred on or prior to the Relevant Time arises as a result of any action or inaction on the part of the Indemnitee that does not rise to the level of negligence.

(g) Corrective Actions for Compliance-Related Liabilities Subject to Indemnity . If a Party is providing indemnification pursuant to this Agreement in connection with an ongoing business operation of another Party, which (x) involves a violation of applicable Environmental Law which occurred prior to the Relevant Time, (y) requires a capital project (or series of capital projects) to bring the facility into compliance with applicable Environmental Law in effect as of the Relevant Time, and (z) does not involve a Response Action, the following shall apply:

 

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(i) The Party that owns and operates the business operation after the Relevant Time will conduct and control the capital project (or series of capital projects), including the implementation thereof (the “ Corrective Action Performing Party ”);

(ii) All expenditures shall be commercially reasonable taking into account the obligation to bring the business operation into compliance with applicable Environmental Law in effect as of the Relevant Time (“ Commercially Reasonable Expenditures ”), and the Indemnifying Party shall not be liable for additional expenditures, if any, in excess of Commercially Reasonable Expenditures, including any such additional expenditures that are made for the purpose of providing an economic benefit to the Corrective Action Performing Party, including, expanding the business operation;

(iii) The Indemnifying Party shall have no further obligation with respect to the matter subject to indemnification hereunder once the capital project (or series of capital projects) has been implemented and compliance has been achieved to the satisfaction of the relevant Governmental Entity; and

(iv) The Corrective Action Performing Party shall promptly provide the Indemnifying Party with: (A) copies of any proposed corrective action plan to be submitted to the relevant Governmental Entity, including the proposed cost of the corrective action; (B) a reasonable opportunity to review and suggest comments to the corrective action plan prior to submission to the relevant Governmental Entities; (C) the opportunity to attend, at the Indemnifying Party’s sole cost and expense, any planned meeting with any Governmental Entity regarding the corrective action ( provided , that the Governmental Entity does not object); (D) material correspondence between the relevant Governmental Entities and the Corrective Action Performing Party relating to the corrective action; and (E) the final corrective action plan approved by or agreed to with the relevant Governmental Entities and the budget for implementation of said plan.

Section 8.12 Closure of Discontinued Operations .

(a) Notwithstanding anything in this Agreement to the contrary and except with respect to indemnification for (x) Environmental Liabilities, (y) Third Party Claims or (z) Indemnifiable Losses to the extent related to, resulting from or arising out of the Demolition Party’s failure to perform its obligations pursuant to this Section  8.12 or its negligent or willful misconduct in performing such obligations, the following obligations set forth in this Section  8.12 shall be the exclusive obligations pursuant to this Agreement of the Parties for any Liabilities to the extent arising from required actions to execute demolition and removal of any buildings, improvements, facilities, equipment or other fixtures that: (i)(x) are Discontinued and/or Divested Operations and Businesses of Historical Dow which give rise to Dow Discontinued and/or Divested Operations and Business Liabilities (other than those for which, pursuant to Section  8.13(b) , a claim for indemnification could not be brought) and (y) are located at a property owned by or within the leasehold interest of AgCo or a member of the AgCo Group or SpecCo or a member of the SpecCo Group as of the MatCo Distribution Date (the “ Historical Dow Discontinued Buildings and Related Improvements ”), (ii)(x) are Discontinued and/or

 

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Divested Operations and Businesses of Historical DuPont which give rise to Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities (other than those for which, pursuant to Section  8.13(b) , a claim for indemnification could not be brought) and (y) are located at a property owned by or within the leasehold interest of MatCo or a member of the MatCo Group or SpecCo or a member of the SpecCo Group as of the MatCo Distribution Date and (iii)(x) are Discontinued and/or Divested Operations and Businesses of Historical DuPont which give rise to Specialty Products Discontinued and/or Divested Operations and Business Liabilities (other than those for which, pursuant to Section  8.13(b) , a claim for indemnification could not be brought) and (y) are located at a property owned by or within the leasehold interest of MatCo or a member of the MatCo Group or AgCo or a member of the AgCo Group as of the MatCo Distribution Date (the buildings, improvements, facilities, equipment or other fixtures covered by clauses (ii) and (iii) are the “ Historical DuPont Discontinued Buildings and Related Improvements ” and together with the Historical Dow Discontinued Buildings and Related Improvements, the “ Discontinued Buildings and Related Improvements ”). For purposes of this section, the term “ Demolition Party ” shall mean: (x) MatCo, in the case of Historical Dow Discontinued Buildings and Related Improvements, (y) AgCo, in the case of Historical DuPont Discontinued Buildings and Related Improvements which constitute Agriculture DuPont Discontinued and/or Divested Operations and Business Liabilities and (z) SpecCo, in the case of Historical DuPont Discontinued Buildings and Related Improvements which constitute Specialty Products DuPont Discontinued and/or Divested Operations and Business Liabilities, in each case including, where relevant, the other members of their respective Groups, and the term “ Owner or Lessee Party ” shall mean the Party on whose property or leasehold the Discontinued Buildings and Related Improvements are located.

(b) The Demolition Party shall undertake the demolition and removal of the Discontinued Buildings and Related Improvements if: (i) required by applicable Law, including an applicable permit issued by a Governmental Entity; (ii) demolition or removal is ordered by a Governmental Entity, provided that the Demolition Party retains all rights that it may have to challenge or defend against such order or demand; (iii) the Discontinued Buildings and Related Improvements constitute a nuisance that unreasonably and significantly harms or threatens to unreasonably and significantly harm the health and safety of other persons at the Owner or Lessee Party’s properties or members of the public; or (iv) the Discontinued Buildings and Related Improvements unreasonably interfere with the current, or would unreasonably interfere with the planned, operations (such operations being determined as of the MatCo Distribution, after giving effect to the Ancillary Agreements, and such plans being those documented in writing as of February 14, 2019 and in the Ancillary Agreements) by the Owner or Lessee Party or any other lessee at the property; provided that, with respect to any such planned operations, in the event that (x) the Demolition Party is required pursuant to this Section  8.12(b)(iv) to undertake the demolition and removal of the applicable Discontinued Buildings and Related Improvements and completes such demolition and removal, and (y) the Owner or Lessee Party has not, by the later of (A) three (3) years after the completion of such demolition and removal and (B) two (2) years after all necessary permits have been obtained to allow for the start of the implementation of the applicable planned operation (provided that the Owner or Lessee Party has used commercially reasonable efforts to obtain such permits as promptly as practicable), started to implement the applicable planned operation, then the Owner or Lessee Party shall reimburse the Demolition Party for all reasonable and documented out of pocket costs and expenses incurred by the Demolition Party in connection with such demolition and removal. The Owner or Lessee Party shall provide written notice to the Demolition Party that demolition and removal of the Discontinued Buildings and Related Improvements are required as a result of the satisfaction of any of the conditions set forth in this Section  8.12(b) .

 

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(c) If demolition and removal is required pursuant to Section  8.12(b) , the Demolition Party shall undertake the demolition and removal of the Discontinued Buildings and Related Improvements in accordance with all applicable Laws, applicable site-specific safety requirements, and the Demolition Party’s decommissioning plan, subject to the Owner or Lessee Party’s written approval of such plan, such approval not to be unreasonably withheld, conditioned, or delayed.

(d) The Demolition Party shall take reasonable precautions to minimize any interference with or disruption of the operations of the property owners and/or any other parties that have operations at the site (including third parties). The Demolition Party shall restore the Owner or Lessee Party’s premises to a level grade; provided , however , that the Demolition Party shall only be required to decommission, remove or demolish the Discontinued Buildings and Related Improvements down to, but not through, the subsurface.

(e) The Owner or Lessee Party shall provide reasonable access to, and reasonably cooperate with, the Demolition Party in its demolition and removal of the subject Discontinued Buildings and Related Improvements. The Demolition Party may access, occupy and use the Discontinued Buildings and Related Improvements for a period of up to twelve (12) months, solely for the purposes of performing and completing the demolition and removal work, after being provided such access and after the receipt of written approval of its demolition plan as provided in Section  8.12(c) ; provided, however, if the demolition and removal work cannot reasonably be completed within such period, the Demolition Party may, prior to the expiration of such twelve (12) month period, send a written request to the Owner or Lessee Party seeking an extension of the period of access, and subject to the Owner or Lessee Party’s approval of such request (such approval not to be unreasonably withheld, conditioned or delayed), the Owner or Lessee Party shall continue to provide reasonable access to, and shall continue to reasonably cooperate with, the Demolition Party through the period specified in the request.

(f) If the Demolition Party and the Owner or Lessee Party cannot mutually agree in writing whether the Demolition Party has completed its demolition and removal obligations pursuant to Section  8.12 , such disagreement shall be resolved in accordance with the procedures set forth in Article X of this Agreement. If the disagreement is so resolved in favor of the Owner or Lessee Party, and the Demolition Party fails to complete such required work, the Owner or Lessee Party may undertake any such work, at the sole cost and expense of the Demolition Party to be paid by the Demolition Party upon demand, excluding any costs and expenses that relate to liabilities that have been otherwise allocated to the Owner or Lessee Party pursuant to the terms of this Agreement.

Section 8.13 Certain Other Limits on Indemnification .

(a) Historical DuPont Discontinued and/or Divested Operations and Business Liability Limitations .

 

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(i) In the event that Indemnifiable Losses relating to, arising out of or resulting from AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities exceed $200,000,000 (the “ AgCo Group DuPont Divested Business Liability Basket ”), SpecCo shall and shall cause the other members of the SpecCo Group to indemnify, defend and hold harmless the AgCo Indemnitees from and against any and all Indemnifiable Losses of the AgCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities in excess of the AgCo Group DuPont Divested Business Liability Basket until the sum of (x) Indemnifiable Losses of the SpecCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities and (y) any and all amounts paid pursuant to this Section  8.13(a)(i) is equal to the SpecCo Group DuPont Divested Business Liability Basket (such equality, the “ SpecCo Hurdle ”).

(ii) In the event that Indemnifiable Losses relating to, arising out of or resulting from SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities exceed $200,000,000 (the “ SpecCo Group DuPont Divested Business Liability Basket ”), AgCo shall and shall cause the other members of the AgCo Group to indemnify, defend and hold harmless the SpecCo Indemnitees from and against any and all Indemnifiable Losses of the SpecCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities in excess of the SpecCo Group DuPont Divested Business Liability Basket until such time as the sum of (x) Indemnifiable Losses of the AgCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any AgCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities and (y) any and all amounts paid pursuant to this Section  8.13(a)(ii) is equal to the AgCo Group DuPont Divested Business Liability Basket (such equality, the “ AgCo Hurdle ”).

(iii) From and after the time that both the SpecCo Hurdle and the AgCo Hurdle have been met, (i) SpecCo shall not be required to indemnify, defend and hold harmless the AgCo Indemnitees from and against any individual or series of related Indemnifiable Losses of the AgCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any AgCo Group Excess DuPont Discontinued and/or Divested Operations and Businesses Liabilities until the aggregate amount of the AgCo Indemnitees’ Indemnifiable Losses with respect thereto exceeds $1,000,000 (the “ De Minimis Threshold ”), after which SpecCo shall be obligated for the Specialty Products Shared Historical DuPont Percentage of all the AgCo Indemnitee’s Indemnifiable Losses with respect to such individual or series of related Indemnifiable Losses from the first dollar regardless of the De Minimis Threshold and (ii) AgCo shall not be required to indemnify, defend and hold harmless the SpecCo Indemnitees from and against any individual or series of related Indemnifiable Losses of the SpecCo Indemnitees relating to, arising out of, by reason of or otherwise in connection with any SpecCo Group Excess DuPont Discontinued and/or Divested Operations and Business Liabilities until the aggregate amount of the SpecCo Indemnitees’ out-of-pocket Indemnifiable Losses with respect thereto exceeds the De Minimis Threshold, after which AgCo shall be obligated for the Agriculture Shared Historical DuPont Percentage of all the AgCo Indemnitee’s Indemnifiable Losses with respect to such individual or series of related Indemnifiable Losses from the first dollar regardless of the De Minimis Threshold.

 

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(b) Designated DuPont DDOB Liabilities and Designated Dow DDOB Liabilities .

(i) MatCo shall not be required pursuant to this Agreement to indemnify, defend or hold harmless (x) the AgCo Indemnitees from or against Indemnifiable Losses to the extent relating to, arising out of or resulting from any Designated Dow DDOB Liability (1) unless the claim or series of related claims or other claims arising out of substantially similar facts, circumstances or occurrences involves Indemnifiable Losses in excess of $1,000,000 (the “ Designated DDOB De Minimis Threshold ”) and (2) until the aggregate amount of the AgCo Indemnitees’ Indemnifiable Losses with respect to all Designated Dow DDOB Liabilities exceeds $75,000,000 (the “ AgCo Designated Dow DDOB Deductible Amount ”), after which MatCo shall be obligated to indemnify the AgCo Indemnitees for any and all such Indemnifiable Losses in excess of the AgCo Designated Dow DDOB Deductible Amount; provided that, for purposes of this clause (2) only, Indemnifiable Losses shall include all reasonable costs and expenses (A) actually incurred by the AgCo Indemnitees, (B) with respect to the demolition and removal of the applicable Historical Dow Discontinued Buildings and Related Improvements, and (C) for which MatCo would have been responsible pursuant to Section  8.12 if, at the time such costs and expenses were incurred by the AgCo Indemnitees, the aggregate amount of the AgCo Indemnitees’ Indemnifiable Losses with respect to all Designated Dow DDOB Liabilities had exceeded the AgCo Designated Dow DDOB Deductible Amount; or (y) the SpecCo Indemnitees from or against Indemnifiable Losses to the extent relating to, arising out of or resulting from a Designated Dow DDOB Liability (1) unless the claim or series of related claims or other claims arising out of substantially similar facts, circumstances or occurrences involves Indemnifiable Losses in excess of the Designated DDOB De Minimis Threshold and (2) until the aggregate amount of the SpecCo Indemnitees’ Indemnifiable Losses with respect to all Designated Dow DDOB Liabilities exceeds $75,000,000 (the “ SpecCo Designated Dow DDOB Deductible Amount ”), after which MatCo shall be obligated to indemnify the SpecCo Indemnitees for any and all such Indemnifiable Losses in excess of the SpecCo Designated Dow DDOB Deductible Amount; provided that, for purposes of this clause (2) only, Indemnifiable Losses shall include all reasonable costs and expenses (A) actually incurred by the SpecCo Indemnitees, (B) with respect to the demolition and removal of the applicable Historical Dow Discontinued Buildings and Related Improvements, and (C) for which MatCo would have been responsible pursuant to Section  8.12 if, at the time such costs and expenses were incurred by the SpecCo Indemnitees, the aggregate amount of the SpecCo Indemnitees’ Indemnifiable Losses with respect to all Designated Dow DDOB Liabilities had exceeded the SpecCo Designated Dow DDOB Deductible Amount.

 

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(ii) Neither (A) AgCo nor (B) SpecCo shall be required pursuant to this Agreement to indemnify, defend or hold harmless the MatCo Indemnitees from or against Indemnifiable Losses to the extent relating to, arising out of or resulting from any Designated DuPont DDOB Liability (1) unless the claim or series of related claims or other claims arising out of substantially similar facts, circumstances or occurrences involves Indemnifiable Losses in excess of the Designated DDOB De Minimis Threshold and (2) until (x) in the case of AgCo, the aggregate amount of the MatCo Indemnitees’ Indemnifiable Losses with respect to all Designated DuPont DDOB Liabilities constituting Agriculture Liabilities exceeds $37,500,000 (the “ MatCo AgCo Designated DuPont DDOB Deductible Amount ”), after which AgCo shall be obligated to indemnify the MatCo Indemnitees for any and all such Indemnifiable Losses in excess of the MatCo AgCo Designated DuPont DDOB Deductible Amount; provided that, for purposes of this clause (2)(x) only, Indemnifiable Losses shall include all reasonable costs and expenses (I) actually incurred by the MatCo Indemnitees, (II) with respect to the demolition and removal of the applicable Historical DuPont Discontinued Buildings and Related Improvements, and (III) for which AgCo would have been responsible pursuant to Section  8.12 if, at the time such costs and expenses were incurred by the MatCo Indemnitees, the aggregate amount of the MatCo Indemnitees’ Indemnifiable Losses with respect to all Designated DuPont DDOB Liabilities constituting Agriculture Liabilities had exceeded the MatCo AgCo Designated DuPont DDOB Deductible Amount; or (y) in the case of SpecCo, the aggregate amount of the MatCo Indemnitees’ Indemnifiable Losses with respect to all Designated DuPont DDOB Liabilities constituting Specialty Products Liabilities exceeds $37,500,000 (the “ MatCo SpecCo Designated DuPont DDOB Deductible Amount ”), after which SpecCo shall be obligated to indemnify the MatCo Indemnitees for any and all such Indemnifiable Losses in excess of the MatCo SpecCo Designated DuPont DDOB Deductible Amount; provided that, for purposes of this clause (2)(y) only, Indemnifiable Losses shall include all reasonable costs and expenses (I) actually incurred by the MatCo Indemnitees, (II) with respect to the demolition and removal of the applicable Historical DuPont Discontinued Buildings and Related Improvements, and (III) for which SpecCo would have been responsible pursuant to Section  8.12 if, at the time such costs and expenses were incurred by the MatCo Indemnitees, the aggregate amount of the MatCo Indemnitees’ Indemnifiable Losses with respect to all Designated DuPont DDOB Liabilities constituting Specialty Products Liabilities had exceeded the MatCo SpecCo Designated DuPont DDOB Deductible Amount.

(iii) Notwithstanding anything to the contrary in this Agreement, after April 1, 2034 (the “ Specified Tier 1 DDOB Liability Termination Date ”), (i) (A) the MatCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 1 DuPont DDOB Liability and (B) neither AgCo nor SpecCo (nor any member of their respective Groups nor any of their respective Affiliates) shall have, or shall be subject to, any indemnification obligation pursuant to this Agreement to any MatCo Indemnitee to the extent relating to, arising out of, or resulting from any Specified Tier 1 DuPont DDOB Liability, (ii) (A) the AgCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 1 Dow DDOB Liability and (B) none of MatCo or any member of its Group or any of their respective Affiliates shall have, and shall not be subject to, any indemnification

 

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obligation pursuant to this Agreement to any AgCo Indemnitee to the extent relating to, arising out of, or resulting from, any Specified Tier 1 Dow DDOB Liability and (iii) (A) the SpecCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 1 Dow DDOB Liability and (B) none of MatCo or any member of its Group or any of their respective Affiliates shall have, and shall not be subject to, any indemnification obligation pursuant to this Agreement to any SpecCo Indemnitee to the extent relating to, arising out of, or resulting from any Specified Tier 1 Dow DDOB Liability, unless, in each case (clauses (i)-(iii)), an Indemnification Notice was provided in respect thereof (or in respect of a Liability arising from the same or substantially similar facts) on or prior to the Specified Tier 1 DDOB Liability Termination Date.

(iv) Notwithstanding anything to the contrary in this Agreement, after April 1, 2024 (the “ Specified Tier 2 DDOB Liability Termination Date ”), (i) (A) the MatCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 2 DuPont DDOB Liability and (B) neither AgCo nor SpecCo (nor any member of their respective Groups nor any of their respective Affiliates) shall have, or shall be subject to, any indemnification obligation pursuant to this Agreement to any MatCo Indemnitee to the extent relating to, arising out of, or resulting from any Specified Tier 2 DuPont DDOB Liability, (ii) (A) the AgCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 2 Dow DDOB Liability and (B) none of MatCo or any member of its Group or any of their respective Affiliates shall have, and shall not be subject to, any indemnification obligation pursuant to this Agreement to any AgCo Indemnitee to the extent relating to, arising out of, or resulting from, any Specified Tier 2 Dow DDOB Liability and (iii) (A) the SpecCo Indemnitees shall not be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Specified Tier 2 Dow DDOB Liability and (B) none of MatCo or any member of its Group or any of their respective Affiliates shall have, and shall not be subject to, any indemnification obligation pursuant to this Agreement to any SpecCo Indemnitee to the extent relating to, arising out of, or resulting from any Specified Tier 2 Dow DDOB Liability, unless, in each case (clauses (i)-(iii)), an Indemnification Notice was provided in respect thereof (or in respect of a Liability arising from the same or substantially similar facts) on or prior to the Specified Tier 2 DDOB Liability Termination Date.

(v) Notwithstanding anything to the contrary in this Agreement no Indemnitees shall be entitled to indemnification pursuant to this Agreement for any Indemnifiable Loss to the extent relating to, arising out of or resulting from any Liability arising in connection with the breach of any of the covenants and agreements set forth in Section  2.3(b) , unless an Indemnification Notice was provided in respect thereof (or in respect of a Liability arising from the same or substantially similar facts) on or prior to the expiration of the statute of limitations under applicable Law applicable to the Third Party Claim(s) underlying such Indemnifiable Loss.

(c) De Minimis Amount .

 

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(i) SpecCo shall not be required to indemnify, defend and hold harmless the MatCo Indemnitees and the AgCo Indemnitees from and against any Indemnifiable Losses pursuant to Section  8.2 unless the aggregate amount of all such Indemnifiable Losses arising from a single claim or a series of related claims arising out of substantially similar facts, circumstances or occurrences exceeds $25,000 (the “ De Minimis Amount ”) (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not the De Minimis Amount); provided , that in the event that the aggregate amount of Indemnifiable Losses which were not in excess of the De Minimis Amount exceed $10,000,000 (the “ Section  8.13(c) Basket ”) (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not subject to, or included in any calculation with respect to, the Section 8.13(c) Basket), the De Minimis Amount shall no longer apply, after which SpecCo shall be obligated for all Indemnifiable Losses under Section  8.2 from the first dollar regardless of the Section 8.13(c) Basket.

(ii) MatCo shall not be required to indemnify, defend and hold harmless the SpecCo Indemnitees and the AgCo Indemnitees from and against any Indemnifiable Losses pursuant to Section  8.3 unless the aggregate amount of all such Indemnifiable Losses arising from a single claim or a series of related claims arising out of substantially similar facts, circumstances or occurrences exceeds the De Minimis Amount (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not the De Minimis Amount); provided , that in the event that the aggregate amount of Indemnifiable Losses which were not in excess of the De Minimis Amount exceed the Section 8.13(c) Basket (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not subject to, or included in any calculation with respect to, the Section 8.13(c) Basket), the De Minimis Amount shall no longer apply, after which MatCo shall be obligated for all Indemnifiable Losses under Section  8.3 from the first dollar regardless of the Section 8.13(c) Basket.

(iii) AgCo shall not be required to indemnify, defend and hold harmless the SpecCo Indemnitees and the MatCo Indemnitees from and against any Indemnifiable Losses pursuant to Section  8.4 unless the aggregate amount of all such Indemnifiable Losses arising from a single claim or a series of related claims arising out of substantially similar facts, circumstances or occurrences exceeds the De Minimis Amount (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not the De Minimis Amount); provided , that in the event that the aggregate amount of Indemnifiable Losses which were not in excess of the De Minimis Amount exceed the Section 8.13(c) Basket (other than those subject to the Designated DDOB De Minimis Threshold, which shall be subject thereto but not subject to, or included in any calculation with respect to, the Section 8.13(c) Basket), the De Minimis Amount shall no longer apply, after which AgCo shall be obligated for all Indemnifiable Losses under Section  8.4 from the first dollar regardless of the Section 8.13(c) Basket.

 

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ARTICLE IX

CONFIDENTIALITY; ACCESS TO INFORMATION

Section 9.1 Preservation of Corporate Records .

(a) Except to the extent otherwise contemplated by any Ancillary Agreement, a Party providing (or causing to be provided) Records or access to Information to another Party under this Article IX 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 (which shall not include the costs of salaries and benefits of employees of such Party (or its Group or any of its or their respective then-Affiliates) or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as are reasonably incurred in providing such Records or access to Information.

(b) Except as otherwise required or agreed to in writing, or as otherwise provided in any Ancillary Agreement, with regard to any Information referenced in Section  9.2 , each Party shall, and shall cause the other members of its Group (and any of their successors and assigns) to, use commercially reasonable efforts, at such Party’s sole cost and expense, to retain, until the latest of, as applicable, (i) ten (10) years after the applicable Relevant Time (unless an earlier date is specified for such Information on Schedule 9.1(b)(ii) ), (ii) the date on which such Information is no longer required to be retained pursuant to Schedule 9.1(b)(ii) , (iii) the date on which such Information is no longer required to be retained pursuant to any “ Litigation Hold ” issued by either Historical DuPont or Historical Dow prior to the MatCo Distribution and set forth on Schedule 9.1(b)(iii)(A) (or, as between AgCo and SpecCo, issued by AgCo or SpecCo after the MatCo Distribution but prior to the AgCo Distribution), (iv) the concluding date of any period as may be required by any applicable Law, (v) with respect to any pending or threatened Action arising after the Relevant Time, to the extent that any member of the Group in possession of such Information has been notified in writing pursuant to a “Litigation Hold” by any other Party of such pending or threatened Action, the concluding date of any such “Litigation Hold,” and (vi) the concluding date of any period during which the destruction of such Information would reasonably be expected to interfere with a pending or threatened investigation by a Governmental Entity which is known to any member of the Group in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire. The Parties agree that upon reasonable written request from the applicable other Party that certain Information relating to the Materials Science Business, the Agriculture Business, the Specialty Products Business, the Materials Science Assets, the Agriculture Assets, the Specialty Products Assets, the Materials Science Liabilities, the Agriculture Liabilities, the Specialty Products Liabilities or the transactions contemplated hereby be retained in connection with an Action, each Party shall, and shall cause the other members of its Group (and any of their respective then-Affiliates) to use reasonable efforts (at the requesting Party’s sole cost and expense) to preserve and not to destroy or dispose of such Information without the consent of the requesting Party (for the avoidance of doubt, reasonable efforts shall include issuing a “ Litigation Hold ”).

 

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(c) SpecCo, MatCo and AgCo intend, and acknowledge that each member of its respective Group intends, that any Transfer of Information that would otherwise be within the attorney-client or attorney work product privileges shall not operate as a waiver of any potentially applicable Privilege.

Section 9.2 Provision of Corporate Records . Other than in circumstances in which indemnification is sought pursuant to Article VIII (in which event the provisions of such Article VIII will govern) or for matters related to the provision of Tax Records (in which event the Tax Matters Agreement will govern) or for matters related to the provision of Employee Records (in which event the Employee Matters Agreement will govern) or for matters related to the separation of Information (which shall be governed by Section  5.2 ) and without limiting the applicable provisions of Article VI and Article VII , and subject to appropriate restrictions for Privileged Information (as defined below) or Confidential Information:

(a) After the applicable Relevant Time and until the date on which SpecCo was required to retain, or cause to be retained, the Information requested pursuant to this Section  9.2(a) in accordance with SpecCo’s obligations under Section  9.1(b) , and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, MatCo or AgCo for specific and identified Information (i) which (x) constitutes an Asset of the MatCo Group or AgCo Group, as applicable, and the Transfer of such Asset has not been consummated as of the applicable Relevant Time, or (y) relates to the MatCo Group or AgCo Group or the conduct of the Materials Science Business or the Agriculture Business, as the case may be, up to the MatCo Distribution Date or the AgCo Distribution Date, as applicable solely to the extent reasonably necessary for the Parties to complete the separation of Assets (including Records) as contemplated hereby (or for such other reasonable purposes as may be agreed by the Parties), SpecCo shall, and shall cause the other members of the SpecCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the receipt of such request, MatCo or AgCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the written or electronic documentary Information or appropriate copies of such Information (or the originals thereof if the Party making the request has a reasonable need for such originals) in the possession or control of any member of the SpecCo Group, but only to the extent such items (or copies thereof) so relate and are not already in the possession or control of the requesting Party (or any member of its Group); provided that, except in the case of clause (x) of this Section  9.2(a)(i) , to the extent any originals are delivered to MatCo or AgCo pursuant to this Agreement or the Ancillary Agreements, MatCo or AgCo shall, and shall cause the other members of its Group (and each of its and their respective then-Affiliates) to, at its own expense, return them to SpecCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that SpecCo, in its sole discretion, determines that any such access or the provision of any such Information would reasonably be expected to be significantly commercially detrimental to SpecCo or any member of the SpecCo Group or would violate any Law or Contract with a third party or would reasonably result in the waiver of any Privilege (unless the Privilege with respect to any such Privileged Information is solely related (other than in any de minimis respect) to Sole Benefit Services of the requesting Party), SpecCo shall not be obligated to, and shall not be obligated to cause the other members of the SpecCo Group (and each of its and their respective then-Affiliates) to, provide such Information requested by MatCo or AgCo, provided , however , in the event access or the provision of any such Information would

 

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reasonably be expected to be significantly commercially detrimental or violate a Contract with a third party, SpecCo shall, and shall cause the other members of the SpecCo Group (and any of its or their then-Affiliates) to, use commercially reasonable efforts to seek to mitigate any such harm or consequence of, or to obtain the Consent of such third party to, the disclosure of such Information or (ii) that (x) is required by any member of the MatCo Group or AgCo Group with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on such Person (including under applicable securities Laws) by a Governmental Entity having jurisdiction over such Person, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, SpecCo shall, and shall cause the other members of the SpecCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the receipt of such request, MatCo or AgCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the Information or appropriate copies of such written or electronic documentary Information (or the originals thereof if the applicable member of the MatCo Group or AgCo Group has a reasonable need for such originals) in the possession or control of SpecCo or any other member of the SpecCo Group (or any of its or their respective then-Affiliates), but only to the extent such items so relate and are not already in the possession or control of MatCo or AgCo (or another member of their respective Group, or any of their respective then-Affiliates); provided that, to the extent any originals are delivered to MatCo or AgCo pursuant to this Agreement or the Ancillary Agreements, MatCo or AgCo shall, at its own expense, return them to SpecCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that SpecCo, in its sole discretion, determines that any such access or the provision of any such Information (including Information requested under Section  5.1 ) would violate any Law or Contract with a third party or would reasonably be expected to result in the waiver of any attorney-client privilege, the work product doctrine or other applicable Privilege (unless the application of such privilege, doctrine or Privilege with respect to such matter is solely related (other than in any de minimis respect) to the Assets, Business and/or Liabilities of the requesting Party), SpecCo shall not be obligated to provide such Information requested by MatCo or AgCo, provided , further , that in the event access or the provision of any such Information would violate a Contract with a third party, SpecCo shall, and shall cause the other members of the SpecCo Group (and any of its or their respective then-Affiliates) to, use commercially reasonable efforts to seek to obtain the Consent of such third party to the disclosure of such Information.

(b) After the MatCo Distribution Date and until the date on which MatCo was required to retain, or cause to be retained, the Information requested pursuant to this Section  9.2(b) in accordance with MatCo’s obligations under Section  9.1(b) , and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, SpecCo or AgCo for specific and identified Information (i) which (x) constitutes an Asset of the SpecCo Group or AgCo Group, as applicable, and the Transfer of such Asset has not been consummated as of the applicable Relevant Time, or (y) relates to the SpecCo Group or the AgCo Group or the conduct of the Agriculture Business or the Specialty Products Business, as the case may be, up to the MatCo Distribution Date solely to the extent reasonably necessary for the Parties to complete the separation of Assets (including Records) as contemplated hereby (or for such other reasonable purposes as may be agreed by the Parties), MatCo shall, and shall cause the other members of the MatCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the

 

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receipt of such request, SpecCo or AgCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the written or electronic documentary Information or appropriate copies of such Information (or the originals thereof if the Party making the request has a reasonable need for such originals) in the possession or control of any member of the MatCo Group, but only to the extent such items (or copies thereof) so relate and are not already in the possession or control of the requesting Party (or any member of its Group); provided that, except in the case of clause (x) of this Section  9.2(b)(i) , to the extent any originals are delivered to SpecCo or AgCo pursuant to this Agreement or the Ancillary Agreements, SpecCo or AgCo shall, and shall cause the other members of its Group (and each of its and their respective then-Affiliates) to, at its own expense, return them, to MatCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that MatCo, in its sole discretion, determines that any such access or the provision of any such Information would reasonably be expected to be significantly commercially detrimental to MatCo or any member of the MatCo Group or would violate any Law or Contract with a third party or would reasonably result in the waiver of any Privilege (unless the Privilege with respect to any such Privileged Information is solely related (other than in any de minimis respect) to Sole Benefit Services of the requesting Party), MatCo shall not be obligated to, and shall not be obligated to cause the other members of the MatCo Group (and each of its and their respective then-Affiliates) to, provide such Information requested by SpecCo or AgCo, provided , however , in the event access or the provision of any such Information would reasonably be expected to be significantly commercially detrimental or violate a Contract with a third party, MatCo shall, and shall cause the other members of the MatCo Group (and any of its or their then-Affiliates) to, use commercially reasonable efforts to seek to mitigate any such harm or consequence of, or to obtain the Consent of such third party to, the disclosure of such Information or (ii) that (x) is required by any member of the SpecCo Group or AgCo Group with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on such Person (including under applicable securities Laws) by a Governmental Entity having jurisdiction over such Person, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, MatCo shall, and shall cause the other members of the MatCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the receipt of such request, SpecCo or AgCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the Information or appropriate copies of such written or electronic documentary Information (or the originals thereof if the applicable member of the SpecCo Group or AgCo Group has a reasonable need for such originals) in the possession or control of MatCo or any other member of the MatCo Group (or any of its or their respective then-Affiliates), but only to the extent such items so relate and are not already in the possession or control of SpecCo or AgCo (or another member of their respective Group, or any of their respective then-Affiliates); provided that, to the extent any originals are delivered to SpecCo or AgCo pursuant to this Agreement or the Ancillary Agreements, SpecCo or AgCo shall, at its own expense, return them to MatCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that MatCo, in its sole discretion, determines that any such access or the provision of any such Information (including Information requested under Section  5.1 ) would violate any Law or Contract with a third party or would reasonably be expected to result in the waiver of any attorney-client privilege, the work product doctrine or other applicable Privilege (unless the

 

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application of such privilege, doctrine or Privilege with respect to such matter is solely related (other than in any de minimis respect) to the Assets, Business and/or Liabilities of the requesting Party), MatCo shall not be obligated to provide such Information requested by SpecCo or AgCo, provided , further , that in the event access or the provision of any such Information would violate a Contract with a third party, MatCo shall, and shall cause the other members of the MatCo Group (and any of its or their respective then-Affiliates) to, use commercially reasonable efforts to seek to obtain the Consent of such third party to the disclosure of such Information.

(c) After the AgCo Distribution Date and until the date on which AgCo was required to retain, or cause to be retained, the Information requested pursuant to this Section  9.2(c) in accordance with AgCo’s obligations under Section  9.1(b) , and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, SpecCo or MatCo for specific and identified Information (i) which (x) constitutes an Asset of the SpecCo Group or MatCo Group, as applicable, and the Transfer of such Asset has not been consummated as of the applicable Relevant Time or (y) relates to the SpecCo Group or MatCo Group or the conduct of the Specialty Products Business or the Materials Science Business, as the case may be, up to the AgCo Distribution Date solely to the extent reasonably necessary for the Parties to complete the separation of Assets (including Records) as contemplated hereby (or for such other reasonable purposes as may be agreed by the Parties), AgCo shall, and shall cause the other members of the AgCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the receipt of such request, SpecCo or MatCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the written or electronic documentary Information or appropriate copies of such Information (or the originals thereof if the Party making the request has a reasonable need for such originals) in the possession or control of any member of the AgCo Group, but only to the extent such items (or copies thereof) so relate and are not already in the possession or control of the requesting Party (or any member of its Group); provided that, except in the case of clause (x) of this Section  9.2(c)(i) , to the extent any originals are delivered to SpecCo or MatCo pursuant to this Agreement or the Ancillary Agreements, SpecCo or MatCo shall, and shall cause the other members of its Group (and each of its and their respective then-Affiliates) to, at its own expense, return them to AgCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that AgCo, in its sole discretion, determines that any such access or the provision of any such Information would reasonably be expected to be significantly commercially detrimental to AgCo or any member of the AgCo Group or would violate any Law or Contract with a third party or would reasonably result in the waiver of any Privilege (unless the Privilege with respect to any such Privileged Information is solely related (other than in any de minimis respect) to Sole Benefit Services of the requesting Party), AgCo shall not be obligated to, and shall not be obligated to cause the other members of the AgCo Group (and each of its and their respective then-Affiliates) to, provide such Information requested by SpecCo or MatCo, provided , however , in the event access or the provision of any such Information would reasonably be expected to be significantly commercially detrimental or violate a Contract with a third party, AgCo shall, and shall cause the other members of the AgCo Group (and any of its or their then-Affiliates) to, use commercially reasonable efforts to seek to mitigate any such harm or consequence of, or to obtain the Consent of such third party to, the disclosure of such Information or (ii) that (x) is required by any member of the SpecCo Group or MatCo Group with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on such Person

 

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(including under applicable securities Laws) by a Governmental Entity having jurisdiction over such Person, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, AgCo shall, and shall cause the other members of the AgCo Group (and each of its and their respective then-Affiliates) to, provide, as soon as reasonably practicable following the receipt of such request, SpecCo or MatCo, as applicable, and their respective designated representatives reasonable access during normal business hours to the Information or appropriate copies of such written or electronic documentary Information (or the originals thereof if the applicable member of the SpecCo Group or MatCo Group has a reasonable need for such originals) in the possession or control of AgCo or any other member of the AgCo Group (or any of its or their respective then-Affiliates), but only to the extent such items so relate and are not already in the possession or control of SpecCo or MatCo (or another member of their respective Group, or any of their respective then-Affiliates); provided that, to the extent any originals are delivered to SpecCo or MatCo pursuant to this Agreement or the Ancillary Agreements, SpecCo or MatCo shall, at its own expense, return them to AgCo within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that AgCo, in its sole discretion, determines that any such access or the provision of any such Information (including Information requested under Section  5.1 ) would violate any Law or Contract with a third party or would reasonably be expected to result in the waiver of any attorney-client privilege, the work product doctrine or other applicable Privilege (unless the application of such privilege, doctrine or Privilege with respect to such matter is solely related (other than in any de minimis respect) to the Assets, Business and/or Liabilities of the requesting Party), AgCo shall not be obligated to provide such Information requested by SpecCo or MatCo, provided , further , that in the event access or the provision of any such Information would violate a Contract with a third party, AgCo shall, and shall cause the other members of the AgCo Group (and any of its or their respective then-Affiliates) to, use commercially reasonable efforts to seek to obtain the Consent of such third party to the disclosure of such Information.

(d) Any Information provided by or on behalf of or made available by or on behalf of any Party (or any other member of any Group) pursuant to this Article IX shall be on an “as is,” “where is” basis and no Party (or any member of any Group) is making any representation or warranty with respect to such Information or the completeness thereof.

(e) Each of SpecCo, MatCo and AgCo shall, and shall cause each other member of its Group to, inform its and their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the Confidential Information or other Information of any member of any other Group provided pursuant to Section  5.1 or this Article IX of their obligation to hold such Information confidential in accordance with the provisions of this Agreement.

Section 9.3 Disposition of Information .

(a) Each Party, on behalf of itself and each other member of its Group, acknowledges that Information in its or in a member of its Group’s possession, custody or control as of the Relevant Time may include Information owned by another Party or a member of another Party’s Group and not related to (i) it or its Business or (ii) any Ancillary Agreement to which it or any member of its Group is a Party.

 

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(b) Notwithstanding such possession, custody or control, such Information shall remain the property of such other Party or member of such other Party’s Group. Each Party agrees, on behalf of itself and each other member of its Group, subject to legal holds and other legal requirements and obligations, (i) that any such Information is to be treated as Confidential Information of the Party or Parties to which it relates and (ii) subject to Section  9.1 , to use commercially reasonable efforts to within a reasonable time (1) purge such Information from its databases, files and other systems and not retain any copy of such Information (including, if applicable, by transferring such Information to the Party to which such Information belongs) or (2) if such purging is not practicable, to encrypt or otherwise make unreadable or inaccessible such Information; provided , each Party shall, and shall cause each other member of its Group to, provide reasonable advance notice to each other Party prior to taking any action described in this Section  9.3(b) with respect to any Information related to the matters set forth on Schedule 9.3 .

Section 9.4 Witness Services . At all times from and after the Relevant Time, each of SpecCo, MatCo and AgCo shall use its commercially reasonable efforts to make available to the others, upon reasonable written request, its and any member of its Group’s officers, directors, employees and agents (taking into account the business demands of such individuals) as witnesses (in the presence of counsel for such officer, director, employee or agent, if any, and, if requested by the providing Group, counsel or other representatives designated by the providing Group) to the extent that (i) such Persons may reasonably be required to testify, or the testimony of such Persons would reasonably be expected to be beneficial to the requesting Party (or any member of its Group), in connection with the prosecution or defense of any Action in which the requesting Party may from time to time be involved and (ii) there is no conflict in the Action between the requesting Party (or any member of its Group) and the requested Party (or any member of its Group). A Party providing, or causing to be provided, a witness to another Party (or member of such other Party’s Group) under this Section  9.4 shall be entitled to receive from the recipient of such services, upon the presentation of invoices therefor, payments for all reasonable out-of-pocket costs and expenses incurred by such Party or a member of its Group in connection therewith (which shall not include the costs of salaries and benefits of employees who are witnesses or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as witnesses), as may be properly paid under applicable Law.

Section 9.5 Reimbursement; Other Matters . Except to the extent otherwise contemplated by this Agreement (including Section  6.3 ) or any Ancillary Agreement, a Party providing, or causing to be provided, Information or access to Information to another Party (or a member of such Party’s Group) under this Article IX 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 (which shall not include the costs of salaries and benefits of employees of such Party or any other member of its Group or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as may be reasonably incurred in providing such Information or access to such Information.

 

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Section 9.6 Confidentiality ; Non-Use .

(a) Notwithstanding any termination of this Agreement and except as otherwise provided in the USA-Subject Ancillary Agreements (which shall be governed by the Umbrella Secrecy Agreement), each Party shall, and shall cause each of the other members of its Group to, hold, and cause each of their respective officers, employees, agents, consultants and advisors to hold, in strict confidence, and not to disclose or release or except as otherwise permitted by this Agreement or any USA-Subject Ancillary Agreement (which shall be governed by the Umbrella Secrecy Agreement), use, including for any ongoing or future commercial purpose, without the prior written consent of each Party to whom (or to whose Group) the Confidential Information relates (which may be withheld in each such Party’s sole and absolute discretion), any and all Confidential Information concerning or belonging to another Party or any member of its Group; provided , that each Party may disclose, or may permit disclosure of, Confidential Information (i) to its (or any member of its Group’s) respective auditors, attorneys and other appropriate consultants and advisors who have a need to know such Confidential Information for auditing and other non-commercial purposes and are informed of the confidentiality and non-use obligations to the same extent as is applicable to the Parties and in respect of whose failure to comply with such obligations, the applicable Party will be responsible, (ii) if any Party or any member of its Group is required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule, (iii) to the extent required in connection with any Action by one Party (or a member of its Group) against any other Party (or member of such other Party’s Group) or in respect of claims by one Party (or member of its Group) against the other Party (or member of such other Party’s Group) brought in an Action, (iv) to the extent necessary in order to permit a Party (or member of its Group) to prepare and disclose its financial statements in connection with any regulatory filings or Tax Returns, (v) to the extent necessary for a Party (or member of its Group) to enforce its rights or perform its obligations under this Agreement or any USA-Subject Ancillary Agreement (which shall be governed by the Umbrella Secrecy Agreement), (vi) to Governmental Entities in accordance with applicable procurement regulations and contract requirements or (vii) to other Persons in connection with their evaluation of, and negotiating and consummating, a potential strategic transaction, to the extent reasonably necessary in connection therewith, provided an appropriate and customary confidentiality agreement has been entered into with the Person receiving such Confidential Information. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a third party that relates to clause (ii), (iii), (v) or (vi) above, each Party, as applicable, shall promptly notify (to the extent permissible by Law) the Party to whom (or to whose Group) the Confidential Information relates of the existence of such request, demand or disclosure requirement and shall provide such Party (and/or any applicable member of its Group) a reasonable opportunity to seek an appropriate protective order or other remedy, which such Parties shall, and shall cause the other members of their respective Group to, cooperate in obtaining to the extent reasonably practicable. In the event that such appropriate protective order or other remedy is not obtained, the Party who is (or whose Group’s member is) required to make such disclosure shall or shall cause the applicable member of its Group to furnish (at the expense of the Party seeking to limit such request, demand or disclosure requirement), or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded to such Confidential Information (at the expense of the Party seeking (or whose Group’s member is seeking) to limit such request, demand or disclosure requirement).

 

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(b) Notwithstanding anything to the contrary set forth herein, (i) a Party shall be deemed to have satisfied its obligations hereunder with respect to Confidential Information if it exercises, and causes the other members of its Group to exercise, at least the same degree of care (but no less than a commercially reasonable degree of care) as such Party takes to preserve confidentiality for its own similar Information and (ii) confidentiality obligations provided for in any agreement between each Party or another member of its Group and its or their respective past and/or present employees as of the Relevant Time shall remain in full force and effect. Notwithstanding anything to the contrary set forth herein, Confidential Information (other than Intellectual Property) of any Party (or another member of its Group) rightfully in the possession of and used by any other Party (or another member of its Group) in the operation of its Business as of the Relevant Time may continue to be used by such Party (and/or the applicable members of its Group) in possession of such Confidential Information in and only in the operation of the Agriculture Business, the Materials Science Business or the Specialty Products Business, as the case may be; provided , that, except as otherwise expressly permitted in any USA-Subject Ancillary Agreement (which shall be governed by the Umbrella Secrecy Agreement), such Confidential Information may only be used by such Party and/or the applicable members of its Group and its and their respective officers, employees, agents, consultants and advisors in the specific manner and for the specific purposes for which it is used as of the date of this Agreement and may only be shared with additional officers, employees, agents, consultants and advisors of such Party (or Group member) on a need-to-know basis exclusively with regard to such specified use; provided , further , that such use is not competitive in nature, and may be used only so long as the Confidential Information is maintained in confidence and not disclosed in violation of Section  9.6(a) , except that such Confidential Information may be disclosed to third parties other than those listed in Section  9.6(a) , provided that such disclosure to such other third parties and any associated use of such Information must be pursuant to a written agreement containing confidentiality obligations at least as protective of the Parties’ rights to such Confidential Information as those contained in this Agreement. Such continued right to use may not be transferred (directly or indirectly) to any third party without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of the applicable Party, except pursuant to Section  12.9 .

(c) Each of SpecCo, AgCo and MatCo acknowledges, on behalf of itself and each other member of its Group, that it and the other members of its Group may have in their possession confidential or proprietary Information of third parties that was received under confidentiality or non-disclosure agreements with such third party while such Party and/or members of its Group were Subsidiaries of DowDuPont, Dow and/or DuPont, as applicable. Each of SpecCo, AgCo and MatCo shall, and shall cause the other members of its Group to, hold and cause its and their respective representatives, officers, employees, agents, consultants and advisors (or potential buyers) to hold, in strict confidence the confidential and proprietary Information of third parties to which they or any other member of their respective Groups has access, in accordance with the terms of any agreements entered into prior to the MatCo Distribution between one or more members of the SpecCo Group, MatCo Group and/or AgCo Group (and, as between SpecCo and AgCo and their respective Groups, prior to the AgCo Distribution) (whether acting through, on behalf of, or in connection with, the separated Businesses) and such third parties.

 

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(d) For the avoidance of doubt and notwithstanding any other provision of this Section  9.6 , (i) the disclosure and sharing of Privileged Information shall be governed solely by Section  9.7 , and (ii) Information that is subject to any confidentiality provision or other disclosure restriction in any USA-Subject Ancillary Agreement (including the Umbrella Secrecy Agreement) shall be governed by the terms of such Ancillary Agreement (and, in the case of USA-Subject Ancillary Agreements, the Umbrella Secrecy Agreement). For clarity, to the extent that any USA-Subject Ancillary Agreement or another Contract (other than Ancillary Agreements which are not USA-Subject Ancillary Agreements) pursuant to which a Party is bound or its Confidential Information is subject provides that certain Confidential Information shall be maintained confidential on a basis that is more protective of such Confidential Information or for a longer period of time than provided for in this Section  9.6 , then the applicable provisions contained in such Ancillary Agreement or other Contract shall control with respect thereto.

Section 9.7 Privileged Matters .

(a) Pre-Separation Services . The Parties recognize that legal and other professional services that have been and will be provided prior to the Relevant Time have been and will be rendered either for (i) the collective benefit of each of the members of the SpecCo Group, the MatCo Group and the AgCo Group (“ Collective Benefit Services ”), or (ii) the sole benefit of (x) SpecCo (or a member of SpecCo’s Group) in the case of legal and other professional services provided solely in respect of a Specialty Products Asset, a Specialty Products Liability or the Specialty Products Business, (y) AgCo (or a member of AgCo’s Group) in the case of legal and other professional services provided solely in respect of an Agriculture Asset, an Agriculture Liability or the Agriculture Business or (z) MatCo (or a member of MatCo’s Group) in the case of legal and other professional services provided solely in respect of a Materials Science Asset, Materials Science Liability or the Materials Science Business, as the case may be (“ Sole Benefit Services ”). For the purposes of asserting all privileges, immunities or other protections from disclosure which may be asserted under applicable Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, and protection under the work-product doctrine (“ Privilege ”), (x) each of the members of the SpecCo Group, the MatCo Group and the AgCo Group shall be deemed to be the client with respect to Collective Benefit Services, and (y) SpecCo, MatCo or AgCo (or the applicable member of such Party’s Group), as the case may be, shall be deemed to be the client with respect to Sole Benefit Services. With respect to all Information subject to Privilege (“ Privileged Information ”), (A) the Parties shall have a shared Privilege for Privileged Information to the extent relating to Collective Benefit Services, and (B) SpecCo, MatCo or AgCo (or the applicable member of such Party’s Group), as the case may be, shall have Privilege for Privileged Information to the extent relating to Sole Benefit Services and shall control the assertion or waiver of such Privilege. For the avoidance of doubt, Privileged Information includes, but is not limited to, services rendered by legal counsel retained or employed by any Party (or any member of such Party’s respective Group), including outside counsel and in-house counsel.

 

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(b) Post-Separation Services . Each Party, on behalf of itself and each other member of its Group, acknowledges that legal and other professional services will be provided following the Relevant Time which will be rendered solely for the benefit of SpecCo (or a member of its Group), MatCo (or a member of its Group) or AgCo (or a member of its Group), as the case may be, while other such post-separation services following the Relevant Time may be rendered with respect to claims, proceedings, litigation, disputes, or other matters which involve members of two or more Groups. With respect to such post-separation services and related Privileged Information, the each of the Parties, on behalf of itself and each other member of its Group, agrees as follows:

(i) SpecCo shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Specialty Products Business, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group. SpecCo shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information that relates solely to the subject matter of any claims constituting Specialty Products Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by any member of the SpecCo Group, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group;

(ii) MatCo shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Materials Science Business, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group. MatCo shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information that relates solely to the subject matter of any claims constituting Materials Science Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by any member of the MatCo Group, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group; and

(iii) AgCo shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Agriculture Business, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group. AgCo shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information that relates solely to the subject matter of any claims constituting Agriculture Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by any member of the AgCo Group, whether or not the Privileged Information is in the possession of or under the control of any member of the SpecCo Group, MatCo Group or AgCo Group.

 

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(c) Each Party, on behalf of itself and each other member of its Group, agrees as follows in this Section  9.7(c) regarding all Privileges not allocated pursuant to the terms of Section  9.7(b) with respect to which the Parties shall have a shared Privilege. All Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve a member of two or more Groups in respect of which members of two or more Groups retain any responsibility or Liability under this Agreement, shall be subject to a shared Privilege among them.

(i) Subject to Sections 9.7(c)(ii) and 9.7(c)(iv) , no Party (or any member of its Group) may waive, nor allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which any other Party (or member of its Group) has a shared Privilege, without the consent of such other Party, which shall not be unreasonably withheld, conditioned or delayed. Consent shall be in writing, or shall be deemed to be granted unless written objection (the “ Privilege Waiver Objection Notice ”) is made within twenty (20) days after written notice upon the other Party requesting such consent.

(ii) In the event of any Action or Dispute solely between or among any of the Parties, or any members of their respective Groups, either such Party may waive a Privilege in which the other Party or member of such Party’s Group has a shared Privilege, without obtaining the consent of such other Party (or Parties), as applicable; provided , that such waiver of a shared Privilege shall be effective only as to the use of Information with respect to the Action or Dispute between or among the relevant Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared Privilege with respect to third parties.

(iii) In the event of any Action or Dispute involving a third party, if a Dispute arises between or among the Parties (or members of their respective Groups) regarding whether a Privilege should be waived to protect or advance the interest of any Party or its Group, each Party agrees that it shall, and shall cause each other member of its Group to, negotiate in good faith, endeavor to minimize any prejudice to the rights of the other Parties (or members of their respective Group), and shall not, and shall cause each other member of its Group not to, unreasonably withhold consent to any request for waiver by another Party. Each Party specifically agrees that it shall not, and shall cause each other member of its Group to not, withhold consent to waiver for any purpose except to protect its (or its Group’s) own legitimate interests.

(iv) If, within fifteen (15) days of receipt by the requesting Party of a written objection pursuant to Section  9.7(c)(i) (the “ Privilege Waiver Negotiation Period ”), the Parties have not succeeded in negotiating a resolution to any Dispute regarding whether a Privilege should be waived, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance its interest, the requesting Party shall provide the objecting Party fifteen (15) days written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings in accordance with Section  10.1(c) to enjoin such disclosure under applicable Law shall be deemed full and effective consent to such disclosure, and each Party agrees that any such Privilege shall not be waived by such Party (or any member of its Group) until the final determination of such Dispute in accordance with Section  10.1(c) .

 

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(v) Upon receipt by any Party or any other member of its Group of any subpoena, discovery or other request which, upon a good faith reading, would reasonably be construed as calling for the production or disclosure of Information subject to a shared Privilege or as to which another Party has the sole right hereunder to assert a Privilege, or if any Party (or other member of its Group) obtains knowledge that any of its or member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably, upon a good faith reading, would reasonably be construed as calling for the production or disclosure of such Privileged Information, such Party shall promptly notify the other Party or Parties of the existence of the request and shall provide the other Party or Parties (and the relevant members of its or their respective Group) a reasonable opportunity to review the Information and to assert any rights it or they may have under this Section  9.7 or otherwise to prevent, restrict or otherwise limit the production or disclosure of such Privileged Information.

(d) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of SpecCo, MatCo and AgCo as set forth in Sections 9.6 and 9.7 , to maintain and cause to be maintained the confidentiality of Privileged Information and to assert and maintain, and cause to be asserted and maintained, all applicable Privileges, including, but not limited to, attorney-client or attorney work product privileges. The access to Information being granted pursuant to Sections 5.1 , 6.3 , 8.5 and 9.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 5.1 , 6.3 , 8.5 and 9.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Sections 5.1 , 6.5 and 8.5 hereof, and the transfer of Privileged Information between and among the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.

Section 9.8 Conflicts Waiver.

(a) Each of the Parties acknowledges, on behalf of itself and each other member of its Group, that DowDuPont and DuPont have retained the counsel set forth on Schedule 9.8(a) (“ Historical DuPont Counsel ”) to act as their counsel in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby (the “ Section  9.8 Matters ”) and that Historical DuPont Counsel has not acted as counsel for any other Person in connection with the Section 9.8 Matters and that no other party or Person has the status of a client of Historical DuPont Counsel for conflict of interest or any other purposes as a result thereof. MatCo hereby agrees on behalf of itself and each member of its Group that, in the event that a dispute arises between or among (x) any member of the MatCo Group, any MatCo Indemnitee or any of their respective Affiliates, on one hand, and (y) any member of the AgCo Group, any AgCo Indemnitee or any of their respective Affiliates or any member of the SpecCo Group, any SpecCo Indemnitee or any of their respective Affiliates, as applicable, on the other hand, Historical DuPont Counsel may represent any member of the AgCo Group, any AgCo Indemnitee or any of their respective Affiliates or any member of the SpecCo Group, any SpecCo Indemnitee or any of their respective Affiliates, as applicable, in such dispute even

 

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though the interests of such Person may be directly adverse to any Person described in clause (x), and even though Historical DuPont Counsel may have represented a Person described in clause (x), in a matter substantially related to such dispute, or may be handling ongoing matters for a Person described in clause (x), and MatCo hereby waives, on behalf of itself and each other Person described in clause (x), as applicable, any conflict of interest in connection with such representation by Historical DuPont Counsel. Each of AgCo, SpecCo and MatCo, on behalf of itself and each other member of its Group, agrees to take, and to cause their respective then-Affiliates to take, all steps necessary to implement the intent of this Section  9.8(a) . Each of AgCo, SpecCo and MatCo, on behalf of itself and each other member of its Group, further agrees that Historical DuPont Counsel and their respective partners and employees are third party beneficiaries of this Section  9.8(a) .

(b) Each of the Parties acknowledges, on behalf of itself and each other member of its Group, that DowDuPont and Dow have retained the counsel set forth on Schedule 9.8(b) (“ Historical Dow Counsel ”) to act as their counsel in connection with the Section 9.8 Matters and that Historical Dow Counsel has not acted as counsel for any other Person in connection with the Section 9.8 Matters and that no other party or Person has the status of a client of Historical Dow Counsel for conflict of interest or any other purposes as a result thereof. AgCo and SpecCo hereby agree on behalf of themselves and each member of their Groups that, in the event that a dispute arises between or among (x) any member of the AgCo Group, any AgCo Indemnitee or any of their respective Affiliates or any member of the SpecCo Group, any SpecCo Indemnitee or any of their respective Affiliates, as applicable, on one hand, and (y) any member of the MatCo Group, any MatCo Indemnitee or any of their respective Affiliates, on the other hand, Historical Dow Counsel may represent any member of the MatCo Group, any MatCo Indemnitee or any of their respective Affiliates in such dispute even though the interests of such Person may be directly adverse to any Person described in clause (x), and even though Historical Dow Counsel may have represented a Person described in clause (x), in a matter substantially related to such dispute, or may be handling ongoing matters for a Person described in clause (x), and AgCo and SpecCo hereby waive, on behalf of themselves and each other Person described in clause (x), as applicable, any conflict of interest in connection with such representation by Historical Dow Counsel. Each of AgCo, SpecCo and MatCo, on behalf of itself and each other member of its Group, agrees to take, and to cause their respective then-Affiliates to take, all steps necessary to implement the intent of this Section  9.8(b) . Each of AgCo, SpecCo and MatCo, on behalf of itself and each other member of its Group, further agrees that Historical Dow Counsel and their respective partners and employees are third party beneficiaries of this Section  9.8(b) .

Section 9.9 Ownership of Information . Any Information owned by one Party or any member of its Group that is provided to a requesting Party pursuant to this Article IX shall be deemed to remain the property of the providing Party (or member of its Group). Unless expressly and specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights to any Party (or member of its Group) of license or otherwise in any such Information, whether by implication, estoppel or otherwise.

 

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Section 9.10 Prior Contracts . Each Party, on behalf of itself and each member of its Group and their respective successors and assigns, acknowledges and agrees that, notwithstanding any Contract governing the use of Intellectual Property or Confidential Information entered into by an employee or contractor of such Party or its Group prior to the Effective Time, to the extent such employee or contractor is working for or on behalf of another Party or a member of its Group after the Effective Time, such employee or contractor shall not be deemed in breach of such Contract due to such employee or contractor using such Intellectual Property or Confidential Information in his or her capacity as an employee or contractor of such other Party (or member of such other Party’s Group), or disclosing such Intellectual Property or Confidential Information to another Party (or member of such Party’s Group) to the extent that this Agreement or an Ancillary Agreement grants a license to, or otherwise permits such other Party (or member of such Party’s Group) to use or have disclosed to it, such Intellectual Property or Confidential Information (and in the case of use by such employee or contractor, solely to the extent such use is permitted by such Party or member of such Party’s Group pursuant to the terms of this Agreement or such Ancillary Agreement).

ARTICLE X

DISPUTE RESOLUTION

Section 10.1 Negotiation and Arbitration .

(a) In the event of a controversy, dispute or Action between the Parties arising out of, in connection with, or in relation to this Agreement or any of the transactions contemplated hereby, including with respect to the interpretation, performance, nonperformance, validity or breach thereof, and including any Action based on contract, tort, statute or constitution, including but not limited to the arbitrability of such controversy, dispute or Action and any controversy, dispute or Action related to Section  9.7 concerning privilege issues (a “ Dispute ”), the following provisions shall apply, unless expressly specified herein.

(b) Negotiation . The following procedures shall apply with respect to Disputes:

(i) Except in (i) cases of Disputes regarding any of the matters set forth in Section  5.6 (in which case the procedure in Section  5.6 shall apply), (ii) cases of Disputes regarding any of the matters subject to the procedures set out in Section  6.2(c) (in which case the procedures set out in Section  6.2(c) shall apply), (iii) cases of Disputes regarding any of the matters subject to the procedures set out in Section  7.1(f) , Section  7.2(c)(i) or Section  7.2(c)(iii) (in which case the procedures set out in Section  7.1(f) , Section  7.2(c)(i) or Section  7.2(c)(iii) , as applicable, shall apply) and (iv) cases of Disputes regarding privilege issues (in which case the procedure in Section  9.7(c) shall apply), (a) either Party may deliver written notice of a Dispute (a “ General Dispute Notice ”) and (b) the general counsels of the relevant Parties and/or such other executive officer designated by the relevant Party in writing shall thereupon negotiate for a reasonable period of time to settle such Dispute; provided , however, that such reasonable period shall not, unless otherwise agreed by each relevant Party in writing, exceed ninety (90) days from the date of receipt by the relevant Party of the General Dispute Notice (the “ General Negotiation Period ”).

 

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(ii) With respect to the subject Dispute, no Party shall be entitled to rely upon the expiry of any limitations period or contractual deadline during the period between the date of receipt of the relevant Dispute Notice and the earlier to occur of (A) the date of any arbitration being commenced under this Section  10.1 with respect to the Dispute and (B) the later to occur of (x) one hundred and eighty (180) days after the date of receipt of the relevant Dispute Notice and (y) the expiration of the applicable Negotiation Period.

(iii) All offers, promises, conduct and statements, whether oral or written, made in the course of the discussions and negotiations related to the relevant Negotiation Period (or the First Non-Compete Discussion Period, the First Shared Historical DuPont Escalation Negotiation Period or the Managing Party First Discussion, where applicable) by any of the Parties (or the other members of their respective Group), their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties (or any other member of a Group) and, in any Action, shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state or foreign rule and evidence of such discussions shall not be admissible in any future Action between the Parties, any member of their respective Groups and/or any Indemnitee, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation or discussion.

(c) Arbitration . If the Dispute has not been resolved for any reason as of the expiration of the applicable Negotiation Period, such Dispute shall be submitted to final and binding arbitration administered in accordance with the International Arbitration Rules of the American Arbitration Association (“ AAA ”) then in effect (the “ Rules ”), except as modified herein.

(i) The arbitration shall be conducted by a three-member arbitral tribunal (the “ Arbitral Tribunal ”). The claimant shall appoint one arbitrator in its notice of arbitration and the respondent shall appoint one arbitrator within fourteen (14) days after the appointment of the first arbitrator. The third arbitrator, who shall serve as chair of the Arbitral Tribunal, shall be jointly appointed by the two party-nominated arbitrators within twenty-one (21) days of the appointment of the second arbitrator. If there are more than two Parties to the arbitration (with any Parties that are Affiliates of each other being deemed for this purpose only to be a single Party), such Parties shall have twenty (20) days to agree on a panel of three arbitrators. Any arbitrator not timely appointed by the Parties shall be appointed by the AAA according to its Rules.

(ii) In resolving any Dispute to the extent it involves contractual issues under this Agreement, the arbitrators shall apply the governing law specified herein.

(iii) Arbitration under this Section  10.1 shall be the sole and exclusive remedy for any Dispute, and any award rendered by the arbitrators shall be final and binding on the Parties and judgment thereupon may be entered in any court of competent jurisdiction having jurisdiction thereof, including any court having jurisdiction over the relevant Party or its Assets.

 

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(iv) The Arbitral Tribunal shall be entitled, if appropriate, to award any remedy, including monetary damages, specific performance and all other forms of legal and equitable relief that is in accordance with the terms of this Agreement; provided , however , that the Arbitral Tribunal shall have no authority or power to (A) limit, expand, alter, modify, revoke or suspend any condition or provision of this Agreement, nor any right or power to award punitive, exemplary, treble or similar damages, or (B) review, resolve or adjudicate, or render any award or grant any relief in respect of, any issue, matter, claim or Dispute other than the specific Dispute or Disputes submitted by the Parties to such Arbitral Tribunal for final and binding arbitration, including any Disputes consolidated therewith in accordance with Section  10.1(c)(vii) .

(v) Each Party shall bear its own costs and attorneys’ fees in any arbitration conducted under this Article X , and each party to such arbitration shall bear an equal portion of the fees and expenses of the arbitration including the Arbitral Tribunal’s fees and the fees and expenses of the AAA; provided , however , that the Arbitral Tribunal may award the prevailing party the recovery of its costs and attorneys’ fees and other reasonable and documented out-of-pocket expenses (including the fees and expenses of the arbitration, the Arbitral Tribunal’s fees and the fees and expenses of the AAA) if the Arbitral Tribunal finds that any of the claims or defenses of the non-prevailing party were frivolous or made in bad faith; provided, further, that if any parties to the arbitration are Affiliates of each other, they shall be counted as a single party to the arbitration for purposes of apportioning such fees and expenses.

(vi) The arbitration shall be held, and the award shall be rendered, in New York County, New York, in the English language.

(vii) The Arbitral Tribunal may, if requested by a Party, consolidate an arbitration with respect to a Dispute (including a Dispute with respect to this Agreement) with any other arbitration with respect to any other Dispute with respect to this Agreement or any dispute with regards to any Designated Ancillary Agreement, if the subject matter thereof is substantially similar or otherwise arises out of or relates essentially to the same or substantially similar facts and, with the prior written consent of the Parties engaged in the applicable disputes, any other disputes between such Parties. Such consolidated arbitration shall be determined by the Arbitral Tribunal appointed for the arbitration proceeding that was commenced first in time, unless otherwise agreed in writing by the applicable Parties to the Dispute.

(viii) The Arbitral Tribunal (and, if applicable, Emergency Arbitrator) shall have the full authority to grant any pre-arbitral injunction, pre-arbitral attachment, interim or conservatory measure or other order in aid of arbitration proceedings (“ Interim Relief ”). The Parties shall exclusively submit any application for Interim Relief to only: (A) the Arbitral Tribunal; or (B) prior to the constitution of the Arbitral Tribunal, an Emergency Arbitrator appointed in the manner provided for in the Rules. Any Interim Relief so issued shall, to the extent permitted by applicable Law, be

 

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deemed a final arbitration award for purposes of enforceability, and, moreover, shall also be deemed a term and condition of this Agreement subject to specific performance in Section  12.19 . The foregoing procedures shall constitute the exclusive means of seeking Interim Relief, provided , however , that (i) the Arbitral Tribunal shall have the power to continue, review, vacate or modify any Interim Relief granted by an Emergency Arbitrator, and the Arbitral Tribunal shall apply a de novo standard of review to the factual and legal findings of the Emergency Arbitrator and conduct any such proceeding with respect to the actions of the Emergency Arbitrator on an expedited basis; and (ii) in the event an Emergency Arbitrator or the Arbitral Tribunal issues an order granting, denying or otherwise addressing Interim Relief (a “ Decision on Interim Relief ”), any Party may apply to enforce or require specific performance of such Decision on Interim Relief in any court of competent jurisdiction.

(ix) In the event any proceeding is brought in any court of competent jurisdiction to enforce the dispute resolution provisions in this Section  10.1 , to obtain relief as described in this Section  10.1 , or to enforce any award, relief or decision issued by an Arbitral Tribunal, each Party irrevocably consents to the service of process in any action by the mailing of copies of the process to the Parties as provided in Section  12.6 . Service effected as provided in this manner will become effective five (5) days after the mailing of the process.

(x) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  10.1 .

(d) Confidentiality. Without limiting the provisions of the Rules, unless otherwise agreed in writing by or among the relevant Parties or permitted by this Agreement, the relevant Parties shall keep, and shall cause the members of their applicable Group to keep, confidential all matters relating to the arbitration (including the existence of the proceeding and all of its elements and including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions) or the award, and any negotiations, conferences and discussions pursuant to this Article X shall be treated as compromise and settlement negotiations; provided , that such matters may be disclosed (i) to the extent reasonably necessary in any proceeding brought to enforce this Article X or the award or for entry of a judgment upon the award and (ii) to the extent otherwise required by Law. Nothing said or disclosed, nor any document produced, in the course of any negotiations, conferences and discussions that is not otherwise independently discoverable shall be offered or received as

 

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evidence or used for impeachment or for any other purpose in any current or future arbitration. In the event any Party makes application to any court in connection with this Section  10.1(d) (including any proceedings to enforce a final award or any Interim Relief), that party shall take all steps reasonably within its power to cause such application, and any exhibits (including copies of any award or decisions of the Arbitral Tribunal or Emergency Arbitrator) to be filed under seal, shall oppose any challenge by any third party to such sealing, and shall give the other Party immediate notice of such challenge.

Section 10.2 Continuity of Service and Performance . Unless otherwise agreed in writing, the Parties will continue to provide service and honor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions of this Article X with respect to all matters not subject to such dispute resolution.

ARTICLE XI

INSURANCE

Section 11.1 Insurance Matters .

(a) With respect to Liabilities of Historical DuPont that (x) constitute Materials Science Liabilities (other than those incurred by a member of the AgCo Group or the SpecCo Group) or (y) are otherwise incurred by a member of the MatCo Group, in each case to the extent related to or arising from occurrences prior to the date of the MatCo Distribution, any rights to insurance coverage applicable to those Liabilities under Commercial Insurance Policies issued to any members of the SpecCo Group or the AgCo Group that were members of Historical DuPont, respectively, are hereby assigned by each of SpecCo and AgCo (on behalf of itself and the applicable members of its Group) to the applicable members of the MatCo Group on that same date. SpecCo or AgCo, as applicable, shall (or shall cause the applicable member of its respective Group to) provide the applicable member of the MatCo Group with, from the date of the MatCo Distribution, access to, and the right to make claims under, the applicable Commercial Insurance Policy; provided , that such access to, and the right to make claims under, such Commercial Insurance Policy shall be subject to the terms, conditions and exclusions of such policy, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses, and shall be subject to the following:

(i) If permitted under such Commercial Insurance Policy, the applicable members of the MatCo Group shall be responsible for the submission, administration and management of any claims under such Commercial Insurance Policy; provided , that MatCo shall provide reasonable notice to SpecCo or AgCo, or the relevant member of its respective Group, as applicable, prior to submitting any such claim;

(ii) If such Commercial Insurance Policy does not permit the applicable members of the MatCo Group to directly submit claims under such Commercial Insurance Policy, MatCo shall, or shall cause the applicable member of the MatCo Group to, report any potential claims under such Commercial Insurance Policy as soon as practicable to SpecCo or AgCo, as applicable, and SpecCo or AgCo, as

 

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applicable, shall, or shall cause the relevant member of its respective Group to, submit such claims directly to the applicable insurer; provided , that with respect to any such claims, MatCo (or the applicable member of the MatCo Group) shall (x) be responsible for (A) the preparation of any documents or forms that are required for the submission of such claims and (B) the administration and management of such claims after submission, and (y) provide SpecCo or AgCo, or the relevant member of its respective Group, as applicable, with such documents, forms, or other information necessary for the submission of such claims by SpecCo or AgCo, or the relevant member of its respective Group, on behalf of MatCo (or the applicable member of the MatCo Group);

(iii) MatCo (or the applicable members of the MatCo Group) shall be responsible for any payments to the applicable Commercial Insurer under such Commercial Insurance Policy relating to its claims submissions, and shall indemnify, hold harmless and reimburse SpecCo (and the relevant members of the SpecCo Group) or AgCo (and the relevant member of the AgCo Group), as applicable, for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses incurred by SpecCo (or any members of the SpecCo Group) or AgCo (or any members of the AgCo Group), as applicable, to the extent resulting from any access to, or any claims made by MatCo (or any members of the MatCo Group) under, any such Commercial Insurance Policy provided pursuant to this Section  11.1(a) (with respect to Materials Science Liabilities), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are submitted directly or indirectly by MatCo, a member of the MatCo Group, its or their employees or third parties;

(iv) MatCo (or the applicable members of the MatCo Group) shall bear (and none of SpecCo, AgCo or the members of their respective Group shall have any obligation to repay or reimburse any members of the MatCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by MatCo or any members of the MatCo Group under such Commercial Insurance Policy (unless otherwise constituting an Agriculture Liability or a Specialty Products Liability); and

(v) No member of the MatCo Group, in connection with making a claim under any such Commercial Insurance Policy pursuant to this Section  11.1(a) , shall take any action that would be reasonably likely to (w) have an adverse impact on the then-current relationship between any member of the SpecCo Group or the AgCo Group, on the one hand, and the applicable insurer, on the other hand; (x) result in the applicable insurer terminating or reducing coverage to, or increasing the amount of any premium owed by, any member of the SpecCo Group or the AgCo Group under such policy; (y) otherwise compromise, jeopardize or interfere with the rights of any member of the SpecCo Group or the AgCo Group under such policy; or (z) otherwise compromise or impair the ability of SpecCo or AgCo, as applicable, to enforce its rights with respect to any indemnification under or arising out of this Agreement, and each of SpecCo and AgCo shall have the right to cause MatCo to desist, or cause any other member of the MatCo Group to desist, from any action that it reasonably determines would compromise or impair its rights in accordance with this clause (z) ; provided , that this Section 11.1(a)(v) shall not preclude or otherwise restrict any member of the MatCo Group from reporting claims to insurers in the ordinary course of business.

 

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(b) With respect to Liabilities of Historical DuPont that (x) constitute Agriculture Liabilities (other than those incurred by a member of the SpecCo Group or the MatCo Group) or (y) are otherwise incurred by a member of the AgCo Group, in each case to the extent related to or arising from occurrences prior to the date of the AgCo Distribution, any rights to insurance coverage applicable to those Liabilities under Commercial Insurance Policies issued to any members of the SpecCo Group that were members of Historical DuPont are hereby assigned by SpecCo (on behalf of itself and the applicable members of its Group) to the applicable members of the AgCo Group on that same date. SpecCo shall (or shall cause the applicable member of its Group to) provide the applicable member of the AgCo Group with, from the date of the AgCo Distribution, access to, and the right to make claims under, the applicable Commercial Insurance Policy; provided , that such access to, and the right to make claims under, such Commercial Insurance Policy shall be subject to the terms, conditions and exclusions of such policy, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses, and shall be subject to the following:

(i) If permitted under such Commercial Insurance Policy, the applicable members of the AgCo Group shall be responsible for the submission, administration and management of any claims under such Commercial Insurance Policy; provided , that AgCo shall provide reasonable notice to SpecCo, or the relevant member of its Group, as applicable, prior to submitting any such claim;

(ii) If such Commercial Insurance Policy does not permit the applicable members of the AgCo Group to directly submit claims under such Commercial Insurance Policy, AgCo shall, or shall cause the applicable member of the AgCo Group to, report any potential claims under such Commercial Insurance Policy as soon as practicable to SpecCo, and SpecCo shall, or shall cause the relevant member of its Group to, submit such claims directly to the applicable insurer; provided , that with respect to any such claims, AgCo (or the applicable member of the AgCo Group) shall (x) be responsible for (A) the preparation of any documents or forms that are required for the submission of such claims and (B) the administration and management of such claims after submission, and (y) provide SpecCo, or the relevant member of its Group, with such documents, forms or other information necessary for the submission of such claims by SpecCo, or the relevant member of its Group, on behalf of AgCo (or the applicable member of the AgCo Group);

(iii) AgCo (or the applicable members of the AgCo Group) shall be responsible for any payments to the applicable Commercial Insurer under such Commercial Insurance Policy relating to its claims submissions, and shall indemnify, hold harmless and reimburse SpecCo (and the relevant members of the SpecCo Group) for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses incurred by SpecCo (or any members of the SpecCo Group), to the extent resulting from any access to, or any claims made by AgCo (or any members of the AgCo Group) under, any such Commercial Insurance Policy provided

 

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pursuant to this Section  11.1(b) (with respect to Agriculture Liabilities), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are submitted directly or indirectly by AgCo, a member of the AgCo Group, its or their employees or third parties;

(iv) AgCo (or the applicable members of the AgCo Group) shall bear (and none of SpecCo or the members of its Group shall have any obligation to repay or reimburse any members of the AgCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by AgCo or any members of the AgCo Group under such Commercial Insurance Policy (unless otherwise constituting a Materials Science Liability or a Specialty Products Liability); and

(v) No member of the AgCo Group, in connection with making a claim under any such Commercial Insurance Policy pursuant to this Section  11.1(b) , shall take any action that would be reasonably likely to (w) have an adverse impact on the then-current relationship between any member of the SpecCo Group, on the one hand, and the applicable insurer, on the other hand; (x) result in the applicable insurer terminating or reducing coverage to, or increasing the amount of any premium owed by, any member of the SpecCo Group under such policy; (y) otherwise compromise, jeopardize or interfere with the rights of any member of the SpecCo Group under such policy; or (z) otherwise compromise or impair the ability of SpecCo to enforce its rights with respect to any indemnification under or arising out of this Agreement, and SpecCo shall have the right to cause AgCo to desist, or cause any other member of the AgCo Group to desist, from any action that it reasonably determines would compromise or impair its rights in accordance with this clause (z); provided , that this Section  11.1(b)(v) shall not preclude or otherwise restrict any member of the AgCo Group from reporting claims to insurers in the ordinary course of business.

(c) With respect to Liabilities of Historical Dow that (x) constitute Specialty Products Liabilities (other than those incurred by a member of the MatCo Group or the AgCo Group) or (y) are otherwise incurred by a member of the SpecCo Group, in each case to the extent related to or arising from occurrences prior to the date of the AgCo Distribution, any rights to insurance coverage applicable to those Liabilities under Commercial Insurance Policies issued to any members of the AgCo Group that were members of Historical Dow are hereby assigned by AgCo (on behalf of itself and the applicable members of its Group) to the applicable members of the SpecCo Group on that same date. AgCo shall (or shall cause the applicable member of its Group to) provide the applicable member of the SpecCo Group with, from the date of the AgCo Distribution, access to, and the right to make claims under, the applicable Commercial Insurance Policy; provided , that such access to, and the right to make claims under, such Commercial Insurance Policy shall be subject to the terms, conditions and exclusions of such policy, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses, and shall be subject to the following:

 

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(i) If permitted under such Commercial Insurance Policy, the applicable members of the SpecCo Group shall be responsible for the submission, administration and management of any claims under such Commercial Insurance Policy; provided , that SpecCo shall provide reasonable notice to AgCo, or the relevant member of its respective Group, prior to submitting any such claim;

(ii) If such Commercial Insurance Policy does not permit the applicable members of the SpecCo Group to directly submit claims under such Commercial Insurance Policy, SpecCo shall, or shall cause the applicable member of the SpecCo Group to, report any potential claims under such Commercial Insurance Policy as soon as practicable to AgCo, and AgCo shall, or shall cause the relevant member of its Group to, submit such claims directly to the applicable insurer; provided , that with respect to any such claims, SpecCo (or the applicable member of the SpecCo Group) shall (x) be responsible for (A) the preparation of any documents or forms that are required for the submission of such claims and (B) the administration and management of such claims after submission, and (y) provide AgCo, or the relevant member of its Group, with such documents, forms or other information necessary for the submission of such claims by AgCo, or the relevant member of its Group, on behalf of SpecCo (or the applicable member of the SpecCo Group);

(iii) SpecCo (or the applicable members of the SpecCo Group) shall be responsible for any payments to the applicable Commercial Insurer under such Commercial Insurance Policy relating to its claims submissions, and shall indemnify, hold harmless and reimburse AgCo (and the relevant members of the AgCo Group) for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses incurred by AgCo (or any members of the AgCo Group) to the extent resulting from any access to, or any claims made by SpecCo (or any members of the SpecCo Group) under, any such Commercial Insurance Policy provided pursuant to this Section  11.1(c) (with respect to Specialty Products Liabilities), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are submitted directly or indirectly by SpecCo, a member of the SpecCo Group, its or their employees or third parties;

(iv) SpecCo (or the applicable members of the SpecCo Group) shall bear (and none of AgCo or the members of its Group shall have any obligation to repay or reimburse any members of the SpecCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by SpecCo or any members of the SpecCo Group under such Commercial Insurance Policy (unless otherwise constituting an Agriculture Liability or a Materials Science Liability); and

(v) No member of the SpecCo Group, in connection with making a claim under any such Commercial Insurance Policy pursuant to this Section  11.1(c) , shall take any action that would be reasonably likely to (w) have an adverse impact on the then-current relationship between any member of the AgCo Group on the one hand, and the applicable insurer, on the other hand; (x) result in the applicable insurer terminating or reducing coverage to, or increasing the amount of any premium owed by, any member of the AgCo Group under such policy; (y) otherwise compromise,

 

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jeopardize or interfere with the rights of any member of the AgCo Group under such policy; or (z) otherwise compromise or impair the ability of AgCo to enforce its rights with respect to any indemnification under or arising out of this Agreement, and AgCo and shall have the right to cause SpecCo to desist, or cause any other member of the SpecCo group to desist, from any action that it reasonably determines would compromise or impair its rights in accordance with this clause (z); provided , that this Section  11.1(c)(v) shall not preclude or otherwise restrict any member of the SpecCo Group from reporting claims to insurers in the ordinary course of business.

(d) With respect to Liabilities of Historical Dow that (x) constitute Agriculture Liabilities (other than those incurred by a member of the SpecCo Group or a the MatCo Group) or (y) are otherwise incurred by a member of the AgCo Group, in each case to the extent related to or arising from occurrences prior to the date of the MatCo Distribution, any rights to insurance coverage applicable to those Liabilities under Commercial Insurance Policies issued to any members of the MatCo Group that were members of Historical Dow are hereby assigned by MatCo (on behalf of itself and the applicable members of its Group) to the applicable members of the AgCo Group on that same date. MatCo shall (or shall cause the applicable member of its Group to) provide the applicable member of the AgCo Group with, from the date of the MatCo Distribution, access to, and the right to make claims under, the applicable Commercial Insurance Policy; provided , that such access to, and the right to make claims under, such Commercial Insurance Policy shall be subject to the terms, conditions and exclusions of such policy, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses, and shall be subject to the following:

(i) If permitted under such Commercial Insurance Policy, the applicable members of the AgCo Group shall be responsible for the submission, administration and management of any claims under such Commercial Insurance Policy; provided , that AgCo shall provide reasonable notice to MatCo, or the relevant member of its Group, as applicable, prior to submitting any such claim;

(ii) If such Commercial Insurance Policy does not permit the applicable members of the AgCo Group to directly submit claims under such Commercial Insurance Policy, AgCo shall, or shall cause the applicable member of the AgCo Group to, report any potential claims under such Commercial Insurance Policy as soon as practicable to MatCo, and MatCo shall, or shall cause the relevant member of its Group to, submit such claims directly to the applicable insurer; provided , that with respect to any such claims, AgCo (or the applicable member of the AgCo Group) shall (x) be responsible for (A) the preparation of any documents or forms that are required for the submission of such claims and (B) the administration and management of such claims after submission, and (y) provide MatCo, or the relevant member of its Group, with such documents, forms or other information necessary for the submission of such claims by MatCo, or the relevant member of its Group, on behalf of AgCo (or the applicable member of the AgCo Group);

 

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(iii) AgCo (or the applicable members of the AgCo Group) shall be responsible for any payments to the applicable Commercial Insurer under such Commercial Insurance Policy relating to its claims submissions, and shall indemnify, hold harmless and reimburse MatCo (and the relevant members of the MatCo Group), as applicable, for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses incurred by MatCo (or any members of the MatCo Group), to the extent resulting from any access to, or any claims made by AgCo (or any members of the AgCo Group) under, any such Commercial Insurance Policy provided pursuant to this Section  11.1(d) (with respect to Agriculture Liabilities), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are submitted directly or indirectly by AgCo, a member of the AgCo Group, its or their employees or third parties;

(iv) AgCo (or the applicable members of the AgCo Group) shall bear (and none of MatCo or the members of the MatCo Group shall have any obligation to repay or reimburse any members of the AgCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by AgCo or any members of the AgCo Group under such Commercial Insurance Policy (unless otherwise constituting a Materials Science Liability or a Specialty Products Liability); and

(v) No member of the AgCo Group, in connection with making a claim under any such Commercial Insurance Policy pursuant to this Section  11.1(d) , shall take any action that would be reasonably likely to (w) have an adverse impact on the then-current relationship between any member of the MatCo Group, on the one hand, and the applicable insurer, on the other hand; (x) result in the applicable insurer terminating or reducing coverage to, or increasing the amount of any premium owed by, any member of the MatCo Group under such policy; (y) otherwise compromise, jeopardize or interfere with the rights of any member of the MatCo Group under such policy; or (z) otherwise compromise or impair the ability of MatCo to enforce its rights with respect to any indemnification under or arising out of this Agreement, and MatCo shall have the right to cause AgCo to desist, or cause any other member of the AgCo Group to desist, from any action that it reasonably determines would compromise or impair its rights in accordance with this clause (z); provided , that this Section  11.1(d)(v) shall not preclude or otherwise restrict any member of the AgCo Group from reporting claims to insurers in the ordinary course of business.

(e) With respect to Liabilities of Historical Dow that (x) constitute Specialty Products Liabilities (other than those incurred by a member of the AgCo Group or a the MatCo Group) or (y) are otherwise incurred by a member of the SpecCo Group, in each case to the extent related to or arising from occurrences prior to the date of the MatCo Distribution, any rights to insurance coverage applicable to those Liabilities under Commercial Insurance Policies issued to any members of the MatCo Group that were members of Historical Dow are hereby assigned by MatCo (on behalf of itself and the applicable members of its Group) to the applicable members of the SpecCo Group on that same date. MatCo shall (or shall cause the applicable member of its Group to) provide the applicable member of the SpecCo Group with, from the date of the MatCo Distribution, access to, and the right to make claims under, the applicable Commercial Insurance Policy; provided , that such access to, and the right to make claims under, such Commercial Insurance Policy shall be subject to the terms, conditions and exclusions of such policy, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses, and shall be subject to the following:

 

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(i) If permitted under such Commercial Insurance Policy, the applicable members of the SpecCo Group shall be responsible for the submission, administration and management of any claims under such Commercial Insurance Policy; provided , that SpecCo shall provide reasonable notice to MatCo, or the relevant member of its Group, as applicable, prior to submitting any such claim;

(ii) If such Commercial Insurance Policy does not permit the applicable members of the SpecCo Group to directly submit claims under such Commercial Insurance Policy, SpecCo shall, or shall cause the applicable member of the SpecCo Group to, report any potential claims under such Commercial Insurance Policy as soon as practicable to MatCo, and MatCo shall, or shall cause the relevant member of its Group to, submit such claims directly to the applicable insurer; provided , that with respect to any such claims, SpecCo (or the applicable member of the SpecCo Group) shall (x) be responsible for (A) the preparation of any documents or forms that are required for the submission of such claims and (B) the administration and management of such claims after submission, and (y) provide MatCo, or the relevant member of its Group, with such documents, forms or other information necessary for the submission of such claims by MatCo, or the relevant member of its Group, on behalf of SpecCo (or the applicable member of the SpecCo Group);

(iii) SpecCo (or the applicable members of the SpecCo Group) shall be responsible for any payments to the applicable Commercial Insurer under such Commercial Insurance Policy relating to its claims submissions, and shall indemnify, hold harmless and reimburse MatCo (and the relevant member of the MatCo Group), as applicable, for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses incurred by MatCo (or any members of the MatCo Group), as applicable, to the extent resulting from any access to, or any claims made by SpecCo (or any members of the SpecCo Group) under, any such Commercial Insurance Policy provided pursuant to this Section  11.1(e) (with respect to Specialty Products Liabilities), including any indemnity payments, settlements, judgments, legal fees and allocated claims expenses and claim handling fees, whether such claims are submitted directly or indirectly by SpecCo, a member of the SpecCo Group, its or their employees or third parties;

(iv) SpecCo (or the applicable members of the SpecCo Group) shall bear (and none of MatCo or the members of the MatCo Group shall have any obligation to repay or reimburse any members of the SpecCo Group for) and shall be liable for all excluded, uninsured, uncovered, unavailable or uncollectible amounts of all such claims made by SpecCo or any members of the SpecCo Group under such Commercial Insurance Policy (unless otherwise constituting an Agriculture Liability or a Materials Science Liability); and

 

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(v) No member of the SpecCo Group, in connection with making a claim under any such Commercial Insurance Policy pursuant to this Section  11.1(e) , shall take any action that would be reasonably likely to (w) have an adverse impact on the then-current relationship between any member of the MatCo Group, on the one hand, and the applicable insurer, on the other hand; (x) result in the applicable insurer terminating or reducing coverage to, or increasing the amount of any premium owed by, any member of the MatCo Group under such policy; (y) otherwise compromise, jeopardize or interfere with the rights of any member of the MatCo Group under such policy; or (z) otherwise compromise or impair the ability of MatCo to enforce its rights with respect to any indemnification under or arising out of this Agreement, and MatCo shall have the right to cause SpecCo to desist, or cause any other member of the SpecCo group to desist, from any action that it reasonably determines would compromise or impair its rights in accordance with this clause (z); provided , that this Section  11.1(e)(v) shall not preclude or otherwise restrict any member of the SpecCo Group from reporting claims to insurers in the ordinary course of business.

(f) With respect to any Commercial Insurance Policies whose rights are shared between and/or among SpecCo, AgCo and MatCo (or any member of their respective Group), respectively, claims shall be paid, any self-insurance pertaining thereto shall be applied, and the applicable limits under such Commercial Insurance Policies shall be reduced, in each case, in accordance with the terms of such Commercial Insurance Policies and without any priority or preference shown or given to any of SpecCo, AgCo or MatCo (or any member of their respective Group), absent any written agreement otherwise; provided , however , none of SpecCo, AgCo or MatCo (or any member of their respective Group) shall accelerate or delay either the notification and submission of claims, on the one hand, or the demand for coverage for and receipt of insurance payments, on the other hand, in a manner that would differ from that which each would follow in the ordinary course when acting without regard to sufficiency of limits or the terms of self-insurance.

Section 11.2 Liability Policies .

(a) After the MatCo Distribution, the members of the SpecCo Group shall not, without the Consent of any affected Person within the MatCo Group (or the Consent of MatCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of that Person who is or was covered under the directors and officers liability insurance policies, fiduciary liability insurance policies, primary and excess general liability policies, products liability, pollution liability, workers compensation, auto liability and cyber data breach or any other liability policy, as maintained by the members of the SpecCo Group prior to the MatCo Distribution (collectively, “ SpecCo Liability Policies ”) in respect of occurrences, or alleged injury or damage taking place prior to the MatCo Distribution (for the avoidance of doubt, (a) the expiration of any SpecCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the SpecCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the MatCo Group who is or was covered under the SpecCo Liability Policies). Subject to Section  11.1(a) , the members of the SpecCo Group shall reasonably cooperate with any Person who is or was covered by any SpecCo Liability Policy at

 

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or prior to the MatCo Distribution in such Person’s pursuit of any coverage claims under such SpecCo Liability Policies that would inure to the benefit of such Person. The members of the SpecCo Group shall allow the members of the MatCo Group, and their respective agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant SpecCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the MatCo Group, including their respective directors and their respective officers.

(b) After the MatCo Distribution, the members of the AgCo Group shall not, without the Consent of any affected Person within the MatCo Group (or the Consent of MatCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of such Person who is or was covered under the directors and officers liability insurance policies, fiduciary liability insurance policies, primary and excess general liability policies, products liability, pollution liability, workers compensation, auto liability policies and cyber data breach or any other liability policy, as maintained by the members of the AgCo Group prior to the MatCo Distribution (collectively, “ AgCo Liability Policies ”) in respect of occurrences or alleged injury or damage taking place prior to the MatCo Distribution (for the avoidance of doubt, (a) the expiration of any AgCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the AgCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the MatCo Group who is or was covered under the AgCo Liability Policies). Subject to Section  11.1(a) , the members of the AgCo Group shall reasonably cooperate with any Person who is or was covered by any AgCo Liability Policy at or prior to the MatCo Distribution in such Person’s pursuit of any coverage claims under such AgCo Liability Policies that would inure to the benefit of such Person. The members of the AgCo Group shall allow the members of the MatCo Group and their respective agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant AgCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the MatCo Group, including their respective directors and their respective officers.

(c) After the AgCo Distribution, the members of the SpecCo Group shall not, without the Consent of any affected Person within the AgCo Group (or the Consent of AgCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of that Person who is or was covered under the SpecCo Liability Policies in respect of occurrences or alleged injury or damage taking place prior to the AgCo Distribution (for the avoidance of doubt, (a) the expiration of any SpecCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the SpecCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the AgCo Group who is or was covered under the SpecCo Liability Policies). Subject to Section  11.1(b) , the members of the SpecCo Group shall reasonably cooperate with any Person who is or was covered by any SpecCo Liability Policy at or prior to the AgCo Distribution in such Person’s pursuit of any coverage claims under such SpecCo Liability Policies that would inure to the benefit of such Person. The members of the SpecCo Group shall allow the members of the AgCo Group, and their respective

 

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agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant SpecCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the AgCo Group, including their respective directors and their respective officers.

(d) After the MatCo Distribution, the members of the MatCo Group shall not, without the Consent of any affected Person within the AgCo Group (or the Consent of AgCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of that Person who is or was covered under the directors and officers liability insurance policies, fiduciary liability insurance policies, primary and excess general liability policies, products liability, pollution liability, workers compensation, auto liability policies and cyber data breach or any other liability policy, as maintained by the members of the MatCo Group prior to the MatCo Distribution (collectively, “ MatCo Liability Policies ”) in respect of occurrences or alleged injury or damage taking place prior to the MatCo Distribution (for the avoidance of doubt, (a) the expiration of any MatCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the MatCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the AgCo Group who is or was covered under the MatCo Liability Policies); provided , that MatCo may amend or modify the Dow Captive Policies in a manner that is not inconsistent with Section  11.5 herein and in accordance with the practices of Dow prior to the MatCo Distribution and in a non-discriminatory manner as between any member of the MatCo Group, on the one hand, and any affected Person within the AgCo Group, on the other hand. Subject to Section  11.1(b) , the members of the MatCo Group shall reasonably cooperate with any Person who is or was covered by any MatCo Liability Policy at or prior to the MatCo Distribution in such Person’s pursuit of any coverage claims under such MatCo Liability Policies that would inure to the benefit of such Person. The members of the MatCo Group shall allow the members of the AgCo Group, and their respective agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant MatCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the AgCo Group, including their respective directors and their respective officers.

(e) After the MatCo Distribution, the members of the MatCo Group shall not, without the Consent of any affected Person within the SpecCo Group (or the Consent of SpecCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of that Person who is or was covered under the MatCo Liability Policies in respect of occurrences or alleged injury or damage taking place prior to the MatCo Distribution (for the avoidance of doubt, (a) the expiration of any MatCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the MatCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the SpecCo Group who is or was covered under the MatCo Liability Policies); provided , that MatCo may amend or modify the Dow Captive Policies in a manner that is not inconsistent with Section  11.5 herein and in accordance with the practices of Dow prior to the MatCo Distribution and in a non-discriminatory manner as between any member of the MatCo Group, on the one hand, and any affected Person within the SpecCo

 

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Group, on the other hand. Subject to Section  11.1(c) , the members of the MatCo Group shall reasonably cooperate with any Person who is or was covered by any MatCo Liability Policy at or prior to the MatCo Distribution in such Person’s pursuit of any coverage claims under such MatCo Liability Policies that would inure to the benefit of such Person. The members of the MatCo Group shall allow the members of the SpecCo Group, and their respective agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant MatCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the SpecCo Group, including their respective directors and their respective officers.

(f) After the AgCo Distribution, the members of the AgCo Group shall not, without the consent of any affected Person within the SpecCo Group (or the Consent of SpecCo on behalf of such Person), take any action or omit to take any action that would be reasonably likely to eliminate or substantially reduce the coverage of that Person who is or was covered under AgCo Liability Policies in respect of occurrences or alleged injury or damage taking place prior to the AgCo Distribution (for the avoidance of doubt, (a) the expiration of any AgCo Liability Policies in accordance with their respective terms (including sending a notice of non-renewal) is expressly permitted; and (b) the submission of a claim by any member of the AgCo Group shall not constitute an action that is reasonably likely to eliminate or substantially reduce the coverage of any Person within the SpecCo Group who is or was covered under the AgCo Liability Policies). Subject to Section  11.1(c) , the members of the AgCo Group shall reasonably cooperate with any Person who is or was covered by any AgCo Liability Policy at or prior to the AgCo Distribution, in their pursuit of any coverage claims under such AgCo Liability Policies that would inure to the benefit of such Person. The members of the AgCo Group shall allow the members of the SpecCo Group, and their respective agents and representatives, upon reasonable prior notice and during regular business hours, to examine and make copies of the relevant AgCo Liability Policies and shall provide such cooperation as is reasonably requested by the members of the SpecCo Group, including their respective directors and their respective officers.

Section 11.3 Coverage After Transfer of Assets and Liabilities .

(a) On the date of the MatCo Distribution and thereafter, it is the responsibility of the MatCo Group to obtain continuing insurance coverage for the Assets of the MatCo Group and for the Liabilities of the MatCo Group accruing after the date of the MatCo Distribution. To the extent that any member of the MatCo Group obtains continued coverage for its Assets or Liabilities under Commercial Insurance Policies issued to AgCo or SpecCo prior to the MatCo Distribution and then covering those Assets or Liabilities, MatCo shall be responsible for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses associated with any Insurance Proceeds collected by any member of the MatCo Group under those policies, and AgCo and SpecCo shall not (and shall cause the other members of their respective Groups not to) agree to an exclusion for claims based on wrongful acts or occurrences up to and including the MatCo Distribution Date to the extent such exclusion would preclude coverage for MatCo Group, but would not preclude coverage for AgCo Group or SpecCo Group, respectively.

 

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(b) On the date of the MatCo Distribution and thereafter, it is the responsibility of the AgCo Group to obtain continuing insurance coverage for the Assets of the AgCo Group and for the Liabilities of the AgCo Group accruing after the date of the AgCo Distribution. To the extent that any member of the AgCo Group obtains continued coverage for its Assets or Liabilities under Commercial Insurance Policies issued to MatCo or SpecCo prior to the MatCo Distribution and then covering those Assets or Liabilities, AgCo shall be responsible for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses associated with any Insurance Proceeds collected by any member of the AgCo Group under those policies, and MatCo and SpecCo shall not (and shall cause the other members of their respective Groups not to) agree to an exclusion for claims based on wrongful acts or occurrences up to and including the MatCo Distribution Date to the extent such exclusion would preclude coverage for AgCo Group, but would not preclude coverage for MatCo Group or SpecCo Group, respectively.

(c) On the date of the MatCo Distribution and thereafter, it is the responsibility of the SpecCo Group to obtain continuing insurance coverage for the Assets of the SpecCo Group and for the Liabilities of the SpecCo Group accruing after the date of the MatCo Distribution. To the extent that any member of the SpecCo Group obtains continued coverage for its Assets or Liabilities under Commercial Insurance Policies issued to AgCo or MatCo prior to the MatCo Distribution and then covering those Assets or Liabilities, SpecCo shall be responsible for any deductibles, self-insured retentions, retrospective premiums and other chargeback amounts, fees, costs and expenses associated with any Insurance Proceeds collected by any member of the SpecCo Group under those policies, and AgCo and MatCo shall not (and shall cause the other members of their respective Groups not to) agree to an exclusion for claims based on wrongful acts or occurrences up to and including the MatCo Distribution Date to the extent such exclusion would preclude coverage for SpecCo Group, but would not preclude coverage for AgCo Group or MatCo Group, respectively.

Section 11.4 Cooperation .

(a) With respect to the SpecCo Liability Policies, for claims (i) arising from wrongful acts or occurrences prior to the applicable Relevant Time, and (ii) for which SpecCo, in accordance with Sections 11.1(a) or 11.1(b) , as applicable, is providing to MatCo or AgCo (or any member of their respective Group) access to, and the right to make claims under, the applicable SpecCo Liability Policy, SpecCo shall, and shall cause the other members of its Group to, subject to the terms of Sections 11.1(a) or 11.1(b) , as applicable, reasonably cooperate with MatCo and AgCo with respect to the submission of such claims by MatCo or AgCo (or the applicable member of their respective Group) to insurers issuing such policies.

(b) With respect to the MatCo Liability Policies, for claims (i) arising from wrongful acts or occurrences prior to the applicable Relevant Time, and (ii) for which MatCo, in accordance with Sections 11.1(b) or 11.1(c) , as applicable, is providing to SpecCo or AgCo (or any member of their respective Group) access to, and the right to make claims under, the applicable MatCo Liability Policy, MatCo shall, and shall cause the other members of its Group to, subject to the terms of Sections 11.1(b) or 11.1(c) , as applicable, reasonably cooperate with SpecCo and AgCo with respect to the submission of such claims by SpecCo or AgCo (or the applicable member of their respective Group) to insurers issuing such policies.

 

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(c) With respect to the AgCo Liability Policies, for claims (i) arising from wrongful acts or occurrences prior to the applicable Relevant Time, and (ii) for which AgCo, in accordance with Sections 11.1(a) or 11.1(c) , as applicable, is providing to SpecCo or MatCo (or any member of their respective Group) access to, and the right to make claims under, the applicable AgCo Liability Policy, AgCo shall, and shall cause the other members of its Group to, subject to the terms of Sections 11.1(a) or 11.1(c) , as applicable, reasonably cooperate with MatCo and SpecCo with respect to the submission of such claims by SpecCo or MatCo (or the applicable member of their respective Group) to insurers issuing such policies.

(d) The Parties agree to use their commercially reasonable efforts to cooperate with respect to the various insurance matters contemplated by this Agreement. If any Liabilities involve claims against two or more parties accruing both before and after the respective Distribution Dates, those Parties may jointly make claims for coverage under applicable Shared Policies, and said Parties will cooperate with each other in pursuit of such coverage, with the Insurance Proceeds relating thereto first used to reimburse the Parties for their respective costs, legal and consulting fees, and other out-of-pocket expenses incurred in pursuing such insurance recovery, and the remaining amounts to be allocated among the Parties in an equitable manner.

Section 11.5 Captive Insurance Matters . With respect to Liabilities of Historical Dow that (x) constitute Agriculture Liabilities (other than those incurred by a member of the MatCo Group) or Specialty Products Liabilities (other than those incurred by a member of the MatCo Group) or (y) are otherwise incurred by a member of the AgCo Group or SpecCo Group, whether presently known or unknown, to the extent related to or arising from occurrences prior to the date of the MatCo Distribution, any rights to insurance coverage applicable to those Liabilities arising under insurance policies and/or reinsurance policies issued by the Dow Insurer (collectively, the “ Dow Captive Policies ”) are hereby assigned by MatCo (on behalf of itself and the applicable members of its Group) to the applicable members of the SpecCo Group or AgCo Group, respectively. Pursuant to such assignment, SpecCo or AgCo (and the applicable member of their respective Groups) shall, from the date of the MatCo Distribution, have access to, and have the right to make claims under, the applicable Dow Captive Policies; provided, that such access to, and the right to make claims under, such Dow Captive Policies shall be subject to the terms, conditions and exclusions of such policies, including any limits on coverage or scope, and any deductibles, self-insured retentions, retrospective premiums, and other chargeback amounts, fees, costs and expenses (except any of the foregoing that restrict or otherwise modify the coverage available as a result of a Person no longer constituting an Affiliate or Subsidiary of any member of the MatCo Group); and provided that the Dow Captive Policies shall be endorsed as necessary to effectuate the benefit of the foregoing assignment of insurance rights to the SpecCo Group and the AgCo Group. MatCo hereby agrees, on behalf of itself and Dow Insurer, that all notices sent by Historical DuPont to the Dow Insurer prior to the MatCo Distribution shall be deemed to have been noticed to the Dow Insurer prior to the MatCo Distribution by the applicable members of Historical Dow that are a member of the AgCo Group or SpecCo Group (or by Dow if such Dow Captive Policies do not allow for notices to be sent directly by the members of Historical Dow that are members of the AgCo Group or SpecCo Group). The applicable Dow Insurer shall accept and provide coverage for such Liabilities after the MatCo Distribution (including in respect of any such Liabilities for which the applicable Dow Insurer has accepted coverage or is paying Insurance Proceeds, including those set forth on Schedule

 

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11.5 , for which a description of such coverage or payment of Insurance Proceeds is set forth therein), pursuant to the terms of the relevant Dow Captive Policies and in accordance with its practices prior to the MatCo Distribution (including applying coverage on a first exposure/single date of loss basis for occurrence-based coverage provided by Dow Captive Policies). Upon written request by SpecCo or AgCo for the applicable Dow Insurer to confirm in writing that coverage for any such Liability will continue under the relevant Dow Captive Policies after the MatCo Distribution in accordance with this Section  11.5 , the applicable Dow Insurer will provide such written confirmation within a commercially reasonable time. Upon receipt of invoices and adequate and complete documentation from AgCo and SpecCo (reasonably satisfactory to the applicable Dow Insurer), the applicable Dow Insurer shall remit payments for such pre-existing coverage in accordance with its practices prior to the date of the MatCo Distribution. Notwithstanding anything to the contrary set forth herein or in any of the Ancillary Agreements, except as expressly set forth in this Section  11.5 , the Dow Insurer shall not be required to provide any insurance coverage to AgCo or SpecCo or any of their respective Affiliates. For the avoidance of doubt: (i) Dow Captive Policies that reinsure fronting insurance policies issued by a Commercial Insurer to any member of the MatCo Group shall provide reinsurance for those Liabilities of Historical Dow that (x) constitute Specialty Products Liabilities (other than those incurred by a member of the MatCo Group) or Agriculture Liabilities (other than those incurred by a member of the MatCo Group) or (y) are otherwise incurred by a member of the SpecCo Group or AgCo Group, to the extent relating to or arising from occurrences commencing prior to the date of the MatCo Distribution, pursuant to this Agreement in the same manner as if those Liabilities had been incurred by a member of Historical Dow that continued to be a member of the MatCo Group, such that each member of the SpecCo Group and AgCo Group, as applicable, will receive the benefit of both the fronting coverage and the corresponding reinsurance coverage provided by the Dow Insurer; and (ii) the Dow Captive Policies shall not be required to provide insurance coverage or reinsurance coverage, as the case may be, to or for the benefit of any member of the SpecCo Group or the AgCo Group with respect to Liabilities, to the extent relating to or arising from occurrences commencing after the date of the MatCo Distribution.

Section 11.6 No Assignment of Entire Insurance Policies . This Agreement shall not be considered as an attempted assignment of any policy of insurance in its entirety (as opposed to an assignment of rights under a policy), nor is it considered to be itself a contract of insurance, and further this Agreement shall not be construed to waive any right or remedy of any Party under or with respect to any Shared Policy and related programs, or any other contract or policy of insurance, and the Parties reserve all their rights thereunder.

Section 11.7 Agreement for Waiver of Conflict and Shared Defense . In the event of any action by members of two or more Groups to recover or obtain Insurance Proceeds under a Shared Policy, or to defend any action by an insurer attempting to restrict or deny any coverage benefits under a Shared Policy, the Parties (or the applicable member of such Party’s Group) may join in any such Action and be represented by joint counsel and each Party shall, and shall cause the other members of its Group to, waive any conflict of interest to the extent necessary to conduct any such action.

 

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Section 11.8 Certain Matters Relating to Organizational Documents . (a) For a period of six (6) years from the Final Separation Date, the Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws of SpecCo, in each case, as amended and restated or otherwise modified from time to time, shall contain provisions no less favorable with respect to indemnification than are set forth in the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of SpecCo immediately before the Effective Time, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Final Separation Date in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Relevant Time, were indemnified under such Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws, unless such amendment, repeal, or modification shall be required by Law and then only to the minimum extent required by Law or approved by SpecCo’s stockholders, (b) for a period of six (6) years from the AgCo Distribution Date, the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of AgCo, in each case, as amended and restated or otherwise modified from time to time, shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws of AgCo immediately before the Effective Time, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Final Separation Date in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the AgCo Distribution Date, were indemnified under such Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, unless such amendment, repeal, or modification shall be required by Law and then only to the minimum extent required by Law or approved by AgCo’s stockholders and (c) for a period of six (6) years from the MatCo Distribution Date, the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of MatCo, in each case, as amended and restated or otherwise modified from time to time, shall contain provisions no less favorable with respect to indemnification than are set forth in the Certificate of Incorporation and Bylaws of MatCo immediately before the Effective Time, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the MatCo Distribution Date in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the MatCo Distribution Date, were indemnified under such Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, unless such amendment, repeal, or modification shall be required by Law and then only to the minimum extent required by Law or approved by MatCo’s stockholders.

Section 11.9 Directors and Officers Liability Insurance .

(a) Effective on the MatCo Distribution Date, MatCo shall purchase and obtain, in such amounts and on such terms as it deems appropriate, directors and officers liability insurance policies to cover the MatCo Group and the insured persons thereof, for claims first made after the MatCo Distribution Date, which claims are based on wrongful acts committed or allegedly committed after the MatCo Distribution Date. Such insurance policies, and the limits thereof, shall be separate from (i) DowDuPont’s directors and officers liability insurance policies, and the limits thereof, in force as of the MatCo Distribution Date, as well as (ii) directors and officers liability insurance policies purchased by AgCo and SpecCo as further described in Sections 11.9(b) and (c) , and the limits thereof.

 

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(b) Effective on the AgCo Distribution Date, AgCo shall purchase and obtain, in such amounts and on such terms as it deems appropriate, directors and officers liability insurance policies to cover the AgCo Group and the insured persons thereof, for claims first made after the AgCo Distribution Date, which claims are based on wrongful acts committed or allegedly committed after the AgCo Distribution Date. Such insurance policies, and the limits thereof, shall be separate from (i) DowDuPont’s directors and officers liability insurance policies in force, and the limits thereof, as of the AgCo Distribution Date, as well as (ii) directors and officers liability insurance policies purchased by MatCo and SpecCo as further described in Sections 11.9(a) and (c) , and the limits thereof.

(c) Effective on the AgCo Distribution Date, SpecCo shall purchase and obtain, in such amounts and on such terms as it deems appropriate, directors and officers liability insurance policies to cover the SpecCo Group and the insured persons thereof, for claims first made after the AgCo Distribution Date, which claims are based on wrongful acts committed or allegedly committed after the AgCo Distribution Date. Such insurance policies, and the limits thereof, shall be separate from (i) DowDuPont’s directors and officers liability insurance policies, and the limits thereof, in force as of the AgCo Distribution Date as well as (ii) directors and officers liability insurance policies purchased by MatCo and AgCo as further described in Sections 11.9(a) and 11.9(b) , and the limits thereof.

(d) Effective on the MatCo Distribution Date, DowDuPont shall ensure that, with respect to each of DowDuPont’s directors and officers liability insurance policies then in force, coverage under such policies is continued or, as necessary extended, in favor of the MatCo Group and the insured persons thereof for claims that are both (i) first made on or after the MatCo Distribution Date through the end of the policy period of such policies (subject to such further date as provided for in Sections 11.9(e) and 11.9(f) ), and (ii) based either (A) on wrongful acts committed or allegedly committed on or before the MatCo Distribution Date or (B) on related wrongful acts, of which one or more of such related wrongful acts was committed or allegedly committed, on or before the MatCo Distribution Date, including such claims based on the separation transactions provided for in this Agreement.

(e) Effective on the AgCo Distribution Date, each of DowDuPont’s directors and officers liability insurance policies then in force shall become run-off policies with a six year tail and shall cease providing coverage for claims made to the extent based on wrongful acts committed or allegedly committed after the AgCo Distribution Date, except as provided below in Section  11.9(f) .

(f) Effective on the AgCo Distribution Date, DowDuPont shall purchase and obtain, with respect to each of DowDuPont’s directors and officers liability insurance policies then in force, a six-year tail extending coverage provided by such policies and the limits thereof in favor of the MatCo Group, AgCo Group, SpecCo Group and the insured persons thereof as follows; provided , that (x) on or prior to the MatCo Distribution Date, DowDuPont shall have definitively arranged for the purchase of such tail coverage, and (y) after the MatCo Distribution Date, but prior to the AgCo Distribution Date, DowDuPont shall not amend, modify or change any of the terms and conditions of such arranged tail coverage without the prior written consent of MatCo; and (z) the financial responsibility for the purchase of this six-year tail-extending coverage shall be borne 50% by the MatCo Group, 25% by the AgCo Group and 25% by the SpecCo Group.

 

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(i) With respect to the AgCo Group and SpecCo Group and the insured persons thereof, the six year tail coverage afforded by such policies shall apply to claims that are both (i) first made on or after the AgCo Distribution Date to a date six (6) years thereafter; and are (ii) based either (A) on wrongful acts committed or allegedly committed on or before the AgCo Distribution Date, or (B) on related wrongful acts, of which one or more of such related wrongful acts was committed or allegedly committed, on or before the AgCo Distribution Date, including such claims based on the separation transactions provided for in this Agreement;

(ii) With respect to the MatCo Group and the insured persons thereof, the six year tail coverage afforded by such policies shall apply to claims that are both (i) first made on or after the AgCo Distribution Date to a date six (6) years thereafter; and are (ii) based either (A) on wrongful acts committed or allegedly committed on or before the MatCo Distribution Date, or (B) on related wrongful acts, of which one or more of such related wrongful acts was committed or allegedly committed, on or before the MatCo Distribution Date, including such claims based on the separation transactions provided for in this Agreement; and

(iii) Such DowDuPont directors and officers liability insurance policies, including the six year tail, and the limits thereof, shall be separate from the directors and officers liability insurance policies purchased by MatCo, AgCo and SpecCo, as further described in Sections 11.9(a) , 11.9(b) and 11.9(c) , and the limits thereof. Such DowDuPont directors and officers liability insurance policies, including the six year tail, and the limits thereof, shall apply to the interests of each of MatCo, AgCo and Spec Co, and their respective insured persons in accordance with the terms and conditions of such policies, and nothing in this Section shall be deemed to prioritize the interests of one insured over another insured under such policies.

ARTICLE XII

MISCELLANEOUS

Section 12.1 Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, the Ancillary Agreements and, solely to the extent and for the limited purpose of effecting the Internal Reorganization, the Conveyancing and Assumption Instruments shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Exhibit or Schedule hereto, the Exhibit or Schedule shall prevail. In the event and to the extent that there shall be a conflict between the provisions of (a) this Agreement and the provisions of any Ancillary Agreement or Continuing Arrangement, such Ancillary Agreement or Continuing Arrangement shall control (except with respect to any provisions relating to the Transfer of Assets to, or the Assumption of Liabilities by, a Party or a member of its Group, the Internal Reorganization, the Distributions, the covenants and obligations set forth in Article V , Article VI , Article VII , Article VIII , Article IX , Article X and Article XI or the application of Article XII to the terms of this Agreement (or, in each case, any indemnification rights pursuant to this Agreement in respect thereof and/or any other remedies pursuant to this Agreement in respect of

 

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any breach of any covenant or obligation under this Agreement), in which case this Agreement shall control), (b) this Agreement and any Conveyancing and Assumption Instrument, this Agreement shall control and (c) this Agreement and any agreement which is not an Ancillary Agreement (other than a Conveyancing and Assumption Instrument), this Agreement shall control unless both (x) it is specifically stated in such agreement that such agreement controls and (y) either (1) each of AgCo, MatCo and SpecCo has executed such agreement (for the avoidance of doubt, members of their respective Groups shall not qualify) on or prior to the MatCo Distribution Date or (2) after the MatCo Distribution, such agreement has been executed after the MatCo Distribution Date by a member of the Group that it is to be enforced against. Except as expressly set forth in this Agreement or any Ancillary Agreement, (i) all matters relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries shall be governed exclusively by the Tax Matters Agreement and (ii) for the avoidance of doubt, in the event of any conflict between this Agreement or any Ancillary Agreement, on the one hand, and the Tax Matters Agreement, on the other hand, with respect to such matters, the terms and conditions of the Tax Matters Agreement shall govern.

Section 12.2 Ancillary Agreements . Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements.

Section 12.3 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

Section 12.4 Survival of Agreements . Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties contained in this Agreement and each Ancillary Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 12.5 Expenses . Except as otherwise provided (i) in this Agreement or (ii) in any Ancillary Agreement, the Parties agree that SpecCo shall be responsible for all out-of-pocket fees and expenses incurred, or to be incurred by SpecCo and directly related to the consummation of the financing transactions contemplated hereby (including third party professional fees (e.g., outside legal, banking and accounting fees)) and fees and expenses incurred in connection with the preparation, execution, delivery and implementation of the Financing Disclosure Documents. Except as otherwise provided (i) in this Agreement or (ii) in any Ancillary Agreement, (w) MatCo shall be liable for costs and expenses incurred, or to be incurred by Historical Dow or MatCo and directly related to the consummation of the transactions contemplated hereby including third party professional fees (e.g., outside legal and accounting fees) and fees and expenses incurred in connection with the preparation, execution and delivery and implementation of this Agreement, costs and expenses relating to such Party’s Distribution Disclosure Documents in connection with the Internal Reorganization and the applicable Distribution (including, printing, mailing and filing fees), costs and expenses incurred with the listing of such Party’s common stock on a stock exchange in connection with the

 

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applicable Distribution Date and internal fees (and reimburse any other Party to the extent such Party has paid such costs and expenses on behalf of the responsible Party) and costs and expenses (e.g., salaries of personnel working in its respective Business) incurred in connection with the Internal Reorganization (collectively “ Transaction Expenses ”), including those allocated to MatCo pursuant to clause (v) of the definition of Materials Science Liabilities, (x) AgCo shall be liable for costs and expenses incurred, or to be incurred by members of the AgCo Group which were a part of Historical DuPont and directly related to the consummation of the transactions contemplated hereby, including Transaction Expenses, (y) SpecCo shall be liable for costs and expenses incurred, or to be incurred by members of the SpecCo Group which were a part of Historical DuPont and directly related to the consummation of the transactions contemplated hereby, including Transaction Expenses and (z) to the extent not addressed by clauses (x) or (y) of this Section  12.5 , SpecCo shall be liable for the Specialty Products Shared Historical DuPont Percentage, and AgCo shall be liable for the Agriculture Shared Historical DuPont Percentage, of costs and expenses incurred, or to be incurred, by Historical DuPont and directly related to the consummation of the transactions contemplated hereby, including Transaction Expenses (collectively, “ Separation Expenses ”); provided; however, in the event of any inconsistency between clauses (x)-(z) of this Section  12.5 , on one hand, and clauses (v) and (xiv)(b) of the definition of Agriculture Liabilities and clauses (iv) and (xiii)(b) of the definition of Specialty Products Liabilities, on the other hand, clauses (v) and (xiv)(b) of the definition of Agriculture Liabilities and clauses (iv) and (xiii)(b) of the definition of Specialty Products Liabilities shall control.

Section 12.6 Notices . All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or electronically mailed (with a response confirming receipt), and shall be directed to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section  12.6 ):

Prior to the AgCo Distribution:

To SpecCo or AgCo:

DowDuPont Inc.

c/o E. I. du Pont de Nemours and Company

974 Centre Road

Wilmington, DE 19805

Attn: Stacy L. Fox

Email: Stacy.L.Fox@dupont.com

Facsimile: (302) 994-5094

 

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with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:                    Brandon Van Dyke, Esq.

Email:                          Brandon.VanDyke@skadden.com

Facsimile:                    (917) 777-3743

To MatCo:

The Dow Chemical Company

2211 H.H. Dow Way

Midland, MI 48674

Attn: Amy Wilson

Email: aewilson@dow.com

with a copy (which shall not constitute notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022-6069

Attention:                    George A. Casey, Esq.

                                     Heiko Schiwek, Esq.

Email:                          George.Casey@Shearman.com

                                     HSchiwek@Shearman.com

Facsimile:                   (212) 848-7179

Following the Final Separation Date:

To SpecCo:

DuPont de Nemours, Inc.

974 Centre Road, Building 730

Wilmington, DE 19805

Attn: General Counsel

Email: Erik.T.Hoover@dupont.com

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:                    Brandon Van Dyke, Esq.

Email:                          Brandon.VanDyke@skadden.com

Facsimile:                    (917) 777-3743

 

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To MatCo:

The Dow Chemical Company

2211 H.H. Dow Way

Midland, MI 48674

Attn: Amy Wilson

Email: aewilson@dow.com

with a copy (which shall not constitute notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022-6069

Attention:                    George A. Casey, Esq.

                                     Heiko Schiwek, Esq.

Email:                         George.Casey@Shearman.com

                                     HSchiwek@Shearman.com

Facsimile:                   (212) 848-7179

To AgCo:

Corteva, Inc.

974 Centre Road, Building 735

Wilmington, DE 19805

Attn: General Counsel

Email: cornel.b.fuerer@corteva.com

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:                    Brandon Van Dyke, Esq.

Email:                          Brandon.VanDyke@skadden.com

Facsimile:                    (917) 777-3743

Section 12.7 Waivers . Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and the members of its Group).

 

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Section 12.8 Amendments . Subject to the terms of Section  12.11 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 12.9 Assignment . Except as otherwise provided for in this Agreement, neither this Agreement nor any right, interest or obligation shall be assignable, in whole or in part, directly or indirectly, by any Party without the prior written consent of the other Parties (not to be unreasonably withheld, conditioned or delayed), and any attempt to assign any rights, interests or obligations arising under this Agreement without such consent shall be void; except , that a Party may assign this Agreement or any or all of the rights, interests and obligations hereunder in connection with a merger, reorganization or consolidation transaction in which such Party is a constituent party but not the surviving entity or the sale by such Party of all or substantially all of its Assets; provided , that the surviving entity of such merger, reorganization or consolidation transaction or the transferee of such Assets shall assume all the obligations of the relevant Party by operation of law or pursuant to an agreement in writing, reasonably satisfactory to the other Parties, to be bound by the terms of this Agreement as if named as a “ Party ” hereto; provided , however , that in the case of each of the preceding clauses, no assignment permitted by this Section  12.9 shall release the assigning Party from Liability for the full performance of its obligations under this Agreement, unless agreed to in writing by the non-assigning Parties.

Section 12.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted transferees and assigns.

Section 12.11 Certain Termination and Amendment Rights . This Agreement (including Article VIII hereof) may be terminated at any time prior to the MatCo Distribution Date by and in the sole discretion of the Board without the approval of MatCo or AgCo or the stockholders of DowDuPont and, in the event of such termination, no Party shall have any liability of any kind to any other Party or any other Person. The MatCo Distribution may be amended, modified or abandoned at any time prior to the MatCo Distribution Date and the AgCo Distribution may be amended, modified or abandoned at any time prior to the AgCo Distribution Date, in each case, by and in the sole discretion of the Board without the approval of MatCo or AgCo or the stockholders of DowDuPont, provided , that no such amendment, modification or abandonment of the AgCo Distribution shall affect any provisions of, or any obligations under, this Agreement that are for the benefit of MatCo or any member of its Group, or prejudice or otherwise adversely affect any rights of MatCo or any member of its Group under this Agreement. After the MatCo Distribution Date, this Agreement may not be terminated or amended except by an agreement in writing signed by each of the Parties. Notwithstanding the foregoing, Article VIII , Section  11.2 or Section  11.8 shall not be terminated or amended after the Effective Time in a manner adverse to the third party beneficiaries thereof without the Consent of any such Person.

 

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Section 12.12 Payment Terms .

(a) Except as set forth in Article VIII or as otherwise expressly provided to the contrary in this Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group), on the one hand, to another Party (and/or a member of such Party’s respective Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within thirty (30) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b) Except as set forth in Article VIII or as expressly provided to the contrary in this Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within thirty (30) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to LIBOR (in effect on the date on which such payment was due) plus 3% calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment; provided , however , in the event that LIBOR is no longer commonly accepted by market participants, then an alternative floating rate index that is commonly accepted by market participants, which AgCo, MatCo and SpecCo shall jointly determine, each acting in good faith.

(c) In the event of a dispute or disagreement with respect to all or a portion of any amounts requested by any Party (and/or a member of such Party’s Group) as being payable, the payor Party shall in no event be entitled to withhold payments for any such amounts (and any such disputed amounts shall be paid in accordance with Section  12.12(a) , subject to the right of the payor Party to dispute such amount following such payment); provided , that in the event that following the resolution of such dispute it is determined that the payee Party (and/or a member of the payee Party’s Group) was not entitled to all or a portion of the payment made by the payor Party, the payee Party shall repay (or cause to be repaid) such amounts to which it was not entitled, including interest, to the payor Party (or its designee), which amounts shall bear interest at a rate per annum equal to LIBOR plus 3%, calculated for the actual number of days elapsed, accrued from the date on which such payment was made by the payor Party to the payee Party.

(d) Without the Consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by SpecCo, MatCo or AgCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on the day before the date the payment is required to be made or, as applicable, on which an invoice is submitted (provided, however, that with regard to any payments in respect of Indemnifiable Losses for payments made to third parties, the date shall be the day before the relevant payment was made to the third party) or in the Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the Indemnifying Party.

Section 12.13 No Circumvention . The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification or payment pursuant to Articles VI and VIII ).

 

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Section 12.14 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party on and after the MatCo Distribution Date or the AgCo Distribution Date, as applicable.

Section 12.15 Third Party Beneficiaries . Except (i) as provided in Article VIII relating to Indemnitees and for the release under Section  8.1 of any Person provided therein, (ii) as provided in Section  11.2 relating to insured persons and Section  11.8 relating to the directors, officers, employees, fiduciaries or agents provided therein, (iii) as provided in Section  9.8 relating to Historical DuPont Counsel and Historical Dow Counsel and (iv) as specifically provided in any Ancillary Agreement, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon third parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, including any rights of employment for any specified period, in excess of those existing without reference to this Agreement.

Section 12.16 Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 12.17 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. Nothing in the Exhibits or Schedules constitutes an admission of any Liability or obligation of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates. The inclusion of any item or Liability or category of item or Liability on any Exhibit or Schedule is made solely for purposes of allocating potential Liabilities among the Parties and shall not be deemed as or construed to be an admission that any such Liability exists.

Section 12.18 Governing Law . This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

Section 12.19 Specific Performance . The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach this Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any Indemnifiable Loss. Accordingly, from and after the Effective Time, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to

 

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this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article XII (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 12.20 Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 12.21 No Duplication; No Double Recovery . Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of the following Sections: Section  6.3 ; Section  8.2 ; Section  8.3 ; Section  8.4 and Section  8.5 ).

Section 12.22 Public Announcements . From and after the Effective Time, SpecCo, MatCo and AgCo hereby agree to (a) coordinate with the other Parties on the Parties’ respective initial press releases with respect to the transactions contemplated herein and (b) that no press release or similar public announcement or external communication shall, if prior to, or after, the Effective Time, be made or be caused to be made (including by such Party’s Affiliates) concerning the execution or performance of this Agreement until such Party has consulted with the other Parties, and provided meaningful opportunity for review and given due consideration to reasonable comment by the other Parties, except (x) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; (y) for disclosures made that are substantially consistent with disclosure contained in any Distribution Disclosure Document, (z) as may pertain to disputes between one Party or any member of its Group, on one hand, and the other Party or any member of its Group, on the other hand; provided , that in the case of clause (z), any Party that intends to issue a press release or similar public announcement or external communication regarding such dispute shall provide reasonable advance written notice to the other Parties in accordance with Section  12.6 , which notice shall include a copy of the press release or similar public announcement or external communication, or where no such copy is available, a description of the press release or similar public announcement or external communication.

Section 12.23 Tax Treatment of Payments To the extent permitted by applicable Law, unless otherwise required by a Final Determination, this Agreement or the Tax Matters Agreement or otherwise agreed to among the Parties (including as may be agreed in any Continuing Arrangements among Affiliates of the Parties), for U.S. federal Tax purposes, any payment made pursuant to this Agreement shall be treated as follows:

 

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(a) to the extent the member or assets of the payor Group and the member or assets of the payee Group to which the liability for payment relates were separated in a tax-free distribution for U.S. federal Tax purposes, such payment shall be treated as a tax-free contribution or tax-free distribution, as applicable, with respect to the stock of the applicable member of the payee Group or payor Group, occurring immediately prior to the relevant transaction in the Internal Reorganization, the MatCo Spin Contribution or the AgCo Spin Contribution, as applicable; and

(b) to the extent the member or assets of the payor Group and the member or assets of the payee Group to which the liability for payment relates were separated in a taxable transaction for U.S. federal Tax purposes, such payment shall be treated as an adjustment to the price or amount, as applicable, of the relevant transaction in the Internal Reorganization, the MatCo Spin Contribution or the AgCo Spin Contribution, as applicable.

Payments of interest shall be treated as deductible by the Indemnifying Party or its relevant Subsidiary and as income to the Indemnitee or its relevant Subsidiary, as permitted and applicable. In the case of each of the foregoing, no Party shall take any position inconsistent with such treatment. In the event that a Taxing Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in this Section  12.23 , such Party shall use its commercially reasonable efforts to contest such challenge.

* * * * *

[ End of page left intentionally blank ]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

DOWDUPONT INC.
By  

/s/ Jeanmarie F. Desmond

  Name:   Jeanmarie F. Desmond
  Title:   Co-Controller
DOW INC.
By  

/s/ Amy E. Wilson

  Name:   Amy E. Wilson
  Title:   Secretary
CORTEVA, INC.
By  

/s/ James C. Collins, Jr.

  Name:   James C. Collins, Jr.
  Title:   Chief Executive Officer

 

[Signature Page to the Separation and Distribution Agreement]

Exhibit 3.1

THIRD AMENDED AND RESTATED

BYLAWS

OF

DOWDUPONT INC.

(a Delaware corporation)

EFFECTIVE AS OF APRIL 1, 2019


TABLE OF CONTENTS

 

ARTICLE I CAPITAL STOCK

     4  

1.1

   Certificates      4  

1.2

   Record Ownership      4  

1.3

   Transfer of Record Ownership      4  

1.4

   Lost Certificates      4  

1.5

   Transfer Agents; Registrars; Rules Respecting Certificates      5  

1.6

   Record Date      5  

ARTICLE II MEETINGS OF STOCKHOLDERS

     5  

2.1

   Annual Meeting      5  

2.2

   Special Meetings      5  

2.3

   Notice      7  

2.4

   List of Stockholders      7  

2.5

   Quorum      7  

2.6

   Organization      7  

2.7

   Voting      8  

2.8

   Inspectors of Election      8  

2.9

   Notification of Stockholder Nominations and Other Business      8  

2.10

   Proxy Access for Director Nominations      13  

ARTICLE III BOARD OF DIRECTORS

     23  

3.1

   Number and Qualifications      23  

3.2

   Term      23  

3.3

   Resignation      23  

3.4

   Vacancies      23  

3.5

   Regular Meetings      24  

3.6

   Special Meetings      24  

3.7

   Notice of Special Meetings      24  

3.8

   Place of Meetings      24  

3.9

   Participation in Meetings by Conference Telephone      24  

3.10

   Quorum      24  

3.11

   Organization      24  

3.12

   Compensation of Directors      24  

3.13

   Action by Written Consent      25  

3.14

   Interested Transactions      25  

3.15

   Committees of the Board of Directors      25  

ARTICLE IV OFFICERS

     26  

4.1

   Positions and Election      26  

4.2

   Term      26  

4.3

   Resignation      26  

4.4

   Vacancies      26  

4.5

   Chief Executive Officer      27  

4.6

   Vice Presidents      27  

4.7

   Secretary; Assistant Secretary      27  

4.8

   Treasurer; Assistant Treasurer      27  

4.9

   Delegation of Authority      27  


4.10

   Voting Securities Owned by the Company      27  

4.11

   Chairman of the Board of Directors      28  

ARTICLE V INDEMNIFICATION

     28  

5.1

   Mandatory Indemnification      28  

5.2

   Permitted Indemnification      28  

5.3

   Expenses Payable in Advance      29  

5.4

   Judicial Determination of Mandatory Indemnification or Mandatory   
   Advancement of Expenses      29  

5.5

   Nonexclusivity      30  

5.6

   Insurance      30  

5.7

   Definitions      30  

5.8

   Survival      31  

5.9

   Repeal, Amendment or Modification      31  

ARTICLE VI MISCELLANEOUS

     31  

6.1

   Seal      31  

6.2

   Waiver of Notice      31  

6.3

   Forum for Adjudication of Certain Disputes      31  

6.4

   Offices      31  

6.5

   Fiscal Year      32  

6.6

   Contracts      32  

6.7

   Checks, Notes, Drafts, Etc.      32  

6.8

   Dividends      32  

6.9

   Conflict with Applicable Law or Certificate of Incorporation      32  

ARTICLE VII AMENDMENT OF BYLAWS

     32  

7.1

   Amendment of Bylaws      32  

 

3


ARTICLE I

CAPITAL STOCK

 

1.1

Certificates. Shares of the capital stock of DOWDUPONT INC., (the “ Company ”) may be certificated or uncertificated in accordance with the General Corporation Law of the State of Delaware; provided, that, commencing on or prior to the date of these Bylaws, the shares of common stock, par value $0.01 per share, of the Company shall be uncertificated, as provided by resolutions adopted by the Board of Directors of the Company (the “ Board of Directors ” and each member thereof, a “ Director ”). To the extent any certificates are ever issued with respect to any class or series of a class of capital stock of the Company, every holder of stock represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and the Board of Directors, signed in the name of the Company by the Chairman of the Board of Directors (the “ Chairman ”) or the Chief Executive Officer or a Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, representing the number of shares registered in certificate form held by such holder. Any or all the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

1.2

Record Ownership. A record of the name and address of the holder of each certificate, the number of shares represented thereby and the date of issue thereof shall be made on the Company’s books. The Company shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by the laws of the State of Delaware. If certificated, the certificates of each class or series of a class of stock shall be numbered consecutively.

 

1.3

Transfer of Record Ownership. Subject to applicable laws, transfers of shares of stock of the Company shall be made on the books of the Company only by direction of the registered holder thereof or such person’s attorney, lawfully constituted in writing, and, if such shares are represented by a certificate, only upon the surrender to the Company or its transfer agent or other designated agent of the certificate representing such shares properly endorsed or accompanied by a properly executed written assignment of the shares evidenced thereby, which certificate shall be canceled before a new certificate or uncertificated shares are issued.

 

1.4

Lost Certificates. Any person claiming a stock certificate in lieu of one lost, stolen or destroyed shall give the Company an affidavit as to such person’s ownership of the certificate and of the facts which go to prove its loss, theft or destruction. Such person shall also, if required by policies adopted by the Board of Directors, give the Company a bond sufficient to indemnify the Company against any claim that may be made against it on account of the alleged loss of the certificate or the issuance of a new certificate or of uncertificated shares.

 

4


1.5

Transfer Agents; Registrars; Rules Respecting Certificates. The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars. The Board of Directors may make such further rules and regulations as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Company.

 

1.6

Record Date. The Board of Directors may fix in advance a date, not more than sixty (60) days or less than ten (10) days preceding the date of an annual or special meeting of stockholders and not more than sixty (60) days preceding the date of payment of a dividend or other distribution, allotment of rights or the date when any change, conversion or exchange of capital stock shall go into effect or for the purpose of any other lawful action, as the record date for determination of the stockholders entitled to notice of and to vote at any such meeting and any adjournment thereof, or to receive any such dividend or other distribution or allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to participate in any such other lawful action. Such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, or to receive such dividend or other distribution or allotment of rights, or to exercise such rights, or to participate in any such other lawful action, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.

ARTICLE II

MEETINGS OF STOCKHOLDERS

 

2.1

Annual Meeting. The annual meeting of stockholders for the election of Directors and the transaction of such other business as may properly be brought before the meeting shall be held annually on a date and at a time and place, within or without Delaware, as determined by the Board of Directors. The Board of Directors may postpone, reschedule or adjourn any previously scheduled annual meeting of stockholders.

 

2.2

Special Meetings .

 

  (a)

Purpose . Special meetings of stockholders for any purpose or purposes (i) may be called by the Board of Directors, pursuant to a resolution adopted by a majority of the entire Board of Directors upon motion of a Director, and (ii) shall be called by the Chairman or the Secretary of the Company upon a written request from stockholders of the Company holding at least twenty-five percent (25%) of the voting power of all the shares of capital stock of the Company then entitled to vote on the matter or matters to be brought before the proposed special meeting that complies with the procedures for calling a special meeting of stockholders as set forth in these Bylaws. Any such request by stockholders shall (A) be delivered to, or mailed to and received by, the Secretary of the Company at the

 

5


  Company’s principal executive offices, (B) be signed by each stockholder, or a duly authorized agent of such stockholder, requesting the special meeting, (C) set forth the purpose or purposes of the meeting and (D) include the information required by Section 2.9 as applicable, and a representation by the stockholder(s) that within five (5) business days after the record date for any such special meeting it will provide such information as of the record date for such special meeting to the extent not previously provided.

 

  (b)

Date, Time and Place . A special meeting, whether called by the Board of Directors or called at the request of stockholders shall be held at such date, time and place, within or without the State of Delaware, as determined by the Board of Directors; provided, however, that the date of any such special meeting shall be not more than ninety (90) days after the request to call the special meeting by one or more stockholders who satisfy the requirements of this Section 2.2 is delivered to or received by the Secretary, unless a later date is required in order to allow the Company to file the information required under Item 8 (or any comparable or successor provision) of Schedule 14A under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), if applicable. Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if: (i) the stated business to be brought before the special meeting is not a proper subject for stockholder action under applicable law or (ii) the Board of Directors has called or calls for an annual meeting of stockholders to be held within ninety (90) days after the request for the special meeting is delivered to or received by the Secretary and the Board of Directors determines in good faith that the business of such annual meeting includes (among any other matters properly brought before the annual meeting) the business specified in the stockholders’ request. A stockholder may revoke a request for a special meeting at any time by written revocation delivered to, or mailed to and received by, the Secretary. If, at any time after receipt by the Secretary of the Company of a proper request for a special meeting of stockholders, there are no longer valid requests from stockholders holding in the aggregate at least the requisite number of shares entitling the stockholders to request the calling of a special meeting, whether because of revoked requests or otherwise, the Board of Directors, in its discretion, may cancel the special meeting (or, if the special meeting has not yet been called, may direct the Chairman or the Secretary of the Company not to call such a meeting).

 

  (c)

Conduct of Meeting . At any such special meeting, only such business may be transacted as is set forth in the notice of special meeting. Business transacted at a special meeting requested by stockholders shall be limited to the matters described in the special meeting request; provided, however, that nothing herein shall prohibit the Board of Directors from submitting matters to the stockholders at any special meeting requested by stockholders. If none of the stockholders who submitted the request for a special meeting appears or sends a qualified representative to present the nominations proposed to be presented or other business proposed to be conducted at the special meeting, the Company need not present such nominations or other business for a vote at such meeting. The

 

6


  chairman of a special meeting shall determine all matters relating to the conduct of the meeting, including, but not limited to, determining whether any nomination or other item of business has been properly brought before the meeting in accordance with these Bylaws, and if the chairman of the meeting should so determine and declare that any nomination or other item of business has not been properly brought before the special meeting, then such business shall not be transacted at such meeting.

 

2.3

Notice. Notice (either written or as otherwise permitted by the General Corporation Law of the State of Delaware) of each meeting of stockholders, whether annual or special, stating the date, time, place and, with respect to a special meeting, purpose thereof, shall be distributed (either by the U.S. Postal Service or as otherwise permitted by the General Corporation Law of the State of Delaware) by the Secretary or Assistant Secretary not less than ten (10) days nor more than sixty (60) days before the date of such meeting to every stockholder entitled to vote thereat.

 

2.4

List of Stockholders. A complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be prepared by the Secretary at least ten (10) days before every meeting of stockholders and shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days before the meeting during ordinary business hours at the principal place of business of the Company. A list of stockholders entitled to vote at the meeting shall be produced and kept at the place of the meeting during the whole time of the meeting and may be examined by any stockholder who is present.

 

2.5

Quorum. The holders of a majority of the voting power of all of the shares of capital stock of the Company then entitled to vote with respect to the purposes for which the meeting is called, present in person or represented by proxy, shall constitute a quorum, except as otherwise required by the General Corporation Law of the State of Delaware. If a quorum does not exist, the chairman of the meeting or a majority in interest of the stockholders present in person or represented by proxy may adjourn the meeting from time to time without notice other than announcement at the meeting, until a quorum shall be obtained. At any such adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting originally called.

 

2.6

Organization. The Chairman, or, in the absence of the Chairman, a chairman designated by the Board of Directors, shall preside at meetings of stockholders (including special meetings of stockholders) as chairman of the meeting and shall determine the order of business for such meeting. The Secretary of the Company shall act as secretary at all meetings of stockholders, but in the absence of the Secretary, the chairman of the meeting may appoint a secretary of the meeting. Rules governing the procedures and conduct of meetings of stockholders shall be determined by the chairman of the meeting.

 

7


2.7

Voting. Subject to all of the rights of the preferred stock provided for by resolution or resolutions of the Board of Directors pursuant to Article IV of the Certificate of Incorporation or by the General Corporation Law of the State of Delaware, each stockholder entitled to vote at a meeting shall be entitled to one vote, in person or by proxy (either written or as otherwise permitted by the General Corporation Law of the State of Delaware), for each voting share held of record by such stockholder. The votes for the election of Directors and, upon the demand of any stockholder the vote upon any matter before the meeting, shall be by written ballot. Except as otherwise required by the General Corporation Law of the State of Delaware or as specifically provided for in the Certificate of Incorporation or these Bylaws, in any question or matter brought before any meeting of stockholders (other than the election of Directors), the affirmative vote of the holders of voting shares present in person or by proxy representing a plurality of the votes actually cast on any such question or matter at a meeting where there is a quorum shall be the act of the stockholders. Directors shall be elected by the vote of a majority of the votes cast at a meeting where there is a quorum; except that, notwithstanding the foregoing, Directors shall be elected by a plurality of the votes cast at a meeting where there is a quorum if as of the record date for such meeting the number of nominees exceeds the number of Directors to be elected. For purposes of the foregoing sentence, a majority of the votes cast means that the number of shares voted “for” a Director nominee must exceed the number of shares voted “against” that Director nominee.

 

2.8

Inspectors of Election. In advance of any meeting of stockholders, the Board of Directors or the chairman of the meeting shall appoint one or more inspectors to act at the meeting and make a written report thereof. The chairman of the meeting may designate one or more persons as alternate inspectors to replace any inspector who fails or is unable to act. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. At each meeting of stockholders, the inspector(s) shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s), and certify the inspectors’ determination of the number of shares represented at the meeting and the count of all votes and ballots. The inspector(s) may appoint or retain other persons or entities to assist the inspector(s) in the performance of the duties of the inspector(s). Any report or certificate made by the inspector(s) shall be prima facie evidence of the facts stated therein.

 

2.9

Notification of Stockholder Nominations and Other Business .

 

  (a)

Annual Meeting.

 

  (i)

Nominations of persons for election to the Board of Directors and the proposal of business other than nominations to be considered by the stockholders may be made at an annual meeting of stockholders only (A) by or at the direction of the Board of Directors, (B) by any stockholder of the Company who is a stockholder of record at the time the notice provided for in this Section 2.9 is delivered to, or mailed to and received by, the Secretary of the Company, who is entitled to vote at such annual meeting and who complies with the notice procedures and disclosure

 

8


  requirements set forth in this Section 2.9 or (C) in the case of stockholder nominations to be included in the Company’s proxy statement for an annual meeting of stockholders, by an Eligible Stockholder (as defined below) who satisfies the notice, ownership and other requirements of Section 2.10 of these Bylaws.

 

  (ii)

For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (B) of Section 2.9(a)(i), such stockholder must have given timely written notice thereof in proper form to the Secretary of the Company and such proposed business must be a proper subject for stockholder action. To be timely, a stockholder’s notice must be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company: not later than the close of business on the ninetieth (90th) day or earlier than the close of business on the one hundred twentieth (120th) day prior to the anniversary date on which the Company first distributed its proxy materials for the prior year’s annual meeting of stockholders of the Company; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the first anniversary of the prior year’s annual meeting, notice by the stockholder in order to be timely must be so delivered, or so mailed and received, not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of (A) the ninetieth (90th) day prior to such annual meeting and (B) the tenth (10th) day following the date on which public disclosure (as defined below) of the date of the annual meeting is first made by the Company. In no event shall the public disclosure of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth:

 

  (A)

as to each person, if any, whom such stockholder proposes to nominate for election or re-election as a Director: (1) all information relating to such person that would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a Director in an election contest (even if an election contest is not involved) or that is otherwise required to be disclosed, under Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (2) the written consent of the nominee to being named in the proxy statement as a nominee and to serving as a Director if elected and a representation by the nominee to the effect that, if elected, the nominee will agree to and abide by all policies of the Board of Directors as may be in place at any time and from time to time and (3) any information that such person would be required to disclose pursuant to paragraph (ii)(C) of this Section 2.9(a), if such person were a stockholder purporting to make a nomination or propose business pursuant thereto;

 

9


  (B)

as to any other business that such stockholder proposes to bring before the meeting: (1) a brief description of the proposed business desired to be brought before the meeting, (2) the text of the proposal or proposed business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Company, the language of the proposed amendment), (3) the reasons for conducting such business at the meeting, (4) any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed, (5) any other information relating to such stockholder and beneficial owner, if any, on whose behalf the proposal is being made, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (6) a description of all agreements, arrangements, or understandings between or among such stockholder, or any affiliates or associates of such stockholder, and any other person or persons (including their names) in connection with the proposal of such business and any material interest of such stockholder or any affiliates or associates of such stockholder, in such business, including any anticipated benefit therefrom to such stockholder, or any affiliates or associates of such stockholder and (7) the information required by Section 2.9(a)(ii)(A) above; and

 

  (C)

as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made or the other business is proposed: (1) the name and address of such stockholder, as they appear on the Company’s books, and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (2) the class and number of shares of capital stock of the Company which are beneficially owned (as defined below) and owned of record by such stockholder and owned by the beneficial owner, if any, on whose behalf the nomination is made as of the date of the notice, and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of the class and number of shares of capital stock of the Company beneficially owned by such stockholder or beneficial owner as of the record date for the meeting, (3) a written representation (from the stockholder giving notice) that such stockholder is the holder of record of shares of the Company entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination or nominations or other business specified in the notice, (4) a description of any

 

10


  agreement, arrangement or understanding with respect to the nomination or other business between or among such stockholder or the beneficial owner, if any, on whose behalf the nomination is made and any other person, including without limitation any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable to such stockholder or the beneficial owner, if any, on whose behalf the nomination is made) and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting, (5) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of such stockholder’s notice by, or on behalf of, such stockholder or the beneficial owner, if any, on whose behalf the nomination is made or any of their affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes of any class of the Company’s capital stock for, or maintain, increase or decrease the voting power of such stockholder or the beneficial owner, if any, on whose behalf the nomination is made or any of their affiliates or associates with respect to shares of stock of the Company and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting and (6) a representation as to whether such stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to approve the election of the nominee and/or otherwise to solicit proxies from stockholders in support of such election.

 

  (iii)

The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as a Director of the Company, including information relevant to a determination whether such proposed nominee can be considered an independent Director or that could be material to a reasonable stockholders’ understanding of the independence, or lack thereof.

 

  (iv)

This Section 2.9(a) shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Company of his or her intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for such meeting.

 

11


  (b)

Special Meeting . Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Company’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders called by the Board of Directors at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that Directors shall be elected at such meeting, by any stockholder of the Company who is a stockholder of record at the time the notice provided for in this Section 2.9(b) is delivered to, or mailed to and received by, the Secretary of the Company and at the time of the special meeting, who is entitled to vote at the special meeting and upon such election, and who complies with the notice procedures set forth in this Section 2.9 as to such nomination. In the event the Board of Directors calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any such stockholder entitled to vote in such election of Directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Company’s notice of meeting, if the notice required by Section 2.9(a)(ii) shall be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public disclosure of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made by the Company. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

 

  (c)

General .

 

  (i)

Only such persons who are nominated in accordance with the procedures set forth in this Section 2.9 or Section 2.10 shall be eligible to be elected at any meeting of stockholders of the Company to serve as Directors and only such other business shall be conducted at a meeting of stockholders as shall have been properly brought before the meeting in accordance with the procedures set forth in this Section 2.9 or Section 2.10, as applicable. The chairman of the special meeting, as determined pursuant to Section 2.6, shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.9. If any proposed nomination or other business was not made or proposed in compliance with this Section 2.9 or Section 2.10, as applicable, then except as otherwise provided by law, the chairman of the meeting shall have the power and duty to declare that such nomination

 

12


  shall be disregarded or that such proposed other business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.9, unless otherwise required by law, if the stockholder does not provide the information required under clauses (2), (4) and (5) of Section 2.9(a)(ii)(C) to the Company within five (5) business days following the record date for an annual or special meeting of stockholders, or if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Company to present a nomination or proposed other business, such nomination shall be disregarded and such proposed other business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Company. For purposes of this Section 2.9, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or authorized by a writing executed by such stockholder (or a reliable reproduction or electronic transmission of such writing) delivered to the Company prior to the making of such nomination or proposal at such meeting by such stockholder stating that such person is authorized to act for such stockholder as proxy at the meeting of stockholders.

 

  (ii)

For purposes of this Section 2.9, “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press, or comparable national news service or any document publicly filed by the Company with the Securities and Exchange Commission (the “ Commission ”) pursuant to Section 13, 14 or 15(d) of the Exchange Act. For purposes of clause (2) of Section 2.9(a)(ii)(C), shares shall be treated as “beneficially owned” by a person if the person beneficially owns such shares, directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Regulations 13D and 13G thereunder or has or shares pursuant to any agreement, arrangement or understanding (whether or not in writing): (A) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time or the fulfillment of a condition or both), (B) the right to vote such shares, alone or in concert with others and/or (C) investment power with respect to such shares, including the power to dispose of, or to direct the disposition of, such shares.

 

2.10

Proxy Access for Director Nominations .

 

  (a)

Eligibility . Subject to the terms and conditions of these Bylaws, in connection with an annual meeting of stockholders at which Directors are to be elected, the Company (a) shall include in its proxy statement and on its form of proxy the names of, and (b) shall include in its proxy statement the “Additional Information” (as defined below) relating to, a number of nominees specified pursuant to Section 2.10(b)(i) (the “ Authorized Number ”) for election to the Board of Directors submitted pursuant to this Section 2.10 (each, a “ Stockholder Nominee ”), if:

 

13


  (i)

the Stockholder Nominee satisfies the eligibility requirements in this Section 2.10;

 

  (ii)

the Stockholder Nominee is identified in a timely notice (the “ Stockholder Notice ”) that satisfies this Section 2.10 and is delivered by a stockholder that qualifies as, or is acting on behalf of, an Eligible Stockholder (as defined below); and

 

  (iii)

the Eligible Stockholder satisfies the requirements in this Section 2.10 and expressly elects at the time of the delivery of the Stockholder Notice to have the Stockholder Nominee included in the Company’s proxy materials.

 

  (b)

Definitions .

 

  (i)

The maximum number of Stockholder Nominees appearing in the Company’s proxy materials with respect to an annual meeting of stockholders (the “ Authorized Number ”) shall not exceed the greater of (x) two or (y) twenty percent (20%) of the number of Directors in office as of the last day on which a Stockholder Notice may be delivered pursuant to this Section 2.10 with respect to the annual meeting, or if such amount is not a whole number, the closest whole number (rounding down) below twenty percent (20%); provided that the Authorized Number shall be reduced by (A) the number of individuals (if any) included in the Company’s proxy as nominees recommended by the Board of Directors pursuant to an agreement, arrangement or other understanding with a stockholder or group of stockholders (other than any such agreement, arrangement or other understanding entered into in connection with an acquisition of stock from the Company by such stockholder or group of stockholders) and (B) the number of nominees (if any) who were previously elected to the Board of Directors as Stockholder Nominees at any of the preceding two annual meetings and who are nominated for election at the annual meeting by the Board of Directors as a Board of Directors nominee. For purposes of determining when the Authorized Number has been reached, any individual nominated by an Eligible Stockholder for inclusion in the Company’s proxy materials pursuant to this Section 2.10 whose nomination is subsequently withdrawn or whom the Board of Directors decides to nominate for election to the Board of Directors shall be counted as one of the Stockholder Nominees. In the event that one or more vacancies for any reason occurs after the date of the Stockholder Notice but before the annual meeting and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Authorized Number shall be calculated based on the number of Directors in office as so reduced.

 

  (ii)

To qualify as an “Eligible Stockholder,” a stockholder or a group as described in this Section 2.10 must:

 

14


  (A)

Own and have Owned (as defined below), continuously for at least three years as of the date of the Stockholder Notice, a number of shares (as adjusted to account for any stock dividend, stock split, subdivision, combination, reclassification or recapitalization of shares of the Company that are entitled to vote generally in the election of Directors) that represents at least three percent (3%) of the outstanding shares of the Company that are entitled to vote generally in the election of Directors as of the date of the Stockholder Notice (the “ Required Shares ”), and

 

  (B)

thereafter continue to Own the Required Shares through such annual meeting of stockholders.

For purposes of satisfying the ownership requirements of this Section 2.10(b)(ii), a group of not more than twenty (20) stockholders and/or beneficial owners may aggregate the number of shares of the Company that are entitled to vote generally in the election of Directors that each group member has individually Owned continuously for at least three (3) years as of the date of the Stockholder Notice if all other requirements and obligations for an Eligible Stockholder set forth in this Section 2.10 are satisfied by and as to each stockholder or beneficial owner comprising the group whose shares are aggregated. No shares may be attributed to more than one Eligible Stockholder, and no stockholder or beneficial owner, alone or together with any of its affiliates, may individually or as a member of a group qualify as or constitute more than one Eligible Stockholder under this Section 2.10. A group of any two or more funds shall be treated as only one stockholder or beneficial owner for this purpose if they are (A) under common management and investment control OR (B) under common management and funded primarily by a single employer OR (C) part of a family of funds, meaning a group of publicly offered investment companies (whether organized in the U.S. or outside the U.S.) that hold themselves out to investors as related companies for purposes of investment and investor services. For purposes of this Section 2.10, the term “affiliate” or “affiliates” shall have the meanings ascribed thereto under the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

  (iii)

For purposes of this Section 2.10:

 

  (A)

A stockholder or beneficial owner is deemed to “Own” only those outstanding shares of the Company that are entitled to vote generally in the election of Directors as to which the person possesses both (1) the full voting and investment rights pertaining to the shares and (2) the full economic interest in (including the opportunity for profit and risk of loss on) such shares, except that the number of shares calculated in accordance with clauses (1) and (2) shall not include any shares (a) sold by such person in any transaction that has not been settled or closed, (b) borrowed by the person for any purposes or purchased by the person pursuant to an agreement to resell, or (c) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by the person, whether the instrument or

 

15


  agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Company that are entitled to vote generally in the election of Directors, if the instrument or agreement has, or is intended to have, or if exercised would have, the purpose or effect of (x) reducing in any manner, to any extent or at any time in the future, the person’s full right to vote or direct the voting of the shares, and/or (y) hedging, offsetting or altering to any degree any gain or loss arising from the full economic ownership of the shares by the person. The terms “Owned,” “Owning” and other variations of the word “Own,” when used with respect to a stockholder or beneficial owner, have correlative meanings. For purposes of clauses (a) through (c), the term “person” includes its affiliates.

 

  (B)

A stockholder or beneficial owner “Owns” shares held in the name of a nominee or other intermediary so long as the person retains both (1) the full voting and investment rights pertaining to the shares and (2) the full economic interest in the shares. The person’s Ownership of shares is deemed to continue during any period in which the person has delegated any voting power by means of a proxy, power of attorney, or other instrument or arrangement that is revocable at any time by the stockholder.

 

  (C)

A stockholder or beneficial owner’s Ownership of shares shall be deemed to continue during any period in which the person has loaned the shares if the person has the power to recall the loaned shares on not more than five (5) business days’ notice.

 

  (iv)

For purposes of this Section 2.10, the “Additional Information” referred to in Section 2.10(a) that the Company will include in its proxy statement is:

 

  (A)

the information set forth in the Schedule 14N provided with the Stockholder Notice concerning each Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Company’s proxy statement by the applicable requirements of the Exchange Act and the rules and regulations thereunder; and

 

  (B)

if the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or, in the case of a group, a written statement of the group), not to exceed five hundred words, in support of its Stockholder Nominee(s), which must be provided at the same time as the Stockholder Notice for inclusion in the Company’s proxy statement for the annual meeting (the “ Statement ”).

Notwithstanding anything to the contrary contained in this Section 2.10, the Company may omit from its proxy materials any information or Statement that it, in good faith, believes is untrue in any material respect (or omits a material fact necessary in order to

 

16


make the statements made, in light of the circumstances under which they are made, not misleading) or would violate any applicable law, rule, regulation or listing standard. Nothing in this Section 2.10 shall limit the Company’s ability to solicit against and include in its proxy materials its own statements relating to any Eligible Stockholder or Stockholder Nominee.

 

  (c)

Stockholder Notice and Other Informational Requirements .

 

  (i)

The Stockholder Notice shall set forth all information, representations and agreements required under Section 2.9(a)(ii) above, including the information required with respect to (i) any nominee for election as a Director, (ii) any stockholder giving notice of an intent to nominate a candidate for election, and (iii) any stockholder, beneficial owner or other person on whose behalf the nomination is made under this Section 2.10. In addition, such Stockholder Notice shall include:

 

  (A)

a copy of the Schedule 14N that has been or concurrently is filed with the SEC under the Exchange Act;

 

  (B)

a written statement of the Eligible Stockholder (and in the case of a group, the written statement of each stockholder or beneficial owner whose shares are aggregated for purposes of constituting an Eligible Stockholder), which statement(s) shall also be included in the Schedule 14N filed with the SEC, (i) setting forth and certifying to the number of shares of the Company entitled to vote generally in the election of Directors that the Eligible Stockholder Owns and has Owned (as defined in Section 2.10(b)(iii) of these Bylaws) continuously for at least three years as of the date of the Stockholder Notice, (ii) agreeing to continue to Own such shares through the annual meeting and (iii) indicating whether it intends to continue to Own such shares for at least one year following the annual meeting;

 

  (C)

the written agreement of the Eligible Stockholder (and in the case of a group, the written agreement of each stockholder or beneficial owner whose shares are aggregated for purposes of constituting an Eligible Stockholder) addressed to the Company, setting forth the following additional agreements, representations; and warranties:

 

  (1)

it shall provide (a) within five business days after the date of the Stockholder Notice, one or more written statements from the record holder(s) of the Required Shares and from each intermediary through which the Required Shares are or have been held, in each case during the requisite three-year holding period, specifying the number of shares that the Eligible Stockholder Owns, and has Owned continuously in compliance with this Section 2.10, (b) within five business days after the

 

17


  record date for the annual meeting both the information required under Section 2.9(a)(ii)(C) and notification in writing verifying the Eligible Stockholder’s continuous Ownership of the Required Shares, in each case, as of such date, and (c) immediate notice to the Company if the Eligible Stockholder ceases to own any of the Required Shares prior to the annual meeting;

 

  (2)

it (a) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Company, and does not presently have this intent, (b) has not nominated and shall not nominate for election to the Board of Directors at the annual meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 2.10, (c) has not engaged and shall not engage in, and has not been and shall not be a participant (as defined in Item 4 of Exchange Act Schedule 14A) in, a solicitation within the meaning of Exchange Act Rule 14a-1(l), in support of the election of any individual as a Director at the annual meeting other than its Stockholder Nominee(s) or any nominee(s) of the Board of Directors , and (d) shall not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Company; and

 

  (3)

it will (a) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Company or out of the information that the Eligible Stockholder provided to the Company, (b) indemnify and hold harmless the Company and each of its Directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers or employees arising out of the Eligible Stockholder’s communications with the stockholders of the Company or out of the information that the Eligible Stockholder provided to the Company, (c) comply with all laws, rules, regulations and listing standards applicable to its nomination or any solicitation in connection with the annual meeting, (d) file with the SEC any solicitation or other communication by or on behalf of the Eligible Stockholder relating to the Company’s annual meeting of stockholders, one or more of the Company’s Directors or Director nominees or any Stockholder Nominee, regardless of whether the filing is required under Exchange Act Regulation 14A, or whether any exemption from filing is available for the materials under

 

18


  Exchange Act Regulation 14A, and (e) at the request of the Company, promptly, but in any event within five business days after such request (or by the day prior to the day of the annual meeting, if earlier), provide to the Company such additional information as reasonably requested by the Company; and

 

  (D)

in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all members of the group with respect to the nomination and matters related thereto, including withdrawal of the nomination, and the written agreement, representation, and warranty of the Eligible Stockholder that it shall provide, within five business days after the date of the Stockholder Notice, documentation reasonably satisfactory to the Company demonstrating that the number of stockholders and/or beneficial owners within such group does not exceed twenty (20), including whether a group of funds qualifies as one stockholder or beneficial owner within the meaning of Section 2.10(b)(ii).

All information provided pursuant to this Section 2.10(c)(i) shall be deemed part of the Stockholder Notice for purposes of this Section 2.10.

 

  (ii)

To be timely under this Section 2.10, the Stockholder Notice must be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company not later than the close of business on the one hundred twentieth (120th) day or earlier than the close of business on the one hundred fiftieth (150th) day prior to the anniversary date on which the Company first distributed its definitive proxy materials for the prior year’s annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the first anniversary of the prior year’s annual meeting, notice by the stockholder in order to be timely, must be so delivered, or so mailed and received, not earlier than the close of business on the one hundred fiftieth (150th) day prior to such annual meeting and not later than the close of business on the later of the one hundred twentieth (120th) day prior to such annual meeting or the tenth (10th) day following the date on which public disclosure (as defined in Section 2.9(c)(ii) above) of the date of the annual meeting is first made by the Company. In no event shall the public disclosure of an adjournment or a postponement of an annual meeting commence a new time period (or extend any time period) for the giving of the Stockholder Notice as described above.

 

  (iii)

Within the time period for delivery of the Stockholder Notice, a written representation and agreement of each Stockholder Nominee shall be delivered to the Secretary of the Company at the principal executive offices of the Company, which shall be signed by each Stockholder

 

19


  Nominee and shall represent and agree (A) as to the matters set forth in Section 2.9(a)(ii)(A), and (B) that such Stockholder Nominee consents to being named in the Company’s proxy statement and form of proxy as a nominee and to serving as a Director if elected. At the request of the Company, the Stockholder Nominee must promptly, but in any event within five (5) business days after such request, submit all completed and signed questionnaires required of the Company’s nominees and provide to the Company such other information as it may reasonably request. The Company may request such additional information as necessary to permit the Board of Directors to determine if each Stockholder Nominee satisfies the requirements of this Section 2.10.

 

  (iv)

In the event that any information or communications provided by the Eligible Stockholder or any Stockholder Nominees to the Company or its stockholders is not, when provided, or thereafter ceases to be, true, correct and complete in all material respects (including omitting a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), such Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary and provide the information that is required to make such information or communication true, correct, complete and not misleading; it being understood that providing any such notification shall not be deemed to cure any defect or limit the Company’s right to omit a Stockholder Nominee from its proxy materials as provided in this Section 2.10.

 

  (d)

Proxy Access Procedures .

 

  (i)

Notwithstanding anything to the contrary contained in this Section 2.10, the Company may omit from its proxy materials any Stockholder Nominee, and such nomination shall be disregarded and no vote on such Stockholder Nominee shall occur, notwithstanding that proxies in respect of such vote may have been received by the Company, if:

 

  (A)

the Eligible Stockholder or Stockholder Nominee breaches any of its agreements, representations or warranties set forth in the Stockholder Notice or otherwise submitted pursuant to this Section 2.10, any of the information in the Stockholder Notice or otherwise submitted pursuant to this Section 2.10 was not, when provided, true, correct and complete (or omitted a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), or the Eligible Stockholder or applicable Stockholder Nominee otherwise fails to comply with its obligations pursuant to these Bylaws, including, but not limited to, its obligations under this Section 2.10;

 

20


  (B)

the Stockholder Nominee (1) is not independent under any applicable listing standards, any applicable rules of the SEC or any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the Company’s Directors, (2) is or has been, within the past three years, an officer or Director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, (3) is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding (excluding traffic violations and other minor offenses) within the past ten years, (4) is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended or (5) shall have provided any information to the Company or its stockholders that was untrue in any material respect or that omitted to state a material fact necessary to make the statements made, in light of the circumstances in which they were made, not misleading;

 

  (C)

the Company has received a notice (whether or not subsequently withdrawn) that a stockholder intends to nominate any candidate for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for Director in Section 2.9(a); or

 

  (D)

the election of the Stockholder Nominee to the Board of Directors would cause the Company to violate the Certificate of Incorporation of the Company, these Bylaws, or any applicable law, rule, regulation or listing standard.

 

  (ii)

An Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the Company’s proxy materials pursuant to this Section 2.10 shall rank such Stockholder Nominees based on the order that the Eligible Stockholder desires such Stockholder Nominees to be selected for inclusion in the Company’s proxy materials and include such assigned rank in its Stockholder Notice submitted to the Company. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 2.10 exceeds the Authorized Number, the Stockholder Nominees to be included in the Company’s proxy materials shall be determined in accordance with the following provisions: one Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 shall be selected from each Eligible Stockholder for inclusion in the Company’s proxy materials until the Authorized Number is reached, going in order of the amount (largest to smallest) of shares of the Company each Eligible Stockholder disclosed as Owned in its Stockholder Notice submitted to the Company and going in the order of the rank (highest to lowest) assigned to each Stockholder Nominee by such Eligible Stockholder. If the Authorized Number is not reached after one

 

21


  Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 has been selected from each Eligible Stockholder, this selection process shall continue as many times as necessary, following the same order each time, until the Authorized Number is reached. Following such determination, if any Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 thereafter is nominated by the Board of Directors, thereafter is not included in the Company’s proxy materials or thereafter is not submitted for Director election for any reason (including the Eligible Stockholder’s or Stockholder Nominee’s failure to comply with this Section 2.10), no other nominee or nominees shall be included in the Company’s proxy materials or otherwise submitted for election as a Director at the applicable annual meeting in substitution for such Stockholder Nominee.

 

  (iii)

Any Stockholder Nominee who is included in the Company’s proxy materials for a particular annual meeting of stockholders but either (A) withdraws from or becomes ineligible or unavailable for election at the annual meeting for any reason, including for the failure to comply with any provision of these Bylaws (provided that in no event shall any such withdrawal, ineligibility or unavailability commence a new time period (or extend any time period) for the giving of a Stockholder Notice) or (B) does not receive in favor of such Stockholder Nominee’s election at least twenty-five percent (25%) of the votes cast with respect to such Stockholder Nominee’s election, shall be ineligible to be a Stockholder Nominee pursuant to this Section 2.10 for the next two annual meetings.

 

  (iv)

Notwithstanding the foregoing provisions of this Section 2.10, unless otherwise required by law or otherwise determined by the chairman of the meeting or the Board of Directors, if the stockholder delivering the Stockholder Notice (or a qualified representative of the stockholder, as defined in Section 2.9(c)(i)) does not appear at the annual meeting of stockholders of the Company to present its Stockholder Nominee or Stockholder Nominees, such nomination or nominations shall be disregarded, notwithstanding that proxies in respect of the election of the Stockholder Nominee or Stockholder Nominees may have been received by the Company.

 

  (v)

The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 2.10 and to make any and all determinations necessary or advisable to apply this Section 2.10 to any persons, facts or circumstances, including, without limitation, the power to determine (1) whether one or more stockholders or beneficial owners qualifies as an Eligible Stockholder, (2) whether a Stockholder Notice complies with this Section 2.10 and has otherwise met the requirements of this Section 2.10, (3) whether a Stockholder Nominee satisfies the qualifications and requirements in this Section 2.10, and (4) whether any and all

 

22


  requirements of this Section 2.10 (or any applicable requirements of Section 2.9) have been satisfied. Any such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board of Directors) shall be binding on all persons, including, without limitation, the Company and its stockholders (including, without limitation, any beneficial owners).

 

  (vi)

For the avoidance of doubt, nothing in this Section 2.10 shall limit the Company’s ability to solicit against any Stockholder Nominee or include in its proxy materials the Company’s own statements or other information relating to any Eligible Stockholder or Stockholder Nominee, including any information provided to the Company pursuant to this Section 2.10.

 

  (vii)

This Section 2.10 shall be the exclusive method for stockholders to include Director nominees for election in the Company’s proxy materials.

ARTICLE III

BOARD OF DIRECTORS

 

3.1

Number and Qualifications. The business and affairs of the Company shall be managed by or under the direction of its Board of Directors. The number of Directors constituting the entire Board of Directors shall be not less than six (6) nor more than sixteen (16), as fixed from time to time exclusively by resolution of a majority of the entire Board of Directors. As used in these Bylaws, the term “entire Board of Directors” means the total authorized number of Directors that the Company would have if there were no vacancies.

 

3.2

Term. Subject to any rights of holders of preferred stock to elect directors, each director shall hold office until the next annual meeting for the election of directors and until the director’s successor is duly elected and qualified.

 

3.3

Resignation. A Director may resign at any time by giving written notice to the Chairman, to the Chief Executive Officer or the Secretary. Unless otherwise stated in such notice of resignation, the acceptance thereof shall not be necessary to make it effective; and such resignation shall take effect at the time or upon the happening of an event specified therein or, in the absence of such specification, it shall take effect upon the receipt thereof.

 

3.4

Vacancies. Subject to the provisions of the Certificate of Incorporation and the rights of the holders of any class or series of preferred stock to elect directors, any vacancies on the Board of Directors for any reason, including from the death, resignation, disqualification or removal of any director, and any newly created directorships resulting by reason of any increase in the number of directors shall be filled exclusively by the Board of Directors, acting by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by stockholders. Any directors elected to fill a vacancy shall hold office until the next annual meeting of stockholders or until their successors are duly elected and qualified.

 

23


3.5

Regular Meetings. Regular meetings of the Board of Directors may be held without further notice on such date and at such time and place as shall from time to time be determined by the Board of Directors. A meeting of the Board of Directors for the election of officers and the transaction of such other business as may come before it may be held without notice immediately following the annual meeting of stockholders.

 

3.6

Special Meetings. Special meetings of the Board of Directors may be called by the Chairman or the Chief Executive Officer or at the request in writing or by the affirmative vote of a majority of the Directors then in office.

 

3.7

Notice of Special Meetings. Notice of the time and place of each special meeting shall be mailed to each Director at least two (2) days before the meeting at his or her residence or usual place of business, or telegraphed, telecopied or electronically transmitted or delivered personally or by telephone to such Director at least one day before the meeting but such notice may be waived by such Director. The notice need not state the purposes of the special meeting and, unless indicated in the notice thereof, any and all business may be transacted at a special meeting.

 

3.8

Place of Meetings. The Directors may hold their meetings and have an office or offices within or outside of the State of Delaware as the Board of Directors may from time to time determine.

 

3.9

Participation in Meetings by Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.

 

3.10

Quorum. A majority of the total number of Directors then holding office shall constitute a quorum. If a quorum does not exist, a majority of the Directors present may adjourn the meeting from time to time without notice, other than announcement at the meeting, until a quorum shall be obtained.

 

3.11

Organization. The Chairman, or, in the absence of the Chairman, a member of the Board of Directors selected by the members present, shall preside at meetings of the Board of Directors. The Secretary or an Assistant Secretary of the Company shall act as secretary, but in the absence of the Secretary or an Assistant Secretary, the presiding officer may appoint a secretary.

 

3.12

Compensation of Directors. Directors shall receive such compensation for their services on the Board of Directors and any committee thereof and such reimbursement for their expenses of attending meetings of the Board of Directors and any committee thereof as the Board of Directors may determine from time to time.

 

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3.13

Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee thereof. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

3.14

Interested Transactions. No contract or transaction between the Company and one or more of its directors or officers, or between the Company and any other corporation, partnership, association or other organization in which one or more of the Company’s directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (a) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Company as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.

 

3.15

Committees of the Board of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Company. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Company are listed for trading, if a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Company and may authorize the seal of the Company to be affixed to all papers that may require it to the extent so authorized by the Board of Directors. Unless the Board of Directors provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall

 

25


  constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board of Directors provides otherwise, each committee designated by the Board of Directors may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article III. Notwithstanding anything to the contrary contained in this Article III, any resolution of the Board of Directors establishing or directing any committee of the Board of Directors or establishing or amending the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling. No committee of the Board of Directors shall have the power or authority to (a) approve or adopt, or recommend to stockholders, any action or matter expressly required by the General Corporation Law of the State of Delaware to be submitted to stockholders for approval; or (b) adopt, amend, or repeal these Bylaws. No committee of the Board of Directors shall take any action that is required by these Bylaws, the Certificate of Incorporation or the General Corporation Law of the State of Delaware to be taken by a vote of a specified proportion of the entire Board of Directors.

ARTICLE IV

OFFICERS

 

4.1

Positions and Election. The officers of the Company shall consist of a Chief Executive Officer, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. Any two or more offices may be held by the same person. Officers may, but need not, be directors or stockholders of the Company. The salaries of all officers shall be fixed by the Board of Directors.

 

4.2

Term. Each officer of the Company shall hold office until such officer’s successor is duly elected and qualified or until such officer’s earlier death, resignation or removal. The Board of Directors may remove any officer at any time with or without cause by the majority vote of the members of the Board of Directors.

 

4.3

Resignation. Any officer of the Company may resign at any time by giving written notice of his or her resignation to the Chief Executive Officer or the Secretary. Such resignation shall be effective upon receipt unless such notice provides that the resignation is effective at some later time or upon the occurrence of some later event.

 

4.4

Vacancies. A vacancy occurring in any office shall be filled in the same manner as provide for the election or appointment to such office.

 

26


4.5

Chief Executive Officer. The Chief Executive Officer shall have general charge and supervision of the business of the Company subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors.

 

4.6

Vice Presidents. Each Vice President shall have such powers and perform such duties as may be assigned to him or her from time to time by the Board of Directors or the Chief Executive Officer. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.

 

4.7

Secretary; Assistant Secretary. The Secretary, or an Assistant Secretary, shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors, and shall perform such other duties as may be assigned by the Board of Directors. The Secretary, or an Assistant Secretary, shall keep in safe custody the seal of the Company and have authority to affix the seal to all documents requiring it and attest to the same.

 

4.8

Treasurer; Assistant Treasurer. The Treasurer, or an Assistant Treasurer, shall have the custody of the corporate funds and other property of the Company, except as otherwise provided by the Board of Directors, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board of Directors. The Treasurer, or an Assistant Treasurer, shall disburse the funds of the Company as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and whenever requested by the Board of Directors, shall render an account of all his or her transactions as treasurer and of the financial condition of the Company, and shall perform such other duties as may be assigned by the Board of Directors.

 

4.9

Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding the provisions herein.

 

4.10

Voting Securities Owned by the Company. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Company may be executed in the name of and on behalf of the Company by the Chief Executive Officer or any other officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Company, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Company may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Company might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

 

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4.11

Chairman of the Board of Directors. The Board of Directors, in its discretion, may choose a Chairman (who shall be a director but need not be elected as an officer). The Chairman shall preside at all meetings of the stockholders and the Board of Directors.

The Chairman shall perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.

ARTICLE V

INDEMNIFICATION

 

5.1

Mandatory Indemnification. The Company shall indemnify, to the fullest extent permitted by Delaware law, any person who was or is a defendant or is threatened to be made a defendant to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person:

 

  (a)

is or was a Director, officer or employee of the Company;

 

  (b)

is or was a Director, officer or employee of the Company and is or was serving at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise; or

 

  (c)

is or was serving at the request of the Company as a director, trustee, member, member representative or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise

against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

5.2

Permitted Indemnification. The Company may indemnify, to the fullest extent permitted by Delaware law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person:

 

  (a)

is or was a Director, officer, employee or agent of the Company; or

 

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  (b)

is or was serving at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise

against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

5.3

Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by any person who is or was a Director or officer of the Company, or any person who is or was serving at the request of the Company as a director, trustee, member, member representative or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, in defending or investigating a threatened or pending action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company to the fullest extent permitted by Delaware law in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such person to repay such amount if it ultimately shall be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V. Such expenses (including attorneys’ fees) incurred by any person who is or was an employee or agent of the Company, or any person who is or was serving at the request of the Company as an employee or agent of another corporation, partnership, limited liability company, joint venture, trust or enterprise may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

 

5.4

Judicial Determination of Mandatory Indemnification or Mandatory Advancement of Expenses. Any person may apply to any court of competent jurisdiction in the State of Delaware to order indemnification or advancement of expenses to the extent mandated under Sections 5.1 or 5.3 above. The basis of such order of indemnification or advancement of expenses by a court shall be a determination by such court that indemnification of, or advancement of expenses to, such person is proper in the circumstances. Notice of any application for indemnification or advancement of expenses pursuant to this Section 5.4 shall be given to the Company promptly upon the filing of such application. The burden of proving that such person is not entitled to such mandatory indemnification or mandatory advancement of expenses, or that the Company is entitled to recover the mandatory advancement of expenses pursuant to the terms of an undertaking, shall be on the Company. If successful in whole or in part in obtaining an order for mandatory indemnification or mandatory advancement of expenses, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, such person shall also be entitled to be paid all costs (including attorneys’ fees and expenses) in connection therewith.

 

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5.5

Nonexclusivity. The indemnification and advancement of expenses mandated or permitted by, or granted pursuant to, this Article V shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any Bylaw, agreement, contract, vote of stockholders or disinterested Directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise both as to action by the person in an official capacity and as to action in another capacity while holding such office it being the policy of the Company that indemnification of the persons specified in Section 5.1 and Section 5.3 shall be made to the fullest extent permitted by law. The provisions of this Article V shall not be deemed to preclude the indemnification of any person who is not specified in Section 5.1 or 5.3, but whom the Company has the power or obligation to indemnify under Delaware law or otherwise.

 

5.6

Insurance. The Company may, but shall not be obligated to, purchase and maintain insurance at its expense on behalf of any person who is or was a Director, officer, employee or agent of the Company, or is or was a director or officer of the Company serving at the request of the Company as a director, officer, trustee, member, member representative, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in any such capacity, or arising out of the person’s status as such, whether or not the Company would have the power or the obligation to indemnify such person against such liability under the provisions of this Article V.

 

5.7

Definitions. For the purposes of this Article V references to “the Company” shall include, in addition to the resulting company, any constituent company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, trustees, members, member representatives, officers, employees or agents, so that any person who is or was a director, trustee, member, member representative, officer, employee or agent of such constituent company, or is or was serving at the request of such constituent company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article V with respect to the resulting or surviving company as such person would have with respect to such constituent company if its separate existence had continued. The term “other enterprise” as used in this Article V shall include employee benefit plans. References to “fines” in this Article V shall include excise taxes assessed on a person with respect to an employee benefit plan. The phrase “serving at the request of the Company” shall include any service as a director, trustee, member, member representative, officer, employee or agent that imposes duties on, or involves services by, such director, trustee, member, member representative, officer, employee or agent with respect to any employee benefit plan, its participants or beneficiaries.

 

30


5.8

Survival. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article V shall continue as to a person who has ceased to be a Director, officer, employee or agent of the Company, and to a person who has ceased to serve at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, and, in each case, shall inure to the benefit of the heirs, executors and administrators of such person.

 

5.9

Repeal, Amendment or Modification. Any repeal, amendment or modification of this Article V shall not affect any rights or obligations then existing between the Company and any person referred to in this Article V with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon such state of facts.

ARTICLE VI

MISCELLANEOUS

 

6.1

Seal. The corporate seal shall have inscribed upon it the name of the Company, the year “2015” and the words “Seal” and “Delaware.” The Secretary shall be in charge of the seal and may authorize a duplicate seal to be kept and used by any other officer or person.

 

6.2

Waiver of Notice. Whenever any notice is required to be given to any stockholder or Director of the Company, a waiver thereof in writing, signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

6.3

Forum for Adjudication of Certain Disputes. Unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and consented to the provisions of this Section 6.3. Failure to enforce the foregoing provisions would cause the Company irreparable harm and the Company shall be entitled to equitable relief, including injunction and specific performance, to enforce the foregoing provisions.

 

6.4

Offices. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at that address is The Corporation Trust Company. The Company may also have offices at such other places within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Company may from time to time require.

 

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6.5

Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the Corporation shall end on December 31.

 

6.6

Contracts. Except as otherwise provide in these Bylaws, the Board of Directors may authorize any officer or officers to enter into any contract or to execute or deliver any instrument on behalf of the Company and such authority may be general or limited to specific instances. Any officer so authorized may, unless the authorizing resolution otherwise provides, delegate such authority to one or more subordinate officers, employees or agents, and such delegation may provide for further delegation.

 

6.7

Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for the payment of money of the Company shall be signed, endorsed or accepted in the name of the Company by such officer, officers, person or persons as from time to time may be designated by the Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.

 

6.8

Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the General Corporation Law of the State of Delaware and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 3.13), and may be paid in cash, in property, or in shares of the Company’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Company available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Company, or for equalizing dividends, or for repairing or maintaining any property of the Company, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

 

6.9

Conflict with Applicable Law or Certificate of Incorporation. These Bylaws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these Bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.

ARTICLE VII

AMENDMENT OF BYLAWS

 

7.1

Amendment of Bylaws. The Board of Directors is expressly authorized and shall have the power to amend, alter, change or repeal or to adopt any provision of these Bylaws at any regular or special meeting of the Board of Directors at which there is a quorum by the affirmative vote of a majority of the total number of directors present at such meeting, or by unanimous written consent in accordance with Section 3.13. The stockholders also shall have power to amend, alter, change or repeal or to adopt any provision of these Bylaws of the Company at any annual or special meeting subject to the requirements of these Bylaws and the Certificate of Incorporation by the affirmative vote of the holders of a majority of the voting power of all the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting together as a single class.

 

32

Exhibit 10.1

EXECUTION VERSION

 

 

TAX MATTERS AGREEMENT

by and among

DOWDUPONT INC.,

DOW INC.,

and

CORTEVA, INC.,

dated as of April 1, 2019

 

 


TAX MATTERS AGREEMENT

This TAX MATTERS AGREEMENT (the “ Agreement ”), dated as of April 1, 2019, is entered into by and among DOWDUPONT INC., a Delaware corporation, DOW INC., a Delaware corporation and a wholly-owned subsidiary of DowDuPont, and CORTEVA, INC., a Delaware corporation and a wholly-owned subsidiary of DowDuPont.

W I T N E S S E T H

WHEREAS, on August 31, 2017, pursuant to that certain Agreement and Plan of Merger dated as of December 11, 2015 (as amended as of March 31, 2017), Diamond Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of DowDuPont, merged with and into TDCC with TDCC continuing as the surviving corporation and a wholly-owned subsidiary of DowDuPont and Orion Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of DowDuPont, merged with and into DuPont with DuPont continuing as the surviving corporation and a subsidiary of DowDuPont (the “ Mergers ”);

WHEREAS, the board of directors of DowDuPont has determined that it is in the best interests of DowDuPont and its shareholders to separate DowDuPont into three separate, publicly traded, companies one for each of (i) the Material Science Business, which shall be owned and conducted, directly or indirectly, by Dow and its Subsidiaries, (ii) the Agriculture Business which shall be owned and conducted, directly or indirectly, by AgCo and its Subsidiaries, and (iii) the Specialty Products Business, which shall be owned and conducted, directly or indirectly, by SpecCo and its Subsidiaries;

WHEREAS, in order to effect such separation, the board of directors of DowDuPont has determined that it is appropriate, desirable and in the best interests of DowDuPont and its shareholders to undertake certain internal reorganizations in order to separate the operations and entities engaged in each of the businesses;

WHEREAS, following the completion of the internal reorganizations, pursuant to the terms of the Separation Agreement, DowDuPont shall distribute 100% of the Dow common stock pro rata to the holders of DowDuPont common stock (the “ Dow Distribution ”) and DowDuPont shall distribute 100% of the AgCo common stock pro rata to the holders of DowDuPont common stock (the “ AgCo Distribution ”);

WHEREAS, the Parties intend that the Transactions shall qualify as tax-free transactions under Sections 355, 368 and related provisions of the Code; and

WHEREAS, the Parties wish to (a) provide for the payment of Tax liabilities and entitlement to Refunds thereof, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes, including for periods following the Mergers and prior to the Dow Distribution, and (b) set forth certain covenants and indemnities relating to the preservation of the intended Tax treatment of the internal reorganizations and the Transactions.


NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein and in any other document executed in connection with this Agreement, the Parties agree as follows:

ARTICLE I

DEFINITIONS

1.1 For purposes of this Agreement, the following terms shall have the meanings set forth below:

2017 965 Discount Percentage ” shall mean 88.7%

2018 965 Discount Percentage ” shall mean 85.5%

965 Adjustment Amount ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, a number which may be positive or negative, equal to (i) the Pro Forma Section 965 Tax Liability for such Sub-Group for such tax year, less (ii) the Unadjusted Section 965 Tax Liability for such Sub-Group for such tax year.

Actual Tax Payments ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, the sum of the payments made by a Party (and TDCC) that is a member of such Sub-Group or its Subsidiaries (as determined at the time of such payment) with respect to such tax year, (i) to the IRS, (ii) as tax sharing payments to DowDuPont as agent for the DowDuPont U.S. Consolidated Group, and/or (iii) to another Party for U.S. federal income Taxes allocated to the paying Party under Section 2.1(a)(iv)-(xi), Section 2.1(b)(iv)-(x), Section 2.1(c)(iii)-(vii), or Section 2.1(d)(iii)-(vi). For the avoidance of doubt, without duplication of any amounts included in clauses (i)-(iii) of this definition, Actual Tax Payments shall include those amounts reflected on Exhibit D that are designated as payments for U.S. federal Consolidated Taxes.

AgCo ” shall mean Corteva, Inc. and any successor of AgCo that is required to assume the obligations of AgCo hereunder pursuant to Section 9.10.

AgCo Contribution ” shall mean any contribution to AgCo by DowDuPont in connection with, or in anticipation of, the AgCo Distribution.

AgCo Disqualifying Action ” shall mean (i) any action by an AgCo Entity after the AgCo Distribution that, or the failure to take any action after the AgCo Distribution within its control which, negates in whole or part the Tax-Free Status of the Transactions, (ii) any event or series of events following the AgCo Distribution, as a result of which any Person or Persons (directly or indirectly) acquire, or have the right to acquire, equity interests of AgCo that, when combined with any other changes in ownership of equity interests of AgCo, TDCC (prior to the Dow Distribution), DowDuPont (prior to the AgCo Distribution) or DuPont, causes the Dow Distribution or the AgCo Distribution to be a taxable event to DowDuPont as a result of the application of Section 355(e) of the Code or to be a taxable event as a result of a failure to satisfy the requirements described under Treasury Regulation Sections 1.355-2(c) or (d), or (iii) the failure of any representation made by AgCo and contained in the Tax Materials to be true and correct at the time made to the extent the underlying facts were uniquely within the knowledge of an AgCo Entity at the time the representation was made.

 

3


AgCo Distribution ” shall have the meaning given in the Recitals.

AgCo Distribution Date ” shall mean the date of the AgCo Distribution.

AgCo Distribution Taxes ” shall mean Taxes attributable to the AgCo Contribution and the AgCo Distribution.

AgCo Dow Cash Repatriation Taxes ” shall mean, with respect to each applicable jurisdiction, any Taxes (including an amount of cash equal to the Taxes that would be due on any dividend, distribution, payment, disbursement or other repatriation described in his definition, but which dividend, distribution, payment, disbursement or other repatriation is not permitted to be made on or prior to December 31, 2020 as a result of any restriction under applicable Law (including distributable reserve or surplus requirements, exchange controls, and other similar requirements) on the making of such dividend, distribution, payment, disbursement or other repatriation) incurred by AgCo or any Subsidiary of AgCo on the dividend, distribution, payment, disbursement or other repatriation (including by multiple payments through intermediary entities) on or prior to December 31, 2020, acting reasonably to minimize any such Taxes, of an amount of cash equal to the Qualifying Historical Dow AgCo Closing Cash with respect to the jurisdiction (provided, that the amount of Qualifying Historical Dow AgCo Closing Cash for all jurisdictions shall not exceed the Aggregate Qualifying Historical Dow AgCo Closing Cash, and, in the event that it would otherwise so exceed the Aggregate Qualifying Historical Dow AgCo Closing Cash (the amount of such excess, the “AgCo Aggregate Excess Cash Amount”), the Qualifying Historical Dow AgCo Closing Cash for the jurisdictions shall be decreased in a manner that minimizes, to the fullest extent possible, the AgCo Dow Cash Repatriation Taxes, with the result that, after such decreases, the sum of the Qualifying Historical Dow AgCo Closing Cash for all jurisdictions equals the Aggregate Qualifying Historical Dow AgCo Closing Cash), from all Subsidiaries of AgCo incorporated or otherwise organized in such jurisdiction, to AgCo or any Subsidiaries of AgCo organized under the laws of the United States or any state thereof. Notwithstanding the foregoing, no amount shall be considered included in the definition of AgCo Dow Cash Repatriation Taxes unless notice of such amounts has been provided to Dow (in the manner provided in this Agreement) on or prior to December 31, 2020. To the extent that there is either an AgCo Aggregate Excess Cash Amount or the Cash and Cash Equivalents for any jurisdiction exceed the maximum amount set forth for such jurisdiction on Schedule 1.1(243) of the Separation Agreement to be treated as Qualifying Historical Dow AgCo Closing Cash (the amount of such excess, the “ AgCo Jurisdictional Excess Cash Amount ”) the amount of AgCo Dow Cash Repatriation Taxes shall be reduced by an amount equal to (i) the sum of (A) the AgCo Aggregate Excess Cash Amount plus (B) the sum of the AgCo Jurisdictional Excess Cash Amount for each applicable jurisdiction minus (ii) the incremental amount that would have been treated as AgCo Dow Cash Repatriation Taxes if there was no reduction for the AgCo Aggregate Excess Cash Amount and the sum of the AgCo Jurisdictional Excess Cash Amount for each applicable jurisdiction was treated as Qualifying Historical Dow AgCo Closing Cash.

 

4


AgCo Entities ” shall mean AgCo and its Subsidiaries.

AgCo Integration Taxes ” shall mean Taxes attributable to AgCo Integration Transactions.

AgCo Integration Transactions ” shall mean the transfer of Realigned Dow Entities from DowDuPont to DuPont, AgCo or any of their Subsidiaries (as determined at the time of such transfer).

AgCo Percentage ” shall be a percentage (which shall not be less than zero, nor greater than the DowDuPont Percentage) as agreed between AgCo and DowDuPont prior to the AgCo Distribution Date, and this Agreement shall be amended to incorporate such agreement.

AgCo Vice President of Tax ” shall mean Christian Pirozek, or such other individual employed by AgCo with primary supervisory responsibility for Tax matters.

Aggregate Adjustment Payment ” shall mean a number, which may be positive or negative, equal to the sum of (i) the product of (A) the Undiscounted Annual Payment Amount for the 2017 U.S. federal income tax year of DowDuPont and (B) the 2017 965 Discount Percentage, (ii) the product of (A) the Undiscounted Annual Payment Amount for the 2018 U.S. federal income tax year of DowDuPont and (B) the 2018 965 Discount Percentage, and (iii) the Undiscounted Annual Payment Amount for the 2019 U.S. federal income tax year of DowDuPont.

Agreement ” shall have the meaning given in the Preamble.

Agriculture Attributable Obligations ” shall have the meaning as agreed between AgCo and DowDuPont prior to the AgCo Distribution Date, and this Agreement shall be amended to incorporate such agreement.

Agriculture Business ” shall have the meaning set forth in the Separation Agreement.

Authorization Policy ” shall mean the Authorization Policy as defined in the resolutions of the board of directors of DowDuPont adopted on August 31, 2017.

Code ” shall mean the United States Internal Revenue Code of 1986, as amended.

Consolidated Group ” shall mean a group of Persons reporting and paying Taxes on a consolidated, combined or unitary tax basis that includes both Dow Entities and DuPont Entities.

Consolidated Taxes ” shall mean Taxes reported and paid by a Consolidated Group.

Continuing Arrangements ” shall have the meaning set forth in the Separation Agreement.

 

5


Deferred Items ” shall mean any (i) “intercompany transactions” in respect of which gain was and continues to be deferred pursuant to Treasury Regulations Section 1.1502-13, (ii) “excess loss account” in respect of the stock of any Realigned Entity pursuant to Treasury Regulations Section 1.1502-19, (iii) other item similar to those listed above under analogous provisions of federal, state, local or foreign law, or (iv) prepaid amount to the extent not yet included in income.

Identified Selected Dow Intercompany Account ” shall mean the Selected Dow Intercompany Accounts listed on Exhibit L hereto.

Dispute Resolution Firm ” shall have the meaning given in Section 8.1 .

Disqualifying Action ” shall mean an AgCo Disqualifying Action, a Dow Disqualifying Action, a DowDuPont Disqualifying Action or a SpecCo Disqualifying Action.

Distribution Taxes ” shall mean any AgCo Distribution Taxes or Dow Distribution Taxes.

Dow ” shall mean Dow Inc. and any successor to Dow that is required to assume the obligations of Dow hereunder pursuant to Section 9.10.

Dow Authorization Policy Actions ” shall mean transactions or conduct undertaken pursuant to TDCC’s exercise of the authority granted to it in the Authorization Policy to control the operations of the Material Science Business conducted by DuPont and its Subsidiaries that (i) were in violation of applicable law, (ii) were not at arms’ length terms or (iii) are set forth on Exhibit A hereto.

Dow Chief Tax Officer ” shall mean the Chief Tax Officer of Dow which position is currently held by Beth Nicholas.

Dow Contribution ” shall mean any contribution to Dow by DowDuPont in connection with, or in anticipation of, the Dow Distribution.

Dow Deferred Items ” shall mean Deferred Items of a Realigned Dow Entity to the extent existing on the Realignment Date with respect to such Realigned Dow Entity (including, for the avoidance of doubt, any Deferred Items of an entity classified as a partnership or disregarded entity for U.S. federal income tax purposes and owned directly or through other such flow-through entities by a Realigned Dow Entity on the Realignment Date).

Dow Disqualifying Action ” shall mean (i) any action by a Dow Entity following the Dow Distribution that, or the failure to take any action following the Dow Distribution within its control which, negates in whole or part the Tax-Free Status of the Transactions, (ii) any event or series of events following the Dow Distribution, as a result of which any Person or Persons (directly or indirectly) acquire, or have the right to acquire, equity interests of Dow that, when combined with any other changes in ownership of equity interests of Dow, TDCC, DowDuPont (prior to the Dow Distribution) or DuPont (prior to the Dow Distribution), causes the Dow Distribution or the AgCo Distribution to be a taxable event to DowDuPont as a result of the application of Section 355(e) of the Code or to be a taxable event as a result of a failure to satisfy

 

6


the requirements described under Treasury Regulation Sections 1.355-2(c) or (d), or (iii) the failure of any representation made by Dow or TDCC and contained in the Tax Materials to be true and correct at the time made to the extent the underlying facts were uniquely within the knowledge of a Dow Entity at the time the representation was made.

Dow Distribution ” shall have the meaning given in the Recitals.

Dow Distribution Date ” shall mean the date of the Dow Distribution.

Dow Distribution Taxes ” shall mean Taxes attributable to the Dow Contribution and the Dow Distribution.    

Dow Entities ” shall mean Dow, TDCC and their Subsidiaries as of a relevant time, and Realigned DuPont Entities after Realignment with respect to each such entity.

Dow Integration Taxes ” shall mean Taxes attributable to Dow Integration Transactions.    

Dow Integration Transactions ” shall mean the transfer of Realigned DuPont Entities from DowDuPont to Dow, TDCC or their Subsidiaries (as determined at the time of such transfer).

Dow Intercompany Indemnity Cap ” shall mean $200,000,000.

Dow Percentage ” shall mean the quotient, expressed as a percentage, of (i) the VWAP of the Dow common stock, divided by (ii) the sum of (A) the VWAP of the Dow common stock and (B) the VWAP of the DowDuPont common stock.

Dow Realignment Taxes ” shall mean (i) Taxes resulting from Dow Realignment Transactions, (ii) the product of (A) seventy-five percent, expressed as a decimal (75% or 0.75), and (B) the sum of (I) any Taxes resulting from transactions undertaken, on or prior to December 31, 2020, to maintain (including by the making of regular payments under) or settle, by means of cash payments, a dividend, capital contribution, a combination of the foregoing, or otherwise, as determined by DowDuPont, AgCo, or SpecCo, as applicable, the balance of the unpaid principal of, and accrued but unpaid interest on, any Historical Dow Selected Intercompany Accounts (other than the Identified Selected Dow Intercompany Accounts) not settled prior to Realignment to the extent such balance is reflected on Schedule 2.3(b)(2) of the Separation Agreement and (II) any Taxes due on any dividend, distribution or other transfer of cash, on or prior to December 31, 2020, used to settle or repay the balances of any Historical Dow Selected Intercompany Accounts described in clause (I) to DowDuPont, AgCo, or SpecCo, or any of their Subsidiaries organized in the United States, as applicable, and (iii) the sum of (A) any Taxes resulting from transactions undertaken to maintain (including by the making of regular payments under) or settle, by means of cash payments, a dividend, capital contribution, a combination of the foregoing, or otherwise, as determined (subject to Section 4.6(a) and Section 4.6(f) , as applicable) by DowDuPont, AgCo, or SpecCo, as applicable, (y) the Identified Selected Dow Intercompany Accounts and (z) if such transaction is undertaken on or prior to December 31, 2020, the balance of the unpaid principal of, and accrued but unpaid interest on, any Historical Dow Selected Intercompany Accounts (other than the Identified Selected Dow Intercompany

 

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Accounts) not settled prior to Realignment to the extent the balance of such Historical Dow Selected Intercompany Account exceeds the balance, if any, for such Historical Dow Selected Intercompany Account reflected on Schedule 2.3(b)(2) of the Separation Agreement and (B) the sum of any Taxes due (1) on any dividend, distribution or other transfer of cash, on or prior to December 31, 2020, used to settle or repay any Historical Dow Selected Intercompany Accounts described in clause (z) of the preceding clause (A) and (2) on any dividend, distribution or other transfer of cash used to settle or repay the Identified Selected Dow Intercompany Accounts, in each case, to DowDuPont, AgCo, or SpecCo, or any of their Subsidiaries organized in the United States, as applicable.

Dow Realignment Transactions ” shall mean transactions (i) undertaken by TDCC and its Subsidiaries, or Dow and its Subsidiaries, (A) to separate the Agriculture Business, the Specialty Products Business and the Material Science Business (B) that cause a Historic Dow Entity to become a Realigned Dow Entity or (C) as a “Receiving Party” (as defined in the Intellectual Property Cross-License Agreements to which Dow or TDCC is a party) pursuant to Section 2.7 of either of such Intellectual Property Cross-License Agreements in respect of any intellectual property held by a Historic Dow Entity, or (ii) undertaken by DowDuPont, SpecCo or AgCo, or any of their Subsidiaries pursuant to Section 2.6(a)(ii) of the Separation Agreement in respect of any Materials Business Asset held by a Realigned Dow Entity.

DowDuPont ” shall mean DowDuPont Inc. and any successor to DowDuPont that is required to assume the obligations of DowDuPont hereunder pursuant to Section 9.10.

DowDuPont Disqualifying Action ” shall mean (i) any action by a DowDuPont Entity during the period beginning after the Dow Distribution and ending with the AgCo Distribution that, or the failure to take any action during such period within its control which, negates in whole or part the Tax-Free Status of the Transactions, (ii) any event or series of events following the Dow Distribution, as a result of which any Person or Persons (directly or indirectly) acquire, or have the right to acquire, equity interests of DowDuPont that, when combined with any other changes in ownership of equity interests of DowDuPont, TDCC (prior to the Dow Distribution) or DuPont, causes the Dow Distribution to be a taxable event to DowDuPont as a result of the application of Section 355(e) of the Code or to be a taxable event as a result of a failure to satisfy the requirements described under Treasury Regulation Sections 1.355-2(c) or (d), or (iii) the failure of any representation made by DuPont or DowDuPont and contained in the Tax Materials to be true and correct at the time made to the extent the underlying facts were uniquely within the knowledge of a DowDuPont Entity at the time the representation was made.

DowDuPont Entities ” shall mean DowDuPont and its Subsidiaries.

DowDuPont Percentage ” shall mean one hundred percent (100%) minus the Dow Percentage.

Due Date ” shall mean (i) with respect to a Tax Return, the date (taking into account all valid extensions) on which such Tax Return is required to be filed under applicable law and (ii) with respect to a payment of Taxes, the date on which such payment is required to be made to avoid the incurrence of interest, penalties and/or additions to Tax.

 

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DuPont ” shall mean E. I. du Pont de Nemours and Company.

DuPont Authorization Policy Actions ” shall mean transactions or conduct undertaken pursuant to DuPont’s exercise of the authority granted to it in the Authorization Policy to control the operations of the Agriculture Business and the Specialty Products Business conducted by TDCC and its Subsidiaries that either (i) were in violation of applicable law, (ii) were not at arms’ length terms or (iii) are set forth on Exhibit B hereto.

DuPont Deferred Items ” shall mean Deferred Items of a Realigned DuPont Entity to the extent existing on the Realignment Date with respect to such Realigned DuPont Entity (including, for the avoidance of doubt, any Deferred Items of an entity classified as a partnership or disregarded entity for U.S. federal income tax purposes and owned directly or through other such flow-through entities by a Realigned DuPont Entity on the Realignment Date).

DuPont Entities ” shall mean (i) DuPont and its Subsidiaries as of a relevant time, and (ii) any other Subsidiaries of DowDuPont as of a relevant time, including Realigned Dow Entities after Realignment with respect to each such entity.

DuPont Intercompany Indemnity Cap ” shall mean $200,000,000.

DuPont Realignment Taxes ” shall mean (i) Taxes resulting from DuPont Realignment Transactions, (ii) the product of (A) seventy-five percent, expressed as a decimal (75% or 0.75), and (B) the sum of (I) any Taxes resulting from transactions undertaken, on or prior to December 31, 2020, to maintain (including by the making of regular payments under) or settle, by means of cash payments, a dividend, capital contribution, a combination of the foregoing, or otherwise, as determined by Dow, the balance of the unpaid principal of, and accrued but unpaid interest on, any Historical DuPont Selected Intercompany Accounts not settled prior to Realignment to the extent such balance is reflected on Schedule 2.3(b)(2) of the Separation Agreement and (II) any Taxes due on any dividend, distribution or other transfer of cash, on or prior to December 31, 2020, used to settle or repay the balances of any Historical DuPont Selected Intercompany Accounts described in clause (I) to Dow or any of its Subsidiaries organized in the United States, as applicable, and (iii) the sum of (A) any Taxes resulting from transactions undertaken, on or prior to December 31, 2020, to maintain (including by the making of regular payments under) or settle, by means of cash payments, a dividend, capital contribution, a combination of the foregoing, or otherwise, as determined (subject to Section 4.6(a) ) by Dow, the balance of the unpaid principal of, and accrued but unpaid interest on, any Historical DuPont Selected Intercompany Accounts not settled prior to Realignment to the extent the balance of such Historical DuPont Selected Intercompany Account exceeds the balance, if any, for such Historical DuPont Selected Intercompany Account reflected on Schedule 2.3(b)(2) of the Separation Agreement and (B) any Taxes due on any dividend, distribution or other transfer of cash, on or prior to December 31, 2020, used to settle or repay any Historical DuPont Selected Intercompany Accounts described in the preceding clause (A) to Dow, or any of its Subsidiaries organized in the United States, as applicable.

 

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DuPont Realignment Transactions ” shall mean transactions (i) undertaken by DuPont and its Subsidiaries to (A) separate the Material Science Business from the Specialty Products Business and the Agriculture Business or (B) that cause a Historic DuPont Entity to become a Realigned DuPont Entity, (ii) undertaken by DowDuPont, SpecCo or AgCo, or any of their respective Subsidiaries as a “Receiving Party” (as defined in the Intellectual Property Cross-License Agreements to which Dow or TDCC is a party) pursuant to Section 2.7 of either of such Intellectual Property Cross-License Agreements in respect of any intellectual property held by a Historic DuPont Entity, or (iii) undertaken by Dow or its Subsidiaries pursuant to either Section 2.6(a)(i) or Section 2.6(a)(iii) of the Separation Agreement in respect of any Agriculture Asset or Specialty Products Asset held by a Realigned DuPont Entity.

DuPont Vice President of Tax ” shall mean Mary Van Veen, or, after the Ag Distribution, the SpecCo Vice President of Tax.

Employee Matters Agreement ” shall mean that certain Employee Matters Agreement entered into by and among Dow, DowDuPont and AgCo.

Equity Transfer Party ” has the meaning set forth in Section 2.3 .

Extraordinary Transaction ” shall mean any action that is not in the ordinary course of business, but shall not include any action that is undertaken in connection with Realignment or the Transactions.

Final Determination ” shall have the meaning given to the term “determination” by Section 1313 of the Code with respect to United States federal Tax matters and with respect to foreign, state and local Tax matters Final Determination shall mean any final settlement with a relevant Tax Authority that does not provide a right to appeal or any final decision by a court with respect to which no timely appeal is pending and as to which the time for filing such appeal has expired.

Historic Dow Entities ” shall mean TDCC and its Subsidiaries, as of any time, other than Realigned DuPont Entities.

Historic DuPont Entities ” shall mean DuPont and its Subsidiaries as of any time, other than Realigned Dow Entities.

IRS ” shall mean the United States Internal Revenue Service.

IRS Ruling ” shall means the U.S. federal income tax ruling issued to DowDuPont by the IRS in connection with the Transactions dated as of February 14, 2017 and any amendment or supplement to such ruling.

Listed Deferred Items ” has the meaning set forth in Section 7.3(a) .

Listed Dow Deferred Items ” has the meaning set forth in Section 7.3(a) .

Listed DuPont Deferred Items ” has the meaning set forth in Section 7.3(a) .

 

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Local Country Joint Tax Agreements ” shall mean the Joint Tax Agreements entered into between applicable Dow Entities and DuPont Entities, in a jurisdiction, governing the allocation of non-U.S. Consolidated Taxes and Tax Attributes between the Dow Entities and DuPont Entities included in a non-U.S. Consolidated Group.

MatCo DuPont Ag Cash Repatriation Taxes ” shall mean, with respect to each applicable jurisdiction, the product of (i) the Agriculture Shared Historical DuPont Percentage and (ii) any Taxes (including an amount of cash equal to the Taxes that would be due on any dividend, distribution, payment, disbursement or other repatriation described in this definition but which dividend, distribution, payment, disbursement or other repatriation is not permitted to be made on or prior to December 31, 2020 as a result of any restriction under applicable Law (including distributable reserve or surplus requirements, exchange controls, and other similar requirements) on the making of such dividend, distribution, payment, disbursement or other repatriation) incurred by Dow or any Subsidiary of Dow on the dividend, distribution, payment, disbursement or other repatriation (including by multiple payments through intermediary entities) on or prior to December 31, 2020, acting reasonably to minimize any such Taxes, of an amount of cash equal to the Qualifying Historical DuPont MatCo Closing Cash with respect to the jurisdiction (provided, that the amount of Qualifying Historical DuPont MatCo Closing Cash for all jurisdictions shall not exceed the Aggregate Qualifying Historical DuPont MatCo Closing Cash, and, in the event that it would otherwise so exceed the Aggregate Qualifying Historical DuPont MatCo Closing Cash (the amount of such excess, the “MatCo Aggregate Excess Cash Amount”), the Qualifying Historical DuPont MatCo Closing Cash for the jurisdictions shall be decreased in a manner that minimizes, to the fullest extent possible, the MatCo DuPont Ag Cash Repatriation Taxes, with the result that, after such decreases, the sum of the Qualifying Historical DuPont MatCo Closing Cash for all jurisdictions equals the Aggregate Qualifying Historical DuPont MatCo Closing Cash), from all Subsidiaries of Dow incorporated or otherwise organized in such jurisdiction, to Dow or any Subsidiaries of Dow organized under the laws of the United States or any state thereof. Notwithstanding the foregoing, no amount shall be considered included in the definition of MatCo DuPont Ag Cash Repatriation Taxes unless notice of such amounts has been provided to AgCo (in the manner provided in this Agreement) on or prior to December 31, 2020. To the extent that there is either a MatCo Aggregate Excess Cash Amount or the Cash and Cash Equivalents for any jurisdiction exceed the maximum amount set forth for such jurisdiction on Schedule 1.1(243) of the Separation Agreement to be treated as Qualifying Historical DuPont MatCo Closing Cash (the amount of such excess, the “ MatCo Jurisdictional Excess Cash Amount ”) the amount of MatCo DuPont Ag Cash Repatriation Taxes shall be reduced by an amount equal to the product of (1) the Agriculture Shared Historical DuPont Percentage and (2) (i) the sum of (A) the MatCo Aggregate Excess Cash Amount plus (B) the sum of the MatCo Jurisdictional Excess Cash Amount for each applicable jurisdiction minus (ii) the incremental amount that would have been treated as MatCo DuPont Ag Cash Repatriation Taxes if there was no reduction for the MatCo Aggregate Excess Cash Amount and the sum of the MatCo Jurisdictional Excess Cash Amount for each applicable jurisdiction was treated as Qualifying Historical DuPont MatCo Closing Cash.

MatCo DuPont Spec Cash Repatriation Taxes ” shall mean, with respect to each applicable jurisdiction, the product of (i) the Specialty Products Shared Historical DuPont Percentage and (ii) any Taxes (including an amount of cash equal to the Taxes that would be due on any dividend, distribution, payment, disbursement or other repatriation described in this

 

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definition but which dividend, distribution, payment, disbursement or other repatriation is not permitted to be made on or prior to December 31, 2020 as a result of any restriction under applicable Law (including distributable reserve or surplus requirements, exchange controls, and other similar requirements) on the making of such dividend, distribution, payment, disbursement or other repatriation) incurred by Dow or any Subsidiary of Dow on the dividend, distribution, payment, disbursement or other repatriation (including by multiple payments through intermediary entities) on or prior to December 31, 2020, acting reasonably to minimize any such Taxes, of an amount of cash equal to the Qualifying Historical DuPont MatCo Closing Cash with respect to the jurisdiction (provided, that the amount of Qualifying Historical DuPont MatCo Closing Cash for all jurisdictions shall not exceed the Aggregate Qualifying Historical DuPont MatCo Closing Cash, and, in the event that it would otherwise so exceed the Aggregate Qualifying Historical DuPont MatCo Closing Cash, the Qualifying Historical DuPont MatCo Closing Cash for the jurisdictions shall be decreased in a manner that minimizes, to the fullest extent possible, the MatCo DuPont Spec Cash Repatriation Taxes, with the result that, after such decreases, the sum of the Qualifying Historical DuPont MatCo Closing Cash for all jurisdictions equals the Aggregate Qualifying Historical DuPont MatCo Closing Cash), from all Subsidiaries of Dow incorporated or otherwise organized in such jurisdiction, to Dow or any Subsidiaries of Dow organized under the laws of the United States or any state thereof. Notwithstanding the foregoing, no amount shall be considered included in the definition of MatCo DuPont Spec Cash Repatriation Taxes unless notice of such amounts has been provided to SpecCo (in the manner provided in this Agreement) on or prior to December 31, 2020. To the extent that there is either a MatCo Aggregate Excess Cash Amount or a MatCo Jurisdictional Excess Cash Amount the amount of MatCo DuPont Spec Cash Repatriation Taxes shall be reduced by an amount equal to the product of (1) the Specialty Products Shared Historical DuPont Percentage and (2) (i) the sum of (A) the MatCo Aggregate Excess Cash Amount plus (B) the sum of the MatCo Jurisdictional Excess Cash Amount for each applicable jurisdiction minus (ii) the incremental amount that would have been treated as MatCo DuPont Spec Cash Repatriation Taxes if there was no reduction for the MatCo Excess Cash Amount and the sum of the MatCo Jurisdictional Excess Cash Amount for each applicable jurisdiction was treated as Qualifying Historical DuPont MatCo Closing Cash.

Material Science Business ” shall have the meaning set forth in the Separation Agreement.

Mergers ” shall have the meaning given in the Recitals.

Merger Date ” shall mean August 31, 2017.

Net Amount ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year (or portion thereof) of the DowDuPont U.S. federal Consolidated Group, an amount, which may be positive or negative, equal to (i) the sum of (A) the Pro Forma Tax of such Sub-Group for such tax year (or portion thereof), plus (B) the Tax Attribute Differential Amount for such Sub-Group for such tax year (or portion thereof), plus (C) the 965 Adjustment Amount of such Sub-Group for such tax year (or portion thereof), minus (ii) the Actual Tax Payments attributed to such Sub-Group for such tax year (or portion thereof).

 

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Overall Failure ” shall mean the failure of the Transactions to qualify for the intended Tax-Free Status of the Transactions by reason of (i) the application of Section 355(e) of the Code (or any similar provision of state, local or foreign law) to the Dow Distribution or the AgCo Distribution by reason of direct or indirect transfers of any equity interest in TDCC, DuPont or DowDuPont prior to the date hereof, or (ii) any integration of the Dow Distribution and the AgCo Distribution with the Mergers.

Payment Date ” shall mean, (i) with respect to the U.S. federal consolidated income Tax Return of DowDuPont and/or SpecCo, the due date for any required installment of estimated taxes determined under Section 6655 of the Code, the due date (determined without regard to extensions) for filing such Tax Return determined under Section 6072 of the Code, and the date the return is filed, and (ii) with respect to any other Tax Return, the corresponding dates determined under the applicable Tax law.

Party or Parties ” shall mean each, and any, of Dow, DowDuPont, AgCo and SpecCo.

Past Practice ” shall mean past practices, accounting methods, elections and conventions.

Payee Party ” shall mean any Party that is seeking payment from a Party pursuant to the provisions of this Agreement.

Paying Party ” shall mean any Party from which payment is being sought pursuant to the provisions of this Agreement.

Person ” shall mean and includes any individual, corporation, company, association, partnership, joint venture, limited liability company, joint stock company, trust, unincorporated organization, or other entity.

Privilege ” shall mean any privilege that may be asserted under applicable law, including any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.

Pro Forma Section 965 Tax Liability ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, the notional Tax liability under Section 965 of the Code of the Sub-Group, calculated: (i) prior to reduction for any Tax Attributes, other than foreign tax credits for Taxes deemed paid as a result of the inclusion under Section 965(a) of the Code, which shall reduce the Tax liability to the extent permitted, and (ii) assuming that such Sub-Group calculated deductions under Section 965(c) of the Code based on only the Sub-Group’s “aggregate foreign cash position” within the meaning of Section 965(c)(3) of the Code and reductions under Section 965(b) of the Code based on only the Sub-Group’s “aggregate foreign E&P deficit” within the meaning of Section 965(b)(3) of the Code.

 

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Pro Forma Tax ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year, the amount of U.S. federal income Consolidated Taxes that would be payable by such Sub-Group, applying the Sub-Group Method.

Realignment ” shall mean the transfer of (i) a Historic Dow Entity out of TDCC such that the Historic Dow Entity was no longer a Subsidiary of TDCC but was a Subsidiary of DowDuPont, or (ii) a Historic DuPont Entity out of DuPont such that the Historic DuPont Entity was no longer a Subsidiary of DuPont but was a Subsidiary of DowDuPont, Dow or TDCC.

Realignment Date ” shall mean, as to any Person, the Date on which Realignment occurs.

Realigned Dow Entities ” shall mean Historic Dow Entities following their Realignment.

Realigned DuPont Entities ” shall mean Historic DuPont Entities following their Realignment.

Realigned Entity ” shall mean a Realigned Dow Entity or a Realigned DuPont Entity, as the case may be.

Realignment Taxes ” shall mean Taxes resulting from Realignment Transactions.

Realignment Transactions ” shall mean the Dow Realignment Transactions and the DuPont Realignment Transactions.

Refund ” shall mean any refund of Taxes, including any application of such refund to reduce liability for Taxes by means of a credit, offset or otherwise.

Relevant Tax Attribute ” shall mean (i) net operating loss carryovers and carrybacks under Section 172 of the Code, (ii) capital loss carryovers and carrybacks under Section 1212 of the Code, (iii) general business credits under Section 38 of the Code, (iv) foreign tax credits under Sections 901 and 902 of the Code, and (v) disallowed interest carryforwards under Section 163(j) of the Code.

Restricted Period ” shall mean (i) in the case of Dow or DowDuPont, the period commencing upon the Dow Distribution Date and ending at the close of business on the first day following the second anniversary of the Dow Distribution Date, and (ii) in the case of AgCo and SpecCo, the period commencing upon the AgCo Distribution Date and ending at the close of business on the first day following the second anniversary of the AgCo Distribution Date.

Retained Dow Entities ” shall mean Dow and TDCC and its Subsidiaries other than Realigned Dow Entities and Realigned DuPont Entities.

Retained DuPont Entities ” shall mean DuPont and its Subsidiaries and other Subsidiaries of DowDuPont, in each case, other than Realigned Dow Entities and Realigned DuPont Entities.

 

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Ruling ” shall mean a ruling from the IRS to the effect that (i) in respect of any action described in Section 7.1(a) , such action will not affect the intended tax-free status of a relevant Realignment Transaction, and (ii) in respect of any action described in Section 7.1(b) , such action will not affect the Tax-Free Status of the Transactions.

Section 336(e) Election ” has the meaning set forth in Section 3.4 .

Separation Agreement ” shall mean that certain Separation and Distribution Agreement, dated as of the date hereof, by and among AgCo, Dow and DWDP.

Separate Company Taxes ” shall mean (i) Taxes that are reported and paid on a separate company basis and (ii) Taxes reported on a consolidated, combined, or unitary tax basis for any period during which such Taxes are attributable to any of (A) only Dow Entities, (B) only DuPont Entities, (C) only AgCo Entities, or (D) only SpecCo Entities, as the case may be.

Share Repurchases ” shall have the meaning given such term in the IRS Ruling.

SpecCo ” shall mean DowDuPont following the AgCo Distribution, and any successor to SpecCo that is required to assume the obligations of SpecCo hereunder pursuant to Section 9.10.

SpecCo Disqualifying Action ” shall mean (i) any action by any SpecCo Entity after the AgCo Distribution that, or the failure to take any action after the AgCo Distribution within its control which, negates in whole or part the Tax-Free Status of the Transactions, or (ii) any event or series of events following the AgCo Distribution, as a result of which any Person or Persons (directly or indirectly) acquire, or have the right to acquire, equity interests of SpecCo that, when combined with any other changes in ownership of equity interests of SpecCo, DowDuPont, DuPont (prior to the AgCo Distribution) or TDCC (prior to the Dow Distribution), causes the Dow Distribution or the AgCo Distribution to be a taxable event to DowDuPont as a result of the application of Section 355(e) of the Code or to be a taxable event as a result of a failure to satisfy the requirements described under Treasury Regulation Sections 1.355-2(c) or (d).

SpecCo Dow Cash Repatriation Taxes ” shall mean, with respect to each applicable jurisdiction, any Taxes (including an amount of cash equal to the Taxes that would be due on any dividend, distribution, payment, disbursement or other repatriation described in this definition but which dividend, distribution, payment, disbursement or other repatriation is not permitted to be made on or prior to December 31, 2020 as a result of any restriction under applicable Law (including distributable reserve or surplus requirements, exchange controls, and other similar requirements) on the making of such dividend, distribution, payment, disbursement or other repatriation) incurred by DWDP, SpecCo or any of their Subsidiaries on the dividend, distribution, payment, disbursement or other repatriation (including by multiple payments through intermediary entities) on or prior to December 31, 2020, acting reasonably to minimize such Taxes, of an amount of cash equal to the Qualifying Historical Dow SpecCo Closing Cash with respect to the jurisdiction (provided, that the amount of Qualifying Historical Dow SpecCo Closing Cash for all jurisdictions shall not exceed the Aggregate Qualifying Historical Dow SpecCo Closing Cash, and, in the event that it would otherwise so exceed the Aggregate

 

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Qualifying Historical Dow SpecCo Closing Cash (the amount of such excess, the “SpecCo Aggregate Excess Cash Amount”), the Qualifying Historical Dow SpecCo Closing Cash for the jurisdictions shall be decreased in a manner that minimizes, to the fullest extent possible, the SpecCo Dow Cash Repatriation Taxes, with the result that, after such decreases, the sum of the Qualifying Historical Dow SpecCo Closing Cash for all jurisdictions equals the Aggregate Qualifying Historical Dow SpecCo Closing Cash), from all Subsidiaries of SpecCo incorporated or otherwise organized in such jurisdiction, to SpecCo or any Subsidiaries of SpecCo organized under the laws of the United States or any state thereof. Notwithstanding the foregoing, no amount shall be considered included in the definition of SpecCo Dow Cash Repatriation Taxes unless notice of such amounts has been provided to Dow (in the manner provided in this Agreement) on or prior to December 31, 2020.To the extent that there is either a SpecCo Aggregate Excess Cash Amount or the Cash and Cash Equivalents for any jurisdiction exceed the maximum amount set forth for such jurisdiction on Schedule 1.1(243) of the Separation Agreement to be treated as Qualifying Historical Dow SpecCo Closing Cash (the amount of such excess, the “ SpecCo Jurisdictional Excess Cash Amount ”) the amount of SpecCo Dow Cash Repatriation Taxes shall be reduced by an amount equal to (i) the sum of (A) the SpecCo Aggregate Excess Cash Amount plus (B) the sum of the SpecCo Jurisdictional Excess Cash Amount for each applicable jurisdiction minus (ii) the incremental amount that would have been treated as SpecCo Dow Cash Repatriation Taxes if there was no reduction for the SpecCo Aggregate Excess Cash Amount and the sum of the SpecCo Jurisdictional Excess Cash Amount for each applicable jurisdiction was treated as Qualifying Historical Dow SpecCo Closing Cash.

SpecCo Entities ” shall mean SpecCo and its Subsidiaries, other than AgCo Entities.

SpecCo Integration Taxes ” shall mean Taxes attributable to SpecCo Integration Transactions.

SpecCo Integration Transactions ” shall mean the transfer of Realigned Dow Entities from DowDuPont to any of its Subsidiaries (as determined at the time of such transfer) other than any AgCo Integration Transactions.

SpecCo Percentage ” shall mean a percentage equal to the DowDuPont Percentage less the AgCo Percentage. In the absence of any agreement between AgCo and DowDuPont as to the AgCo Percentage prior to the AgCo Distribution Date, the SpeCo Percentage shall be a percentage equal to the DowDuPont Percentage.

SpecCo Vice President of Tax ” shall mean Mary Van Veen, or such other individual employed by SpecCo with primary supervisory responsibility for Tax matters.

Specialties Attributable Obligations ” shall mean all of the liabilities and obligations of DowDuPont under this Agreement that are not Agriculture Attributable Obligations. In the absence of any agreement between AgCo and DowDuPont as to the Agriculture Attributable Obligations prior to the AgCo Distribution Date, the Specialties Attributable Obligations shall mean all of the liabilities and obligation of DowDuPont under this Agreement.

 

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Specialty Products Business ” shall have the meaning set forth in the Separation Agreement.

Specified Tax Items ” shall mean (i) income inclusions under Section 951A of the Code, (ii) Taxes imposed under Section 59A of the Code, (iii) deductions permitted under Section 250 of the Code, and (iv) interest expense limitations under Section 163(j) of the Code.

State Actual Tax Payments ” shall mean, with respect to a State Sub-Group and a U.S. state income tax year of the applicable U.S. state income Tax Consolidated Group, the sum of the payments made by a Party (or TDCC) that is a member of such Sub-Group or its Subsidiaries (as determined at the time of such payment) with respect to such tax year, (i) to the applicable Tax Authority in such state, (ii) as tax sharing payments to the agent of such U.S. state income Tax Consolidated Group, and/or (iii) to another Party for applicable U.S. state income Taxes allocated to the paying Party under Section 2.1(a)(iv)-(xi), Section 2.1(b)(iv)-(x), Section 2.1(c)(iii)-(vii), or Section 2.1(d)(iii)-(vi). For the avoidance of doubt, without duplication of any amounts included in clauses (i)-(iii) of this definition, State Actual Tax Payments shall include any amounts reflected on Exhibit D that are designated as payments for the applicable U.S. state income tax liability of the applicable U.S. state income Tax Consolidated Group.

State Aggregate Adjustment Payment ” shall mean a number, which may be positive or negative, equal to the sum of the State Single Adjustment Amounts for each U.S. state Consolidated Group for each applicable U.S. state income tax year.

State Net Amount ” shall mean, with respect to a State Sub-Group, a U.S. state income tax year of the applicable U.S. state income Tax Consolidated Group, and an applicable U.S. state, an amount, which may be positive or negative, equal to (i) the sum of (A) the State Pro Forma Tax of such State Sub-Group for such tax year (or portion thereof), plus (B) the State Tax Attribute Differential Amount for such State Sub-Group for such tax year (or portion thereof), minus (ii) the State Actual Tax Payments attributed to such State Sub-Group for such tax year (or portion thereof).

State Pro Forma Tax ” shall mean, with respect to a State Sub-Group, the applicable U.S. state income Tax year, and the relevant U.S. state, the amount of U.S. state income Consolidated Taxes that would be payable by such Sub-Group, applying the State Sub-Group Method.

State Relevant Tax Attributes ” shall mean (i) net operating loss carryovers and carrybacks, (ii) capital loss carryovers and carrybacks, (iii) general business credits, (iv) foreign tax credits, and (v) state contribution carryforwards; provided, however , that no Tax Attribute shall be included in this definition of “State Relevant Tax Attribute” to the extent that a valuation allowance (whether full or partial) has been recorded with respect to such Tax Attribute in the relevant financial statement as of the date hereof.

State Single Adjustment Amount ” shall mean, with respect to a U.S. state Consolidated Group, and an applicable U.S. state income tax year (or portion thereof) a number, which may be positive or negative, equal to the product of (i) (A) the State Net Amount for the DuPont State Sub-Group for such tax year (or portion thereof) less (B) the State Net Amount for the Dow State Sub-Group for such tax year (or portion thereof), and (ii) one half (0.50).

 

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State Sub-Group Method ” shall mean, with respect to any applicable U.S. state income Tax Consolidated Group, and the definition of State Pro Forma Tax and clause (ii) of the definition of State Tax Attribute Differential, the application of such definition (or clause therein) assuming (i) DowDuPont and/or all of its Subsidiaries that are members of the applicable U.S. state income Tax Consolidated Group (except Dow Entities) were members of a stand-alone U.S. state income tax consolidated, combined, unitary or affiliated group in such state (a “ DuPont State Sub-Group ”), (ii) all Dow Entities that are members of such applicable U.S. state income Tax Consolidated Group were members of a stand-alone U.S. state income tax consolidated, combined, unitary or affiliated group in such state (a “ Dow State Sub-Group ” and together with the related DuPont State Sub-Group, the “ State Sub-Groups ”), (iii) subject to clause (vi), state income Tax liability of the U.S. state income Tax Consolidated Group is allocated to each member of an applicable U.S. state income Tax Consolidated Group in proportion to the state taxable income of such member after reduction for such member’s State Relevant Tax Attributes utilized in such year (iv) each State Sub-Group will use the apportionment factor (if applicable) that is reflected on the Tax Return for the related U.S. state income Tax Consolidated Group (i.e., separate apportionment factors will not be recomputed for each State Sub-Group), (v) each Sub-Group will be deemed to first utilize State Relevant Tax Attributes and any current state losses or credits of members of its own Sub-Group utilized in such year, and (vi) the allocation to a State Sub-Group of items of applicable state income Taxes allocated under Section 2.1(a)(iv)-(xi) , Section 2.1(b)(iv)-(x) , Section 2.1(c)(iii)-(vii) , and Section 2.1(d)(iii)-(vi) to a Party that is or was a member of such State Sub-Group.

State Tax Attribute Differential ” shall mean, with respect to a State Sub-Group, a tax year of the state income Tax Consolidated Group, and a State Relevant Tax Attribute, the difference, which may be positive or negative, of (i) the sum of the amounts of such State Relevant Tax Attribute actually allocated to each member of the State Sub-Group, determined under applicable Law, at the close of the taxable year (for the avoidance of doubt, without application of the State Sub-Group Method) less (ii) the amount of the State Relevant Tax Attribute that would be held by such State Sub-Group determined under the State Sub-Group Method at the close of such tax year.

State Tax Attribute Differential Amount ” shall mean, with respect to a State Sub-Group and a tax year of the state income Tax Consolidated Group, the sum, which may be positive or negative, of the State Tax Attribute Differential Values for each State Relevant Tax Attribute of such Sub-Group, for such tax year.

State Tax Attribute Differential Value ” shall mean, with respect to a State Sub-Group, a tax year of the state income Tax Consolidated Group, and a State Relevant Tax Attribute, the value (which may be positive or negative) of the State Tax Attribute Differential, calculated assuming (i) State Relevant Tax Attributes included in clauses (iii) and (iv) of the definition of State Relevant Tax Attributes shall be valued at the amount of such State Relevant Tax Attributes, and (ii) State Relevant Tax Attributes included in clauses (i), (ii) and (v) of the definition of State Relevant Tax Attributes shall be valued at an amount equal to the product of (A) the dollar amount of such State Relevant Tax Attribute and (B) the highest marginal U.S. state corporate income tax rate in effect in the applicable state for the applicable year.

 

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Sub-Group Method ” shall mean, with respect to the definition of Pro Forma Tax, clause (ii) of the definition of Tax Attribute Differential, and the definition of Unadjusted Section 965 Tax Liability, the application of such definition (or clause therein) assuming (i) DowDuPont and all of its Subsidiaries that are members of the DowDuPont U.S. Consolidated Group (except Dow Entities) were members of a stand-alone U.S. federal consolidated group for U.S. federal income tax purposes (the “ DuPont Sub-Group ”), (ii) all Dow Entities that are members of the DowDuPont U.S. Consolidated Group were members of a stand-alone U.S. federal consolidated group for U.S. federal income tax purposes (the “ Dow Sub-Group ” and together with the DuPont Sub-Group, the “ Sub-Groups ”), (iii) subject to clause (vii), all and only items of income, gain, deduction, loss or credit actually shown on the DowDuPont U.S. Consolidated Tax Return are apportioned to the members in the same amounts and in the same manner as on the applicable DowDuPont U.S. Consolidated Tax Return, (iv) the continued application of the principles of Section 2.2(a)(ii) of this Agreement, without regard to whether any Treasury Regulations or other guidance to the contrary has been issued, such that to the extent a Specified Tax Item of the DowDuPont U.S. Consolidated Group does not increase or decrease, as applicable, Taxes of the DowDuPont U.S. Consolidated Group, such Specified Tax Item shall be deemed not to increase or decrease, as applicable, the tax liability of the DuPont Sub-Group or the Dow Sub-Group, (v) to the extent the DowDuPont U.S. Consolidated Group is subject to Tax imposed by Section 59A of the Code, a portion of the resulting increased Tax shall be allocated to each Sub-Group in the same proportion as the “base erosion payments” (within the meaning of Section 59A(d)(1) of the Code) of such Sub-Group bear to the total “base erosion payments” of the DowDuPont U.S. Consolidated Group, (vi) for purposes of computing the net Tax payable pursuant to Section 951A of the Code by a Sub-Group, the tax liability of such Sub-Group shall be reduced to the extent that such Sub-Group’s members utilized foreign tax credits deemed paid by member of the other Sub-Group pursuant to Section 960(d) of the Code in excess of the amount such other Sub-Group could utilize, and (vii) the allocation to a Sub-Group of items of U.S. federal income Taxes allocated under Section 2.1(a)(iv)-(xi) , Section 2.1(b)(iv)-(x) , Section 2.1(c)(iii)-(vii) , and Section 2.1(d)(iii)-(vi) to a Party that is or was a member of such Sub-Group.

Subsidiary ” shall have the meaning ascribed to such term in the Separation Agreement, provided that, Dow Entities shall not be treated as Subsidiaries of DowDuPont.

Tax or Taxes ” shall mean all taxes, charges, fees, imposts, levies or other assessments, including, without limitation, all net income, gross receipts, capital, sales, use, gains, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, custom duties, fees, assessments and charges of any kind whatsoever, together with any interest and any penalties, fines, additions to tax or additional amounts imposed by any Tax Authority and shall include any transferee liability in respect of taxes.

 

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Tax Attribute Differential ” shall mean, with respect to a Sub-Group, a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, and a Relevant Tax Attribute, the difference, which may be positive or negative, of (i) the sum of the amounts of such Relevant Tax Attribute actually allocated to each member of the Sub-Group, determined under Section 3.3 and applicable Treasury Regulations (including, for purposes of this definition, any proposed income tax regulations to the extent no final or temporary income tax regulations have been issued that supersede such proposed regulations) at the close of the taxable year (for the avoidance of doubt, without application of the Sub-Group Method) less (ii) the amount of the Relevant Tax Attribute that would be held by such Sub-Group determined under the Sub-Group Method at the close of such tax year.

Tax Attribute Differential Amoun t” shall mean, with respect to a Sub-Group and a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, the sum, which may be positive or negative, of the Tax Attribute Differential Values for each Relevant Tax Attribute of such Sub-Group, for such tax year.

Tax Attribute Differential Value ” shall mean, with respect to a Sub-Group, a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, and a Relevant Tax Attribute, the value (which may be positive or negative) of the Tax Attribute Differential, calculated assuming (i) Relevant Tax Attributes included in clauses (iii) and (iv) of the definition of Relevant Tax Attributes shall be valued at the amount of such Relevant Tax Attributes, and (ii) Relevant Tax Attributes included in clauses (i),(ii) or (v) of the definition of Relevant Tax Attributes shall be valued at an amount equal to the product of (A) the dollar amount of such Relevant Tax Attributes and (B) the highest marginal U.S. federal corporate income tax rate in effect for the applicable year (i.e., the highest marginal corporate U.S. federal income Tax rate imposed under Section 11 of the Code).

Tax Attributes ” shall mean net operating losses, capital losses, tax credit carryovers, earnings and profits, foreign tax credit carryovers, overall foreign losses, previously taxed income, tax bases, separate limitation losses and any other losses, deductions, credits or other comparable items that could affect a Tax liability for a past or future taxable period.

Tax Authority ” shall mean the IRS and any other domestic or foreign governmental authority or any subdivision, agency, commission or entity thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax.

Tax-Free Status of the Transactions ” shall mean the treatment of (i) the Dow Contribution and the Dow Distribution as a tax-free reorganization within the meaning of Section 368(a)(1)(D) of the Code and a tax-free distribution to which Section 355(a) of the Code applies (and as to which neither Section 355(d) nor Section 355(e) of the Code applies to treat Dow stock as other than “qualified property”), respectively and (ii) the AgCo Contribution and the AgCo Distribution as a tax-free reorganization within the meaning of Section 368(a)(1)(D) of the Code and a tax-free distribution to which Section 355(a) of the Code applies (and as to which neither Section 355(d) nor Section 355(e) of the Code applies to treat AgCo stock as other than “qualified property”), respectively.

Tax Holiday ” shall mean any Tax holiday, Tax incentive, Tax grant, Tax exemption or any other Tax reduction agreement, approval or order of any Tax Authority.

 

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Tax Materials ” shall mean (i) the IRS Ruling, (ii) the opinions listed on Exhibit C regarding the U.S. federal income tax consequences of the Mergers or the Transactions, (iii) each submission to the IRS in connection with the IRS Ruling, and (iv) any tax representation letter addressed to counsel and/or other tax advisor supporting the opinions described in clause (ii) above.

Tax Officer ” shall mean (i) in respect of Dow, the Dow Chief Tax Officer, (ii) in respect of DowDuPont, the DuPont Vice President of Tax, (iii) in respect of AgCo, the AgCo Vice President of Tax, and (iv) in respect of SpecCo, the SpecCo Vice President of Tax.

Tax Proceeding ” means any audit, assessment of Taxes, pre-filing agreement, other examination by any Tax Authority, proceeding, appeal of a proceeding or litigation relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

Tax Return ” shall mean any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule attached thereto and any information return, or declaration of estimated Tax) supplied or required to be supplied to, or filed with, a Tax Authority in connection with the payment, determination, assessment or collection of any Tax or the administration of any laws relating to any Tax and any amended Tax return or claim for Refund.

TDCC ” shall mean The Dow Chemical Company.

Transactions ” shall mean (i) the Dow Contribution and the Dow Distribution, and (ii) the AgCo Contribution and the AgCo Distribution.

Treasury Regulations ” shall mean the final and temporary (but not proposed) income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

Unadjusted Section 965 Tax Liability ” shall mean, with respect to a Sub-Group and a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, the liability under Section 965 of the Code of the Sub-Group, calculated: (i) prior to reduction for any Tax Attributes, other than foreign tax credits for taxes deemed paid as a result of the inclusion under Section 965(a) of the Code, which shall reduce the tax liability to the extent permitted, and (ii) otherwise applying all relevant components of the Sub-Group Method to such Sub-Group.

Undiscounted Annual Payment Amount ” shall mean, with respect to a U.S. federal income tax year of the DowDuPont U.S. Consolidated Group, the product of (i) (A) the Net Amount for the DuPont Sub-Group for such tax year (or portion thereof) less (B) the Net Amount for the Dow Sub-Group for such tax year (or portion thereof), and (ii) one half (0.50).

Unqualified Tax Opinion ” shall mean a “will” opinion, without substantive qualifications, of either (i) Ernst & Young LLP, Skadden, Arps, Slate, Meagher & Flom LLP, or Weil, Gotshal & Manges LLP or (ii) a nationally recognized law or accounting firm, which firm is reasonably acceptable to the parties that are not providing the opinion, in each case, to the effect that (A) in respect of any action described in Section 7.1(a) , such action will not affect the intended tax-free status of a relevant Realignment Transaction, and (B) in respect of any action described in Section 7.1(b) , such action will not affect the Tax-Free Status of the Transactions.

 

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VWAP ” means the volume-weighted average price, rounded to four decimal points, of the Dow or DowDuPont common stock, as applicable, on the New York Stock Exchange (as reported on Bloomberg L.P. under the function “VWAP”) for the first full trading day following the Dow Distribution.

1.2 Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed to them in the Separation Agreement.

ARTICLE II

ALLOCATION OF TAXES; USE OF TAX ATTRIBUTES

2.1 Allocation of Taxes among the Parties .

(a) Dow Tax Liability . Subject to Sections 2.3 and 2.4 , Dow shall be allocated the following Taxes:

(i) all Taxes of Historic Dow Entities for taxable periods (or portions thereof) ending on or before the Merger Date;

(ii) all Separate Company Taxes of (A) each Retained Dow Entity, (B) each Realigned Dow Entity for taxable periods (or portions thereof) ending on or before the Realignment Date of the Realigned Dow Entity, and (C) each Realigned DuPont Entity for taxable periods (or portions thereof) beginning after the Realignment Date of the Realigned DuPont Entity;

(iii) the portion of Consolidated Taxes allocated to Dow Entities pursuant to Section 2.2 ,;

(iv) Taxes allocated to Dow pursuant to Section 2.4 ;

(v) subject to Section 7.3 , Taxes attributable to any Dow Deferred Items;

(vi) to the extent provided in Section 2.3 , DuPont Realignment Taxes;

(vii) Dow Realignment Taxes, except to the extent such Taxes are allocated to DowDuPont, SpecCo, or AgCo pursuant to Section 2.3 ;

(viii) Dow Integration Taxes;

(ix) except to the extent resulting from (A) a Disqualifying Action, or (B) an Overall Failure, any Dow Distribution Taxes;

(x) the Dow Percentage of any Distribution Taxes to the extent resulting from an Overall Failure;

 

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(xi) any Distribution Taxes resulting from a Dow Disqualifying Action, as determined pursuant to Section 2.7 ; and

(xii) Taxes allocated to Dow pursuant to Section 3.2 .

(b) DowDuPont Tax Liability . Prior to the AgCo Distribution, subject to Sections 2.3 and 2.4 , DowDuPont shall be allocated the following Taxes:

(i) all Taxes of Historic DuPont Entities for taxable periods (or portions thereof) ending on or before the Merger Date;

(ii) all Separate Company Taxes of (A) each Retained DuPont Entity for taxable periods (or portions thereof) ending on or before the AgCo Distribution Date, (B) each Realigned DuPont Entity for taxable periods (or portions thereof) ending on or before the Realignment Date of the Realigned DuPont Entity, and (C) each Realigned Dow Entity for taxable periods (or portions thereof) beginning after the Realignment Date of the Realigned Dow Entity, but only for taxable periods (or portions thereof) ending on or before the AgCo Distribution Date;

(iii) the portion of Consolidated Taxes allocated to DuPont Entities pursuant to Section 2.2 ;

(iv) Taxes allocated to DowDuPont pursuant to Section 2.4 ;

(v) subject to Section 7.3 , Taxes attributable to any DuPont Deferred Items;

(vi) to the extent provided in Section 2.3 , Dow Realignment Taxes;

(vii) DuPont Realignment Taxes, except to the extent such Taxes are allocated to Dow pursuant to Section 2.3 ;

(viii) SpecCo Integration Taxes and, prior to the AgCo Distribution, AgCo Integration Taxes;

(ix) prior to the AgCo Distribution, the DowDuPont Percentage of any Dow Distribution Taxes to the extent resulting from an Overall Failure;

(x) any Distribution Taxes resulting from a DowDuPont Disqualifying Action, as determined pursuant to Section 2.7 ; and

(xi) Taxes allocated to DowDuPont pursuant to Section 3.2 .

(c) AgCo Tax Liability . Subject to Sections 2.3 and 2.4 , following the AgCo Distribution, AgCo shall be allocated the following Taxes:

(i) Taxes allocated to DowDuPont under Section 2.1(b) that are allocated to AgCo pursuant to Section 4.5(a) of this Agreement;

 

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(ii) all Separate Company Taxes of each AgCo Entity for taxable periods (or portions thereof) beginning on the day following the AgCo Distribution Date;

(iii) to the extent provided in Section 2.3 , Dow Realignment Taxes and DuPont Realignment Taxes;

(iv) AgCo Integration Taxes;

(v) except to the extent resulting from (A) a Disqualifying Action or (B) an Overall Failure, any AgCo Distribution Taxes;

(vi) the AgCo Percentage of any Distribution Taxes to the extent resulting from an Overall Failure;

(vii) any Distribution Taxes resulting from an AgCo Disqualifying Action, as determined pursuant to Section 2.7 ; and

(viii) Taxes allocated to AgCo pursuant to Section 3.2 .

(d) SpecCo Tax Liability . Subject to Sections 2.3 and 2.4 , following the AgCo Distribution, SpecCo shall be allocated the following Taxes:

(i) Taxes allocated to DowDuPont under Section 2.1(b) that are allocated to SpecCo pursuant to Section 4.5(a) of this Agreement;

(ii) all Separate Company Taxes of each SpecCo Entity for taxable periods (or portions thereof) beginning on the day following the AgCo Distribution Date;

(iii) to the extent provided in Section 2.3 , Dow Realignment Taxes and DuPont Realignment Taxes;

(iv) SpecCo Integration Taxes;

(v) the SpecCo Percentage of any Distribution Taxes to the extent resulting from an Overall Failure;

(vi) any Distribution Taxes resulting from a SpecCo Disqualifying Action, as determined pursuant to Section 2.7 ; and

(vii) Taxes allocated to SpecCo pursuant to Section 3.2 .

2.2 Allocation of Consolidated Taxes .

(a) U.S. Federal Consolidated Taxes .

(i) U.S. federal income Consolidated Taxes of the DowDuPont U.S. Consolidated Group shall be allocated to each Dow Entity and each DuPont Entity using the principles and methodologies described in Treasury Regulation Section 1.1552-1(a)(2).

 

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(ii) Notwithstanding the foregoing, and except to the extent Treasury Regulations or other binding IRS guidance have been issued subsequent to the date of this Agreement and prior to the date of any relevant payment hereunder that require a contrary position: (A) if a Specified Tax Item of the DowDuPont U.S. Consolidated Group would not increase or decrease the U.S. federal income Consolidated Tax liability for, or otherwise subject to any limitation, the DowDuPont U.S. Consolidated Group, no amount shall be allocated to, and no payment shall be made by any member for such Specified Tax Item, regardless of whether such member, on a separate return basis, would experience an increase or decrease, as applicable, in its separate tax liability as a result of, or otherwise be subject to a limitation in respect of, the relevant Specified Tax Item, and (B) to the extent that a Specified Tax Item does increase the U.S. federal income Consolidated Tax liability for the DowDuPont U.S. Consolidated Group, (I) for Specified Tax Items other than Taxes imposed under Section 59A of the Code, the members of the DowDuPont U.S. Consolidated Group shall be allocated such increased U.S. Consolidated Tax liability in proportion to their increased separate return basis Tax liability that would exist as a result of the relevant Specified Tax Item and (II) for Taxes imposed under Section 59A of the Code, a portion of the resulting increased Tax shall be allocated to each member in the same proportion as the “base erosion payments” (within the meaning of Section 59A(d)(1) of the Code) of such member bear to the total “base erosion payments” of the DowDuPont U.S. Consolidated Group.

(b) State Income Consolidated Taxes . For purposes of allocating U.S. state income Consolidated Taxes, Taxes paid to the relevant Taxing Authority shall be allocated to each Dow Entity and DuPont Entity that is a member of the U.S. state income Consolidated Group in proportion to the applicable state taxable income of such member for such year, after reduction for any State Relevant Tax Attributes of such member utilized by such Consolidated Group in the applicable year.

(c) Foreign Consolidated Taxes . For jurisdictions where a Local Country Joint Tax Agreement has been executed, the principles described in the applicable Local Country Joint Tax Agreement shall apply to applicable non-U.S. Consolidated Taxes. In jurisdictions where a Local Country Joint Tax Agreement has not been executed, or to the extent a matter is not addressed in the relevant Local Country Joint Tax Agreement, the principles of the relevant applicable Law shall apply to determine appropriate compensation among the Parties for use of Tax Attributes.

(d) To the extent that a Tax Authority in a jurisdiction where TDCC and DuPont have agreed not to file a joint Tax Return as Consolidated Group successfully asserts that Dow Entities and DuPont Entities should have filed jointly, a joint Tax Return shall be prepared and filed, in accordance with this Agreement and, for purposes of this Agreement, Dow shall receive credit for Taxes paid in such jurisdiction by Dow Entities and DowDuPont shall receive credit for Taxes paid in such jurisdiction by DuPont Entities. For the avoidance of doubt, if any Tax Authority successfully asserts that any group including both Dow Entities and DuPont Entities is or was required file a joint Tax Return, such group of entities shall be considered a Consolidated Group for purposes of this Agreement.

 

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(e) Exhibit D sets forth, by year and jurisdiction, the amount of Consolidated Taxes, estimated and final, in respect of which TDCC, and DuPont and their respective Subsidiaries have made any payments.

2.3 Allocation of Certain Realignment Taxes . Any Realignment Taxes that result from direct or indirect transfers of equity interests in a Party (other than the Party that, absent this Section 2.3 , would be responsible for the Realignment Taxes referred to herein) (an “ Equity Transfer Party ”) following the date hereof, including equity transfers that result from an issuance or redemption of any such equity interests, but excluding direct and indirect equity transfers resulting from the AgCo Distribution and the Dow Distribution, and including Realignment Taxes from any resulting indirect transfer of an equity interest in a party to a Realignment Transaction, shall, in each case, be allocated to such Equity Transfer Party. Any Realignment Taxes that result from a breach by a Party or any of its Subsidiaries of the restrictions set forth on Exhibit E , shall be allocated to the breaching Party. Dow shall be allocated the Dow Percentage and (A) prior to the AgCo Distribution, DowDuPont shall be allocated the DowDuPont Percentage, and (B) following the AgCo Distribution, SpecCo shall be allocated the SpecCo Percentage and AgCo shall be allocated the AgCo Percentage, of any Realignment Taxes that result from the failure of a Realignment Transaction to qualify for tax-free treatment under Sections 355(e) or (f) of the Code (or any similar provision of state, local or foreign law) by reason of direct or indirect transfers of any equity interest in TDCC, DuPont or DowDuPont (including any resulting indirect transfer of an equity interest in a party to a Realignment Transaction) prior to the date hereof, including an issuance or redemption of any such equity interests.

2.4 Certain Control Right Taxes . Notwithstanding anything in Section 2.1 to the contrary, Taxes resulting directly from Dow Authorization Policy Actions shall be allocated to Dow, and Taxes resulting directly from DuPont Authorization Policy Actions shall be allocated to DowDuPont. Notwithstanding the foregoing, (i) Taxes resulting from the recapture of any Tax Holiday benefit for a year prior to the year of any Dow Authorization Policy Action or DuPont Authorization Policy Action shall not be allocated pursuant to the preceding sentence and (ii) no Taxes will be allocated pursuant to this Section 2.4 for any Dow Authorization Policy Actions or DuPont Authorization Policy Actions (other than any actions described in clause (i) of the definition of Dow Authorization Policy Actions or DuPont Authorization Policy Actions) if the aggregate Tax impact of such action for all applicable Tax Years (including the value of any lost Tax Attributes (valued using the same methodology as described in the definition of “Tax Attribute Differential Value”), but excluding any Taxes described in clause (i) of this sentence) does not exceed $2,000,000.

2.5 Compensation for Use of Attributes and Adjustment Payments .

(a) Payment for Certain Attributes . If any Party or any of its Subsidiaries (at the time of payment) pays an amount to an employee, pension or other third party, but the corresponding Tax Attribute is allocated by applicable law to another Party or any of its Subsidiaries at such time (including, without limitation, compensation paid or the granting of an equity interest to, or the vesting of any equity interest granted to, an employee of the other Party or any of its Subsidiaries at such time, or any contributions in respect of a Party’s historic pension plan liabilities relating to a Realigned Entity) then the Party to which the Tax Attribute

 

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was allocated under applicable law (or the Party to whose Subsidiary the Tax Attribute was allocated) shall make one or more payments to the Party that incurred the expense (or whose Subsidiary incurred the expense) in an amount equal to the actual reduction in Taxes of such Party or such Subsidiary (including reductions in Taxes allocated under this Agreement), calculated on a “with and without” basis, to the extent that payment for such reduction in Taxes is not otherwise required pursuant to this Agreement. Any payments required to be made pursuant to this Section 2.5(a) , (i) between Dow and DowDuPont shall be made no later than sixty (60) days following the filing of the relevant Tax Return for the taxable period that includes the Dow Distribution if the reduction in Tax was reflected on such Tax Return or a previously filed Tax Return, and (ii) between AgCo and SpecCo shall be made no later than ninety (90) days following the filing of the relevant Tax Return for the taxable period that includes the AgCo Distribution if the reduction in Tax was reflected on such Tax Return or a previously filed Tax Return. If any payment described in the first sentence of this Section 2.5(a) is made after the close of the taxable period that includes the Dow Distribution (in the case of payments pursuant to this Section 2.5(a) to be made between Dow, on one hand, and AgCo or SpecCo, on the other hand) or the AgCo Distribution (in the case of payments pursuant to this Section 2.5(a) to be made between AgCo and SpecCo), the payment required to be made pursuant to this Section 2.5(a) shall be made no later than sixty (60) days following the filing of the Tax Return reflecting the actual reduction in Taxes allocated to the paying Party (or such Party’s Subsidiary). Notwithstanding the foregoing, to the extent that the Tax Attribute is used to offset income included under Section 965 of the Code, the amount required to be paid shall be equal to the present value of the installment payments under Section 965(h) of the Code that would otherwise have been made (assuming no available Tax Attributes of the entity, Dow or DuPont, as applicable, and its Subsidiaries whose Tax Attributes offset such income inclusions attributable to the other entity and its Subsidiaries), and using a discount rate of four and one-half percent 4.5%. For purposes of this Section 2.5(a) , TDCC and its Subsidiaries as of any time shall be treated as Subsidiaries of Dow as of such time.

(b) Tax Attributes for Section 336(e) Election . To the extent that a Party, other than the Party (or any of its Subsidiaries) benefiting from any Tax Attributes resulting from the Section 336(e) Election relating to the Dow Distribution, is liable for Dow Distribution Taxes pursuant to this Agreement, then the Party that benefits from such Tax Attributes (or the Party whose Subsidiary benefits from such Tax Attributes) shall make one or more payments to the Party liable for the Dow Distribution Taxes in an amount equal to the actual reduction in Taxes enjoyed by such Party or its Subsidiary (including reductions in Taxes allocated under this Agreement), calculated on a “with and without” basis. Any payments required to be made pursuant to this Section 2.5(b) shall be made no later than sixty (60) days following the filing of the relevant Tax Return for the taxable period that includes the actual reduction in Taxes enjoyed by such Party or its Subsidiary.

(c) U.S. Federal Income Adjustment Payment . No later than one hundred and twenty (120) days following the filing of the U.S. federal income Tax Return for the DowDuPont U.S. Consolidated Group for the taxable year that includes the Dow Distribution, (i) if the Aggregate Adjustment Payment is negative, Dow shall pay the absolute value of the Aggregate Adjustment Payment to DowDuPont, and (ii) if the Aggregate Adjustment Payment is positive, DowDuPont shall pay the Aggregate Adjustment Payment to Dow.

 

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(d) U.S. State Consolidated Income Adjustment Payment . No later than one hundred and fifty (150) days following the filing of the U.S. federal income Tax Return for the DowDuPont U.S. Consolidated Group for the taxable year that includes the Dow Distribution, (i) if the State Aggregate Adjustment Payment is negative, Dow shall pay the absolute value of the State Aggregate Adjustment Payment to DowDuPont, and (ii) if the State Aggregate Adjustment Payment is positive, DowDuPont shall pay the State Aggregate Adjustment Payment to Dow.

(e) No payment or further allocations shall be required under Section 2.1(a)(iii) or Section 2.1(b)(iii) by reason of any payments made pursuant to Section 2.5(c)-(d) .

2.6 Straddle Period Allocation . For purposes of this Agreement, if either Realignment, the Dow Distribution or the AgCo Distribution occurs during a taxable period other than the last day of the taxable period, Taxes for the entire taxable period (including, for example, Subpart F income under Section 951 of the Code and a proportionate share of the associated foreign tax credits) shall be allocated, on the one hand, to the portion of the taxable period ending on the Realignment Date, the Dow Distribution Date or the AgCo Distribution Date, as the case may be, and on the other hand, to the portion of the taxable period beginning on the day after the Realignment Date, the Dow Distribution Date or the AgCo Distribution Date, as the case may be, on a “closing of the books” method as of the end of the Realignment Date, the Dow Distribution Date or the AgCo Distribution Date; provided that property Taxes and other similar periodic Taxes, and exemptions, allowances or deductions that are calculated on an annual or periodic basis shall be allocated between such portions in proportion to the number of days in each such portion. For the avoidance of doubt, the “closing of the books” method shall deem any tax period beginning before but ending after an applicable date to end on the applicable date. If Realignment occurred during a taxable period, the Realigned Entity shall be treated as one entity for the portion of the taxable period up to and including the Realignment Date, and as a second, separate entity for the portion of the taxable period beginning on the day following the Realignment Date.

2.7 Certain Distribution Taxes .

(a) Distribution Taxes described in Section 2.1(a)(xi) and not in any of Section 2.1(b)(x) , Section 2.1(c)(vii) or 2.1(d)(vi) shall be allocated entirely to Dow; Distribution Taxes described in Section 2.1(b)(x) and not in any of Section 2.1(a)(xi) , 2.1(c)(vii) or 2.1(d)(vi) shall be allocated solely to DowDuPont; Distribution Taxes described in Section 2.1(c)(vii) and not in any of Section 2.1(a)(xi) , 2.1(b)(x) or 2.1(d)(vi) shall be allocated solely to AgCo; and Distribution Taxes described in Section 2.1(d)(vi) and not in any of Section 2.1(a)(xi) , 2.1(b)(x) or 2.1(c)(vii) shall be allocated solely to SpecCo. Subject to Section 2.7(b) , to the extent that any Distribution Taxes would, in the absence of this Section 2.7(a) , be described in both Section 2.1(a)(xi) and (i)  Section 2.1(b)(x) , or (ii) following the AgCo Distribution, Section 2.1(c)(vii) or Section 2.1(d)(vi) , responsibility for such Distribution Taxes shall be allocated to Dow, on the one hand, and DowDuPont, AgCo and/or SpecCo, as appropriate, on the other hand, according to relative fault. Subject to Section 2.7(b) , to the extent that any Distribution Taxes would, in the absence of this Section 2.7(a) , be described in both Section 2.1(c)(vii) and Section 2.1(d)(vi) , responsibility for such Distribution Taxes shall be allocated to AgCo, on the one hand, and SpecCo, on the other hand, according to relative fault.

 

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(b) Notwithstanding Section 2.7(a) , in the case of Distribution Taxes resulting from the application of Section 355(e) of the Code to a Distribution, (A) Dow shall be allocated one hundred percent (100%) of such Distribution Taxes if a Dow Disqualifying Action causes the application of Section 355(e), (B) DowDuPont shall be allocated one hundred percent (100%) of such Distribution Taxes if a DowDuPont Disqualifying Action causes the application of Section 355(e), (C) SpecCo shall be allocated one hundred percent (100%) of such Distribution Taxes if a SpecCo Disqualifying Action causes the application of Section 355(e) and (D) AgCo shall be allocated one hundred percent (100%) of such Distribution Taxes if an AgCo Disqualifying Action causes the application of Section 355(e). In the event a Disqualifying Action of more than one Party causes the application of Section 355(e) to a Distribution, applicable Distribution Taxes shall be allocated among such Parties equally.

ARTICLE III

TAX RETURNS, TAX COMPLIANCE AND OTHER TAX MATTERS

3.1 Preparation of Tax Returns .

(a) Each Party shall prepare and timely file, or cause to be prepared and timely filed, taking into account applicable extensions, all Tax Returns required to be filed by such Party or any of its Subsidiaries (the “ Preparing Party ”) and shall pay, or cause to be paid, all Taxes shown as due and payable on such Tax Returns. To the extent that any such Tax Returns reflect Taxes that are payable by another Party pursuant to this Agreement (the “ Reviewing Party ”), such Tax returns shall be prepared in accordance with the Past Practice of the Reviewing Party in respect of the entities or operations giving rise to such Taxes. Except as otherwise required by applicable law, no Party shall file any amended Tax Return for a Realigned Entity for any taxable period ending on or before, or that includes, the Realignment Date of the Realigned Entity, without the prior written approval (not to be unreasonably withheld, conditioned or delayed) of the Party responsible for Taxes relating to such periods pursuant to this Agreement.

(b) The Preparing Party shall submit to the Reviewing Party a draft of any Tax Return that reflects Taxes payable by the Reviewing Party pursuant to this Agreement (or to the extent practicable the portion of such Tax Return that relates to such Taxes) along with a statement setting forth the calculation of any such Taxes shown as due and payable on such Tax Return at least thirty (30) days (or, in the case of a Tax Return with a Due Date fewer than fourty-five (45) days following the end of the taxable period to which such Tax Return relates, a reasonable amount of time) prior to the Due Date for such Tax Return for such Reviewing Party’s review, comment and approval (such approval not to be unreasonably delayed, conditioned or withheld).

(c) In the event of any dispute regarding any Tax Return, or any other matter referred to in this Agreement, the Tax Officer of each Party involved in the dispute shall cooperate in good faith to resolve such dispute. Any dispute that the Tax Officers are unable to resolve shall be referred to a senior executive of each Party involved in the dispute who shall cooperate in good faith to resolve such dispute. Any dispute that such senior executives are unable to resolve shall be resolved by the Dispute Resolution Firm pursuant to Section 8.1 . In the

 

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event that any dispute is not resolved (whether pursuant to good faith cooperation or by the Dispute Resolution Firm) prior to the Due Date for the filing of any such Tax Return, such Tax Return shall be timely filed by the Preparing Party and the Preparing Party agrees to amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

(d) Notwithstanding anything to the contrary in this Agreement, for all Tax purposes, the Parties shall report any Extraordinary Transactions that are caused or permitted to occur by a Party or any of their respective Subsidiaries on either the Dow Distribution Date or the AgCo Distribution Date as occurring on the day after the Dow Distribution Date or the AgCo Distribution Date, as applicable, pursuant to Treasury Regulations Section 1.1502-76(b)(1)(ii)(B) or any similar or analogous provision of state, local or foreign law. Similar principles shall apply for purposes of making allocations under this Agreement in respect of Extraordinary Transactions occurring on the Realignment Date after Realignment. The Parties hereto agree that no Party will make a ratable allocation election under Treasury Regulations Sections 1.1502-76(b)(2)(ii)-(iii ) and 1.706-4(a)(3) or any other similar provision of state or local law, and all allocations between taxable periods shall be made on a “closing of the books method.”

3.2 Holiday Recapture . Exhibit F sets forth certain Tax Holidays applicable to Realigned DuPont Entities and the applicable requirements for avoiding recapture of any previously received benefits under such Tax Holidays for pre-Realignment taxable periods (or portions thereof). Exhibit G sets forth certain Tax Holidays applicable to Realigned Dow Entities and the applicable requirements for avoiding recapture of any previously received benefits under such Tax Holidays for pre-Realignment taxable periods (or portions thereof). In the case of Tax Holidays listed on Exhibit F , following the Dow Distribution, Dow shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to comply with the applicable requirements listed on Exhibit F . In the case of Tax Holidays listed on Exhibit G , (i) prior to the AgCo Distribution, DowDuPont shall, and shall cause its Subsidiaries to, and (ii) following the AgCo Distribution (A) AgCo in the case of an AgCo Entity that is a Realigned Dow Entity, or (B) SpecCo in the case of a SpecCo Entity that is a Realigned Dow Entity, shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts to comply with the applicable requirements listed on Exhibit G . Taxes imposed as a result of a breach of the covenants contained in this Section 3.2 shall be allocated to the Party breaching such covenant.

3.3 Tax Attributes; E&P .

(a) As soon as reasonably practicable after the Dow Distribution Date, the Tax Officers of Dow, DowDuPont and AgCo shall cooperate in good faith to determine the allocation of Tax Attributes between the Dow Entities and the DowDuPont Entities, and, as soon as reasonably practicable after the AgCo Distribution Date, the Tax Officers of AgCo and SpecCo shall cooperate in good faith to determine the allocation of Tax Attributes between the AgCo Entities and the SpecCo Entities, in each case, in accordance with the Code and Treasury Regulations (including, for purposes of this Section 3.3(a) , any proposed income tax regulations to the extent no final or temporary income tax regulations have been issued that supersede such proposed regulations) including (i) the principles of the “percentage method” described in Treasury Regulation Section 1.1502-33(d)(3) shall apply, using one hundred percent (100%) as the fixed percentage (the “Percentage Method”) (ii) in the case of Tax Attributes other than

 

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earnings and profits, Treasury Regulations Sections 1.46-1, 1.1502-4, 1.1502-9(c), 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-24, 1.1502-79 and, if applicable, 1.1502-79A (and any applicable state, local and foreign Tax laws), and (iii) in the case of earnings and profits, in accordance with Code Section 312(h) and Treasury Regulations Section 1.312-10(a) and 1.1502-33(e). The operation of the provisions of this Section 3.3(a), Section 2.2 and Section 2.5 are further illustrated by the examples attached as Exhibit H (collectively, the “ Methodology and Examples ”). Section 2.2 , Section 2.5 and this Section 3.3(a) shall be interpreted consistently with the Methodology and Examples, and the parties intend the Methodology and Examples to form a part of this Agreement. Any dispute that the Tax Officers are unable to resolve in respect of such determination shall be referred to a senior executive of each Party involved in the dispute who shall cooperate in good faith to resolve such dispute. Any dispute that such senior executives are unable to resolve shall be resolved by the Dispute Resolution Firm pursuant to Section 8.1 . Unless otherwise agreed by the Parties, any disputes under this Section 3.3(a) shall be conclusively resolved by the Dispute Resolution Firm prior to (i) the due date for the U.S. federal consolidated income tax return of DowDuPont for the taxable year that includes the Dow Distribution, in the case of disputes between Dow and DowDuPont, and (ii) the due date for the U.S. federal consolidated income tax return of DowDuPont for the taxable year that includes the AgCo Distribution, in the case of disputes between AgCo and SpecCo. The Parties hereby agree to compute all Taxes for any taxable period after the Dow Distribution Date or the AgCo Distribution Date, as applicable, consistently with the determination of the allocation of Tax Attributes pursuant to this Section 3.3(a) unless otherwise required by a Final Determination.

(b) To the extent that the amount of any Tax Attribute is later reduced or increased by a Tax Authority or Tax Proceeding, such reduction or increase shall be allocated to the Party to which such Tax Attribute would have been allocated pursuant to Section 3.3(a).

3.4 Section 336(e) Election . Pursuant to Treasury Regulation Sections 1.336-2(h)(1) and 1.336-2(j), in connection with the Dow Distribution, DowDuPont shall make a timely protective election under Section 336(e) of the Code and the Treasury Regulations issued thereunder for Dow and each of its domestic Subsidiaries for which such election is available (a “ Section 336(e) Election ”). The Parties shall cooperate in making such Section 336(e) Election, including filing any statements, amending any Tax Returns or taking such other action reasonably necessary to carry out the Section 336(e) Election. If, pursuant to a Final Determination, Section 336(e) applies with respect to the Dow Distribution, Dow shall provide DowDuPont or SpecCo, as applicable, with a proposed determination of the “Aggregate Deemed Asset Disposition Price” and the “Adjusted Grossed-Up Basis” (each as defined under applicable Treasury Regulations) and the allocation of such Aggregate Deemed Asset Disposition Price and Adjusted Grossed-Up Basis among the disposition date assets of Dow and its Subsidiaries in accordance with the applicable provisions of Section 336(e) of the Code and applicable Treasury Regulations (the “ Section 336(e) Allocation Statement ”). Within thirty (30) days after receipt of the Section 336(e) Allocation Statement, DowDuPont or SpecCo, as applicable, may provide comments to Dow, to the Section 336(e) Allocation Statement and Dow shall accept any such reasonable comments. In such case, no DowDuPont Entity, Dow Entity, AgCo Entity or SpecCo Entity shall take any position inconsistent with the Section 336(e) Election including the Section 336(e) Allocation Statement.

 

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ARTICLE IV

INDEMNIFICATION, PAYMENT AND OTHER OBLIGATIONS

4.1 I ndemnification.

(a) Indemnification by Dow . Subject to Section 4.3 , Section 4.6(e) and Section 4.7 , Dow shall pay (or, at its option, shall cause its applicable Subsidiary to pay), and shall indemnify and hold each of DowDuPont, AgCo and SpecCo harmless from and against, without duplication:

(i) all Taxes allocated to Dow pursuant to Sections 2.1(a)(iv) – (xii);

(ii) to the extent not also described in any of (A)  Sections 2.1(b)(iv) – (xi) , (B) Sections 2.1(c)(iii)-(viii) or (C) Sections 2.1(d)(iii)-(vii) , (I) all Taxes allocated to Dow pursuant to Sections 2.1(a)(i) – (ii) and (II) all Taxes allocated to Dow Entities pursuant to Section 2.1(a)(iii) by reason of Section 2.2(c) ;

(iii) AgCo Dow Cash Repatriation Taxes;

(iv) SpecCo Dow Cash Repatriation Taxes; and

(v) any costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

(b) Indemnification by DowDuPont. Subject to Section 4.3 , Section 4.6(e) and Section 4.7 and prior to the AgCo Distribution, DowDuPont shall pay (or, at its option, shall cause its applicable Subsidiary to pay), and shall indemnify and hold Dow harmless from and against, without duplication:

(i) all Taxes allocated to DowDuPont pursuant to Sections 2.1(b)(iv) – (xi) ;

(ii) to the extent not also described in Sections 2.1(a)(iv) – (xii) , (A) all Taxes allocated to DowDuPont pursuant to Sections 2.1(b)(i) – (ii) and (B) all Taxes allocated to DuPont Entities pursuant to Section 2.1(b)(iii) by reason of Section 2.2(c);

(iii) MatCo DuPont Ag Cash Repatriation Taxes;

(iv) MatCo DuPont Spec Cash Repatriation Taxes; and

(v) any costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

(c) Indemnification by AgCo . Subject to Section 4.3 , Section 4.6(e) and Section 4.7, and following the AgCo Distribution, AgCo shall pay (or, at its option, shall cause its applicable Subsidiary to pay), and shall indemnify and hold each of Dow and SpecCo harmless from and against, without duplication:

(i) all Taxes allocated to AgCo pursuant to Sections 2.1(c)(iii) – (viii);

 

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(ii) to the extent not also described in either (A) Sections 2.1(a)(iv) – (xii) or (B)  Sections 2.1(d)(iii) – (vii) , all Taxes allocated to AgCo pursuant to Section 2.1(c)(ii);

(iii) Taxes allocated to AgCo pursuant to Section 2.1(c)(i) that are also allocated to DowDuPont pursuant to Sections 2.1(b)(iv) – (xi);

(iv) Taxes allocated to AgCo pursuant to Section 2.1(c)(i) that are both (A) allocated to (1) DowDuPont pursuant to Sections 2.1(b)(i) – (ii) or (2) DuPont Entities pursuant to Section 2.1(b)(iii) by reason of Section 2.2(c) and (B) not described in either (I)  Sections 2.1(a)(iv) – (xii) or (II)  Sections 2.1(d)(iii) – (vii);

(v) MatCo DuPont Ag Cash Repatriation Taxes; and

(vi) any costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

(d) Indemnification by SpecCo . Subject to Section 4.3, Section 4.6(e) and Section 4.7 , and following the AgCo Distribution, SpecCo shall pay (or, at its option, shall cause its applicable Subsidiary to pay), and shall indemnify and hold each of Dow and AgCo harmless from and against, without duplication:

(i) all Taxes allocated to SpecCo pursuant Sections 2.1(d)(iii) – (vii);

(ii) to the extent not also described in either (A)  Sections 2.1(a)(iv) – (xi) or (B)  Sections 2.1(c)(iii) – (viii) , all Taxes allocated to SpecCo pursuant to Section 2.1(d)(ii);

(iii) Taxes allocated to SpecCo pursuant to Section 2.1(d)(i) that are also allocated to DowDuPont pursuant to Sections 2.1(b)(iv) – (x);

(iv) Taxes allocated to SpecCo pursuant to Section 2.1(d)(i) that are both (A) allocated to (1) DowDuPont pursuant to Sections 2.1(b)(i) – (ii) or (2) DuPont Entities pursuant to Section 2.1(b)(iii) by reason of Section 2.2(c) and (B) not described in either (I)  Sections 2.1(a)(iv) – (xii) or (II)  Sections 2.1(c)(iii) – (viii);

(v) MatCo DuPont Spec Cash Repatriation Taxes; and

(vi) any costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

4.2 Timing of Payment.

(a) Initial Payment. Subject to Section 4.2(b) , at least ten (10) Business Days prior to any Payment Date for any Tax Return, the Preparing Party shall compute the amount of Tax required to be paid to the applicable Taxing Authority with respect to such Tax Return on such Payment Date, and the portion of such Tax (if any) for which any Reviewing Party is responsible pursuant to this Agreement. Each Reviewing Party shall pay to the Preparing Party an amount equal to any Taxes to be paid on such Payment Date for which the Reviewing Party is responsible pursuant to this Agreement.

 

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(b) Adjustments to Initial Payment. If either a Tax Proceeding or an amendment to any Tax Return, results in an adjustment to any amounts payable pursuant to this Agreement (an “ Adjustment ”), then, (i) the Party filing the amended Tax Return or controlling the Tax Proceeding shall promptly notify the other relevant Parties in writing regarding the Adjustment to the extent they are otherwise unaware of the Adjustment, and (ii) the relevant amounts previously paid under this Agreement shall be recalculated and a true-up payment shall be made for the difference between the recalculated amount and the amount previously paid or calculated to be paid, at the time or times provided in the next two sentences. No later than sixty (60) days following the close of the applicable calendar year, any Adjustments occurring during the applicable calendar year shall be netted between any two Parties, and any Party with a net payable after calculating offsetting Adjustments to another Party (a “ Net Payable ”) shall pay the amount of such Net Payable to the Party to which the Net Payable is owed. Notwithstanding the above, if, at any point during the calendar year, the amount of a Party’s Net Payable exceeds ten million dollars ($10,000,000.00), the Party shall pay such Net Payable, within ninety (90) days of receipt of a written demand by the Party to which the Net Payable is owed.

4.3 Payment Amount . The amount of any payment pursuant to this Agreement shall (i) be reduced by the amount of any reduction in Taxes for which the Payee Party is responsible under this Agreement actually realized as a result of the event giving rise to the payment by the end of the taxable year in which the payment is made, and (ii) be increased if and to the extent necessary to ensure that, after all required Taxes on the payment are paid (including Taxes attributable to any increases in the payment under this Section 4.3 ), the Payee Party receives the amount it would have received if the payment was not taxable or did not result in an increase in Taxes.

4.4 Characterization of Payments and Certain Transactions.

(a) To the extent permitted by applicable Law, unless otherwise required by a Final Determination, this Agreement, or as otherwise agreed to among the Parties (including as may be agreed in any Continuing Arrangements among affiliates of the Parties), for U.S. federal Tax purposes, any payment made pursuant to this Agreement (other than payments of interest) shall be treated as follows:

(i) to the extent the Paying Party’s Subsidiary or assets and the Payee Party’s Subsidiary or assets to which the liability for payment relates were separated in a tax-free distribution for U.S. federal Tax purposes, such payment shall be treated as a tax-free contribution or tax-free distribution, as applicable, with respect to the stock of the Paying Party or its relevant Subsidiary, or the Payee Party or its relevant Subsidiary, as applicable, occurring immediately prior to the relevant transaction in the Internal Reorganization, Dow Contribution or AgCo Contribution, as applicable; and

 

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(ii) to the extent the Paying Party’s Subsidiary or assets and the Payee Party’s Subsidiary or assets to which the liability for payment relates were separated in a taxable transaction for U.S. federal Tax purposes, such payment shall be treated as an adjustment to the price or amount, as applicable, of the relevant transaction in the Internal Reorganization, Dow Contribution or AgCo Contribution, as applicable.

Payments of interest shall be treated as deductible by the Paying Party or its relevant Subsidiary and as income to the Payee Party or its relevant Subsidiary, as permitted and applicable. In the case of each of the foregoing, no Party shall take a position inconsistent with such treatment. In the event that a Taxing Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in this Section 4.4(a) , such Party shall use its commercially reasonable efforts to contest such challenge.

(b) To the extent a Party or its Subsidiary is required to engage in any transaction described in clauses (i)(C) or clause (ii) of the definitions of Dow Realignment Transactions or DuPont Realignment Transactions, then unless otherwise required by a Final Determination, the Parties shall treat such transaction as “relating back” to a relevant tax-free transaction.    No Party shall take a position inconsistent with such treatment, and in the event that a Taxing Authority asserts that a Party’s treatment should be other than as set forth in this Section 4.4(b) , such Party shall use its commercially reasonable efforts to contest such challenge.

4.5 Further Allocation of Obligations.

(a) Obligations of DowDuPont . Following the AgCo Distribution, AgCo shall be allocated and shall be responsible for all liabilities and obligations of DowDuPont under this Agreement that are Agriculture Attributable Obligations and SpecCo shall be allocated and responsible for all liabilities and obligations of DowDuPont under this Agreement that are Specialties Attributable Obligations. In the absence of any agreement between AgCo and DowDuPont as to the Agriculture Attributable Obligations prior to the AgCo Distribution Date, SpecCo shall be allocated and shall be responsible for all liabilities and obligations of DowDuPont under this Agreement.

(b) Obligations of Dow . If as of the time of the AgCo Distribution, Dow shall have an outstanding obligation to indemnify DowDuPont pursuant to this Agreement for any Tax liability that DowDuPont has paid, then Dow shall, subject to the next sentence, be liable to SpecCo for the full amount of such outstanding obligation. If SpecCo and AgCo jointly agree that a particular outstanding obligation is properly owed to AgCo, and so inform Dow in writing, Dow shall be liable to AgCo for the full amount of such obligation. SpecCo and AgCo shall each inform the other, in writing, upon receipt of any payment in satisfaction of a liability described in this Section 4.5(b) .

4.6 Procedures and Limitations Relating to Indemnification Payments for Intercompany Accounts .

(a) Each Party shall, and shall cause its Subsidiaries to, use reasonable efforts to mitigate any Taxes described in clauses (iii) of the definitions of Dow Realignment Taxes and DuPont Realignment Taxes (other than Taxes related to the Identified Selected Dow Intercompany Accounts which shall be subject to Section 4.6(f) ) if another Party would be required to indemnify that Party for any such Taxes pursuant to Section 4.1 of this Agreement.

 

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(b) No later than sixty (60) days following the filing of the U.S. federal income Tax Return for any Party, the Party shall calculate the amount of any Taxes described in clauses (ii)-(iii) of the definitions of Dow Realignment Taxes and DuPont Realignment Taxes if another Party would be required to indemnity that Party for any such Taxes pursuant to Section 4.1 of this Agreement (such indemnifiable Taxes, “ Intercompany Account Taxes ”) for which it has a claim against another Party for the period covered by such Tax Return (“the Intercompany Indemnity Amount ”). The Payee Party shall prepare a statement (the “ Intercompany Indemnity Statement ”) detailing the Payee Party’s calculation of the Intercompany Indemnity Amount for which the Payee Party is seeking payment and deliver the Intercompany Indemnity Statement to the Paying Party. The Intercompany Indemnity Statement shall include sufficient supporting detail regarding each element of Intercompany Indemnity Amount to permit the Paying Party to review and consider the Intercompany Indemnity Statement. The Paying Party shall have sixty (60) days to review and consider the Intercompany Indemnity Statement and the Payee Party shall make its employees and representatives available to answer any question of the Paying Party (or its advisors) regarding the Intercompany Indemnity Amount during such period. Following such sixty (60) day period, any outstanding dispute regarding the Intercompany Indemnity Amount shall be resolved by the Dispute Resolution Firm in accordance with Section 8.1 .

(c) Ten (10) days following the Paying Party’s review and approval or, in the event of any dispute regarding the Intercompany Indemnity Amount, the Dispute Resolution Firm’s resolution of the dispute, the Paying Party shall pay the amount of the Intercompany Account Taxes agreed to by the applicable Parties or, in the event of any dispute regarding the Intercompany Indemnity Amount, determined by the Dispute Resolution Firm in respect of the period covered by the applicable Tax Return.

(d) The amount of any Intercompany Account Taxes described in clauses (ii) – (iii) of the definitions of Dow Realignment Taxes and DuPont Realignment Taxes in respect of any particular Historical Dow Selected Intercompany Account or Historical DuPont Selected Intercompany Account shall be reduced by any cash tax savings resulting for a taxable year ending on or prior to December 31, 2020, by the Party otherwise entitled to indemnification for such Intercompany Account Taxes as a result of the utilization of a U.S. federal foreign tax credit under Section 901 generated by reason of transactions undertaken, on or prior to December 31, 2020, to settle, by means of cash payments, a dividend, capital contribution, or a combination of the foregoing, such Historical Dow Selected Intercompany Account or Historical DuPont Selected Intercompany Account (with such savings computed on a “with and without” basis).

(e) Cap

(i) The aggregate amount described in clause (ii) of the definition of Dow Realignment Taxes for which Dow is required to indemnify the Parties (other than Dow) hereunder shall not exceed the Dow Intercompany Indemnity Cap, and, in the event that such sum would otherwise, absent application of this Section 4.6(d), exceed the Dow Intercompany Indemnity Cap, the amounts of such Taxes for which AgCo and SpecCo shall be entitled to indemnification from Dow pursuant to this Agreement shall be reduced proportionately, so that the aggregate sum of such Taxes for which AgCo and SpecCo are entitled to indemnification pursuant to this Agreement equals the Dow Intercompany Indemnity Cap.

 

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(ii) The aggregate amount described in clause (ii) of the definition of DuPont Realignment Taxes for which the Parties (other than Dow) are required to indemnify Dow hereunder shall not exceed the DuPont Intercompany Indemnity Cap, and, in the event that such sum would otherwise, absent application of this Section 4.6(d), exceed the DuPont Intercompany Indemnity Cap, the amounts of such Taxes for which Dow shall be entitled to indemnification pursuant to this Agreement from each of AgCo and SpecCo shall be reduced proportionately, so that the aggregate sum of such Taxes for which Dow is entitled to indemnification pursuant to this Agreement equals the DuPont Intercompany Indemnity Cap.

(f) Identified Selected Dow Intercompany Accounts . The Parties shall reasonably cooperate, in good faith, to determine a mutually agreeable manner to eliminate, settle, or otherwise unwind the Identified Selected Dow Intercompany Accounts in a manner that minimizes, to the extent possible, the Taxes incurred as a result of the settlement or unwind of the Identified Selected Dow Intercompany Accounts. Notwithstanding the foregoing, provided that such Party uses reasonable efforts to mitigate any such Taxes, the obligations of this Section 4.6(f), and/or the failure to arrive at any mutually agreeable elimination, settlement or unwind of the Identified Selected Dow Intercompany Accounts shall in no way limit any Party’s right to indemnification hereunder for any Dow Realignment Taxes related to maintaining or settling the Identified Selected Dow Intercompany Accounts.

(g) Notice Requirements . No Party shall be entitled to indemnification for any Taxes or amounts described in clauses (ii)-(iii) of the definitions of DuPont Realignment Taxes and Dow Realignment Taxes unless such Party has provided notice (in the manner required under this Agreement) on or prior to December 31, 2020, to the Parties otherwise required to indemnify for such Taxes hereunder, that such Taxes or amounts may be required to be indemnified hereunder; provided, however, that this Section 4.6(f) shall not apply to Taxes or amounts related to the Identified Selected Dow Intercompany Accounts.

4.7 Cap on Repatriation Taxes .

(a) The aggregate amount described in the definition of AgCo Dow Cash Repatriation Taxes and SpecCo Dow Cash Repatriation Taxes for which Dow is required to indemnify the Parties (other than Dow) hereunder shall not exceed $10,000,000.00, and, in the event that such sum would otherwise, absent application of this Section 4.7(a) , exceed $10,000,000.00, the amounts of such Taxes for which AgCo and SpecCo shall be entitled to indemnification from Dow pursuant to this Agreement shall be reduced proportionately, so that the aggregate sum of such Taxes for which AgCo and SpecCo are entitled to indemnification pursuant to this Agreement equals $10,000,000.00.

(b) The aggregate amount described in the definition of MatCo DuPont Ag Cash Repatriation Taxes and MatCo DuPont Spec Cash Repatriation Taxes for which the Parties (other than Dow) are required to indemnify Dow hereunder shall not exceed $10,000,000.00, and, in the event that such sum would otherwise, absent application of this Section 4.7(b ), exceed $10,000,000.00, the amounts of such Taxes for which Dow shall be entitled to indemnification pursuant to this Agreement from each of AgCo and SpecCo shall be reduced proportionately, so that the aggregate sum of such Taxes for which Dow is entitled to indemnification pursuant to this Agreement equals $10,000,000.00.

 

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ARTICLE V

COOPERATION AND RECORD RETENTION

5.1 General Cooperation . The Parties shall each cooperate fully (and each shall cause its respective Subsidiaries to cooperate fully) with all reasonable requests in writing from another Party hereto, or from an agent, representative or advisor to such Party, in connection with the preparation and filing of Tax Returns, claims for Refunds, Tax Proceedings, and calculations of amounts required to be paid pursuant to this Agreement, in each case, related or attributable to or arising in connection with Taxes of any of the Parties or their respective Subsidiaries covered by this Agreement and the establishment of any reserve required in connection with any financial reporting (a “ Tax Matter ”). Such cooperation shall include the provision of any information reasonably necessary or helpful in connection with a Tax Matter and shall include, without limitation:

(i) the provision of any Tax Returns of the Parties and their respective Subsidiaries, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to such Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Tax Authority;

(ii) the execution of any document (including any power of attorney) in connection with any Tax Proceedings of any of the Parties or their respective Subsidiaries which another Party is entitled to control pursuant to Section 6.2 ;

(iii) the use of the Party’s reasonable best efforts to obtain any documentation in connection with a Tax Matter;

(iv) the use of the Party’s reasonable best efforts to obtain any Tax Returns (including accompanying schedules, related work papers, and documents), documents, books, records or other information in connection with the filing of any Tax Returns of any of the Parties or their Subsidiaries; and

(v) each Party shall make its employees, advisors, and facilities available on a reasonable and mutually convenient basis in connection with the foregoing matters.

(b) Notwithstanding anything in this Agreement to the contrary, no Party shall be required to provide the other Party or any of such other Party’s Subsidiaries access to or copies of information, documents or personnel if such action could reasonably be expected to result in the waiver of any Privilege. In the event that either Party determines that the provision of any information or documents to the other Party or any of such other Party’s Subsidiaries could be commercially detrimental, violate any law or agreement or waive any Privilege, the Parties shall use commercially reasonable efforts to permit compliance with its obligations hereunder in a manner that avoids any such harm or consequence.

 

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(c) The Parties shall perform all actions required or permitted under this Agreement in good faith. If one Party requests the cooperation of the other Party pursuant to this Section 5.1 or any other provision of this Agreement, except as otherwise expressly provided in this Agreement, the requesting Party shall reimburse such other Party for all reasonable, third-party, out-of-pocket costs and expenses incurred by such other Party in complying with the requesting Party’s request.

5.2 Retention of Records . Each Party shall retain or cause to be retained all Tax Returns, schedules and work papers, and all material records or other documents relating thereto in their possession, in each case that relate to a Tax period, until the later of the ten-year anniversary of the filing of the relevant Tax Return or, upon the written request of any other Party, for a reasonable time thereafter (the “ Retention Period ”). Before any disposition or destruction of such materials following the Retention Period, the Party retaining such materials shall give the other Parties ninety (90) days prior written notice of any such proposed disposition or destruction and the other Parties shall have the right, in their sole discretion and at their own expense, to take possession of such materials.

ARTICLE VI

REFUNDS AND AUDITS

6.1 Refunds and Credits .

(a) Tax Refunds .

(i) Except as provided in Section 6.1(a)(ii) and Section 6.1(a)(iii) , each Party shall be entitled to all Refunds of Taxes for which such Party is responsible pursuant to this Agreement. For the avoidance of doubt, to the extent that a particular Refund of Taxes may be allocable to any Tax period with respect to which the Parties may share responsibility pursuant to this Agreement, the portion of such Refund to which each Party will be entitled shall be determined by comparing the amount of payments made by a Party (or any of its Subsidiaries at such time) to a Tax Authority or to the other Party (and reduced by the amount of payments received from the other Party) pursuant to this Agreement with the Tax liability of such Party, taking into account the facts as utilized for purposes of claiming such Refund. If a Party (or any of its Subsidiaries) receives a Refund to which the other Party is entitled pursuant to this Agreement, such Party shall pay the amount to which such other Party is entitled within sixty (60) days after the receipt of the Refund. For purposes of this Section 6.1(a)(i) , TDCC and its Subsidiaries as of any time shall be treated as Subsidiaries of Dow as of such time.

(ii) The Party directly or indirectly owning a Realigned Entity following Realignment (the “ Controlling Party ”) shall be entitled to 50% of Refunds of Taxes (net of applicable third-part costs paid by the Controlling Party to obtain such Refunds) paid in respect of such Realigned Entity for taxable periods (or portions thereof) ending on or before the Realignment Date in respect of such Realigned Entity, and which Refunds reduce Taxes in a taxable period (or portion thereof) ending on or before the Realignment Date (including by way of a payment made from the relevant Tax Authority to the relevant Realigned Entity with respect to such taxable period or portion thereof) with respect to such Realigned Entity, to which another Party (the “ Refund Party ”) would otherwise be entitled under Section 6.1(a)(i) if both (A) the Refund Party provides its written consent for the Controlling Party to pursue such Refund and (B) such Refund is obtained through the material efforts of the Controlling Party or its Subsidiary.

 

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(iii) The Controlling Party shall be entitled to 100% of Refunds of Taxes paid in respect of its Realigned Entity for taxable periods (or portions thereof) ending on or before the Realignment Date in respect of such Realigned Entity, and which Refunds are of a type that can only be obtained through a reduction of Taxes in a taxable period (or portion thereof) ending after the Realignment Date (including by way of a payment made from the relevant Tax Authority to the relevant Realigned Entity in respect of any payments made by such Realigned Entity with respect to such taxable period or portion thereof) with respect to such Realigned Entity, to which the Refund Party would otherwise be entitled under Section 6.1(a)(i) if (A) the Refund Party, TDCC or DuPont, as applicable, did not reflect the Refund as an asset or reduction of a liability on its audited consolidated financial statements prior to Realignment and the Refund relates to periods included in such financial statements or (B) such Refund is set forth on Exhibit I .

(b) In the event of an adjustment relating to Taxes for which one Party is responsible pursuant to this Agreement which would have given rise to a Refund but for an offset against the Taxes for which another Party is or may be responsible pursuant to this Agreement, then such amount shall be considered as resulting in an adjustment in such amount for purposes of Section 4.2(b ) and shall be treated accordingly.

(c) Notwithstanding Section 6.1(a) , to the extent that a Party (or any of its Subsidiaries) applies or causes to be applied an overpayment of Taxes as a credit toward or a reduction in Taxes otherwise payable (or a Tax Authority requires such application in lieu of a Refund) and such overpayment of Taxes, if received as a Refund, would have been payable by such Party to the other Party pursuant to this Section 6.1 , such Party shall pay such amount to the other Party no later than the Due Date of the Tax Return for which such overpayment is applied to reduce Taxes otherwise payable.

(d) To the extent that the amount of any Refund under this Section 6.1 is later reduced by a Tax Authority or in a Tax Proceeding, such reduction shall be allocated to the Party to which such Refund was allocated pursuant to this Section 6.1 and shall be considered an adjustment for purposes of Section 4.2(b) and shall be treated accordingly.

6.2 Audits and Proceedings .

(a) If a Payee Party or any of its Subsidiaries receives any notice, letter, correspondence, claim or decree from any Tax Authority (a “ Tax Notice ”) and, upon receipt of such Tax Notice, believes it has suffered or potentially could suffer any Tax liability for which it is expected to be indemnified pursuant to this Agreement, the Payee Party shall promptly deliver such Tax Notice to the Paying Party but in any event within ten (10) days (or such shorter period as may be necessary to permit the Paying Party to timely consider and respond to such Tax Notice) of the receipt of such Tax Notice; provided , however , that the failure of the Payee Party to provide the Tax Notice to the Paying Party shall not affect the indemnification rights of the Payee Party pursuant to this Agreement, except to the extent that the Paying Party is prejudiced by the Payee Party’s failure to deliver such Tax Notice. Subject to Section 6.2(c) below, the

 

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Paying Party shall have the right to (i) handle, defend, conduct and control, at its own expense (including, for the avoidance of doubt, by funding any payments required to be made to a Taxing Authority in order to conduct a Tax Proceeding in a manner of its choosing), any aspect of any Tax Proceeding to the extent that it relates solely to Taxes for which it is responsible pursuant to this Agreement, and (ii) compromise or settle any such aspect of such Tax Proceeding. The Paying Party shall (A) keep the Payee Party informed in a timely manner of all actions proposed to be taken by the Paying Party with respect to a Tax Proceeding it controls, (B) permit the Payee Party to participate in all proceedings with respect to such Tax Proceeding, (C) not settle any such Tax Proceeding without the prior written consent of the Payee Party, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed and (D) use reasonable best efforts to ensure that the manner defense, conduct, control, of any Tax Proceeding does not create material business disruptions for the Payee Party or any Affiliate (for example, by contesting a Tax prior to payment in a manner that prevents the Payee Party from receiving tax clearance certificates or other documentation from an applicable Taxing Authority that are necessary to conduct its operations or avoid the imposition or collection of material Taxes on an ongoing basis). Any Tax liability resulting from a Final Determination shall be considered an adjustment for purposes of Section 4.2(b) and shall be treated accordingly.

(b) Subject to Sections 6.2(a) and (c) ,

(i) Subject to the next sentence, (A) Dow shall have the sole right to handle, defend, conduct and control any Tax Proceeding related to the U.S. federal consolidated income Tax Returns of TDCC relating to all taxable periods ending on or before December 31, 2016, (B) DowDuPont, prior to the AgCo Distribution, and SpecCo, following the AgCo Distribution, shall have the sole right to handle, defend, conduct and control any Tax Proceeding related to the U.S. federal consolidated income Tax Returns of DuPont relating to all taxable periods ending on or before August 31, 2017, (C) Dow, DowDuPont and SpecCo shall jointly handle, defend, conduct and control any Tax Proceeding related to the U.S. federal consolidated income Tax Return of DowDuPont relating to the taxable period ending on December 31, 2017, and (D) DowDuPont, prior to the AgCo Distribution, and SpecCo, following the AgCo Distribution, shall have the right to handle, defend, conduct and control any Tax Proceeding related to the U.S. federal consolidated income Tax Returns of DowDuPont or SpecCo relating to a taxable period ending after December 31, 2017. The principles of the foregoing sentence shall also apply for purposes of determining the control of Tax Proceedings with respect to U.S. state or local consolidated, combined, unitary or affiliated Tax Returns. The party controlling any Tax Proceeding described in the foregoing clauses shall (1) keep the other Parties informed in a timely manner of all actions proposed to be taken with respect to a Tax Proceeding it controls, (2) permit the other Parties to participate in all proceedings with respect to such Tax Proceeding, and (3) not settle any such Tax Proceeding without the prior written consent of the other Parties, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed.

(c) Notwithstanding Sections 6.2(a) and (b) ,

(i) the Parties shall have the right to jointly control any Tax Proceeding that relates to the Tax-Free Status of the Transactions;

 

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(ii) if more than one Party could be responsible under this Agreement for any Taxes resulting from a resolution of a particular issue involved in a Tax Proceeding, then all such Parties shall have the right to jointly control the Tax Proceeding to the extent relating to the issue;

(iii) if a Tax Proceeding involves an issue that recurs in subsequent taxable periods and one or more Parties that are not responsible under this Agreement for the Taxes directly involved in the Tax Proceeding would be bound by, or could reasonably be prejudiced with respect to the issue by, the outcome of the Tax Proceeding in subsequent taxable periods for which the Party or Parties would be responsible under this Agreement, then such Parties and the Party directly responsible for the Taxes at issue in the Tax Proceeding shall have the right to jointly control such Tax Proceeding; and

(iv) in each of the above cases, no Party shall compromise or settle any Tax Proceeding without the consent of the other Party or Parties entitled to control such Tax Proceeding (such consent not to be unreasonably withheld, conditioned or delayed).

ARTICLE VII

TAX-FREE STATUS OF THE TRANSACTIONS

7.1 Covenants .

(a) No Party shall take, or permit any of its Subsidiaries to take, any action in violation of the restrictions set forth on Exhibit E .

(b) During the Restricted Period, each Party:

(i) shall continue or cause to be continued, taking into account Section 355(b)(3) of the Code, the active conduct of the business on which it relied for purposes of satisfying the requirements of Section 355(b) of the Code;

(ii) shall not dissolve or liquidate itself (including any action that is a liquidation for federal income tax purposes);

(iii) shall not (A) enter into, permit, approve of or fail to take any action within its control to prevent any transactions relating to its stock, or rights to acquire its stock, including any redemption or other repurchase (directly or through a Subsidiary), other than (1) issuances of stock that satisfy the requirements of Safe Harbor VIII (relating to acquisitions in connection with a Person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations Section 1.355-7(d), or (2) share repurchases that both (I) satisfy the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30, 1996-1 C.B. 696 (as in effect prior to the release of Revenue Procedure 2003-48, 2003-2 C.B. 86) and (II) constitute Share Repurchases, (B) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the relative voting rights of its capital stock (including through the conversion of any capital stock into another class of capital stock), or (C) merge or consolidate with any other Person unless the applicable Party is the surviving corporation in any such merger or consolidation; and

 

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(iv) shall not, and shall not permit any member of its “separate affiliated group” (within the meaning of Section 355(b)(3)(B) of the Code), to sell, transfer, or otherwise dispose of or agree to, sell, transfer or otherwise dispose (including in any transaction treated for federal income tax purposes as a sale, transfer or disposition) of assets (including, any shares of capital stock of a Subsidiary) that, in the aggregate, constitute more than twenty-five percent (25%) of the consolidated gross assets of its “separate affiliated group.” The foregoing sentence shall not apply to (A) sales, transfers, or dispositions of assets in the ordinary course of business, (B) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (C) any assets transferred to a Person that is disregarded as an entity separate from the transferor for federal income tax purposes, (D) any mandatory or optional repayment (or pre-payment) of any indebtedness of any Party or any member of its “separate affiliated group” or (E) the AgCo Distribution or any DuPont Realignment Transaction undertaken by DowDuPont, DuPont or any of its Subsidiaries. For purposes of this Section 7.1(b)(iv) , a merger of a Party or one of its Subsidiaries with and into any Person that is not a wholly-owned Subsidiary of such Party shall constitute a disposition of all of the assets of such Party or such Subsidiary.

(c) Notwithstanding the restrictions imposed by Section 7.1 , a Party may proceed with any of the actions or transactions described therein, if (i) such Party shall first have requested and obtained from the other Parties consent to obtain a Ruling in accordance with Section 7.2 and such Party shall have received such Ruling in form and substance reasonably satisfactory to the other Parties, (ii) such Party shall have provided to the other Parties an Unqualified Tax Opinion in form and substance reasonably satisfactory to such other Parties, or (iii) the other Parties shall have waived in writing the requirement to obtain such ruling or opinion. For the avoidance of doubt, the presence of a Ruling, an Unqualified Tax Opinion or a waiver from a Party shall not relieve any Party from indemnification obligations otherwise present under this Agreement. In determining whether a ruling or opinion is satisfactory, a Party may consider, among other factors, the appropriateness of any underlying assumptions, representations or covenants used as a basis for the ruling or opinion and the views on the substantive merits.

(d) Tax Reporting . Unless there is a Final Determination to the contrary, each Party covenants and agrees that it will not take, and will cause its respective Subsidiaries to refrain from taking, any position on any Tax Return that is inconsistent with the Tax-Free Status of the Transactions.

7.2 Procedures Regarding Opinions and Rulings . If a Party notifies the other Parties that it desires to take one of the actions described in Section 7.1 (a “ Proposed Action ” and such Party a “ Notifying Party ”), the other Parties shall cooperate with the Notifying Party and use their reasonable best efforts to seek to obtain a Ruling or an Unqualified Tax Opinion for the purpose of permitting the Notifying Party to take the Proposed Action unless the other Parties shall have waived the requirement to obtain such ruling or opinion. If such a ruling is to be sought, the Notifying Party shall apply for such ruling and the Notifying Party and the other Parties shall jointly control the process of obtaining such ruling. The other Parties shall take any and all actions reasonably requested by the Notifying Party in connection with obtaining such

 

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ruling or opinion (including by making any representation or reasonable covenant or providing any materials requested by the IRS or the law firm issuing such opinion); provided , that the other Parties shall not be required to make (or cause any of their respective Subsidiaries to make) any representation or covenant that is untrue or inconsistent with historical facts, or as to future matters or events over which it has no control. In no event shall the Notifying Party be permitted to file any ruling request under this Section 7.2 unless the other Parties have approved such ruling request (such approval not to be unreasonably withheld, conditioned or delayed). The Notifying Party shall reimburse each of the other Parties for all reasonable costs and expenses incurred by the Party or any of its Subsidiaries in obtaining or seeking to obtain a Ruling or Unqualified Tax Opinion requested by the Notifying Party within ten (10) days after receiving an invoice from the other Party therefor.

7.3 Deferred Items .

(a) Exhibit J sets forth certain Deferred Items of Realigned Dow Entities and the requirements for avoiding triggering, accelerating or otherwise causing such Deferred Items to be included in income (the “ Listed Dow Deferred Items ”). Exhibit K sets forth certain Deferred Items of Realigned DuPont Entities and the requirements for avoiding triggering, accelerating, or otherwise causing such Deferred Items to be included in income (the “ Listed DuPont Deferred Items ” and, together with the Listed Dow Deferred Items, the “ Listed Deferred Items ”). Subject to Section 7.3(b) , each Party shall, and shall cause its Subsidiaries to, use commercially reasonable efforts not to trigger, accelerate, or otherwise cause to be included in income any Listed Deferred Item if another Party would be required to indemnify that Party for Taxes attributable to such Listed Deferred Item pursuant to Section 4.1 of this Agreement. Notwithstanding anything to the contrary in this Agreement, a Party shall not be allocated Taxes attributable to Listed Deferred Items which were triggered, accelerated or otherwise included in income by actions of another Party in violation of the covenant in the preceding sentence.

(b) Each Party shall be considered to have used commercially reasonable efforts with respect a Listed Deferred Item for purposes of Section 7.3(a) provided it complies with the applicable requirements related to such Deferred Item provided on the relevant Exhibit.

ARTICLE VIII

DISPUTE RESOLUTIONS

8.1 Dispute Resolution . In the event of any dispute between or among the Parties as to any matter covered by this Agreement, the Parties to the dispute shall appoint a nationally recognized independent public accounting firm or a nationally recognized law firm, to resolve such dispute (the “ Dispute Resolution Firm ”). In this regard, the Dispute Resolution Firm shall make determinations with respect to the disputed items based solely on representations made by the Parties and their respective representatives, and not by independent review, and shall function only as an expert and not as an arbitrator and shall be required to make a determination in favor of one Party only. The Parties shall require the Dispute Resolution Firm to resolve all disputes no later than sixty (60) days after the submission of such dispute to the Dispute Resolution Firm, but in no event later than the Due Date for the payment of Taxes or the filing of the applicable Tax Return, if applicable, and agree that all decisions by the Dispute Resolution

 

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Firm with respect thereto shall be final and conclusive and binding on the Parties. The Dispute Resolution Firm shall resolve all disputes in a manner consistent with this Agreement and, to the extent not inconsistent with this Agreement, in a manner consistent with the Past Practices of the Parties in respect of the entities or operations giving rise to the matter to which the dispute relates, except as otherwise required by applicable law. The Parties to the dispute shall require the Dispute Resolution Firm to render all determinations in writing and to set forth, in reasonable detail, the basis for such determination. The fees and expenses of the Dispute Resolution Firm shall be borne equally by the Parties to the dispute.

8.2 EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.2.

ARTICLE IX

MISCELLANEOUS

9.1 Entire Agreement; Coordination of Agreements . This Agreement, including the exhibits, the Separation Agreement, and the Ancillary Agreements and the Conveyancing and Assumption Instruments shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any exhibit hereto, the exhibit shall prevail. Except as expressly set forth in this Agreement, the Separation Agreement, or any Ancillary Agreement, (i) all matters relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries shall be governed exclusively by this Agreement and (ii) for the avoidance of doubt, in the event of any conflict between the Separation Agreement or any Ancillary Agreement, on the one hand, and the Tax Matters Agreement, on the other hand, with respect to such matters, the terms and conditions of the Tax Matters Agreement shall govern. Notwithstanding anything in this Agreement to the contrary, section 2.09 of the Employee Matters Agreement shall govern in respect of the matters provided for in that section.

9.2 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

 

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9.3 Survival of Agreement . Except as otherwise contemplated by this Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

9.4 Expenses . Unless otherwise expressly provided in this Agreement, the Separation Agreement or the Ancillary Agreements, each Party shall bear any and all expenses that arise from their respective obligations under this Agreement.

9.5 Changes in Law . Any reference to a provision of the Code shall include a reference to any applicable successor provision of law enacted after the date hereof.

9.6 Notices . All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or electronically mailed (with a response confirming receipt), and shall be directed to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this 9.6):

 

Prior to the AgCo Distribution:

To DowDuPont or AgCo:
DowDuPont Inc.
c/o E. I. du Pont de Nemours and Company
974 Centre Road
Wilmington, DE 19805
Attn:    Stacy L. Fox
Email:    Stacy.L.Fox@dupont.com
Facsimile:    (302) 994-5094
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention:    Brandon Van Dyke, Esq.
Email:    Brandon.VanDyke@skadden.com
Facsimile:    (917) 777-3743
To Dow:   
The Dow Chemical Company
2211 H.H. Dow Way
Midland, MI 48674
Attn:    Sean Reagan, Senior Managing Tax Counsel
Email:    SEReagan@dow.com
Facsimile:    (989) 633-7375

 

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with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention:    Chayim D. Neubort
Email:    Chayim.Neubort@weil.com
Facsimile:    (212) 310-8007
Following the Final Separation Date:
To SpecCo:   
DuPont de Nemours, Inc.
974 Centre Road, Building 730
Wilmington, DE 19805
Attn:    General Counsel
Email:    Erik.T.Hoover@dupont.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention:    Brandon Van Dyke, Esq.
Email:    Brandon.VanDyke@skadden.com
Facsimile:    (917) 777-3743
To Dow:   
The Dow Chemical Company
2211 H.H. Dow Way
Midland, MI 48674
Attn:    Sean Reagan, Senior Managing Tax Counsel
Email:    SEReagan@dow.com
Facsimile:    (989) 633-7375

 

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with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue   
New York, New York 10153
Attention:    Chayim D. Neubort
Email:    Chayim.Neubort@weil.com
Facsimile:    (212) 310-8007
To AgCo:   
Corteva, Inc.   
974 Centre Road, Building 735
Attn:    General Counsel
Email:    cornel.b.fuerer@corteva.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square   
New York, NY 10036   
Attention:    Brandon Van Dyke, Esq.
Email:    Brandon.VanDyke@skadden.com
Facsimile:    (917) 777-3743

9.7 Waivers . Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and the members of its Group).

9.8 Amendments . This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

9.9 Assignment . Except as otherwise provided for in this Agreement, neither this Agreement nor any right, interest or obligation shall be assignable, in whole or in part, directly or indirectly, by any Party without the prior written consent of the other Parties (not to be unreasonably withheld, conditioned or delayed), and any attempt to assign any rights, interests or obligations arising under this Agreement without such consent shall be void; except , that a Party

 

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may assign this Agreement or any or all of the rights, interests and obligations hereunder in connection with a merger, reorganization or consolidation transaction in which such Party is a constituent party but not the surviving entity or the sale by such Party of all or substantially all of its assets; provided , that the surviving entity of such merger, reorganization or consolidation transaction or the transferee of such assets shall assume all the obligations of the relevant Party by operation of law or pursuant to an agreement in writing, reasonably satisfactory to the other Parties, to be bound by the terms of this Agreement as if named as a “ Party ” hereto; provided , however , that in the case of each of the preceding clauses, no assignment permitted by this Section 9.9 shall release the assigning Party from Liability for the full performance of its obligations under this Agreement, unless agreed to in writing by the non-assigning Parties.

9.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted transferees and assigns.

9.11 Certain Termination and Amendment Rights . This Agreement may be terminated at any time prior to the Dow Distribution Date by and in the sole discretion of the Board without the approval of Dow or AgCo or the stockholders of DowDuPont and, in the event of such termination, no Party shall have any liability of any kind to any other Party or any other Person. The Dow Distribution may be amended, modified or abandoned at any time prior to the Dow Distribution Date and the AgCo Distribution may be amended, modified or abandoned at any time prior to the AgCo Distribution Date, in each case, by and in the sole discretion of the Board without the approval of Dow or AgCo or the stockholders of DowDuPont, provided , that no such amendment, modification or abandonment of the AgCo Distribution shall affect any provisions of, or any obligations under, this Agreement that are for the benefit of Dow or any member of its Group, or prejudice or otherwise adversely affect any rights of Dow or any member of its Group under this Agreement. After the Dow Distribution Date, but prior to the AgCo Distribution Date, this Agreement may not be terminated or amended except by an agreement in writing signed by DowDuPont and Dow. After the AgCo Distribution Date, this Agreement may not be terminated or amended except by an agreement in writing signed by the Parties.

9.12 Payment Terms

(a) Except as otherwise expressly provided to the contrary in this Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group), on the one hand, to another Party (and/or a member of such Party’s respective Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within thirty (60) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b) Any amount not paid when due pursuant to this Agreement shall bear interest at a rate per annum equal to LIBOR (in effect on the date on which such payment was due) plus 3% calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment; provided , however , in the event that LIBOR is no longer commonly accepted by market participants, then an alternative floating rate index that is commonly accepted by market participants, which the Parties shall jointly determine, each acting in good faith.

 

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(c) In the event of a dispute or disagreement with respect to all or a portion of any amounts requested by any Party (and/or a member of such Party’s Group) as being payable, the payor Party shall in no event be entitled to withhold payments for any such amounts (and any such disputed amounts shall be paid in accordance with this Agreement, subject to the right of the payor Party to dispute such amount following such payment); provided , that in the event that following the resolution of such dispute it is determined that the payee Party (and/or a member of the payee Party’s Group) was not entitled to all or a portion of the payment made by the payor Party, the payee Party shall repay (or cause to be repaid) such amounts to which it was not entitled, including interest, to the payor Party (or its designee), which amounts shall bear interest at a rate per annum equal to LIBOR plus 3%, calculated for the actual number of days elapsed, accrued from the date on which such payment was made by the payor Party to the payee Party.

(d) Without the Consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by the Parties under this Agreement shall be made in US Dollars. Except as expressly provided herein, any amount which is not expressed in US Dollars shall be converted into US Dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on the day before the date the payment is required to be made or, as applicable, on which an invoice is submitted (provided, however, that with regard to any payments in respect of Indemnifiable Losses for payments made to third parties, the date shall be the day before the relevant payment was made to the third party) or in the Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder may be denominated in a currency other than US Dollars, the amount of such payment shall be converted into US Dollars on the date in which notice of the claim is given to the Party required to make payment hereunder.

9.13 No Circumvention . The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification or payment hereunder).

9.14 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party on and after the Dow Distribution Date or the AgCo Distribution Date, as applicable.

9.15 Third Party Beneficiaries . This Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon third parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, including any rights of employment for any specified period, in excess of those existing without reference to this Agreement.

9.16 Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

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9.17 Exhibits . The exhibits to this Agreement 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. Nothing in the exhibits to this Agreement constitutes an admission of any Liability or obligation of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates. The inclusion of any item or Liability or category of item or Liability on any exhibit hereto is made solely for purposes of allocating potential Liabilities among the Parties and shall not be deemed as or construed to be an admission that any such Liability exists.

9.18 Governing Law . This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

9.19 Neutral Construction . The parties to this Agreement agree that this Agreement was negotiated fairly between them at arms’ length and that the final terms of this Agreement are the product of the parties’ negotiations. Each party represents and warrants that it has sought and received legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected hereby. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore shall not be construed against a party on the grounds that the party drafted or was more responsible for drafting the provision(s).

9.20 Specific Performance . The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach this Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any such breach. Accordingly, from and after the Effective Time, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article IX (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

9.21 Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

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9.22 No Duplication; No Double Recovery . Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

[Signature page follows]

 

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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed as of the date first written above by its respective officers thereunto duly authorized.

 

DOWDUPONT INC.

By: 

  /s/ Jeanmarie F. Desmond
 

Name: Jeanmarie F. Desmond

 

Title: Co-Controller

 

DOW INC.

By: 

  /s/ Amy E. Wilson
 

Name: Amy E. Wilson

 

Title: Secretary

 

CORTEVA, INC.

By: 

  /s/ James C. Collins, Jr.
 

Name: James C. Collins, Jr.

 

Title: Chief Executive Officer

Exhibit 10.2

EXECUTION VERSION

 

 

EMPLOYEE MATTERS AGREEMENT

 

 

by and among

DOWDUPONT INC.,

DOW INC.,

and

CORTEVA, INC.

Effective as of April 1, 2019


TABLE OF CONTENTS

 

 

          Page  

Article I

 

 

GENERAL PRINCIPLES

 

 

Section 1.01

   Employee List      1  

Section 1.02

   Employment of Impacted Employees on and After the Applicable Distribution Date      2  

Section 1.03

   Pay and Benefits      5  

Section 1.04

   Enrollment into MatCo Benefit Plans, AgCo Benefit Plans, or SpecCo Benefit Plans, as Applicable, as of the Distribution Date      6  

Section 1.05

   Length of Service Crediting      7  

Section 1.06

   Vacation      9  

Section 1.07

   Severance      11  

Section 1.08

   Annual Cash Incentives (DuPont STIP; Dow PA)      14  

Section 1.09

   Equity Awards      15  

Section 1.10

   Pension/OPEB/Welfare Benefit Claims      20  

Section 1.11

   Labor Matters      22  

Section 1.12

   Expatriate Assignments      22  

Section 1.13

   In-Country and International Relocations      24  

Section 1.14

   Non-Solicitation      25  

Section 1.15

   Employee Records      26  

Section 1.16

   HR Liabilities      27  

Section 1.17

   Indemnification      29  

Section 1.18

   Compliance with Applicable Laws      30  

Section 1.19

   Transition Services      30  

Section 1.20

   Good-Faith Negotiations      30  

Section 1.21

   Third Party Beneficiaries      30  

Section 1.22

   Effective Time      30  

Article II

UNITED STATES

 

Section 2.01

   Payment of U.S. Grandfathered Vacation Benefits      31  

Section 2.02

   Special Provisions Applicable to U.S. Unions and U.S. Union Contracts      31  

Section 2.03

   RESERVED      31  

Section 2.04

   U.S. Tax-Qualified Defined Contribution Plans      31  

Section 2.05

   U.S. Non-Retiree Welfare Benefits      32  

Section 2.06

   Certain Nonemployee Director Arrangements      33  

Section 2.07

   Non-Qualified Deferred Compensation Plans      33  

Section 2.08

   Workers’ Compensation Claims      34  

Section 2.09

   Payroll and Related Taxes      34  

 

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Article III

CERTAIN NON-U.S. JURISDICTION MATTERS

 

Section 3.01

   Heritage DuPont Puerto Rico Savings Plan      35  

Section 3.02

   Certain Actions      35  

Article IV

ADDITIONAL DEFINED TERMS

 

Section 4.01

   Certain Defined Terms      35  

Section 4.02

   Other Defined Terms in this Agreement      47  

Article V

GENERAL PROVISIONS

 

Section 5.01

   General      48  

Section 5.02

   Limitation of Liability      48  

Section 5.03

   Transfers Not Effected on or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time      48  

Section 5.04

   Wrong Pockets      50  

Section 5.05

   Novation of Liabilities      51  

Section 5.06

   Negotiation and Arbitration      51  

Section 5.07

   Insurance      51  

Section 5.08

   Miscellaneous      51  

 

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EMPLOYEE MATTERS AGREEMENT

This EMPLOYEE MATTERS AGREEMENT (the “ Agreement ”), dated effective as of April 1, 2019, by and among DowDuPont Inc., a Delaware corporation (“ DowDuPont ” or “ SpecCo ”), Dow Inc., a Delaware corporation (“ Dow ” or “ MatCo ”), and Corteva, Inc., a Delaware corporation (“ AgCo ”). Each of SpecCo, MatCo, and AgCo is sometimes referred to herein as a “ Party ” and collectively as the “ Parties .”

WHEREAS, the Board of Directors of DowDuPont (the “ Board ”) has determined that it is appropriate, desirable, and in the best interests of DowDuPont and its stockholders to separate DowDuPont into three independent, publicly traded companies: MatCo, AgCo, and SpecCo;

WHEREAS, in order to effect such separation, upon the terms and subject to the conditions set forth in the Separation and Distribution Agreement, dated as of the date hereof, between MatCo, AgCo, and SpecCo (the “ Separation Agreement ”), the Parties entered into an internal separation (which has been completed with respect to MatCo prior to the date hereof); and

WHEREAS, in connection with the transactions contemplated by the Separation Agreement, the Parties wish to enter into this Agreement in respect of certain employee matters.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

Capitalized terms used herein but not defined in Section  4.01 or elsewhere in this Agreement shall have the meaning ascribed to such term in the Separation Agreement.

ARTICLE I

GENERAL PRINCIPLES

Except as set forth otherwise in this Agreement, the following general principles shall apply:

Section 1.01 Employee List .

(a) Each of the Parties agrees that as of the date hereof, the Organization and Talent Hub (“ OTH ”) accurately reflects the identity of the current employees and Deselected Employees of each Heritage Company and, in respect to each such employee: (i) his or her Heritage Company; (ii) the Business to which he or she was Ring-Fenced; (iii) the Party that has selected such employee for employment (directly or indirectly through a Subsidiary) effective prior to the date hereof, or an indication that such employee is a Deselected Employee; (iv) his or her primary work location prior to the Internal Reorganization and following the date hereof; (v) whether he or she is on an expatriate assignment as of the date hereof.

 

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(b) Each of the Parties agrees that as of the date hereof, Appendix I accurately identifies each Impacted Employee undergoing an in-country or international relocation as of the date hereof and each Delayed Employment Employee, LTD Employee and Non-Consenting Employee.

(c) Within sixty (60) days following the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date), each of the Parties shall act to cause an update to the OTH or Appendix I, as applicable, to reflect, as of such date (in the case of clauses (i) through (iv), to the extent they are aware of such circumstances): (i) any Impacted Employee who becomes a Non-Consenting Employee or any Non-Consenting Employee who becomes an Impacted Employee; (ii) any Impacted Employee who becomes a Deselected Employee or any Deselected Employee who becomes an Impacted Employee; (iii) any employment terminations (including terminations for cause, resignations, retirements, and terminations due to death or disability) of any Impacted Employee that was made effective as of or following the date hereof; (iv) corrections of good faith errors or omissions by any Party with respect to any information contained in the OTH or Appendix I, as applicable; and (v) any other changes to the OTH or Appendix I, in each case as agreed to by each Party (the OTH and Appendix I, as so updated and as of 11:59 p.m., Eastern Standard Time on the sixtieth (60th) day following the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date), the “ Final OTH ” and the “ Final Appendix I ,” respectively). The Final OTH and the Final Appendix I shall be final and binding on the Parties; provided , however , that the Parties shall update the Final OTH and the Final Appendix I, as applicable, at any time to reflect (x) any Delayed Employment Employee who becomes an employee of the applicable Party or member of its Group pursuant to Section  1.02(c) and (y) any LTD Employee who is a Heritage Dow Employee or a Heritage DuPont Employee who is able to return to active duty employment and becomes an employee of the applicable Party or member of its Group pursuant to Section  1.02(d) .

Section 1.02 Employment of Impacted Employees on and After the Applicable Distribution Date .

(a) Except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement, on or prior to the MatCo Distribution Date, the applicable Parties shall have caused, or shall have caused the applicable members of their Groups to cause:

(i) each Heritage Dow AgCo Employee who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by MatCo or any member of the MatCo Group and to be employed by AgCo or a member of the AgCo Group;

(ii) each Heritage Dow SpecCo Employee who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by MatCo or any member of the MatCo Group and to be employed by SpecCo or a member of the SpecCo Group;

(iii) except as set forth on Schedule 1.02(a)(iii) to this Agreement and subject to any applicable Labor Agreements, the termination of employment of each Heritage Dow AgCo Deselected Employee and Heritage Dow SpecCo Deselected Employee;

 

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(iv) each Heritage DuPont MatCo Employee who is employed by AgCo or a member of the AgCo Group and who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by AgCo or any member of the AgCo Group and to be employed by MatCo or a member of the MatCo Group;

(v) each Heritage DuPont MatCo Employee who is employed by SpecCo or a member of the SpecCo Group and who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by SpecCo or any member of the SpecCo Group and to be employed by MatCo or a member of the MatCo Group; and

(vi) except as set forth on Schedule 1.02(a)(vi) to this Agreement and subject to any applicable Labor Agreements, the termination of employment of each Heritage DuPont AgCo Deselected Employee, Heritage DuPont MatCo Deselected Employee and Heritage DuPont SpecCo Deselected Employee.

(b) Except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement, on or prior to the AgCo Distribution Date, AgCo and SpecCo shall have caused, or shall have caused the applicable members of their Groups to cause, (i) each Heritage DuPont AgCo Employee who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by Heritage DuPont (if not AgCo or a member of the AgCo Group) and to be employed by AgCo or a member of the AgCo Group and (ii) each Heritage DuPont SpecCo Employee who is not a Delayed Employment Employee or an LTD Employee to cease to be employed by Heritage DuPont (if not SpecCo or a member of the SpecCo Group) and to be employed by SpecCo or a member of the SpecCo Group.

(c) To the extent any applicable Law, Governmental Entity, Employee Representative Body or consultation obligation prevents the Parties or the members of the applicable Groups from carrying out their obligations under Section  1.02(a) or Section  1.02(b) , as the case may be, on or prior to the MatCo Distribution Date or AgCo Distribution Date, as the case may be, with respect to any Impacted Employee (each such employee, a “ Delayed Employment Employee ”), the applicable Parties shall, or shall cause the members of the applicable Groups to, carry out their obligations under Section  1.02(a) or Section  1.02(b) , as the case may be, with respect to such employee on the earliest permissible date following the MatCo Distribution Date or AgCo Distribution Date, as the case may be (the “ Delayed Employment Date ”). The obligations under this Agreement of the Party that will become the employer (directly or indirectly) of a Delayed Employment Employee that would otherwise commence on the MatCo Distribution Date or AgCo Distribution Date, as the case may be, shall not commence until the Delayed Employment Date, and, for the avoidance of doubt, such delay shall not constitute a breach of obligations under Section  1.04 . Between the MatCo Distribution Date and the applicable Delayed Employment Date or AgCo Distribution Date, as the case may be (the “ Delayed Employment Period ”), to the extent permitted by applicable Law, applicable Labor Agreement, and subject to any consultations with or Consent from any Governmental Entity or Employee Representative Body required by applicable Law or applicable Labor Agreement: (i) MatCo, or the applicable member of the MatCo Group, shall use reasonable efforts to provide

 

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the services (in the form of a services agreement, secondments or some other arrangement acceptable to the applicable Parties) of any Delayed Employment Employee who is a Heritage Dow AgCo Employee or a Heritage Dow SpecCo Employee to AgCo, a member of the AgCo Group, SpecCo, or a member of the SpecCo Group, as applicable, in exchange for a reasonable fee and all costs (including all compensation and benefits costs) incurred by MatCo or the applicable member of the MatCo Group, during the Delayed Employment Period; (ii) AgCo, the applicable member of the AgCo Group, SpecCo, or the applicable member of the SpecCo Group, as applicable, shall provide the services of any Delayed Employment Employee who is a Heritage DuPont MatCo Employee to MatCo, or the applicable member of the MatCo Group, in exchange for a reasonable fee and all costs (including all compensation and benefits costs) incurred thereby during the Delayed Employment Period; (iii) AgCo or the applicable member of the AgCo Group shall provide the services of any Delayed Employment Employee who is a Heritage DuPont SpecCo Employee to SpecCo, or the applicable member of the SpecCo Group, in exchange for a reasonable fee and all costs (including all compensation and benefits costs) incurred by AgCo or the applicable member of the AgCo Group during the Delayed Employment Period; and (iv) SpecCo or the applicable member of the SpecCo Group shall provide the services of any Delayed Employment Employee who is a Heritage DuPont AgCo Employee to AgCo, or the applicable member of the AgCo Group, in exchange for a reasonable fee and all costs (including all compensation and benefits costs) incurred by SpecCo or the applicable member of the SpecCo Group during the Delayed Employment Period; provided , however , to the extent such services are not permitted by applicable Law or applicable Labor Agreement, subject to Section  1.17 , all costs and other Liabilities pertaining to such Delayed Employment Employees shall be the responsibility of the applicable Party by which they are employed during the Delayed Employment Period.

(d) Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement, if any Impacted Employee who is an LTD Employee as of the MatCo Distribution Date or AgCo Distribution Date, as the case may be, is able to return to active duty employment (with or without any accommodations required by applicable Law) within six (6) months of the MatCo Distribution Date or AgCo Distribution Date, as the case may be, the Parties shall, or shall cause the members of the applicable Groups to, carry out their obligations under Section  1.02(a) or Section  1.02(b) , with respect to such employee (each a “ Returning LTD Employee ”) on the earliest practicable date (the “ Return from LTD Date ”) following the date on which such employee becomes able to return to active duty employment (with or without any accommodations required by applicable Law) and shall update the OTH, as the case may be, to reflect any such change. The obligations under this Agreement of the Party that will become the employer (directly or indirectly) of a Returning LTD Employee that would otherwise commence on the MatCo Distribution Date or AgCo Distribution Date shall not commence until the Return from LTD Date, and, for the avoidance of doubt, such delay shall not constitute a breach of obligations under Section  1.04 .

(e) Except as set forth on Schedule 1.02(e) to this Agreement, if any LTD Employee who is a Heritage Dow Employee is unable to return to active duty employment (with or without any accommodations required by applicable Law) within six (6) months of the MatCo Distribution Date, such LTD Employee shall not be treated as an Impacted Employee and shall be treated as a Heritage Dow MatCo Employee for all purposes under this Agreement. Each Heritage DuPont Employee who is not actively employed by a member of the AgCo Group or

 

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SpecCo Group as of the AgCo Distribution Date and who, before the AgCo Distribution Date, began receiving long-term disability benefits under a Benefit Plan maintained by a member of the AgCo Group or SpecCo Group shall be treated as a Heritage DuPont AgCo Employee to the extent applicable, provided that, to the extent the individual is receiving long-term disability benefits under a Benefit Plan maintained by SpecCo or a member of the SpecCo Group, SpecCo shall continue to administer such benefit on behalf of AgCo and its Affiliates.

(f) Notwithstanding anything to the contrary in Section  1.02 or Section  1.04 , it shall not constitute a breach of this Agreement for the Heritage Company that employs a Delayed Employment Employee or Returning LTD Employee as of the applicable Distribution Date (x) to not effect the change of such Person’s employment pursuant to Section  1.02 or (y) to not cause such Person to cease to be an active participant in any Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan pursuant to Section  1.04 , in each case until the Delayed Employment Date or Return from LTD Date, respectively.

Section 1.03 Pay and Benefits .

(a) Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as provided otherwise in this Agreement, as of the MatCo Distribution Date, (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, provide each Heritage DuPont MatCo Employee with Target Total Direct Compensation that is no less than the Target Total Direct Compensation such employee received immediately prior to the MatCo Distribution Date, as well as market competitive Benefits; (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, provide each Heritage Dow AgCo Employee with Target Total Direct Compensation that is no less than the Target Total Direct Compensation such employee received immediately prior to the MatCo Distribution Date, as well as market competitive Benefits; (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, provide each Heritage Dow SpecCo Employee with Target Total Direct Compensation that is no less than the Target Total Direct Compensation such employee received immediately prior to the MatCo Distribution Date, as well as market competitive Benefits; (iv) AgCo shall, or shall cause the applicable member of the AgCo Group to, provide each Heritage DuPont AgCo Assigned Employee with Target Total Direct Compensation that is no less than the Target Total Direct Compensation such employee received immediately prior to the MatCo Distribution Date, as well as market competitive Benefits; and (v) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, provide each Heritage DuPont SpecCo Assigned Employee with Target Total Direct Compensation that is no less than the Target Total Direct Compensation such employee received immediately prior to the MatCo Distribution Date, as well as market competitive Benefits.

(b) For the avoidance of doubt, nothing in this Section  1.03 shall require MatCo, AgCo or SpecCo to maintain Target Total Direct Compensation or market competitive Benefits with respect to any Impacted Employee at any time following the MatCo Distribution Date.

 

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Section 1.04 Enrollment into MatCo Benefit Plans, AgCo Benefit Plans, or SpecCo Benefit Plans, as Applicable, as of the Distribution Date .

(a) Enrollment in Benefit Plans . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as provided otherwise in this Agreement, including as set forth on Schedule 1.04(a) to this Agreement, other than with respect to the Delayed Employment Employees and the LTD Employees (in which case, for the avoidance of doubt, the obligations of the applicable Heritage Company and applicable Party (or its applicable Affiliate) shall commence upon the Delayed Employment Date or the Return from LTD Date, as the case may be):

(i) MatCo shall, or shall cause the applicable member of the MatCo Group to, take all actions required to cause, (1) on or prior to the MatCo Distribution Date, each Heritage Dow AgCo Employee and Heritage Dow SpecCo Employee to cease to be an active participant in any Heritage Dow Benefit Plan that will not be an AgCo Benefit Plan or SpecCo Benefit Plan following the MatCo Distribution Date and (2) each Heritage DuPont MatCo Employee to commence participation, on or prior to the MatCo Distribution Date, in all MatCo Benefit Plans for which he or she is eligible (provided that, in respect of dependent life, AD&D, flexible spending account and vision benefits, such participation may commence as of the first day of the calendar month following the MatCo Distribution Date);

(ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, take all actions required to cause, (1) on or prior to the MatCo Distribution Date, each Heritage DuPont MatCo Employee who is employed by AgCo or a member of the AgCo Group to cease to be an active participant in any Heritage DuPont Benefit Plan that will not be a MatCo Benefit Plan following the MatCo Distribution Date, (2) each Heritage Dow AgCo Employee who is employed by AgCo or a member of the AgCo Group to commence participation, on or prior to the MatCo Distribution Date, in all AgCo Benefit Plans for which he or she is eligible (provided that, in respect of dependent life, AD&D, flexible spending account and vision benefits, such participation may commence as of the first day of the calendar month following the MatCo Distribution Date); (3) on or prior to the AgCo Distribution Date, each Heritage DuPont SpecCo Assigned Employee to cease to be an active participant in any Heritage DuPont Benefit Plan that will not be a SpecCo Benefit Plan following the AgCo Distribution Date, and (4) each Heritage DuPont AgCo Assigned Employee to commence participation, on or prior to the AgCo Distribution Date, in all AgCo Benefit Plans for which he or she is eligible (provided that, in respect of dependent life, AD&D, flexible spending account and vision benefits, such participation may commence as of the first day of the calendar month following the AgCo Distribution Date);

(iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, take all actions required to cause, (1) on or prior to the MatCo Distribution Date, each Heritage DuPont MatCo Employee who is employed by SpecCo or a member of the SpecCo Group to cease to be an active participant in any Heritage DuPont Benefit Plan that will not be a MatCo Benefit Plan following the MatCo Distribution Date, (2) each Heritage Dow SpecCo Employee who is employed by SpecCo or a member of the

 

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SpecCo Group to commence participation, on or prior to the MatCo Distribution Date, in all SpecCo Benefit Plans for which he or she is eligible (provided that, in respect of dependent life, AD&D, flexible spending account and vision benefits, such participation may commence as of the first day of the calendar month following the MatCo Distribution Date); (3) on or prior to the AgCo Distribution Date, each Heritage DuPont AgCo Assigned Employee to cease to be an active participant in any Heritage DuPont Benefit Plan that will not be an AgCo Benefit Plan following the AgCo Distribution Date, and (4) each Heritage DuPont SpecCo Assigned Employee to commence participation, on or prior to the AgCo Distribution Date, in all SpecCo Benefit Plans for which he or she is eligible (provided that, in respect of dependent life, AD&D, flexible spending account and vision benefits, such participation may commence as of the first day of the calendar month following the AgCo Distribution Date);

(b) The Parties shall, and shall cause the members of the applicable Groups to, and as applicable shall use best efforts to cause other Persons to: (i) waive any limitations as to preexisting conditions, evidence of insurability, exclusions, and waiting periods with respect to participation and coverage requirements for each Impacted Employee under his or her respective plans; and (ii) credit such Impacted Employee, for plan year 2019, with the amount of any co-insurance, deductibles and out-of-pocket maximums he or she paid prior to the applicable Distribution Date during plan year 2019.

Section 1.05 Length of Service Crediting .

(a) Heritage DuPont MatCo Employees . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement, MatCo shall, or shall cause the applicable member of the MatCo Group to, recognize all service of any Heritage DuPont MatCo Employee with Heritage DuPont or any of its Affiliates and with any predecessor employer (to the extent such predecessor employer service was taken into account under the applicable Heritage DuPont Benefit Plan) for all purposes (including, for purposes of vesting, eligibility to participate and receive benefits, benefit forms, premium subsidies or credits, early retirement and waiver of any reduction factors, and benefit calculations and accruals) under any MatCo Benefit Plans, or MatCo Future Benefit Plans, in which such Heritage DuPont MatCo Employee is, or becomes, eligible to participate on, or after, the MatCo Distribution Date (provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off); provided , however , that, notwithstanding the foregoing, MatCo and each member of the MatCo Group shall not be required to recognize such service for purposes of benefit accruals under any MatCo Benefit Plans or MatCo Future Benefit Plans that (x) are defined benefit pension plans, (y) are other post-employment benefit plans (for the avoidance of doubt, exclusive of Severance), or (z) would result in the duplication of any benefits thereunder or the funding thereof.

(b) Heritage Dow AgCo Employees . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement, AgCo shall, or shall cause the applicable member of the AgCo Group to, recognize all service of any Heritage Dow AgCo Employee with Heritage Dow or any of its Affiliates and with any predecessor employer (to the extent such predecessor employer service was taken into account under the applicable Heritage Dow Benefit Plan) for all purposes (including, for purposes of

 

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vesting, eligibility to participate and receive benefits, benefit forms, premium subsidies or credits, early retirement and waiver of any reduction factors, and benefit calculations and accruals) under any AgCo Benefit Plans, or AgCo Future Benefit Plans in which such Heritage Dow AgCo Employee is, or becomes, eligible to participate on, or after, the MatCo Distribution Date (provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off); provided , however , that, notwithstanding the foregoing, AgCo and each member of the AgCo Group shall not be required to recognize such service for purposes of benefit accruals under any AgCo Benefit Plans or AgCo Future Benefit Plans that (x) are defined benefit pension plans, (y) are other post-employment benefit plans (for the avoidance of doubt, exclusive of Severance), or (z) would result in the duplication of any benefits thereunder or the funding thereof.

(c) Heritage Dow SpecCo Employees . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement, SpecCo shall, or shall cause the applicable member of the SpecCo Group to, recognize all service of any Heritage Dow SpecCo Employee with Heritage Dow or any of its Affiliates and with any predecessor employer (to the extent such predecessor employer service was taken into account under the applicable Heritage Dow Benefit Plan) for all purposes (including, for purposes of vesting, eligibility to participate in and receive benefits, benefit forms, premium subsidies or credits, early retirement and waiver of any reduction factors, and benefit calculations and accruals) under any SpecCo Benefit Plans, or SpecCo Future Benefit Plans, in which such Heritage Dow SpecCo Employee is, or becomes, eligible to participate on, or after, the MatCo Distribution Date (provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off); provided , however , that, notwithstanding the foregoing, SpecCo and each member of the SpecCo Group shall not be required to recognize such service for purposes of benefit accruals under any SpecCo Benefit Plans or SpecCo Future Benefit Plans that (x) are defined benefit pension plans, (y) are other post-employment benefit plans (for the avoidance of doubt, exclusive of Severance), or (z) would result in the duplication of any benefits thereunder or the funding thereof.

(d) Heritage DuPont AgCo Assigned Employees and Heritage DuPont SpecCo Assigned Employees . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement, AgCo and SpecCo shall, or shall cause the applicable members of their Groups to, recognize all service of any Heritage DuPont AgCo Assigned Employee or Heritage DuPont SpecCo Assigned Employee with Heritage DuPont or any of its Affiliates and with any predecessor employer (to the extent such predecessor employer service was taken into account under the applicable Heritage DuPont Benefit Plan) for all purposes (including, for purposes of vesting, eligibility to participate in and receive benefits, benefit forms, premium subsidies or credits, early retirement and waiver of any reduction factors, and benefit calculations and accruals) under any AgCo Benefit Plans or AgCo Future Benefit Plans or SpecCo Benefit Plans or SpecCo Future Benefit Plans, respectively, in which such Heritage DuPont AgCo Assigned Employee or Heritage DuPont SpecCo Assigned Employee is, or becomes, eligible to participate on, or after, the AgCo Distribution Date (provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off); provided , however , that, notwithstanding the foregoing, AgCo, SpecCo, and each member of their respective Groups shall not be required to recognize such service for purposes of benefit accruals under any AgCo Benefit Plans or AgCo Future Benefit Plans or SpecCo Benefit Plans or SpecCo Future Benefit Plans, respectively, that (x) are defined benefit pension plans, (y) are other post-employment benefit plans (for the avoidance of doubt, exclusive of Severance), or (z) would result in the duplication of any benefits thereunder or the funding thereof.

 

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Section 1.06 Vacation .

(a) Assumed Vacation Liabilities . Except as set forth in Section  1.06(c) and Section  2.01 below or to the extent otherwise required by applicable Law or applicable Labor Agreement, and notwithstanding anything to the contrary in this Agreement (other than Sections 1.06(c) and ( d )): (i) effective as of the MatCo Distribution Date, MatCo shall, or shall cause the applicable member of the MatCo Group to, accept, assume (or, as applicable, retain) and perform, discharge, and fulfill, in accordance with their respective terms (“ Assume ”), all Liabilities for earned but unused vacation benefits of the Heritage DuPont MatCo Employees other than U.S. Grandfathered Time, provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off (the “ MatCo Assumed Vacation Liabilities ”), and all members of the AgCo Group and SpecCo Group shall be relieved of such MatCo Assumed Vacation Liabilities as of such date; (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, Assume (1) effective as of the MatCo Distribution Date, all Liabilities for earned but unused vacation benefits of the Heritage Dow AgCo Employees other than U.S. Grandfathered Time and (2) effective as of the AgCo Distribution Date, all Liabilities for earned but unused vacation benefits of the Heritage DuPont AgCo Assigned Employees other than U.S. Grandfathered Time, in each case provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off (collectively, the “ AgCo Assumed Vacation Liabilities ”), and all members of the MatCo Group and SpecCo Group, respectively, shall be relieved of such AgCo Assumed Vacation Liabilities as of such dates, respectively; and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, Assume (1) effective as of the MatCo Distribution Date, all Liabilities for earned but unused vacation benefits of the Heritage Dow SpecCo Employees other than U.S. Grandfathered Time and (2) effective as of the AgCo Distribution Date, all Liabilities for earned but unused vacation benefits of the Heritage DuPont SpecCo Assigned Employees other than U.S. Grandfathered Time, in each case provided that vacation attributable to imputed or pre-employment service may be credited as other paid time off (collectively, the “ SpecCo Assumed Vacation Liabilities ”), and all members of the MatCo Group and AgCo Group, respectively, shall be relieved of such SpecCo Assumed Vacation Liabilities as of such dates, respectively.

(b) Statement of Assumed Vacation Liabilities . (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, provide AgCo with a statement of the AgCo Assumed Vacation Liabilities and SpecCo with a statement of the SpecCo Assumed Vacation Liabilities pertaining to Heritage Dow AgCo Employees and Heritage Dow SpecCo Employees, respectively, within sixty (60) days after the MatCo Distribution Date; (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, provide MatCo, within sixty (60) days after the MatCo Distribution Date, with a statement of the MatCo Assumed Vacation Liabilities pertaining to Heritage DuPont MatCo Employees employed by AgCo or a member of the AgCo Group and provide SpecCo, within sixty (60) days after the AgCo Distribution Date, with a statement of the SpecCo Assumed Vacation Liabilities pertaining to Heritage DuPont SpecCo Assigned Employees; and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo

 

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Group to, provide MatCo, within sixty (60) days after the MatCo Distribution Date, with a statement of the MatCo Assumed Vacation Liabilities pertaining to Heritage DuPont MatCo employees employed by SpecCo or a member of the SpecCo Group and provide AgCo, within sixty (60) days after the AgCo Distribution Date, with a statement of the AgCo Assumed Vacation Liabilities pertaining to Heritage DuPont AgCo Assigned Employees.

(c) Payment of Vacation Benefits Where Required by Law . Notwithstanding anything to the contrary in this Agreement, where required by applicable Law, applicable Labor Agreement, or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan: (i) as soon as administratively practicable following the MatCo Distribution Date (and no later than the earlier of the dates required by applicable Law, Labor Agreement or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan), MatCo shall, or shall cause the applicable member of the MatCo Group to, pay out all earned but unused vacation benefits (in addition to U.S. Grandfathered Time) to each Heritage Dow AgCo Employee and each Heritage Dow SpecCo Employee, in each case, entitled to such benefits; (ii) as soon as administratively practicable following the MatCo Distribution Date (and no later than the earlier of the dates required by applicable Law, Labor Agreement or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan), AgCo shall, or shall cause the applicable member of the AgCo Group to, pay out all earned but unused vacation benefits (in addition to U.S. Grandfathered Time) to each Heritage DuPont MatCo Employee who is employed by AgCo or a member of the AgCo Group and, as soon as administratively practicable following the AgCo Distribution Date (and no later than the date required by applicable Law, Labor Agreement or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan), AgCo shall, or shall cause the applicable member of the AgCo Group to, pay out all earned but unused vacation benefits (in addition to U.S. Grandfathered Time) to each Heritage DuPont SpecCo Assigned Employee, in each case, entitled to such benefits; and (iii) as soon as administratively practicable following the MatCo Distribution Date (and no later than the earlier of the dates required by applicable Law, Labor Agreement or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan), SpecCo shall, or shall cause the applicable member of the SpecCo Group to, pay out all earned but unused vacation benefits (in addition to U.S. Grandfathered Time) to each Heritage DuPont MatCo Employee who is employed by SpecCo or a member of the SpecCo Group and, as soon as administratively practicable following the AgCo Distribution Date (and no later than the date required by applicable Law, Labor Agreement or the terms and conditions of the applicable Heritage Dow Benefit Plan or Heritage DuPont Benefit Plan), SpecCo shall, or shall cause the applicable member of the SpecCo Group to, pay out all earned but unused vacation benefits (in addition to U.S. Grandfathered Time) to each Heritage DuPont AgCo Assigned Employee, in each case, entitled to such benefits. During the remainder of calendar year 2019, each Party shall, or shall cause the applicable member of its Group to, permit any Impacted Employee who receives payment of his or her earned but unused vacation benefits in accordance with this Section  1.06(c) to take vacation attributable to such earned but unused vacation benefits (including U.S. Grandfathered Time) after the applicable Distribution Date; provided , however , that any such vacation attributable to the earned but unused vacation benefits paid in accordance with this Section  1.06(c) shall be on an unpaid basis.

 

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Section 1.07 Severance .

(a) Severance for Terminations Following the Distribution Date . Except to the extent otherwise required by applicable Law, applicable Labor Agreement, or as otherwise provided in this Agreement:

(i) if, within twelve (12) months following the MatCo Distribution Date, MatCo or any member of the MatCo Group terminates any Heritage DuPont MatCo Employee for any reason that entitles such employee to cash Severance under the applicable MatCo Severance Plan, MatCo shall pay to such employee at least the amount of cash Severance such employee would have received under the applicable Heritage DuPont Severance Plan, factoring in his or her additional length of service and changes in his or her eligible pay between the MatCo Distribution Date and the date of his or her termination, but without regard to any period of service before the applicable Distribution Date that was taken into account in determining the amount of cash Severance actually previously paid or provided by either Heritage Company or any Party in respect of such period by reason of a triggering event that occurred not more than twelve (12) months before the applicable Distribution Date;

(ii) if AgCo or any member of the AgCo Group terminates (1) any Heritage Dow AgCo Employee within twelve (12) months following the MatCo Distribution Date, or (2) any Heritage DuPont AgCo Assigned Employee within twelve (12) months of the AgCo Distribution Date, in each of the foregoing instances for any reason that entitles such employee to cash Severance under the applicable AgCo Severance Plan, AgCo shall pay to such employee at least the amount of cash Severance such employee would have received under the applicable Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively, factoring in his or her additional length of service and changes in his or her eligible pay between the MatCo Distribution Date or the AgCo Distribution Date, as the case may be, and the date of his or her termination, but without regard to any period of service before the applicable Distribution Date that was taken into account in determining the amount of cash Severance actually previously paid or provided by either Heritage Company or any Party in respect of such period by reason of a triggering event that occurred not more than twelve (12) months before the applicable Distribution Date; and

(iii) if SpecCo or any member of the SpecCo Group terminates (1) any Heritage Dow SpecCo Employee within twelve (12) months following the MatCo Distribution Date or (2) any Heritage DuPont SpecCo Assigned Employee within twelve (12) months of the AgCo Distribution Date, in each of the foregoing instances for any reason that entitles such employee to cash Severance under the applicable SpecCo Severance Plan, SpecCo shall pay to such employee at least the amount of cash Severance such employee would have received under the applicable Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively, factoring in his or her additional length of service and changes in his or her eligible pay between the MatCo Distribution Date or the AgCo Distribution Date, and the date of his or her termination, but without regard to any period of service before the applicable Distribution Date that was taken into account in determining the amount of cash Severance actually previously paid or provided by either Heritage Company or any Party in respect of such period by reason of a triggering event that occurred not more than twelve (12) months before the applicable Distribution Date.

 

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Notwithstanding any other provision of this Section  1.07 , MatCo, AgCo and SpecCo shall, as applicable, each assume and honor the terms of the Heritage DuPont Key Employee Severance Plan and Senior Executive Severance Plan only with respect to terminations occurring through and including August 31, 2019 of Impacted Employees who participated in either plan prior to the applicable Distribution Date from the applicable Distribution Date (and including such date, to the extent provided in Section  1.07(b) ), and any Severance paid pursuant to such plans shall be in lieu of any Severance otherwise payable pursuant to this Section  1.07 in respect of any termination on or before August 31, 2019.

(b) Severance for Terminations on or Prior to Distribution Date .

(i) Subject to Section  1.07(b)(ii) , Section  1.07(b)(iii) , Section  1.07(b)(v) , Section  1.16(b) and Section  2.02 , (1) in any jurisdiction where applicable Law or applicable Labor Agreement requires Severance to be paid to any individual as a result of the Internal Reorganization or otherwise before the applicable Distribution Date (and not solely by reason of the occurrence of the applicable Distribution), the applicable Heritage Company (which, in the case of Heritage DuPont, shall be deemed for this purpose to mean the employer of the individual upon his or her termination of employment) shall be responsible for making such payment of Severance pursuant to the Heritage Dow Severance Plan or the Heritage DuPont Severance Plan, as applicable, and otherwise pursuant to the applicable Labor Agreement or applicable Law; (2) in any jurisdiction where applicable Law or applicable Labor Agreement requires Severance to be paid to any Impacted Employee solely by reason of the occurrence of the applicable Distribution, the applicable Heritage Company shall be responsible for making such payment of Severance pursuant to the Heritage Dow Severance Plan or the Heritage DuPont Severance Plan, as applicable, subject to reimbursement by the Party or member of its Group that will employ such Impacted Employee upon the applicable Distribution; and (3) in any jurisdiction where applicable Law or applicable Labor Agreement does not require Severance to be paid to any Impacted Employee as a result of the Internal Reorganization or the Distribution and such Severance is nonetheless paid at the direction or with the Consent of the Party or applicable member of its Group that will employ each Impacted Employee upon the applicable Distribution, such Party or member of its Group shall Assume the obligation to pay Severance to such Impacted Employee and all Liabilities arising therefrom.

(ii) Notwithstanding anything to the contrary in this Agreement and subject to Section  1.07(b)(v) : (1) if MatCo or the applicable member of the MatCo Group refuses to provide comparable Target Total Direct Compensation as of the applicable Distribution Date to any Heritage DuPont MatCo Employee and such employee becomes a Non-Consenting Employee, MatCo shall reimburse AgCo or SpecCo, as applicable, for the full amount of any Severance payable to such employee pursuant to the applicable Heritage DuPont Severance Plan; (2) if AgCo or the applicable member of the AgCo Group refuses to provide comparable Target Total Direct Compensation as of the

 

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applicable Distribution Date to any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee and such employee becomes a Non-Consenting Employee, AgCo shall reimburse MatCo or SpecCo, respectively, for the full amount of any Severance payable to such employee pursuant to the Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively; and (3) if SpecCo or the applicable member of the SpecCo Group refuses to provide comparable Target Total Direct Compensation as of the applicable Distribution Date to any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee and such employee becomes a Non-Consenting Employee, SpecCo shall reimburse MatCo or AgCo, respectively, for the full amount of any Severance payable to such employee pursuant to the Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively.

(iii) Notwithstanding anything to the contrary in this Agreement and subject to Section  1.07(b)(v) and Section  2.02 : (1) if MatCo or the applicable member of the MatCo Group refuses to provide Comparable Benefits as of the applicable Distribution Date to any Heritage DuPont MatCo Employee and such employee becomes a Non-Consenting Employee, MatCo shall reimburse AgCo or SpecCo, as applicable, for the full amount of any Severance payable to such employee pursuant to the Heritage DuPont Severance Plan; (2) if AgCo or the applicable member of the AgCo Group refuses to provide Comparable Benefits as of the applicable Distribution Date to any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee and such employee becomes a Non-Consenting Employee, AgCo shall reimburse MatCo or SpecCo, respectively, for the full amount of any Severance payable to such employee pursuant to the Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively; and (3) if SpecCo or the applicable member of the SpecCo Group refuses to provide Comparable Benefits as of the applicable Distribution Date to any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee and such employee becomes a Non-Consenting Employee, SpecCo shall reimburse MatCo or AgCo, respectively, for the full amount of any Severance payable to such employee pursuant to the Heritage Dow Severance Plan or Heritage DuPont Severance Plan, respectively.

(iv) With respect to each Impacted Employee, each applicable Party agrees that each other applicable Party has satisfied its obligation to provide comparable Target Total Direct Compensation pursuant to Section  1.07(b)(ii) if the Target Total Direct Compensation it or the applicable member of its Group pays to such Impacted Employee is no less than the Target Total Direct Compensation of the applicable Heritage Company for such Impacted Employee immediately prior to the MatCo Distribution Date. With respect to each Impacted Employee, each applicable Party agrees that each other applicable Party has satisfied its obligation to provide Comparable Benefits pursuant to Section  1.07(b)(iii) if the Benefits it or the applicable member of its Group provides to such Impacted Employee are, when taken as a whole, not more than five percent (5%) lower in value than the Benefits the applicable Heritage Company provided to such Impacted Employee immediately prior to the MatCo Distribution Date.

 

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(v) For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, subject to Section  2.02 , each of MatCo, AgCo and SpecCo and the members of their respective Groups shall satisfy their respective obligations to provide each Impacted Employee with such terms and conditions of employment, including compensation and benefits, as may be required under applicable Law or any applicable Labor Agreement. Notwithstanding anything to the contrary in this Agreement, subject to Section  2.02 , (1) if MatCo or the applicable member of the MatCo Group fails to provide as of the MatCo Distribution Date to any Heritage DuPont MatCo Employee such terms and conditions of employment, including compensation and benefits, as required under applicable Law or any applicable Labor Agreement, MatCo (or the applicable member of its Group) shall be responsible for all resulting Liabilities, including paying or reimbursing AgCo or SpecCo, as applicable, for the full amount of any Severance payable under any applicable Law or Labor Agreement to any such employee who becomes a Non-Consenting Employee; (2) if AgCo or the applicable member of the AgCo Group fails to provide as of the applicable Distribution Date to any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee such terms and conditions of employment, including compensation and benefits, as required under applicable Law or any applicable Labor Agreement, AgCo (or the applicable member of its Group) shall be responsible for all resulting Liabilities, including paying such employee or reimbursing MatCo or SpecCo, respectively, for the full amount of any Severance payable under any applicable Law or Labor Agreement to any such employee who becomes a Non-Consenting Employee; and (3) if SpecCo or the applicable member of the SpecCo Group fails to provide as of the applicable Distribution Date to any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee such terms and conditions of employment, including compensation and benefits, as required under applicable Law or any applicable Labor Agreement, SpecCo (or the applicable member of its Group) shall be responsible for all resulting Liabilities, including paying such employee or reimbursing MatCo or AgCo, respectively, for the full amount of any Severance payable under any applicable Law or Labor Agreement to any such employee who becomes a Non-Consenting Employee.

Section 1.08 Annual Cash Incentives (DuPont STIP; Dow PA) .

(a) Annual cash incentive compensation earned or accrued by a Heritage Dow Employee for the fiscal year 2018 shall have been paid by Heritage Dow to such Heritage Dow Employee pursuant to the terms and conditions of the applicable Heritage Dow cash incentive compensation plan or policy. Annual cash incentive compensation earned or accrued by a Heritage DuPont Employee for the fiscal year 2018 shall have been paid by Heritage DuPont to such Heritage DuPont Employee pursuant to the terms and conditions of the applicable Heritage DuPont cash incentive compensation plan or policy.

(b) Annual cash incentive compensation earned or accrued by any Heritage Dow AgCo Employee or Heritage Dow SpecCo Employee for the fiscal year 2019 shall be paid by a member of the AgCo Group or SpecCo Group, as applicable, in 2020, pursuant to the terms and conditions of the applicable AgCo or SpecCo cash incentive compensation plan or policy in place on December 31, 2019. Annual cash incentive compensation earned or accrued by any Heritage DuPont MatCo Employee for the fiscal year 2019 shall be paid by a member of the MatCo Group, as applicable, in 2020, pursuant to the terms and conditions of the applicable MatCo cash incentive compensation plan or policy in effect on December 31, 2019.

 

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Section 1.09 Equity Awards . Except as set forth on Schedule 1.09 to this Agreement:

(a) Shareholder Method Other Awards . Each Shareholder Method Other Award shall be converted into a MatCo Equity Award, AgCo Equity Award and SpecCo Equity Award (including a ratable portion of any accumulated dividend equivalents) in accordance with the provisions of this Section  1.09(a) .

(i) Effective as of the MatCo Distribution Date, each Shareholder Method Other Award shall be adjusted by MatCo awarding its holder a MatCo Equity Award covering a number of shares of MatCo Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares subject to the Shareholder Method Other Award multiplied by the MatCo Distribution Ratio.

(ii) Effective as of the AgCo Distribution Date, each Shareholder Method Other Award shall be adjusted by AgCo awarding its holder an AgCo Equity Award covering a number of shares of AgCo Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares subject to the Shareholder Method Other Award multiplied by the AgCo Distribution Ratio.

(b) Employer Method Other Awards . With respect to each Employer Method Other Award (including a ratable portion of any accumulated dividend equivalents):

(i) In the case of an Employer Method Other Award held by or in respect of a Person who upon the MatCo Distribution is employed by a member of the MatCo Group or a former employee whose last employment with DowDuPont and its Affiliates was with a member of the MatCo Group (or a holder in respect of such a Person), the DowDuPont Equity Award shall be converted as of the MatCo Distribution Date into a MatCo Equity Award issued by MatCo covering a number of shares of MatCo Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares subject to the DowDuPont Equity Award multiplied by the MatCo Conversion Ratio.

(ii) In the case of an Employer Method Other Award held by (or in respect of) any other Person, then:

(A) the Employer Method Other Award shall be converted, as of the MatCo Distribution Date, into an adjusted DowDuPont Equity Award (the “ Interim Award ”) covering a number of shares of DowDuPont Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares subject to the Employer Method Other Award multiplied by the SpecCo Initial Conversion Ratio; and

(B) in the case of an Interim Award held by (I) except as provided in Section  1.09(b)(ii)(B)(III) , a Person who upon the AgCo Distribution is employed by a member of the AgCo Group, the Interim Award shall be converted as of the AgCo Distribution Date into an AgCo Equity Award issued by AgCo covering a number of shares of AgCo Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares of DowDuPont Common Stock

 

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subject to the Interim Award multiplied by the AgCo Conversion Ratio; (II) except as provided in Section  1.09(b)(ii)(B)(III) , in the case of an Interim Award held by a Person who upon the AgCo Distribution is employed by a member of the SpecCo Group, the Interim Award shall be converted as of the AgCo Distribution Date into a further adjusted SpecCo Equity Award covering a number of shares of DowDuPont Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares of DowDuPont Common Stock subject to the Interim Award multiplied by the SpecCo Subsequent Conversion Ratio, or (III) a Person who as of the AgCo Distribution Date is either a Person with no identified future role with the AgCo Group or SpecCo Group or a former employee whose last employment with DowDuPont and its Affiliates was with a member of the AgCo Group or the SpecCo Group (or a holder in respect of such a Person), the Interim Award shall be adjusted by AgCo awarding its holder an additional AgCo Equity Award covering a number of shares of AgCo Common Stock, rounded up to the nearest number of whole shares, equal to the product of the number of shares subject to the Interim Award multiplied by the AgCo Distribution Ratio.

(c) Stock Options .

(i) Each DowDuPont Option that is a Shareholder Method Award shall be converted into a MatCo Option issued by MatCo as of the MatCo Distribution Date, an AgCo Option issued by AgCo as of the AgCo Distribution Date and an adjusted DowDuPont Option as of the MatCo Distribution Date and/or the AgCo Distribution Date, as applicable, all in accordance with the following provisions of this Section  1.09(c)(i) .

(A) Effective as of the MatCo Distribution Date, the DowDuPont Option shall be converted into (I) a MatCo Option covering a number of shares of MatCo Common Stock, rounded down to the nearest whole share, equal to the number of shares of DowDuPont Common Stock subject to the DowDuPont Option immediately before the MatCo Distribution Date multiplied by the MatCo Distribution Ratio and (II) an adjusted DowDuPont Option that continues to cover the same number of shares of DowDuPont Common Stock subject to the DowDuPont Option immediately before the MatCo Distribution Date. The per-share exercise price of the MatCo Option shall equal the product, rounded up to the nearest penny, of the Pre-Distribution Option Price multiplied by a fraction, the numerator of which is the Post-MatCo (MatCo) Share Price and the denominator of which is the Pre-MatCo (SpecCo) Share Price. The per-share exercise price of the adjusted DowDuPont Option (the “ Adjusted Option Price ”) shall equal the product, rounded up to the nearest penny, of the Pre-Distribution Option Price multiplied by a fraction, the numerator of which is the Post-MatCo (SpecCo) Share Price and the denominator of which is the Pre-MatCo (SpecCo) Share Price.

(B) Effective as of the AgCo Distribution Date, the DowDuPont Option (as adjusted pursuant to the preceding paragraph (A), if applicable) shall be converted into (I) an AgCo Option covering a number of shares of AgCo Common Stock, rounded down to the nearest whole share, equal to the number of shares of DowDuPont Common Stock subject to the adjusted DowDuPont Option immediately before the AgCo Distribution Date multiplied by the AgCo Distribution Ratio and (II) an

 

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adjusted DowDuPont Option that continues to cover the same number of shares of DowDuPont Common Stock subject to the DowDuPont Option immediately before the AgCo Distribution Date. The per-share exercise price of the AgCo Option shall equal the product, rounded up to the nearest penny, of the Adjusted Option Price multiplied by a fraction, the numerator of which is the Post-AgCo (AgCo) Share Price and the denominator of which is the Pre-AgCo (SpecCo) Share Price. The per-share exercise price of the adjusted DowDuPont Option shall equal the product, rounded up to the nearest penny, of the Adjusted Option Price multiplied by a fraction, the numerator of which is the Post-AgCo (SpecCo) Share Price and the denominator of which is the Pre-AgCo (SpecCo) Share Price.

(ii) With respect to any DowDuPont Option that is an Employer Method Award:

(A) In the case of a DowDuPont Option held by (or in respect of) a Person who upon the MatCo Distribution is employed by a member of the MatCo Group or a former employee whose last employment with DowDuPont and its Affiliates was with a member of the MatCo Group, the DowDuPont Option shall be converted as of the MatCo Distribution Date into a MatCo Option issued by MatCo covering a number of shares of MatCo Common Stock, rounded down to the nearest number of whole shares, equal to the product of the number of shares subject to the DowDuPont Option multiplied by the MatCo Conversion Ratio with a per-share exercise price, rounded up to the nearest penny, equal to the Pre-Distribution Option Price divided by the MatCo Conversion Ratio.

(B) In the case of a DowDuPont Option that is an Employer Method Award held by (or in respect of) any other Person:

(I) the DowDuPont Option shall be converted, as of the MatCo Distribution Date, into an adjusted DowDuPont Option (the “ Interim Option ”) covering a number of shares of DowDuPont Common Stock, rounded down to the nearest number of whole shares, equal to the product of the number of shares subject to the DowDuPont Option multiplied by the SpecCo Initial Conversion Ratio with a per-share exercise price, rounded up to the nearest penny, equal to the Pre-Distribution Option Price divided by the SpecCo Initial Conversion Ratio (the “ Interim Exercise Price ”); and

(II) in the case of an Interim Option held by (x) except as provided in Section  1.09(c)(ii)(B)(II)(z) , a Person who upon the AgCo Distribution is employed by a member of the AgCo Group, the Interim Option shall be converted as of the AgCo Distribution Date into an AgCo Option covering a number of shares of AgCo Common Stock, rounded down to the nearest number of whole shares, equal to the product of the number of shares of DowDuPont Common Stock subject to the Interim Option multiplied by the AgCo Conversion Ratio with a per-share exercise price, rounded up to the nearest penny, equal to the Interim Exercise Price divided by the AgCo Conversion Ratio, (y) except as provided in Section  1.09(c)(ii)(B)(II)(z) , a Person who upon the

 

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AgCo Distribution is employed by a member of the SpecCo Group, the Interim Option shall be converted as of the AgCo Distribution Date into a further adjusted SpecCo Equity Award covering a number of shares of DowDuPont Common Stock, rounded down to the nearest number of whole shares, equal to the product of the number of shares of DowDuPont Common Stock subject to the Interim Option multiplied by the SpecCo Subsequent Conversion Ratio with a per-share exercise price, rounded up to the nearest penny, equal to the Interim Exercise Price divided by the SpecCo Subsequent Conversion Ratio, and (z) a Person who as of the AgCo Distribution Date is either a Person with no identified future role with the AgCo Group or SpecCo Group or a former employee whose last employment with DowDuPont and its Affiliates was with a member of the AgCo Group or the SpecCo Group (or a holder in respect of such a Person), the Interim Option shall be converted as of the AgCo Distribution Date into (i) an AgCo Option covering a number of shares of AgCo Common Stock, rounded down to the nearest number of whole shares, equal to the number of shares of DowDuPont Common Stock subject to the Interim Option immediately before the AgCo Distribution Date multiplied by the AgCo Distribution Ratio, with the per-share exercise price of the AgCo Option equal to the product, rounded up to the nearest penny, of the Interim Exercise Price multiplied by a fraction, the numerator of which is the Post-AgCo (AgCo) Share Price and the denominator of which is the Pre-AgCo (SpecCo) Share Price, and (ii) a further adjusted DowDuPont Option that continues to cover the same number of shares of DowDuPont Common Stock subject to the DowDuPont Option immediately before the AgCo Distribution Date, with the per-share exercise price of the adjusted DowDuPont Option equal to the product, rounded up to the nearest penny, of the Interim Exercise Price multiplied by a fraction, the numerator of which is the Post-AgCo (SpecCo) Share Price and the denominator of which is the Pre-AgCo (SpecCo) Share Price.

(d) Award Terms; Vesting; Treatment of Service . Except as otherwise provided in this Section  1.09 , the terms and conditions applicable to MatCo Equity Awards and AgCo Equity Awards shall be substantially identical to the terms and conditions applicable to the underlying DowDuPont Equity Award (as set forth in the applicable plan, award agreement or in any otherwise applicable agreement with DowDuPont or its Affiliates). All MatCo Equity Awards and AgCo Equity Awards shall become vested upon the date the underlying DowDuPont Equity Award would have otherwise vested in accordance with the existing vesting schedule. For purposes of determining continued vesting in MatCo Equity Awards, AgCo Equity Awards and DowDuPont Equity Awards, continued service by the holder to the MatCo Group, AgCo Group or SpecCo Group, as the case may be, shall be treated as continuous service with MatCo, AgCo and SpecCo, respectively.

(e) Certain Additional Considerations . Notwithstanding anything to the contrary in this Section  1.09 :

(i) To the extent the Board determines before the MatCo Distribution Date that the treatment of an award as a Shareholder Method Award is not practicable due to applicable Laws or the potential imposition of adverse Taxes or penalties, such awards shall be treated as Employer Method Awards.

 

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(ii) The Parties shall cooperate in good faith, in respect of jurisdictions outside the United States, to treat Shareholder Method Awards as Employer Method Awards where Tax or regulatory considerations render the treatment of Shareholder Method Awards unduly burdensome to the holder thereof.

(iii) All of the adjustments described in this Section  1.09 shall be effected in accordance with Sections 409A and 424 of the Code.

(iv) The Parties hereby acknowledge that the provisions of this Section  1.09 are intended to achieve certain Tax, legal and accounting objectives and, in the event such objectives are not achieved, the Parties agree to negotiate in good faith regarding such other actions that may be necessary or appropriate to achieve such objectives.

(f) Equity Plan Adoption; Registration Statement .

(i) Effective as of the MatCo Distribution Date, MatCo shall adopt an equity incentive plan (the “ MatCo Stock Plan ”), which shall permit the issuance of MatCo Equity Awards as described in this Section  1.09 . The MatCo Stock Plan shall be approved before the Effective Time by DowDuPont as MatCo’s sole stockholder.

(ii) Effective as of the AgCo Distribution Date, AgCo shall adopt an equity incentive plan (the “ AgCo Stock Plan ”), which shall permit the issuance of AgCo Equity Awards as described in this Section  1.09 . The AgCo Stock Plan shall be approved before the AgCo Distribution Date by DowDuPont as AgCo’s sole stockholder.

(iii) The Parties shall use commercially reasonable efforts to maintain effective registration statements with the Securities and Exchange Commission with respect to the MatCo Equity Awards, AgCo Equity Awards and SpecCo Equity Awards described in this Section  1.09 , to the extent any such registration statement is required by applicable Law.

(g) Settlement, Delivery; Tax Reporting and Withholding .

(i) From and after the applicable Distribution Date, MatCo shall have sole responsibility for the settlement of and/or delivery of shares of MatCo Common Stock pursuant to MatCo Equity Awards to any holder of such award and shall be solely entitled to any exercise price payable in respect of MatCo Options, AgCo shall have sole responsibility for the settlement of and/or delivery of shares of AgCo Common Stock pursuant to AgCo Equity Awards to any holder of such award and shall be solely entitled to any exercise price payable in respect of AgCo Options and SpecCo shall have sole responsibility for the settlement of and/or delivery of shares of DowDuPont Common Stock pursuant to SpecCo Equity Awards to any holder of such award and shall be solely entitled to any exercise price payable in respect of SpecCo Options, and except as otherwise provided in this Section  1.09(g) each entity shall do so without compensation from any other such entity.

 

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(ii) Upon the vesting, payment or settlement, as applicable, of MatCo Equity Awards, AgCo Equity Awards and SpecCo Equity Awards (in each case including with respect to dividends and dividend equivalents), MatCo, AgCo or SpecCo, respectively, shall be solely entitled to a Tax deduction in respect of, and shall be solely responsible for ensuring the satisfaction of all applicable Tax withholding requirements on behalf of, each holder thereof who is or, upon their last employment termination, was employed by a member of the MatCo Group, AgCo Group or SpecCo Group, respectively (or who holds the award in respect of any such individual), and for ensuring the collection and remittance of applicable employee withholding Taxes to the applicable Governmental Entity. To the extent shares of MatCo Common Stock, AgCo Common Stock or DowDuPont Common Stock are withheld and/or delivered to satisfy Tax withholding obligations in respect of the vesting, payment or settlement of MatCo Equity Awards, AgCo Equity Awards or SpecCo Equity Awards, respectively, to the extent the issuer is not responsible pursuant to this clause (ii)  for satisfying the applicable Tax withholding and remittance requirements, the issuer shall remit to the responsible Party cash in an amount sufficient to satisfy such requirements.

(iii) Each of the Parties shall establish an appropriate administration system in order to handle in an orderly manner exercises of MatCo Options, AgCo Options and SpecCo Options and the settlement of other DowDuPont Equity Awards, MatCo Equity Awards, AgCo Equity Awards and SpecCo Equity Awards and to effect the Tax benefits and obligations contemplated by this subsection (g). Each of the Parties shall work together to unify and consolidate all indicative data and payroll and employment information on regular timetables and make certain that each applicable entity’s data and records in respect of such awards are correct and updated on a timely basis. The foregoing shall include employment status and information required for Tax withholding/remittance, compliance with trading windows and compliance with the requirements of applicable Laws.

Section 1.10 Pension/OPEB/Welfare Benefit Claims .

(a) U.S. Pension Plans . There shall be no Transfer of Assets or Liabilities (including without limitation with respect to Actions) between, or otherwise among the Parties in respect of, any Benefit Plan maintained by any of them or their respective Affiliates that is a U.S. defined benefit pension plan intended to satisfy the requirements of Section 401(a) of the Code. Without limiting the foregoing, AgCo or a member of its Group shall maintain all Liability under or otherwise in respect of the DuPont Pension and Retirement Plan, including any Actions in respect thereof.

(b) Non-U.S. Pension Plans .

(i) Except to the extent required by applicable Law or as otherwise provided in subsection (b)(ii), below, there shall be no Transfer of Assets or Liabilities (including without limitation with respect to Actions) between, or otherwise among the Parties in respect of, any Benefit Plan maintained by any of them or their respective Affiliates that is a non-U.S. defined benefit pension plan. For the avoidance of doubt, Schedule 1.10(b)(i) to this Agreement identifies those arrangements where there shall be a Transfer of Assets or Liabilities or both as required by applicable Law, and any arrangement not identified on such Schedule shall be deemed for purposes of this Agreement to be one for which such a Transfer of Assets or Liabilities is not required by applicable Law.

 

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(ii) To the extent provided in Schedule 1.10(b)(ii) to this Agreement, the Parties shall cause the Transfer of Assets or Liabilities between, or otherwise among them in respect of, any Benefit Plan maintained by any of them or their respective Affiliates that are non-U.S. defined benefit pension plans, although such Transfer of Assets or Liabilities is not otherwise required by applicable Law.

(c) OPEB .

(i) Except to the extent required by applicable Law or as otherwise provided in subsection (c)(ii) or (c)(iii), below, there shall be no Transfer of Assets or Liabilities (including without limitation with respect to Actions) between, or otherwise among the Parties in respect of, any OPEB Plan. For the avoidance of doubt, Schedule 1.10(c)(i) to this Agreement identifies those OPEB Plans where there shall be a Transfer of Assets or Liabilities or both as required by applicable Law, and any OPEB Plan not identified on such Schedule shall be deemed for purposes of this Agreement to be one for which such a Transfer of Assets or Liabilities is not required by applicable Law.

(ii) The Benefit Plans identified on Schedule 1.10(c)(ii) to this Agreement shall be Assumed as indicated therein.

(iii) Notwithstanding anything to the contrary in Sections 1.03 , 1.04 or 1.10 , SpecCo shall Assume (or cause a member of its Group to Assume) Liabilities related to the E.I. DuPont de Nemours and Company Long Term Care Insurance Plan, which shall not be considered a Benefit for purposes of Section  1.03 or a Benefit Plan for purposes of Section  1.04 .

(d) Welfare Benefit Claims . Notwithstanding anything to the contrary in this Agreement and except as set forth on Schedule 1.10(d) to this Agreement, (i) MatCo shall remain responsible for any claims under any Heritage Dow Benefit Plans that are welfare benefits plans (the “ Heritage Dow Group Welfare Plans ”) that were incurred prior to the MatCo Distribution Date with respect to each Heritage Dow AgCo Employee and Heritage Dow SpecCo Employee; (ii) AgCo shall remain responsible for any claims under any Heritage DuPont Benefit Plans that are welfare benefits plans (the “ Heritage DuPont Group Welfare Plans ”) that were incurred prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date) with respect to each Heritage DuPont MatCo Employee who is employed by AgCo or a member of the AgCo Group immediately prior to the Internal Reorganization or any Heritage DuPont SpecCo Assigned Employee; and (iii) SpecCo shall remain responsible for any claims under any Heritage DuPont Group Welfare Plan that were incurred prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date) with respect to each Heritage DuPont MatCo Employee who is employed by SpecCo or a member of the SpecCo Group immediately prior to the Internal Reorganization or any Heritage DuPont AgCo Assigned Employee; provided , however , that clauses (i) through (iii) shall not apply to any long-term disability coverage for any employee who incurred a short-term disability event but was not an LTD Employee prior to the applicable Distribution Date. Except in the event of any claim for

 

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workers’ compensation benefits for purposes of Section  2.08 , any claims shall be deemed to be incurred pursuant to the terms and conditions of the Heritage Dow Group Welfare Plan or the Heritage DuPont Group Welfare Plan, as the case may be, provided that the Parties shall use their best efforts to ensure that there is no failure to cover any claim that otherwise would have been covered under a Heritage Company Benefit Plan but for the provisions of this Agreement.

Section 1.11 Labor Matters . Notwithstanding anything to the contrary in this Agreement, subject to Section  2.02 , as of the MatCo Distribution Date: (a) MatCo shall honor, or cause the applicable members of the MatCo Group to honor, in accordance with their terms, each of the MatCo Labor Agreements; (b) AgCo shall honor, or cause the applicable members of the AgCo Group to honor, in accordance with their terms, each of the AgCo Labor Agreements; and (c) SpecCo shall honor, or cause the applicable members of the SpecCo Group to honor, in accordance with their terms, each of the SpecCo Labor Agreements. Prior to the date hereof, each Party shall have complied, or shall have caused the applicable member of its Group to comply, and prior to each Distribution Date, each Party shall comply, or shall have caused the applicable member of its Group to comply, with any obligations it has under applicable Laws and applicable Labor Agreements to inform and/or consult with any Employee Representative Body or group of employees in connection with this Agreement, the arrangements proposed in this Agreement, the Internal Reorganization and/or the Distributions. Each of the other Parties and members of their respective Groups who will employ the employees represented by an Employee Representative Body after the Internal Reorganization and/or the Distributions shall have reasonably cooperated (for such information or consultation obligations required to be completed on or prior to the date hereof), and shall reasonably cooperate (for such information or consultation obligations required to be completed after the date hereof), with such Party or member of its Group in order to comply with such obligations, including by providing all documents and information necessary to complete such information and/or consultation requirements.

Section 1.12 Expatriate Assignments .

(a) Allocation of Liabilities for Concluded Expatriate Assignments . Except to the extent otherwise required by applicable Law, and notwithstanding anything to the contrary in Section  1.16 : (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, retain (1) all Liabilities (including obligations, if any, to administer, or provide post-repatriation benefits or services under, Heritage Dow’s expatriate programs) arising from or relating to each Heritage Dow Employee whose expatriate assignment ended prior to the MatCo Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment), and (2) all rights to receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage Dow Employee; (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, retain (1) all Liabilities (including obligations, if any, to administer, or provide post-repatriation benefits or services under, Heritage DuPont’s expatriate programs) arising from or relating to each Heritage DuPont Employee who is employed by AgCo or a member of the AgCo Group as of immediately prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date) and whose expatriate assignment ended prior to such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment), and (2) all rights to

 

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receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage DuPont Employee; and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, retain (1) all Liabilities (including obligations, if any, to administer, or provide post-repatriation benefits or services under, Heritage DuPont’s expatriate programs) arising from or relating to each Heritage DuPont Employee who is employed by SpecCo or a member of the SpecCo Group as of immediately prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date) and whose expatriate assignment ended prior to such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment), and (2) all rights to receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage DuPont Employee.

(b) Allocation of Liabilities for Ongoing Expatriate Assignments . Except to the extent otherwise required by applicable Law, and, for the avoidance of doubt, pursuant to Section  1.16 : (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, Assume all (1) Liabilities (including obligations, if any, to provide post-repatriation benefits or services under Heritage DuPont’s expatriate programs, provided that, for the avoidance of doubt, except as otherwise required by applicable Law or applicable Labor Agreement, there shall be no obligation to continue such benefits or services) arising from or relating to each Heritage DuPont MatCo Employee whose expatriate assignment began prior to the MatCo Distribution Date and which expatriate assignment is still in progress on the MatCo Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment); and (2) rights to receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage DuPont MatCo Employee; (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, Assume all (1) Liabilities (including obligations, if any, to provide post-repatriation benefits or services under Heritage Dow’s or Heritage DuPont’s expatriate programs, as applicable, provided that, for the avoidance of doubt, except as otherwise required by applicable Law or applicable Labor Agreement, there shall be no obligation to continue such benefits or services) arising from or relating to each Heritage Dow AgCo Employee and Heritage DuPont AgCo Assigned Employee whose expatriate assignment began prior to the MatCo Distribution Date or AgCo Distribution Date, respectively, and which expatriate assignment is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment); and (2) rights to receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee, respectively; and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, Assume all (1) Liabilities (including obligations, if any, to provide post-repatriation benefits or services under Heritage Dow’s or Heritage DuPont’s expatriate programs, as applicable, provided that, for the avoidance of doubt, except as otherwise required by applicable Law or applicable Labor Agreement, there shall be no obligation to continue such benefits or services) arising from or relating to each Heritage Dow SpecCo Employee and Heritage DuPont SpecCo Assigned Employee whose expatriate assignment began prior to the MatCo Distribution Date or AgCo Distribution Date, respectively, and which expatriate assignment is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such expatriate assignment); and (2) rights to receive any repayment or reimbursement (including repayment or reimbursement of any trailing tax reconciliation or tax equalization by the applicable Impacted Employee) from such Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee, respectively.

 

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Section 1.13 In-Country and International Relocations .

(a) Benefits for Impacted Employee Relocations . Except as set forth on Schedule 1.13(a) to this Agreement or to the extent otherwise required by applicable Law or applicable Labor Agreement, and notwithstanding anything to the contrary in Section  1.16 : (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, administer and provide benefits or services, pursuant to the applicable Heritage Dow in-country or international relocation program, to any Heritage Dow AgCo Employee or any Heritage Dow SpecCo Employee whose relocation was initiated prior to the MatCo Distribution Date and which relocation is still in progress on the MatCo Distribution Date (without regard to which Heritage Company, Party or Group member initiated such relocation); (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, administer and provide benefits or services, pursuant to the applicable Heritage DuPont in-country or international relocation program, to any Heritage DuPont MatCo Employee who was employed by AgCo or a member of the AgCo Group when the relocation was initiated or any Heritage DuPont SpecCo Assigned Employee, in each case whose relocation was initiated prior to the MatCo Distribution Date or AgCo Distribution Date, respectively, and which relocation is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such relocation); and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, administer and provide benefits or services, pursuant to the applicable Heritage DuPont in-country or international relocation program, to any Heritage DuPont MatCo Employee who was employed by SpecCo or a member of the SpecCo Group when the relocation was initiated or any Heritage DuPont AgCo Assigned Employee, in each case whose relocation was initiated prior to the MatCo Distribution Date or AgCo Distribution Date, respectively, and which relocation is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such relocation).

(b) Allocation of Liabilities for Impacted Employee Relocations . Except as set forth on Schedule 1.13(b) to this Agreement or to the extent otherwise required by applicable Law or applicable Labor Agreement, and, for the avoidance of doubt, pursuant to Section  1.16 : (i) MatCo shall, or shall cause the applicable member of the MatCo Group to, Assume (1) all Liabilities arising from or relating to an in-country relocation of any Heritage DuPont MatCo Employee initiated prior to the MatCo Distribution Date and which relocation is still in progress on the MatCo Distribution Date (without regard to which Heritage Company, Party or Group member initiated such in-country relocation), and (2) all Liabilities arising from or relating to an international relocation of any Heritage DuPont MatCo Employee initiated following August 31, 2017 and prior to the MatCo Distribution Date and which relocation is still in progress on the MatCo Distribution Date (without regard to which Heritage Company, Party or Group member initiated such international relocation); (ii) AgCo shall, or shall cause the applicable member of the AgCo Group to, Assume (1) all Liabilities arising from or relating to an in-country relocation of any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee initiated prior to the MatCo Distribution Date or AgCo Distribution Date, respectively, and which relocation is still in progress on such Distribution Date (without regard to which Heritage

 

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Company, Party or Group member initiated such in-country relocation), and (2) all Liabilities arising from or relating to an international relocation of any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee initiated following August 31, 2017 and prior to the MatCo Distribution Date or the AgCo Distribution Date, respectively, and which relocation is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such international relocation); and (iii) SpecCo shall, or shall cause the applicable member of the SpecCo Group to, Assume (1) all Liabilities arising from or relating to an in-country relocation of any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee initiated prior to the MatCo Distribution Date or AgCo Distribution Date and which relocation is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such in-country relocation), and (2) all Liabilities arising from or relating to an international relocation of any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee initiated following August 31, 2017 and prior to the MatCo Distribution Date or the AgCo Distribution Date, respectively, and which relocation is still in progress on such Distribution Date (without regard to which Heritage Company, Party or Group member initiated such international relocation).

Section 1.14 Non-Solicitation .

(a) The Parties have invested significant time, costs and resources to select the employees for their proper roles within their respective future workforces. To ensure that each of the Parties receives the benefit of such investments and retains skilled employees necessary to conduct their respective businesses, for a period commencing on the MatCo Distribution Date and ending on the shorter of (x) twenty-four (24) months following the AgCo Distribution Date, but no later than twenty-six (26) months following the MatCo Distribution Date or (b) the maximum period permitted by applicable Law in each applicable jurisdiction:

(i) Without the prior written consent of AgCo’s Chief Human Resources Officer or SpecCo’s Chief Human Resources Officer, as applicable, MatCo shall not, and shall cause the members of the MatCo Group not to, directly or indirectly Solicit: (1) any employee of AgCo, the AgCo Group, SpecCo or the SpecCo Group (excluding any Heritage DuPont MatCo Employee who is a Delayed Employment Employee or Returning LTD Employee, subject to the terms of Section  1.02(c) and Section  1.02(d) , as applicable); (2) within ninety (90) days of the applicable termination of employment, any former employee of AgCo, the AgCo Group, SpecCo or the SpecCo Group who was not involuntarily terminated by the applicable Party or Group (other than any Non-Consenting Employee covered by clause (3) of this Section  1.14(a)(i) ); or (3) any Heritage Dow Employee or Heritage DuPont Employee who was Ring-Fenced to AgCo or SpecCo and became a Non-Consenting Employee, as applicable;

(ii) Without the prior written consent of MatCo’s Chief Human Resources Officer or SpecCo’s Chief Human Resources Officer, as applicable, AgCo shall not, and shall cause the members of the AgCo Group not to, directly or indirectly, Solicit: (1) any employee of MatCo, the MatCo Group, SpecCo or the SpecCo Group (excluding any Heritage Dow AgCo Employee or Heritage DuPont AgCo Assigned Employee who is a Delayed Employment Employee or Returning LTD Employee, subject to the terms of Section  1.02(d) and Section  1.02(e) , as applicable); (2) within

 

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ninety (90) days of the applicable termination of employment, any former employee of MatCo, the MatCo Group, SpecCo or the SpecCo Group who was not involuntarily terminated by the applicable Party or Group (other than any Non-Consenting Employee covered by clause (3) of this Section  1.14(a)(ii) ); or (3) any Heritage Dow Employee or Heritage DuPont Employee who was Ring-Fenced to MatCo or SpecCo and became a Non-Consenting Employee; and

(iii) Without the prior written consent of MatCo’s Chief Human Resources Officer or AgCo’s Chief Human Resources Officer, as applicable, SpecCo shall not, and shall cause the members of the SpecCo Group not to, directly or indirectly, Solicit: (1) any employee of MatCo, the MatCo Group, AgCo or the AgCo Group (excluding any Heritage Dow SpecCo Employee or Heritage DuPont SpecCo Assigned Employee who is a Delayed Employment Employee or Returning LTD Employee, subject to the terms of Section  1.02(d) and Section  1.02(e) , as applicable); (2) within ninety (90) days of the applicable termination of employment, any former employee of MatCo, the MatCo Group, AgCo or the AgCo Group who was not involuntarily terminated by the applicable Party or Group (other than any Non-Consenting Employee covered by clause (3) of this Section  1.14(a)(iii) ); or (3) any Heritage Dow Employee or Heritage DuPont Employee who was Ring-Fenced to MatCo or AgCo and became a Non-Consenting Employee.

Notwithstanding the foregoing, the restrictions on solicitation in this Section  1.14 (A) shall not apply to solicitations made to the public generally through bona fide public advertisements or job postings that are not targeted at employees of any Party or of any member of such Party’s Group, and (B) shall not restrict any Party or member of its Group from soliciting or hiring any individual who provided services to such Party or member of its Group pursuant to an Operating Services Agreement (as defined in the Separation Agreement) upon the termination of such Operating Services Agreement.

(b) If, at the time of enforcement of this Section  1.14 , a court shall hold that the duration, scope or other restrictions stated herein are unreasonable under circumstances then existing, the Parties agree that the maximum duration, scope or other restrictions reasonable under such circumstances shall be substituted for the stated duration, scope or other restrictions and that the court shall be allowed to revise the restrictions contained herein to cover the maximum duration, scope and other restrictions then permitted by applicable Law.

Section 1.15 Employee Records . To the extent required by applicable Law or as reasonably required in order for the Parties to perform their obligations under this Agreement or as provided in Schedule 1.15 to this Agreement, each Party shall, and shall cause the applicable member of its Group to, transfer copies of all applicable employee records, data or information, and compliance-related training documents, with respect to each Impacted Employee to the applicable Party or applicable member of its Group (“ Employee Records ”) in a manner compliant with applicable Law and as agreed upon by the applicable members of the applicable Groups in each Relevant Jurisdiction and, with respect to medical records (which shall not include “protected health information” as described in the following sentence), in accordance with the treatment of employee medical records provided in Schedule 1.15 to this Agreement; provided , however , that no transfer shall be necessary to the extent such employee records are

 

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already in the possession and control of the applicable member of its Group. For the avoidance of doubt, Employee Records do not include “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended, or any similar state, local or foreign Law. To the extent there are any employee records, data or information not transferred pursuant to this Section  1.15 , then the Party in control of such records, data or information shall preserve and provide access to such records, data and information in accordance with and subject to the terms of Section 9.1 and Section 9.2 of the Separation Agreement.

Section 1.16 HR Liabilities .

(a) In General . Except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement: (i) MatCo shall, or shall cause a member of the MatCo Group to, Assume all of the MatCo HR Liabilities; (ii) AgCo shall, or shall cause a member of the AgCo Group to, Assume all of the AgCo HR Liabilities; and (iii) SpecCo shall, or shall cause a member of the SpecCo Group to, Assume all of the SpecCo HR Liabilities, in each case, regardless of (v) when or where such Liabilities arose or arise; (w) whether the facts upon which they are based occurred prior to, on, or subsequent to the Effective Time; (x) where or against whom such Liabilities are asserted or determined; (y) regardless of whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud, or misrepresentation by any member of the MatCo Group, AgCo Group, or SpecCo Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries, or Affiliates; and (z) which entity is named in any Action associated with any Liability.

(b) Liabilities for Deselected Employees . Except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement,

(i) MatCo shall, or shall cause a member of the MatCo Group to, Assume all of the HR Liabilities related to (1) each Heritage Dow MatCo Deselected Employee, (2) each Heritage DuPont MatCo Deselected Employee who is terminated by AgCo or SpecCo after MatCo or a member of the MatCo Group (x) deselects such Person in violation of applicable Law or (y) deselects such Person in accordance with applicable Law but does not provide adequate documentation and supporting materials to AgCo or SpecCo, as the case may be, sufficient to allow such Party to terminate and, where applicable, obtain a valid release from such Person, and (3) each Heritage Dow AgCo Deselected Employee and Heritage Dow SpecCo Deselected Employee whom AgCo or SpecCo, respectively, deselects in accordance with applicable Law and in respect of whom AgCo or SpecCo, respectively, provides MatCo with adequate documentation and supporting materials sufficient to allow MatCo to terminate and obtain a valid release from such Person;

(ii) AgCo shall, or shall cause a member of the AgCo Group to, Assume all of the HR Liabilities related to (1) each Heritage DuPont AgCo Deselected Employee, (2) each Heritage Dow AgCo Deselected Employee or Heritage DuPont AgCo Deselected Employee who is terminated by MatCo or SpecCo, respectively, after AgCo or a member of the AgCo Group (x) deselects such Person in violation of applicable Law or (y) deselects such Person in accordance with applicable Law but does not provide

 

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adequate documentation and supporting materials to MatCo or SpecCo, as the case may be, sufficient to allow such Party to terminate and, where applicable, obtain a valid release from such Person, and (3) each Heritage DuPont MatCo Deselected Employee and Heritage DuPont SpecCo Deselected Employee, in each case who is employed by AgCo or a member of the AgCo Group, whom MatCo or SpecCo, respectively, deselect in accordance with applicable Law and in respect of whom MatCo or SpecCo, respectively, provide AgCo with adequate documentation and supporting materials sufficient to allow AgCo to terminate and obtain a valid release from such Person;

(iii) SpecCo shall, or shall cause a member of the SpecCo Group to, Assume all of the HR Liabilities related to (1) each Heritage DuPont SpecCo Deselected Employee, (2) each Heritage Dow SpecCo Deselected Employee or Heritage DuPont SpecCo Deselected Employee who is terminated by MatCo or AgCo, respectively, after SpecCo or a member of the SpecCo Group (x) deselects such Person in violation of applicable Law or (y) deselects such Person in accordance with applicable Law but does not provide adequate documentation and supporting materials to MatCo or AgCo, as the case may be, sufficient to allow such Party to terminate and, where applicable, obtain a valid release from such Person, and (3) each Heritage DuPont MatCo Deselected Employee and Heritage DuPont AgCo Deselected Employee, in each case who is employed by SpecCo or a member of the SpecCo Group, whom MatCo or AgCo, respectively, deselect in accordance with applicable Law and in respect of whom MatCo or AgCo, respectively, provide SpecCo with adequate documentation and supporting materials sufficient to allow SpecCo to terminate and obtain a valid release from such Person.

(iv) Each Party agrees to supply each other Party with documentation and supporting materials as may reasonably be requested by such other Party with respect to subclauses 1 and 3 of each of clauses ( i ) through (iii) of this Section  1.16(b) (including any notice required pursuant to the Older Workers Benefit Protection Act of 1990), and to preserve selection and deselection records for any applicable statute of limitations, provide reasonable access to each other Party and reasonably cooperate with each other Party in connection with any claims or proceedings with respect to this Section  1.16(b) ; provided , however , that each Party legally responsible for terminating any Deselected Employee shall be responsible for delivering such materials to such Deselected Employees.

(c) Liabilities for Non-Consenting Employees . For the avoidance of doubt, except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement, including Section  1.07(b) :

(i) MatCo shall, or shall cause a member of the MatCo Group to, Assume all of the HR Liabilities related to any Non-Consenting Employee who is a Heritage Dow Employee;

(ii) AgCo shall, or shall cause a member of the AgCo Group to, Assume all of the HR Liabilities related to any Non-Consenting Employee who is a Heritage DuPont AgCo Aligned Employee; and

 

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(iii) SpecCo shall, or shall cause a member of the SpecCo Group to, Assume all of the HR Liabilities related to any Non-Consenting Employee who is a Heritage DuPont SpecCo Aligned Employee or a Heritage DuPont MatCo Aligned Employee.

(d) Liabilities for Former Employees . Except to the extent otherwise required by applicable Law or as otherwise provided in Section  1.16(b) with respect to Deselected Employees or Section  1.16(c) with respect to Non-Consenting Employees or this Section  1.16(d) with respect to Former Other Business Employees, any HR Liability in respect of individuals who, as of immediately prior to the applicable Distribution Date, are former employees of Heritage Dow or Heritage DuPont or any of their respective predecessors or former Affiliates, shall be, to the extent not otherwise addressed herein, (i) a MatCo HR Liability to the extent relating to, arising out of, by reason of or otherwise in connection with the Material Sciences Business; (ii) an AgCo HR Liability to the extent relating to, arising out of, by reason of or otherwise in connection with the Agriculture Business; and (iii) a SpecCo HR Liability to the extent relating to, arising out of, by reason of or otherwise in connection with the Specialty Products Business. With respect to the HR Liabilities pertaining to any Former Other Business Employee, to the extent not otherwise addressed herein, the principles of the Separation Agreement shall apply to such HR Liability.

(e) Joint and Several Liabilities . With respect to HR Liabilities that, under applicable Law or Labor Agreement, result in joint and several liability between two or more Parties, such HR Liabilities, to the extent not otherwise addressed herein, shall be apportioned among the Parties based on the principles of the Separation Agreement in respect of shared liabilities.

Section 1.17 Indemnification . Except to the extent otherwise required by applicable Law or as otherwise provided in this Agreement:

(a) MatCo Indemnification . MatCo shall, and shall cause each member of the MatCo Group to, indemnify, defend, and hold harmless the AgCo Indemnitees and the SpecCo Indemnitees from and against any and all Indemnifiable Losses of the AgCo Indemnitees and SpecCo Indemnitees, respectively, to the extent relating to, arising out of, by reason of or otherwise in connection with any failure of MatCo or any member of the MatCo Group to discharge any of their respective obligations (including such obligations of MatCo that may arise prior to the MatCo Distribution Date) under this Agreement, including failure to Assume any HR Liability in accordance with this Agreement.

(b) AgCo Indemnification . AgCo shall, and shall cause each member of the AgCo Group to, indemnify, defend, and hold harmless the MatCo Indemnitees and the SpecCo Indemnitees from and against any and all Indemnifiable Losses of the MatCo Indemnitees and SpecCo Indemnitees, respectively, to the extent relating to, arising out of, by reason of or otherwise in connection with any failure of AgCo or any member of the AgCo Group to discharge any of their respective obligations (including such obligations of AgCo that may arise prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date)) under this Agreement, including failure to Assume any HR Liability in accordance with this Agreement.

 

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(c) SpecCo Indemnification . SpecCo shall, and shall cause each member of the SpecCo Group to, indemnify, defend, and hold harmless the MatCo Indemnitees and the AgCo Indemnitees from and against any and all Indemnifiable Losses of the MatCo Indemnitees and AgCo Indemnitees, respectively, to the extent relating to, arising out of, by reason of or otherwise in connection with any failure of SpecCo or any member of the SpecCo Group to discharge any of their respective obligations (including such obligations of SpecCo that may arise prior to the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date)) under this Agreement, including failure to Assume any HR Liability in accordance with this Agreement.

(d) The following sections of the Separation Agreement shall apply mutatis mutandis to this Agreement as if such provisions had been set out expressly in this Agreement: 8.5 (Procedures for Third Party Claims), excluding Section 8.5(f) thereof, 8.6 (Procedures for Direct Claims), 8.7 (Cooperation in Defense and Settlement), 8.8 (Indemnification Payments), 8.9 (Indemnification Obligations Net of Insurance Proceeds and Other Amounts) and 8.10 (Additional Matters; Survival of Indemnities).

Section 1.18 Compliance with Applicable Laws . Notwithstanding any obligation set forth in this Agreement, on and following the applicable Distribution Date, each Party shall, and shall cause each member of its Group to, comply with all applicable Laws with respect to the employment or termination of any Impacted Employee. For the avoidance of doubt, if any Party or member of its Group fails to discharge its obligations under this section, any Indemnifiable Losses suffered by either of the other two Parties or any members of their respective Groups arising from such failure shall be subject to indemnification pursuant to this Section  1.18 .

Section 1.19 Transition Services . Except as expressly provided otherwise in this Agreement, the Parties agree that no member of any Group shall provide, or shall cause to be provided, any transition services on and after the MatCo Distribution Date (or, as between AgCo and SpecCo, the AgCo Distribution Date) in respect of employee benefits or human resources services for any Impacted Employees.

Section 1.20 Good-Faith Negotiations . Notwithstanding anything in this Agreement to the contrary (including the treatment of outstanding equity awards and annual incentive awards as described herein), the Parties agree to negotiate in good faith regarding the need for any treatment different from that provided herein.

Section 1.21 Third Party Beneficiaries . Notwithstanding anything contained in the Agreement to the contrary, no provision of this Agreement is intended to, or does, require any Party to keep any Person employed for any period of time or constitute the establishment or adoption of, or amendment to, any Benefit Plan. This Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon third parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, including any rights of employment for any specified period, in excess of those existing without reference to this Agreement.

Section 1.22 Effective Time . This Agreement shall be effective as of the Effective Time and shall cease to be of any force or effect if the Separation Agreement is terminated.

 

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ARTICLE II

UNITED STATES

The provisions of this Article II apply only in respect of matters that arise in respect of the employment of individuals within the United States or the termination thereof.

Section 2.01 Payment of U.S. Grandfathered Vacation Benefits . Notwithstanding anything to the contrary in this Section  2.01 , except to the extent otherwise required by an applicable Law or applicable Labor Agreement, as soon as administratively practicable following the MatCo Distribution Date (and no later than the earlier of the dates required by applicable Law or Labor Agreement, in each case, to the extent applicable): (i) AgCo shall pay out to each Heritage DuPont MatCo Employee in the U.S. all earned but unused vacation benefits remaining in the employee’s 2014 Bank (as defined in the DuPont Vacation Plan), based on the employee’s hourly rate of pay or average hourly earnings as of December 31, 2014; and (ii) MatCo shall pay out to each Heritage Dow AgCo Employee and Heritage Dow SpecCo Employee in the U.S. all earned but unused service vacation benefits under the Dow Corning Service Vacation policy (the vacation benefits described in this Section  2.01 , “ U.S. Grandfathered Time ”).

Section 2.02 Special Provisions Applicable to U.S. Unions and U.S. Union Contracts . As of the MatCo Distribution Date, and continuing thereafter for as long as required by applicable Law: (i) AgCo shall recognize the labor union that is party to the Dow Midland Labor Agreement as the sole and exclusive bargaining representative for the classification of employees set forth in such agreement who are Heritage Dow AgCo Employees, and shall negotiate, or shall have negotiated, in good faith a new Labor Agreement with such labor union, and shall honor such new Labor Agreement; and (ii) SpecCo shall recognize the labor union that is party to the Dow Midland Labor Agreement as the sole and exclusive bargaining representative for the classification of employees set forth in such agreement who are Heritage Dow SpecCo Employees, and shall negotiate, or shall have negotiated, in good faith a new Labor Agreement with such labor union, and shall honor such new Labor Agreement. To the extent a new Labor Agreement has not been reached prior to the MatCo Distribution Date between either AgCo or SpecCo and the labor union party to the Dow Midland Labor Agreement, each of AgCo and SpecCo reserves the right to set initial terms and conditions of employment for the Heritage Dow AgCo Employees and the Heritage Dow SpecCo Employees covered by such agreement, respectively, subject to applicable Law and Section  1.03 .

Section 2.03 RESERVED .

Section 2.04 U.S. Tax-Qualified Defined Contribution Plans .

(a) Heritage Dow U.S. Savings Plans .

(i) Except as otherwise provided in Section  2.04(a)(ii) , effective as of the MatCo Distribution Date, contributions under The Dow Chemical Company Employees’ Savings Plan (the “ Heritage Dow U.S. Savings Plan ”), in respect of the Heritage Dow AgCo Employees and the Heritage Dow SpecCo Employees, in each case, who participated in the Heritage Dow U.S. Savings Plan (each, a “ Heritage Dow U.S.

 

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Savings Plan Participant ” and, collectively, the “ Heritage Dow U.S. Savings Plan Participants ”), shall cease. AgCo and SpecCo shall each designate a defined contribution retirement plan (with respect to the defined contribution retirement plan designated by AgCo, the “ AgCo U.S. Savings Plan ” and with respect to the defined contribution retirement plan designated by SpecCo, the “ SpecCo U.S. Savings Plan ”) for the benefit of Heritage Dow U.S. Savings Plan Participants who are Heritage Dow AgCo Employees or Heritage Dow SpecCo Employees, respectively.

(ii) Notwithstanding Section  2.04(a)(i) , effective as of the MatCo Distribution Date, a member of the SpecCo Group shall become the sponsor of the Multibase, Inc. 401(k) Profit Sharing Plan.

(b) Heritage DuPont U.S. Savings Plans .

(i) Effective as of the MatCo Distribution Date, contributions under DuPont Retirement Savings Plan (the “ Heritage DuPont U.S. Savings Plan ”), in respect of Heritage DuPont MatCo Employees who participated in the Heritage DuPont U.S. Savings Plan (each, a “ Heritage DuPont U.S. Savings Plan Participant ” and, collectively, the “ Heritage DuPont U.S. Savings Plan Participants ”), shall cease. MatCo shall designate a defined contribution retirement plan (the “ MatCo U.S. Savings Plan ”) for the benefit of the Heritage DuPont U.S. Savings Plan Participants.

(ii) Effective as of the AgCo Distribution Date, contributions under the Heritage DuPont U.S. Savings Plan in respect of Heritage DuPont SpecCo Employees who are Heritage DuPont U.S. Savings Plan Participants shall cease. AgCo and SpecCo agree to cooperate in good faith to cause a trustee-to-trustee Transfer of all Assets and Liabilities (including plan loans in-kind) under the Heritage DuPont U.S. Savings Plan in respect of Heritage DuPont SpecCo Assigned Employees who are Heritage DuPont U.S. Savings Plan Participants as of the AgCo Distribution Date to the SpecCo U.S. Savings Plan, which Transfer shall occur as soon as practicable following the AgCo Distribution Date and shall be conducted in accordance with Section 414(l) of the Code, Treasury Regulation Section 1.414(l)-1 and Section 208 of the Employee Retirement Income Security Act of 1974, as amended.

Section 2.05 U.S. Non-Retiree Welfare Benefits .

(a) Welfare Benefit Plans . (i) On or prior to the MatCo Distribution Date, MatCo shall designate welfare benefit plans for the U.S. Heritage DuPont MatCo Employees (the “ MatCo Group U.S. Welfare Plans ”); (ii) AgCo shall designate welfare benefit plans, on or prior to the MatCo Distribution Date, for the U.S. Heritage Dow AgCo Employees and, on or prior to the AgCo Distribution Date, for the U.S. Heritage DuPont AgCo Assigned Employees (the “ AgCo Group U.S. Welfare Plans ”); and (iii) SpecCo shall designate welfare benefit plans, on or prior to the MatCo Distribution Date, for the U.S. Heritage Dow SpecCo Employees and, on or prior to the AgCo Distribution Date, for the U.S. Heritage DuPont SpecCo Assigned Employees (the “ SpecCo Group U.S. Welfare Plans ” and together with the MatCo Group U.S. Welfare Plans and the AgCo Group U.S. Welfare Plans, the “ Group U.S. Welfare Plans ”). Pursuant to Section  1.04 , on or prior to the MatCo Distribution Date (or, as between AgCo and

 

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SpecCo, the AgCo Distribution Date), (i) Heritage Dow shall cause each Heritage Dow AgCo Employee and Heritage Dow SpecCo Employee to cease to participate in and accrue benefits under all Heritage Dow Benefit Plans that are welfare benefits plans in the United States (the “ Heritage Dow Group U.S. Welfare Plans ”); (ii) AgCo shall cause each Heritage DuPont MatCo Employee who is employed by AgCo or a member of the AgCo Group and each Heritage DuPont SpecCo Assigned Employee to cease to participate in and accrue benefits under all Heritage DuPont Benefit Plans that are welfare benefit plans in the United States (the “ Heritage DuPont Group U.S. Welfare Plans ”); (iii) SpecCo shall cause each Heritage DuPont MatCo Employee who is employed by SpecCo or a member of the SpecCo Group and each Heritage DuPont AgCo Assigned Employee to cease to participate in and accrue benefits under all Heritage DuPont Group U.S. Welfare Plans; and (iv) each Party shall, or shall cause the applicable member of its Group to, cause each U.S. Impacted Employee to be eligible to participate in the applicable Group U.S. Welfare Plan pursuant to Section  1.04 immediately following the Distribution Date.

Section 2.06 Certain Nonemployee Director Arrangements. Unless otherwise expressly provided in this Agreement (including Section  1.09 and Section  2.07 ), (a) MatCo shall Assume all responsibility for provision of compensation and benefits (i) in respect of the period on and following the MatCo Distribution Date in respect of individuals who are nonemployee directors of MatCo upon or after the MatCo Distribution, (ii) in respect of any individual who was a nonemployee director of The Dow Chemical Company on or before August 31, 2017, and (iii) in respect of any individual set forth on Schedule 2.06(a) to this Agreement, (b) SpecCo shall Assume all responsibility for provision of compensation and benefits in respect of the period on and following the AgCo Distribution Date in respect of individuals who are nonemployee directors of SpecCo as of immediately following the AgCo Distribution, and (c) AgCo shall Assume all responsibility for compensation and benefits otherwise provided or to be provided to current or former nonemployee directors of SpecCo or DuPont.

Section 2.07 Non-Qualified Deferred Compensation Plans .

(a) In General . Except as provided in subsection (b), below, there shall be no Transfer among the Parties or their Affiliates of Assets or Liabilities in respect of nonqualified deferred compensation plans maintained by any of them or their respective Subsidiaries.

(b) Transferred Assets/Liabilities . Effective as of the AgCo Distribution Date:

(i) AgCo or its applicable Affiliate shall assign to SpecCo, and SpecCo shall assume from AgCo, all of AgCo’s rights and obligations under the nonqualified deferred compensation arrangements provided in Schedule 2.07(b)(i) to this Agreement in respect of each individual who as of the AgCo Distribution Date is a director or employee of SpecCo (or, as applicable, a member of the SpecCo Group) (to the extent so assigned and assumed, the “ Transferred NQDC Plans ”).

 

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(ii) Pursuant to and in accordance with Section 15 of the Amended and Restated E. I. du Pont de Nemours and Company Trust Agreement between DuPont and Wells Fargo Bank, National Association as in effect July 31, 2017 (the “ Existing Rabbi Trust ”), AgCo shall establish a trust with terms substantially identical to the Existing Rabbi Trust (“ New Rabbi Trust ”) and SpecCo shall direct the trustee of the Existing Rabbi Trust to Transfer to the trustee of the New Rabbi Trust, in kind, such portion of the “Plan Accounts” under the Existing Rabbi Trust attributable to the Transferred NQDC Plans.

Section 2.08 Workers’ Compensation Claims . Without limiting Sections 1.17 , 5.03 or 5.04 , and without regard to the legal entity obligated to discharge such liabilities under applicable Law, (a) MatCo shall be responsible for all claims for workers’ compensation benefits which are incurred (i) at any time by Heritage Dow MatCo Employees, (ii) prior to the MatCo Distribution Date by Heritage Dow AgCo Employees or Heritage Dow SpecCo Employees, and (iii) on or following the MatCo Distribution Date by Heritage DuPont MatCo Employees; (b) AgCo shall be responsible for all claims for workers’ compensation benefits which are incurred (i) at any time by Heritage DuPont AgCo Employees, (ii) prior to the MatCo Distribution Date by Heritage DuPont MatCo Employees, and (iii) on or following the MatCo Distribution Date by Heritage Dow AgCo Employees; and (c) SpecCo shall be responsible for all claims for workers’ compensation benefits which are incurred (i) at any time by Heritage DuPont SpecCo Employees, and (ii) on or following the MatCo Distribution Date by Heritage Dow SpecCo Employees. For purposes of this Section  2.08 , a claim for workers’ compensation benefits shall be deemed to be incurred when the event giving rise to the claim occurs, and all Liabilities attributable thereto (regardless when payable) shall be deemed to relate back to such event.

Section 2.09 Payroll and Related Taxes .

(a) Allocation of Payroll and Related Obligations . Each entity that is the employing legal entity of any Heritage Dow Employee or Heritage DuPont Employee during any portion of 2019 shall, in respect of the period of its employment, be responsible in respect of such employee for all payroll obligations, Tax withholdings, other applicable payroll deductions (including garnishments and union dues), and Tax reporting obligations (including delivery of a Form W-2 or similar earnings statement covering the 2019 tax year), and the applicable employer shall separately account for any such withholdings or deductions and apply them exclusively in satisfaction of the obligation in respect of which they were withheld or deducted.

(b) Payment of Taxes and Filings . The Parties shall use commercially reasonable efforts to cooperate with each other and with third-party providers to avoid the restart of Taxes imposed under the United States Federal Insurance Contributions Act, as amended (FICA), or the United States Federal Unemployment Tax Act, as amended (FUTA) on or after the Distribution Date with respect to the U.S. Impacted Employees, effectuate withholding and remittance of Taxes, required tax reporting, correction of overpayment or underpayment of compensation prior to the applicable Distribution Date or responding to any inquiries or audits from any Governmental Entity with respect to employment Taxes, in each of the foregoing cases, in a timely, efficient, and appropriate manner.

 

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ARTICLE III

CERTAIN NON-U.S. JURISDICTION MATTERS

Section 3.01 Heritage DuPont Puerto Rico Savings Plan . Effective as of the AgCo Distribution Date, contributions under the DuPont Puerto Rico Savings and Investment Plan (the “ Heritage DuPont Puerto Rico Savings Plan ”) in respect of Heritage DuPont SpecCo Employees who are Heritage DuPont Puerto Rico Savings Plan participants shall cease. AgCo and SpecCo agree to cooperate in good faith to cause a trustee-to-trustee Transfer of all Assets and Liabilities (including plan loans in-kind) under the Heritage DuPont Puerto Rico Savings Plan in respect of Heritage DuPont SpecCo Assigned Employees who are Heritage DuPont Puerto Rico Savings Plan participants as of the AgCo Distribution Date to the defined contribution retirement savings plan designated by SpecCo, which Transfer shall occur as soon as practicable following the AgCo Distribution Date and shall be conducted in accordance with any applicable provisions of the Internal Revenue Code of Puerto Rico, as amended, and the Employee Retirement Income Security Act of 1974, as amended.

Section 3.02 Certain Actions . Without limiting Section  1.10(b) , AgCo shall Assume (or cause a member of its Group to Assume) Liabilities in regard to the Action described in Schedule 3.02 to this Agreement.

ARTICLE IV

ADDITIONAL DEFINED TERMS

Section 4.01 Certain Defined Terms . Except as noted in Section  4.02 , terms used herein shall have the meanings defined below:

Action ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Affiliate ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

AgCo Benefit Plan ” means any Benefit Plan that AgCo or any member of the AgCo Group sponsors, maintains, or contributes to that is in place as of the Distribution Date.

AgCo Common Stock ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

AgCo Conversion Ratio ” means a fraction, the numerator of which is the Pre-AgCo (SpecCo) Share Price, and the denominator of which is the Post-AgCo (AgCo) Share Price.

AgCo Distribution Date ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

 

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AgCo Distribution Impacted Employee ” means any Heritage DuPont AgCo Assigned Employee or Heritage DuPont SpecCo Assigned Employee.

AgCo Distribution Ratio ” means the number of shares of AgCo Common Stock (as determined by the Board prior to the AgCo Distribution) to be distributed in the AgCo Distribution for every one share of DowDuPont Common Stock.

AgCo Equity Award ” means an equity incentive award to be issued by AgCo in accordance with Section  1.09 .

AgCo Future Benefit Plan ” means any Benefit Plan that AgCo or any member of the AgCo Group assumes, adopts, establishes, or begins sponsoring, maintaining, or contributing to on or after the Distribution Date.

AgCo Group ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

AgCo HR Liabilities ” mean all HR Liabilities for any (a) Heritage Dow AgCo Employee, (b) Heritage DuPont AgCo Aligned Employee, or (c) Heritage Dow AgCo Aligned Employee other than a Heritage Dow AgCo Employee, and any HR Liability allocated to AgCo pursuant to Section  1.16(b) , Section  1.16(c) or Section  1.16(d) .

AgCo Indemnitees ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

AgCo Labor Agreement ” means any agreement with any Employee Representative Body that pertains to any Heritage Dow AgCo Employees or Heritage DuPont AgCo Assigned Employees, other than the Dow Midland Labor Agreement.

AgCo Option ” means each AgCo Equity Award that is a Stock Option.

AgCo Severance Plan ” means any AgCo Benefit Plan that provides Severance, as determined as of the applicable Distribution Date.

Agriculture Asset ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Agriculture Business ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Ancillary Agreement ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Assets ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

 

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Benefit Plans ” mean all compensation and benefit plans, including any welfare plans, medical, dental, and vision plans, life insurance plans, cafeteria plans, retirement, and other deferred compensation plans.

Benefits ” mean all benefits offered to new hires under the Benefit Plans of the applicable Heritage Company, Party or member of the applicable Group.

Business ” means (i) with respect to AgCo, the Agriculture Business, (ii) with respect to MatCo, the Materials Science Business or (iii) with respect to SpecCo, the Specialty Products Business.

Business Day ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Code ” means the Internal Revenue Code of 1986, as amended.

Comparable Benefits ” means the value of Benefits offered to new hires by the applicable Heritage Company as of the day before the applicable Distribution Date with such Benefits comparability assessed on an aggregate basis for all Impacted Employees in the same country as a group and not individually for each Impacted Employee in such country, provided that no Party or member of its Group shall be required to replicate any specific Benefit or Benefit Plan of any Heritage Company, and each applicable Party or any member of its Group may compensate for any difference in the value of any Benefit by increasing or decreasing other Benefits or compensation or both.

Consents ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Conveyancing and Assumption Instrument ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Deselected Employee ” means, collectively, each Heritage Dow AgCo Deselected Employee, Heritage Dow MatCo Deselected Employee, Heritage Dow SpecCo Deselected Employee, Heritage DuPont AgCo Deselected Employee, Heritage DuPont MatCo Deselected Employee and Heritage DuPont SpecCo Deselected Employee.

Discontinued and/or Divested Operations and Businesses ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Distribution ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Distribution Date ” means, with respect to actions taken or to be taken with respect to MatCo Distribution Impacted Employees, the MatCo Distribution Date, and with respect to actions taken or to be taken with respect to AgCo Distribution Impacted Employees, the AgCo Distribution Date.

 

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Dow ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Dow Midland Labor Agreement ” means the Agreement between The Dow Chemical Company, Midland, MI and United Steelworkers AFL-CIO-CLC on behalf of Local Union 12075-00, dated as of February 10, 2017.

DowDuPont Common Stock ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

DowDuPont Equity Award ” means each Restricted Stock Award, Restricted Stock Unit, Performance Stock Unit and Stock Option denominated in DowDuPont Common Stock, in each case that is outstanding immediately before the MatCo Distribution Date and that, in respect of any adjustments made in respect of the AgCo Distribution, remains outstanding immediately before the AgCo Distribution Date.

DowDuPont Option ” means each DowDuPont Equity Award that is a Stock Option.

DuPont ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

DuPont Vacation Plan ” means the E.I. du Pont de Nemours and Company Vacation Plan, adopted as of January 1, 1934 and amended as of December 31, 2014.

Effective Time ” means 12:00 a.m., New York City Time on April 1, 2019.

Emergency Arbitrator ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Employee Representative Body ” means any union, works council, or other agency or representative body certified or otherwise recognized for the purposes of bargaining collectively or established for the purposes of notification of or consultation on behalf of any employees.

Employer Method Award ” means each DowDuPont Equity Award that is not a Shareholder Method Award.

Employer Method Other Award ” means each Employer Method Award that is not a Stock Option.

Final Determination ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Former Other Business Employee ” means any former employee (as of immediately prior to the applicable Distribution Date) whose employment with the MatCo Group, AgCo Group or SpecCo Group or any of their respective predecessors or former Affiliates was primarily related to the Discontinued and/or Divested Operations and Businesses and who, as of immediately prior to the applicable Distribution Date, was no longer employed by any of the Parties or a member of their Group.

 

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Governmental Entity ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Group ” means (a) with respect to SpecCo, the SpecCo Group; (b) with respect to MatCo, the MatCo Group; and (c) with respect to AgCo, the AgCo Group.

Heritage Company ” means Heritage Dow or Heritage DuPont, collectively or individually, as the context requires.

Heritage Dow ” shall have the meaning ascribed to “ Historical Dow ” in Section 1.01 of the Separation Agreement.

Heritage Dow AgCo Aligned Employee ” means any Heritage Dow Employee who has been Ring-Fenced to the Agriculture Business as memorialized in accordance with Section  1.01 .

Heritage Dow AgCo Deselected Employee ” means any Heritage Dow AgCo Aligned Employee whom AgCo has selected to not become a Heritage Dow AgCo Employee as memorialized in accordance with Section  1.01 .

Heritage Dow AgCo Employee ” means any Heritage Dow AgCo Aligned Employee whom AgCo has selected to become an employee of AgCo or a member of the AgCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

Heritage Dow Benefit Plan ” means any Benefit Plan sponsored, maintained, or contributed to by Heritage Dow that was in place immediately prior to the Effective Time.

Heritage Dow Employee ” means an employee who was or is on the payroll of Heritage Dow immediately prior to the Internal Reorganization.

Heritage Dow MatCo Aligned Employee ” means any Heritage Dow Employee who has been Ring-Fenced to the Materials Science Business.

Heritage Dow MatCo Deselected Employee ” means any Heritage Dow MatCo Aligned Employee whom MatCo has selected to not become a Heritage Dow MatCo Employee as memorialized in accordance with Section  1.01 .

Heritage Dow MatCo Employee ” means any Heritage Dow MatCo Aligned Employee whom MatCo has selected to become an employee of MatCo or a member of the MatCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

Heritage Dow Severance Plan ” means any Heritage Dow Benefit Plan that provides Severance, as determined as of the MatCo Distribution Date.

 

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Heritage Dow SpecCo Aligned Employee ” means any Heritage Dow Employee who has been Ring-Fenced to the Specialty Products Business as memorialized in accordance with Section  1.01 .

Heritage Dow SpecCo Deselected Employee ” means any Heritage Dow SpecCo Aligned Employee whom SpecCo has selected to not become a Heritage Dow SpecCo Employee as memorialized in accordance with Section  1.01 .

Heritage Dow SpecCo Employee ” means any Heritage Dow SpecCo Aligned Employee whom SpecCo has selected to become an employee of SpecCo or a member of the SpecCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

Heritage DuPont ” shall have the meaning ascribed to “ Historical DuPont ” in Section 1.01 of the Separation Agreement.

Heritage DuPont AgCo Aligned Employee ” means any Heritage DuPont Employee who has been Ring-Fenced to the Agriculture Business as memorialized in accordance with Section  1.01 .

Heritage DuPont AgCo Assigned Employee ” means any Heritage DuPont AgCo Employee who has or will become an employee of AgCo or a member of the AgCo Group pursuant to Section  1.02 (without regard to Section  1.02(a) ).

Heritage DuPont AgCo Deselected Employee ” means any Heritage DuPont AgCo Aligned Employee whom AgCo has selected to not become a Heritage DuPont AgCo Employee as memorialized in accordance with Section  1.01 .

Heritage DuPont AgCo Employee ” means any Heritage DuPont AgCo Aligned Employee whom AgCo has selected to become an employee of AgCo or a member of the AgCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

Heritage DuPont Benefit Plan ” means any Benefit Plan sponsored, maintained, or contributed to by Heritage DuPont that was in place immediately prior to the Effective Time.

Heritage DuPont Employee ” means an employee who was or is on the payroll of Heritage DuPont immediately prior to the Internal Reorganization.

Heritage DuPont MatCo Aligned Employee ” means any Heritage DuPont Employee who has been Ring-Fenced to Materials Science Business as memorialized in accordance with Section  1.01 .

Heritage DuPont MatCo Deselected Employee ” means any Heritage DuPont MatCo Aligned Employee whom MatCo has selected to not become a Heritage DuPont MatCo Employee as memorialized in accordance with Section  1.01 .

 

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Heritage DuPont MatCo Employee ” means any Heritage DuPont MatCo Aligned Employee whom MatCo has selected to become an employee of MatCo or a member of the MatCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

Heritage DuPont Severance Plan ” means any Heritage DuPont Benefit Plan that provides Severance, as determined as of the applicable Distribution Date.

Heritage DuPont SpecCo Aligned Employee ” means any Heritage DuPont Employee who has been Ring-Fenced to the Specialty Products Business as memorialized in accordance with Section  1.01 .

Heritage DuPont SpecCo Assigned Employee ” means any Heritage DuPont SpecCo Employee who has or will become an employee of SpecCo or a member of the SpecCo Group pursuant to Section  1.02 (without regard to Section  1.02(a) ).

Heritage DuPont SpecCo Deselected Employee ” means any Heritage DuPont SpecCo Aligned Employee whom SpecCo has selected to not become a Heritage DuPont SpecCo Employee as memorialized in accordance with Section  1.01 .

Heritage DuPont SpecCo Employee ” means any Heritage DuPont SpecCo Aligned Employee whom SpecCo has selected to become an employee of SpecCo or a member of the SpecCo Group and who is not a Non-Consenting Employee, as memorialized in accordance with Section  1.01 .

HR Liabilities ” means all Liabilities arising out of, by reason of, or otherwise in connection with, the employment of, or termination of the employment of, any employee by the applicable Heritage Company, Party or applicable member of its Group or predecessor thereof, excluding all Liabilities arising out of, by reason of, or otherwise in connection with, the failure to notify, consult with, bargain or negotiate with, or seek Consent from such employee or the Employee Representative Body representing such employee and any fines or penalties imposed or assessed by any Governmental Entity in respect of such a failure and, for the avoidance of doubt, excluding Liabilities attributable to inventor remuneration and any other rights of an employee under a patent (which rights are addressed to the extent applicable in the Separation Agreement).

Impacted Employee ” means each MatCo Distribution Impacted Employee and AgCo Distribution Impacted Employee.

Indemnifiable Loss ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Indemnifying Party ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Indemnitee ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

 

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Internal Reorganization ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Labor Agreement ” means any agreement with any Employee Representative Body that pertains to any Impacted Employees.

Law ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Liabilities ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

LTD Employee ” means any individual who is receiving long term disability benefits or long term income replacement benefits from any Heritage Company or a member of their respective Groups or is otherwise treated by any such entity as being on long term sick leave or disability status under the applicable Law in the applicable jurisdiction.

MatCo Benefit Plan ” means any Benefit Plan that MatCo or any member of the MatCo Group sponsors, maintains, or contributes to that is in place as of the MatCo Distribution Date.

MatCo Common Stock ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

MatCo Conversion Ratio ” means a fraction, the numerator of which is the Pre-MatCo (SpecCo) Share Price, and the denominator of which is the Post-MatCo (MatCo) Share Price.

MatCo Distribution Date ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

MatCo Distribution Impacted Employee ” means any Heritage DuPont MatCo Employee, Heritage Dow AgCo Employee, or Heritage Dow SpecCo Employee, collectively or individually, as the context requires.

MatCo Distribution Ratio ” means 1/3.

MatCo Equity Award ” means an equity incentive award to be issued by MatCo in accordance with Section  1.09 .

MatCo Future Benefit Plan ” means any Benefit Plan that MatCo or any member of the MatCo Group assumes, adopts, establishes, or begins sponsoring, maintaining, or contributing to on or after the MatCo Distribution Date.

MatCo Group ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

 

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MatCo HR Liabilities ” mean all HR Liabilities for any (a) Heritage DuPont MatCo Employee, (b) Heritage Dow MatCo Aligned Employee, or (c) Heritage DuPont MatCo Aligned Employee other than a Heritage DuPont MatCo Employee, and any HR Liability allocated to MatCo pursuant to Section  1.16(b) , Section  1.16(c) or Section  1.16(d) .

MatCo Indemnitees ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

MatCo Labor Agreement ” means any agreement with any Employee Representative Body that pertains to any Heritage DuPont MatCo Employees.

MatCo Option ” means each MatCo Equity Award that is a Stock Option.

MatCo Severance Plan ” means any MatCo Benefit Plan that provides Severance, as determined as of the MatCo Distribution Date.

Materials Science Asset ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Materials Science Business ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Non-Consenting Employee ” means: any (i) Heritage Dow AgCo Aligned Employee who has been selected by AgCo to be an employee of AgCo or a member of the AgCo Group on and after the MatCo Distribution Date; (ii) Heritage Dow SpecCo Aligned Employee who has been selected by SpecCo to be an employee of SpecCo or a member of the SpecCo Group on and after the MatCo Distribution Date; (iii) Heritage DuPont MatCo Aligned Employee who has been selected by MatCo to be an employee of MatCo or a member of the MatCo Group on and after the MatCo Distribution Date; (iv) Heritage DuPont AgCo Aligned Employee who has been selected by AgCo to be an employee of AgCo or a member of the AgCo Group on and after the AgCo Distribution Date; or (v) Heritage DuPont SpecCo Aligned Employee who has been selected by SpecCo to be an employee of SpecCo or a member of its Group on and after the AgCo Distribution Date, in each of the foregoing cases, who has the right under applicable Law or applicable Labor Agreement to object to, opt out of, refuse to Consent to, or otherwise fail to acquiesce to, and who has (x) validly objected to, opted out of, refused to Consent to, or otherwise failed to acquiesce to, the automatic transfer of their employment to the applicable Party or a member of its Group by operation of applicable Law, in cases where such employee is subject to automatic transfer by operation of applicable Law, (y) validly refused to Consent to, refused to accept the offer to, refused to execute a tripartite agreement or otherwise failed to acquiesce to, become an employee of the applicable Party or member of its Group, or (z) validly objected to, opted out of, refused to Consent to, or otherwise failed to acquiesce to, changes in his or her compensation or employee benefits by validly resigning or terminating his or her employment with, validly withdrawing his or her Consent to employment with or validly rejecting his or her transfer to, the applicable Party or a member of its Group, in accordance with and to the extent permitted by applicable Law or an applicable Labor Agreement.

OPEB Plan ” means any Benefit Plan that is considered an other post-employment benefit plan, including retiree medical and retiree life insurance arrangements. For the avoidance of doubt, OPEB shall not include any Benefit Plan that is a pension or other defined benefit plans, Severance plan or deferred compensation plan.

 

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Performance Stock Unit ” means a performance-based restricted stock unit award.

Person ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Post-AgCo (AgCo) Share Price ” means the opening per-share price of AgCo Common Stock on the New York Stock Exchange on the AgCo Distribution Date (or, if none, on the first trading day thereafter).

Post-AgCo (SpecCo) Share Price ” means the opening per-share price of DowDuPont Common Stock on the New York Stock Exchange on the AgCo Distribution Date (or, if none, on the first trading day thereafter).

Post-MatCo (MatCo) Share Price ” means the opening per-share price of MatCo Common Stock on the New York Stock Exchange on the MatCo Distribution Date (or, if none, on the first trading day thereafter).

Post-MatCo (SpecCo) Share Price ” means the opening per-share price of DowDuPont Common Stock on the New York Stock Exchange on the MatCo Distribution Date (or, if none, on the first trading day thereafter).

Pre-AgCo (SpecCo) Share Price ” means the closing per-share price of DowDuPont Common Stock on the New York Stock Exchange trading the “regular way” on the last trading day immediately prior to the AgCo Distribution Date.

Pre-Distribution Option Price ” means the per-share exercise price under a DowDuPont Option immediately prior to the applicable Distribution Date.

Pre-MatCo (SpecCo) Share Price ” means the closing per-share price of DowDuPont Common Stock on the New York Stock Exchange trading the “regular way” on the last trading day immediately prior to the MatCo Distribution Date.

Relevant Jurisdiction ” means any jurisdiction in which one or more employees are employed immediately prior to the Effective Time.

Relevant Time ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Restricted Stock Award ” means a restricted stock award.

Restricted Stock Unit ” means a time-based restricted stock unit award.

Ring-Fence ” means the identification of each employee to the Agriculture Business, the Materials Science Business or the Specialty Products Business, as applicable.

 

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Severance ” means any severance, redundancy or other similar separation benefit.

Shareholder Method Award ” means (a) each DowDuPont Equity Award that is a Restricted Stock Award, (b) each DowDuPont Equity Award held by nonemployee directors of the Board, (c) each DowDuPont Equity Award held by Edward D. Breen or Stacy L. Fox, (d) each DowDuPont Equity Award that is a Performance Stock Unit and (e) each DowDuPont Equity Award granted on February 15, 2018.

Shareholder Method Other Award ” means each Shareholder Method Award that is not a Stock Option.

Solicit ” means any acts or attempts by any Party (the “ Soliciting Party ”) to (i) solicit, entice, recruit, or otherwise induce to (x) terminate employment with the then-current employing Party or with a member of such Party’s Group, and/or (y) commence employment with the Soliciting Party or with a member of such Soliciting Party’s Group; or (ii) order, pressure, incentivize, encourage, induce or otherwise cause any other Person to engage in any of the conduct set forth in clause (i) of this definition.

SpecCo Benefit Plan ” means any Benefit Plan that SpecCo or any member of the SpecCo Group sponsors, maintains, or contributes to that is in place as of the Distribution Date.

SpecCo Equity Award ” means a DowDuPont Equity Award that, after application of Section  1.09 , remains denominated in DowDuPont Common Stock.

SpecCo Future Benefit Plan ” means any Benefit Plan that SpecCo or any member of the SpecCo Group assumes, adopts, establishes, or begins sponsoring, maintaining, or contributing to on or after the Distribution Date.

SpecCo Group ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

SpecCo HR Liabilities ” mean all HR Liabilities for any (a) Heritage Dow SpecCo Employee, (b) Heritage DuPont SpecCo Employee, or (c) Heritage Dow SpecCo Aligned Employee other than a Heritage Dow SpecCo Employee, and any HR Liability allocated to SpecCo pursuant to Section  1.16(b) , Section  1.16(c) or Section  1.16(d) .

SpecCo Indemnitees ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

SpecCo Initial Conversion Ratio ” means a fraction, the numerator of which is the Pre-MatCo (SpecCo) Share Price, and the denominator of which is the Post-MatCo (SpecCo) Share Price.

SpecCo Labor Agreement ” means any agreement with any Employee Representative Body that pertains to any Heritage Dow SpecCo Employees or Heritage DuPont SpecCo Assigned Employees, other than the Dow Midland Labor Agreement.

SpecCo Option ” means each SpecCo Equity Award that is a Stock Option.

 

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SpecCo Severance Plan ” means any SpecCo Benefit Plan that provides Severance, as determined as of the applicable Distribution Date.

SpecCo Subsequent Conversion Ratio ” means a fraction, the numerator of which is the Pre-AgCo (SpecCo) Share Price, and the denominator of which is the Post-AgCo (SpecCo) Share Price.

Specialty Products Asset ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Specialty Products Business ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Stock Option ” means an option to acquire common stock.

Subsidiary ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Target Total Direct Compensation ” means, (a) with respect to any Heritage DuPont Employee with a salary grade below 13 or any Heritage Dow Employee with a salary grade below 415, base pay plus target annual variable pay; and (b) with respect to any Heritage DuPont Employee with a salary grade at or above 13 or any Heritage Dow Employee with a salary grade at or above 415, base pay plus target annual variable pay plus target long term incentive compensation.

Tax ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Tax Contest ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Tax Matters Agreement ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Tax Return ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Taxing Authority ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

Transfer ” shall have the meaning ascribed to it in Section 1.01 of the Separation Agreement.

U.S. Heritage Dow AgCo Employee ” means each Heritage Dow AgCo Employee whose primary work location country, immediately prior to the MatCo Distribution Date, is the United States.

 

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U.S. Heritage Dow SpecCo Employee ” means each Heritage Dow SpecCo Employee whose primary work location country, immediately prior to the MatCo Distribution Date, is the United States.

U.S. Heritage DuPont AgCo Assigned Employee ” means each Heritage DuPont AgCo Assigned Employee whose primary work location country, immediately prior to the AgCo Distribution Date, is the United States.

U.S. Heritage DuPont MatCo Employee ” means each Heritage DuPont MatCo Employee whose primary work location country, immediately prior to the MatCo Distribution Date, is the United States.

U.S. Heritage DuPont SpecCo Assigned Employee ” means each Heritage DuPont SpecCo Assigned Employee whose primary work location country, immediately prior to the AgCo Distribution Date, is the United States.

U.S. Impacted Employees ” means each Impacted Employee whose primary work location country, immediately prior to the MatCo Distribution Date, is the United States.

U.S. Union Contracts ” mean the collective bargaining agreements set forth on Appendix II.

Section 4.02 Other Defined Terms in this Agreement . The following terms have the meanings set forth in the sections of this Agreement set forth below:

 

Definition

   Location in Agreement

AgCo

   Preamble

AgCo Assumed Vacation Liabilities

   § 1.06(a)

AgCo Group U.S. Welfare Plans

   § 2.05(a)

AgCo U.S. Savings Plan

   § 2.04(a)

Agreement

   Preamble

Assume

   § 1.06(a)

Board

   Recitals

Delayed Employment Date

   § 1.02(c)

Delayed Employment Employee

   § 1.02(c)

Delayed Employment Period

   § 1.02(c)

Dow

   Preamble

DowDuPont

   Preamble

Employee Records

   § 1.15

Existing Rabbi Trust

   § 2.07(b)(ii)

Final OTH

   § 1.01(c)

Group U.S. Welfare Plans

   § 2.05(a)

Heritage Dow Group U.S. Welfare Plans

   § 2.05(a)

Heritage Dow Group Welfare Plans

   § 1.10(d)

Heritage Dow U.S. Savings Plan

   § 2.04(a)

Heritage Dow U.S. Savings Plan Participant

   § 2.04(a)

Heritage DuPont Group U.S. Welfare Plans

   § 2.05(a)

 

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Heritage DuPont Group Welfare Plans

   § 1.10(d)

Heritage DuPont Puerto Rico Savings Plan

   § 3.01

Heritage DuPont U.S. Savings Plan

   § 2.04(b)(i)

Heritage DuPont U.S. Savings Plan Participant

   § 2.04(b)(i)

MatCo

   Preamble

MatCo Assumed Vacation Liabilities

   § 1.06(a)

MatCo Group U.S. Welfare Plans

   § 2.05(a)

MatCo U.S. Savings Plan

   § 2.04(b)(i)

New Rabbi Trust

   § 2.07(b)(ii)

OTH

   § 1.01(a)

Party

   Preamble

Return from LTD Date

   § 1.02(d)

Returning LTD Employee

   § 1.02(d)

Separation Agreement

   Recitals

SpecCo

   Preamble

SpecCo Assumed Vacation Liabilities

   § 1.06(a)

SpecCo Group U.S. Welfare Plans

   § 2.05(a)

SpecCo U.S. Savings Plan

   § 2.04(a)

Transferred NQDC Plans

   § 2.07(b)(i)

U.S. Grandfathered Time

   § 2.01

ARTICLE V

GENERAL PROVISIONS

Section 5.01 General . Subject to the terms and conditions of this Agreement, each of the Parties shall, and shall cause the other members of its Group to, cooperate with each other and use commercially reasonable efforts, on and after the Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on their respective parts under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement.

Section 5.02 Limitation of Liability . No Party shall have any Liability to any other Party in the event that any information exchanged or provided pursuant to this Agreement which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate.

Section 5.03 Transfers Not Effected on or Prior to the Effective Time; Transfers Deemed Effective as of the Effective Time .

(a) Except as otherwise set forth herein, to the extent that any Transfers or Assumptions contemplated by this Agreement shall not have been consummated at or prior to the Effective Time, the Parties shall use commercially reasonable efforts to effect such Transfers or Assumptions as promptly following the Effective Time as practicable. Nothing herein shall be deemed to require or constitute the Transfer of any Assets or the Assumption of any Liabilities which by their terms or operation of Law cannot be transferred; provided , however , that the Parties and their respective Subsidiaries shall cooperate and use commercially reasonable efforts to seek to obtain, in accordance with applicable Law, any necessary Consents for the Transfer of all Assets and Assumption of all Liabilities contemplated hereby to the fullest extent permitted by applicable Law.

 

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(b) If and when the Consents and/or conditions, the absence or non-satisfaction of which caused the deferral of Transfer of any Asset or deferral of the Assumption of any Liability pursuant to this Agreement, are obtained or satisfied, the Transfer, assignment, Assumption or novation of the applicable Asset or Liability shall be effected without further consideration in accordance with and subject to the terms of this Agreement and shall, to the extent possible without the imposition of any undue cost on any Party, be deemed to have become effective as of the Effective Time.

(c) The Party (or relevant member of its Group) retaining any Asset or Liability due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability pursuant to this Agreement shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability, other than reasonable attorneys’ fees and recording or similar or other incidental fees, all of which shall be promptly reimbursed by the Party (or relevant member of its Group) entitled to such Asset or the Person intended to be subject to such Liability; and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be. Except as otherwise expressly provided herein, none of SpecCo, MatCo or AgCo or any of their respective Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party with respect to any Assets or Liabilities not Transferred as of the Effective Time; provided , however , that any Party to which such Asset or Liability has not been Transferred or Assumed, respectively, due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability may request that the Party retaining such Asset or Liability commence litigation, which request shall be considered in good faith by the Party retaining such Asset or Liability; provided , further , that a Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section  5.03 , but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with this Section  5.03 .

(d) Notwithstanding anything else set forth in this Section  5.03 to the contrary, none of MatCo, SpecCo or AgCo, nor any of their Subsidiaries, shall be required by this Section  5.03 to take any action that may, in the good faith judgment of such Person, (x) result in a violation of any obligation which any such Person has to any third party; or (y) violate applicable Law.

(e) The failure to obtain a Consent shall not in and of itself constitute a breach of this Agreement; provided , that the foregoing shall not preclude consideration of a Party’s efforts in pursuing such Consent for purposes of determining compliance with this Section  5.03 .

 

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(f) To the extent permitted by applicable Law, with respect to Assets and Liabilities described in Section  5.03(a) , each of SpecCo, MatCo and AgCo shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes (A) the deferred Assets as assets having been Transferred to and owned by the Party entitled to such Assets not later than the applicable Relevant Time; and (B) the deferred Liabilities as liabilities having been Assumed and owned by the Person intended to be subject to such Liabilities not later than the applicable Relevant Time; and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest).

Section 5.04 Wrong Pockets .

(a) Subject to Section  5.03 , (i) if at any time within twenty-four (24) months after the applicable Relevant Time any Party discovers that any Agriculture Asset is held by any member of the SpecCo Group, the MatCo Group or any of their respective then-Affiliates, SpecCo and MatCo shall, and shall cause the other members of their respective Group and its and their respective then-Affiliates to, use their respective reasonable best efforts to promptly procure the Transfer of the relevant Agriculture Asset to AgCo or an Affiliate of AgCo designated by AgCo for no additional consideration; (ii) if at any time within twenty-four (24) months after the MatCo Distribution, any Party discovers that any Materials Science Asset is held by SpecCo, AgCo or any of their respective Affiliates, SpecCo and AgCo shall use their respective reasonable best efforts to promptly procure the Transfer of the relevant Materials Science Asset to MatCo or an Affiliate of MatCo designated by MatCo for no additional consideration; and (iii) if at any time within twenty-four (24) months after the applicable Relevant Time, any Party discovers that any Specialty Products Asset is held by MatCo, AgCo or any of their respective Affiliates, MatCo and AgCo shall use their respective reasonable best efforts to promptly procure the Transfer of the relevant Specialty Products Asset to SpecCo or an Affiliate of SpecCo designated by SpecCo for no additional consideration; provided that in the case of clause (i), neither SpecCo or MatCo nor any of their respective Affiliates, in the case of clause (ii), neither SpecCo or AgCo nor any of their respective Affiliates, or in the case of clause (iii), neither MatCo or AgCo nor any of their respective Affiliates, shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party. If reasonably practicable and permitted under applicable Law, such Transfer may be effected by rescission of the applicable portion of a Conveyancing and Assumption Instrument as may be agreed by the relevant Parties.

(b) On and prior to the twenty-four (24) month anniversary following the applicable Relevant Time, if any Party or any member of its Group or (or any of its or their respective then-Affiliates) owns any Asset, that, although not Transferred pursuant to this Agreement, is agreed by such Party and the other applicable Party in their good faith judgment to be an Asset that more properly belongs to such other Party or a member of its Group, or is an Asset that such other Party or a member of its Group was intended to have the right to continue to use (other than, as between any two Parties, any Asset acquired from an unaffiliated third party by a Party or member of such Party’s Group following the applicable Relevant Time), then the Party or a member of its Group (or applicable then-Affiliate) owning such Asset shall, as applicable, (i) Transfer any such Asset to the Party or a member of its Group identified as the appropriate transferee and following such Transfer, such Asset shall be an Agriculture Asset, Materials Science Asset or Specialty Products Asset, as the case may be; or (ii) grant such mutually agreeable rights with respect to such Asset to permit such continued use, subject to, and

 

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consistent with this Agreement, including with respect to Assumption of associated Liabilities. If reasonably practicable and permitted under applicable Law, such Transfer may be effected by rescission of the applicable portion of a Conveyancing and Assumption Instrument as may be agreed by the relevant Parties.

Section 5.05 Novation of Liabilities . Section 2.9 of the Separation Agreement (Novation of Liabilities) shall apply mutatis mutandis to this Agreement as if such provisions had been set out expressly in this Agreement.

Section 5.06 Negotiation and Arbitration . In the event of a controversy, dispute or Action between the Parties arising out of, in connection with, or in relation to this Agreement or any of the transactions contemplated hereby or thereby, the following sections of the Separation Agreement shall apply mutatis mutandis to this Agreement as if such provisions had been set out expressly in this Agreement: 10.1 (Negotiation and Arbitration) and 10.2 (Continuity of Service and Performance).

Section 5.07 Insurance . Subject to Section 2.08, Article 11 of the Separation Agreement (Insurance), excluding Section 11.8 thereof (Certain Matters Relating to Organizational Documents), shall apply mutatis mutandis to this Agreement as if such provisions had been set out expressly in this Agreement.

Section 5.08 Miscellaneous .

(a) Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Exhibit or Schedule hereto, this Agreement shall prevail. In the event and to the extent that there shall be a conflict between the provisions of (i) this Agreement and the Separation Agreement, the Separation Agreement shall control; (ii) this Agreement and any Conveyancing and Assumption Instrument, this Agreement shall control; and (iii) this Agreement and any agreement which is not another Ancillary Agreement (other than a Conveyancing and Assumption Instrument), this Agreement shall control unless both (x) it is specifically stated in such agreement that such agreement controls and (y) either (1) each of AgCo, MatCo and SpecCo has executed such agreement (for the avoidance of doubt, members of their respective Groups shall not qualify) on or prior to the MatCo Distribution Date or (2) after the MatCo Distribution, such agreement has been executed after the MatCo Distribution Date by a member of the Group that it is to be enforced against.

(b) Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

 

51


(c) Notices . All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if such notices and communications satisfy the requirements set forth in Section 12.6 of the Separation Agreement.

(d) Waivers . Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof or thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or thereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any Consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such Consent and shall be effective only against such Party (and the members of its Group).

(e) Amendments . Subject to the terms of Section  5.08(h) , this Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

(f) Assignment . Except as otherwise provided for in this Agreement, neither this Agreement nor any right, interest or obligation shall be assignable, in whole or in part, directly or indirectly, by any Party without the prior written consent of the other Parties (not to be unreasonably withheld, conditioned or delayed), and any attempt to assign any rights, interests or obligations arising under this Agreement without such consent shall be void; except , that a Party may assign this Agreement or any or all of the rights, interests and obligations hereunder in connection with a merger, reorganization or consolidation transaction in which such Party is a constituent party but not the surviving entity or the sale by such Party of all or substantially all of its Assets; provided , that the surviving entity of such merger, reorganization or consolidation transaction or the transferee of such Assets shall assume all the obligations of the relevant Party by operation of law or pursuant to an agreement in writing, reasonably satisfactory to the other Parties, to be bound by the terms of this Agreement as if named as a Party hereto; provided , however , that in the case of each of the preceding clauses, no assignment permitted by this Section  5.08(f) shall release the assigning Party from Liability for the full performance of its obligations under this Agreement, unless agreed to in writing by the non-assigning Parties.

(g) Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted transferees and assigns.

(h) Certain Termination and Amendment Rights . This Agreement may be terminated at any time prior to the MatCo Distribution Date by and in the sole discretion of DowDuPont without the approval of MatCo or AgCo or the stockholders of DowDuPont. After the MatCo Distribution Date, but prior to the AgCo Distribution Date, this Agreement may not be terminated or amended except by an agreement in writing signed by DowDuPont and MatCo. After the AgCo Distribution Date, this Agreement may not be terminated or amended except by an agreement in writing signed by SpecCo, MatCo and AgCo. Notwithstanding the foregoing, Section  1.17 of this Agreement and Section 11.2 of the Separation Agreement (Liability Policies) (as incorporated pursuant to Section  5.07 hereof (Insurance)) shall not be terminated or amended after the Effective Time in a manner adverse to the third party beneficiaries thereof without the Consent of any such Person. Notwithstanding the foregoing, this Agreement may be terminated or amended as among any Parties that remain Affiliates, so long as such amendment does not adversely affect any Party that is no longer an Affiliate, in which case, only with the Consent of such Party.

 

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(i) Payment Terms .

(a) Except as set forth in Section  1.17 or as otherwise expressly provided to the contrary in this Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group), on the one hand, to another Party (and/or a member of such Party’s respective Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within thirty (30) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b) Except as set forth in Section  1.17 or as expressly provided to the contrary in this Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within thirty (30) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to LIBOR (in effect on the date on which such payment was due) plus 3% calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment; provided , however , in the event that LIBOR is no longer commonly accepted by market participants, then an alternative floating rate index that is commonly accepted by market participants, which AgCo, MatCo and SpecCo shall jointly determine, each acting in good faith.

(c) In the event of a dispute or disagreement with respect to all or a portion of any amounts requested by any Party (and/or a member of such Party’s Group) as being payable, the payor Party shall in no event be entitled to withhold payments for any such amounts (and any such disputed amounts shall be paid in accordance with Section 11.2 of the Separation Agreement (Liability Policies) (as incorporated pursuant to Section  5.07 hereof (Insurance)), subject to the right of the payor Party to dispute such amount following such payment); provided , that in the event that following the resolution of such dispute it is determined that the payee Party (and/or a member of the payee Party’s Group) was not entitled to all or a portion of the payment made by the payor Party, the payee Party shall repay (or cause to be repaid) such amounts to which it was not entitled, including interest, to the payor Party (or its designee), which amounts shall bear interest at a rate per annum equal to LIBOR plus 3%, calculated for the actual number of days elapsed, accrued from the date on which such payment was made by the payor Party to the payee Party.

(d) Without the Consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by SpecCo, MatCo or AgCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the Bloomberg fixing rate at 5:00 pm New York City Time on the day before the date the payment is required to be made or, as applicable, on which an invoice is submitted ( provided , however , that with regard to any payments in respect of Indemnifiable Losses for payments made to third

 

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parties, the date shall be the day before the relevant payment was made to the third party) or in the Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the Indemnifying Party.

(j) No Circumvention . The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification or payment pursuant to Section  1.17 ).

(k) Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party on and after the MatCo Distribution Date or the AgCo Distribution Date, as applicable.

(l) Third Party Beneficiaries . Except (i) as provided in Section  1.17 relating to Indemnitees and for the release under Section 8.1 of the Separation Agreement (as incorporated pursuant to Section  1.17(d) hereof) of any Person provided therein; (ii) as provided in Sections 11.2 and 11.8 of the Separation Agreement (in each case as incorporated pursuant to Section  5.07 hereof (Insurance)) relating to the directors, officers, employees, fiduciaries or agents provided therein; and (iii) as specifically provided in this Agreement, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon third parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, including any rights of employment for any specified period, in excess of those existing without reference to this Agreement.

(m) Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

(n) References; Interpretation . For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “ $ ” shall mean U.S. dollars; (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) the Parties have each participated in the negotiation and drafting of this Agreement, except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement

 

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shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (ix) a reference to any Person includes such Person’s successors and permitted assigns; (x) any reference to “days” means calendar days unless Business Days are expressly specified; (xi) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (xii) any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (xiii) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (xiv) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (xv) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (xvi) any Consent given by any Party hereto pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “ AgCo ” shall also be deemed to refer to the applicable member of the AgCo Group, references to “ MatCo ” shall also be deemed to refer to the applicable member of the MatCo Group, references to “ SpecCo ” shall also be deemed to refer to the applicable member of the SpecCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by AgCo, MatCo or SpecCo shall be deemed to require AgCo, MatCo or SpecCo, as the case may be, to cause the applicable members of the AgCo Group, the MatCo Group or the SpecCo Group, respectively, to take, or refrain from taking, any such action.

(o) 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. Nothing in the Exhibits or Schedules constitutes an admission of any Liability or obligation of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the SpecCo Group, the MatCo Group or the AgCo Group or any of their respective Affiliates. The inclusion of any item or Liability or category of item or Liability on any Exhibit or Schedule is made solely for purposes of allocating potential Liabilities among the Parties and shall not be deemed as or construed to be an admission that any such Liability exists.

(p) Governing Law . This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

(q) Specific Performance . The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach the Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any Indemnifiable Loss. Accordingly, from and after the Effective Time, in

 

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the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Section  5.08 (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

(r) Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

(s) No Duplication; No Double Recovery . Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

(t) Tax Treatment of Payments . To the extent permitted by applicable Law, unless otherwise required by a Final Determination, the Separation Agreement, the Tax Matters Agreement or this Agreement or otherwise agreed to among the Parties, for U.S. federal Tax purposes, any payment made pursuant to this Agreement shall be treated as follows: (i) to the extent the member or Assets of the payor Group and the member or Assets of the payee Group to which the Liability for payment relates were separated in a tax-free distribution for U.S. federal Tax purposes, such payment shall be treated as a tax-free contribution or tax-free distribution, as applicable, with respect to the stock of the applicable member of the payee Group or payor Group, occurring immediately prior to the relevant transaction in the Internal Reorganization; and (ii) to the extent the member or Assets of the payor Group and the member or Assets of the payee Group to which the Liability for payment relates were separated in a taxable transaction for U.S. federal Tax purposes, such payment shall be treated as an adjustment to the price or amount, as applicable, of the relevant transaction in the Internal Reorganization. Payments of interest shall be treated as deductible by the Indemnifying Party or its relevant Subsidiary and as income to the Indemnitee or its relevant Subsidiary, as permitted and applicable. In the case of each of the foregoing, no Party shall take any position inconsistent with such treatment. In the event that a Taxing Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in this Section  5.08(t) , such Party shall use its commercially reasonable efforts to contest such challenge.

[Signature page follows]

 

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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed as of the date first written above by its respective officers thereunto duly authorized.

 

DOWDUPONT INC.
By:   /s/ Jeanmarie F. Desmond
  Name: Jeanmarie F. Desmond
  Title: Co-Controller

 

DOW INC.
By:   /s/ Amy E. Wilson
  Name: Amy E. Wilson
  Title: Secretary

 

CORTEVA, INC.
By:   /s/ James C. Collins, Jr.
  Name: James C. Collins, Jr.
  Title: Chief Executive Officer

 

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Exhibit 10.3

Execution Version

MATCO/SPECCO INTELLECTUAL PROPERTY CROSS LICENSE AGREEMENT

by and between

DOW INC. et al.

and

DOWDUPONT INC. et al.

Dated as of April 1, 2019


MATCO/SPECCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT

This MATCO/SPECCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT (this “ Agreement ”), dated as of April 1, 2019 (the “ Effective Date ”), is entered into by and among DowDuPont Inc., a Delaware corporation (“ SpecCo ”), the SpecCo Licensors and the SpecCo Licensees, on the one hand, and Dow Inc., a Delaware corporation (“ MatCo ”), the MatCo Licensors and the MatCo Licensees, on the other hand (each of SpecCo and MatCo, a “ Party ” and together, the “ Parties ”).

WHEREAS , SpecCo and MatCo are parties to that certain Separation and Distribution Agreement, dated April 1, 2019 (the “ Separation Agreement ”);

WHEREAS , as of and following the Effective Time (as defined in the Separation Agreement), each Party and its Affiliates have rights to certain Patents, Know-How, Copyrights and Software (each, as defined in the Separation Agreement); and

WHEREAS , in connection with the Separation Agreement, the MatCo Licensors wish to grant to the SpecCo Licensees, and the SpecCo Licensors wish to grant to the MatCo Licensees, a license and other rights to certain of such Patents, Know-How, Copyrights and Software, in each case as and to the extent set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1     General . As used in this Agreement, the following terms shall have the meanings set forth in this Section  1.1 . Capitalized terms that are not defined in this Agreement shall have the meanings set forth in the Separation Agreement.

(1)    “ Action ” means any demand, action, claim, cause of action, suit, countersuit, arbitration, inquiry, case, litigation, subpoena, proceeding or investigation (whether civil, criminal or administrative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority.

(2)    “ Authorized User ” means MatCo and its Affiliates, including, for clarity, any Person that becomes an Affiliate of MatCo after the Effective Date (but, subject to Section  10.2 , only for so long as such Person remains an Affiliate of MatCo) and its and their Personnel.

(3)    “ Business Software ” means with respect to a Licensor, all Software to the extent Controlled by such Licensor or any of its Affiliates as of the Effective Date, which Software is reasonably required as of the Effective Date for the conduct of (i) the Specialty Products Business if the Licensee is SpecCo, including as listed on section (i) of Schedule V , or (ii) the Materials Science Business if the Licensee is MatCo, including as listed on section (ii) of Schedule V , in each case (in respect of the foregoing (i) and (ii)), only if and to the extent such Licensee and its Affiliates have not been granted a license or other rights to use such Software under the Separation Agreement or any other Ancillary Agreement. Notwithstanding the foregoing, Business Software expressly excludes any and all Excluded IP.

 

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(4)    “ Confidential Information ” shall have the meaning provided to it in the Umbrella Secrecy Agreement.

(5)    “ Contract ” means any agreement, contract, subcontract, obligation, note, indenture, instrument, option, lease, sublease, promise, arrangement, release, warranty, license, sublicense, insurance policy, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(6)    “ Controlled ” means, with respect to any Patent, Know-How, Copyright or Software, (a) such Intellectual Property is owned by the applicable Party or any of its Affiliates ( provided that , for any such Intellectual Property to be Controlled by SpecCo or any of its Affiliates as of or prior to the AgCo Distribution, such Intellectual Property also must constitute a Specialty Products Asset) and (b) such Party or any of its Affiliates has the ability to grant a license or other rights in, to or under such Patent, Know-How, Copyright or Software (respectively) on the terms and conditions set forth herein (other than pursuant to a license or other rights granted pursuant to this Agreement) without violating any Contract entered into as of or prior to the Effective Date between such Party or any of its Affiliates, on the one hand, and any Third Party, on the other hand.

(7)    “ Controlling Party ” has the meaning set forth in Section  5.2(c) .

(8)    “ Cover ” means, with respect to any Patent, in the absence of a license granted under an unexpired claim that has not been adjudicated, without limitation to Section  8.3 , to be invalid or unenforceable by a final, binding decision of a court or other Governmental Entity of competent jurisdiction that is unappealable or unappealed within the time permitted for appeal of such Patent (or if such Patent is a patent application, a claim in such patent application if such patent application were to issue as a patent), the practice of the applicable invention or technology, or performance of the applicable process, would infringe such claim. For clarity, and by way of example, an issued Patent Covers a product if, in the absence of a license granted under such a claim of such Patent, making, using, selling, offering for sale, importing or exporting such product infringes such claim.

(9)    “ Designated SpecCo Standards ” has the meaning set forth in Section  10.2(b)(ii) .

(10)    “ Discussion Notice ” has the meaning set forth in Section  8.3(b) .

(11)    “ Engineering Models and Databases ” means (a) physical property databases, (b) empirical or mathematical dynamic or steady state models of processes, equipment and/or reactions and databases containing data resulting from such models, (c) computations of equipment or unit operation operating conditions including predictive or operational behavior and (d) databases with historical operational data.

(12)    “ Engineering Standards ” means standards, protocols, processes and policies, including engineering guidelines, for designing, constructing, maintaining and operating facilities.

(13)    “ Ethylene Copolymer Plant ” means those sites and facilities that were owned by SpecCo or one of its Affiliates prior to the Effective Date and transferred to MatCo or one of its Affiliates as of the Effective Date as a result of the Internal Reorganization, including each of those certain facilities used in the operation of the Materials Science Business as of the Effective Date located at: (i) Sabine River Plant, C Unit Building 158, 3055 FM 1006 Road, Orange, TX 77631, (ii) Sabine River Plant, D Unit Building 1055, 3055 FM 1006 Road, Orange, TX 77631, and (iii) DuPont – Victoria F-Unit, 2697 Old Bloomington Road N, Victoria, TX 77905.

 

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(14)    “ Excluded IP ” means (i) DuPont Safety, Health and Environmental Standards (including SpecCo Licensed SHE Standards), (ii) Engineering Standards (including the SpecCo Licensed Engineering Standards), (iii) Regulatory Data, (iv) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (v) the Licensed Software, Plant Configuration, Firmware, MOD TM 5 Hardware and MOD TM 5 Systems (as the foregoing terms in this subsection (v) are defined in the MOD TM 5 Software Agreement) (collectively, the “ MOD5 Systems Excluded IP ”), (vi) the TMODS Systems (as that term is defined in the TMODS License Agreement) (including object code and source code thereof), together with all process operator training simulator data files which contain process and control information for simulating the operation of plants, and all documentation therefor, (vii) Trademarks, and (viii) the Intellectual Property set forth on Schedule A .

(15)    “ Exclusively Licensed IP ” means the SpecCo Exclusively Licensed Patents and the MatCo Exclusively Licensed Patents.

(16)    “ Governmental Approvals ” means the consents, registrations, approvals, licenses, permits, notifications or authorizations obtained or to be obtained from, any Governmental Entity.

(17)    “ Governmental Entity ” means any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.

(18)    “ Holding Party ” has the meaning set forth in Section  2.12(a) .

(19)    “ Indemnifying Party ” has the meaning set forth in Section  6.1(a) .

(20)    “ Indemnitees ” has the meaning set forth in Section  6.1(a) .

(21)    “ Intellectual Property ” means all intellectual property and industrial property rights of any kind or nature, including all U.S. and foreign (i) Patents, (ii) trademarks, service marks, corporate names, trade names, Internet domain names, social media accounts or handles, logos, slogans, trade dress and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “ Trademarks ”), (iii) copyrights and copyrightable subject matter (collectively, “ Copyrights ”), (iv) rights of privacy and publicity, (v) moral rights and rights of attribution and integrity, (vi) Know-How, (vii) all applications and registrations for the foregoing and (viii) all rights and remedies against past, present, and future infringement, misappropriation, or other violation of the foregoing, in each case (with respect to the foregoing clauses (i) through (viii)), excluding all IT Assets (except Software).

(22)    “ IT Assets ” means all (i) Software (including any Copyrights therein), computer systems, public Internet protocol address blocks, telecommunications equipment and other information technology infrastructure (including servers and server equipment, computers (including laptop computers), computer equipment and hardware, printers, telephones (including cell phones and smartphones) and telephone equipment (including headsets), network devices and equipment (including routers, wireless access points, switches and hubs), fiber and backbone cabling and other telecommunications wiring, demarcation points and rooms, computer rooms and telecommunications closets), (ii) documentation, reference, resource and training materials to the extent relating thereto, and (iii) Contracts to the extent relating to any of the foregoing clauses (i) and (ii) (including Software license agreements, source code escrow agreements, support and

 

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maintenance agreements, electronic database access contracts, domain name registration agreements, public Internet protocol address block agreements, website hosting agreements, Software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements and telecommunications agreements); provided , that , notwithstanding the foregoing, IT Assets shall exclude Know-How contained or stored in any of the items described in the foregoing subsections (i) through (iii) and Patents that claim any such Know-How.

(23)    “ Know-How ” means trade secrets and rights in all other confidential and proprietary information, including know-how, inventions, algorithms, logic, standard operating conditions and procedures, proprietary processes, formulae, data, databases and other compilations of data, drawings, models and methodologies, including confidential information set forth in laboratory notebooks, laboratory reports, Plant Operating Documents, and Engineering Models and Databases (except to the extent such information is Covered by any Patents), in each case of the foregoing, to the extent confidential and proprietary. For the avoidance of doubt, “Know-How” includes notices of invention and invention disclosures for which a Patent has not been filed as of the Effective Date ( e.g. , NOIs and ICDs, as such terms are understood and used by the Parties as of the Effective Date).

(24)    “ Know-How Materials ” means those written, electronic, computerized, digital or other similar tangible or intangible media to the extent containing or embodying any MatCo Licensed Know-How, SpecCo Licensed Know-How, MatCo Licensed Copyrights, SpecCo Licensed Copyrights, SpecCo Licensed Standards or Business Software.

(25)    “ Licensed Copyrights ” means (i) with respect to the licenses granted to MatCo hereunder, the SpecCo Licensed Copyrights and the Copyrights licensed under Section  2.3(b) and 2.4 hereof, and (ii) with respect to the licenses granted to SpecCo hereunder, the MatCo Licensed Copyrights and the Copyrights licensed under Section  2.3(a) hereof.

(26)    “ Licensed Facility ” means any facility owned by or operated on behalf of an Authorized User.

(27)    “ Licensed IP ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the SpecCo Licensed IP, the Intellectual Property licensed under Sections 2.3(b) and 2.4 hereof, the Patents Controlled by SpecCo or any of its Affiliates and licensed under Section  2.6 hereof, and the Business Software Controlled by SpecCo or any of its Affiliates, and (ii) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the MatCo Licensed IP, the Intellectual Property licensed under Section  2.3(a) hereof, the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and the Business Software Controlled by MatCo or any of its Affiliates.

(28)    “ Licensed Know-How ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the SpecCo Licensed Know-How and the Know-How licensed under Sections 2.3(b) and 2.4 hereof, and (ii) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the MatCo Licensed Know-How and the Know-How licensed under Section  2.3(a) hereof.

(29)    “ Licensed Patents ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the SpecCo Licensed Patents, and (ii) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable hereunder, the MatCo Licensed Patents.

 

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(30)    “ Licensee ” means (i) the relevant SpecCo Licensee corresponding to each MatCo Licensor set forth on Schedule Q with respect to the MatCo Licensed IP and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and SpecCo and its applicable Affiliates with respect to the Intellectual Property licensed under Section  2.3(a) hereof and the Business Software Controlled by MatCo or any of its Affiliates hereunder, and (ii) the relevant MatCo Licensee corresponding to each SpecCo Licensor set forth on Schedule Q with respect to the SpecCo Licensed IP, the Intellectual Property licensed under Section  2.4 hereof, and the Patents Controlled by SpecCo or any of its Affiliates and licensed under Section  2.6 hereof, and MatCo and its applicable Affiliates with respect to the Intellectual Property licensed under Section  2.3(b) hereof and the Business Software Controlled by SpecCo or any of its Affiliates hereunder.

(31)    “ Licensor ” means (i) the SpecCo Licensors with respect to the SpecCo Licensed IP, the Intellectual Property licensed under Section  2.4 hereof, and the Patents Controlled by SpecCo or any of its Affiliates and licensed under Section  2.6 hereof, and SpecCo with respect to the Intellectual Property licensed under Section  2.3(b) hereof, and the Business Software Controlled by SpecCo or any of its Affiliates, and (ii) the MatCo Licensors with respect to the MatCo Licensed IP and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and MatCo with respect to the Intellectual Property licensed under Section  2.3(a) hereof and the Business Software Controlled by MatCo or any of its Affiliates.

(32)    “ Local Standards ” has the meaning set forth in Section  2.4(b) .

(33)    “ Manufacturing Product Agreement ” means those certain Manufacturing Product Agreement(s) and Product for Resale Agreement(s) between MatCo or its Affiliate on the one hand and SpecCo or its Affiliate on the other hand, that have been entered into as of the Effective Date.

(34)    “ MatCo Exclusive Patent Field ” means, with respect to each SpecCo Exclusively Licensed Patent, the field of use corresponding thereto on Schedule F , and natural evolutions thereof; provided that the license granted under Section  2.1(c) hereof shall be non-exclusive with respect to such natural evolutions, and such natural evolutions shall in no event include uses in any SpecCo Exclusive Patent Field.

(35)    “ MatCo Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule E to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date and (ii) to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues, and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents set forth on Schedule E (but in all cases expressly excluding any and all Excluded IP).

(36)    “ MatCo Know-How Field ” means the field of the Materials Science Business, as defined in the Separation Agreement, including as set forth on, and subject to, Schedule D , and natural evolutions thereof.

(37)    “ MatCo Licensed Copyrights ” means any and all Copyrights to the extent Controlled by MatCo or any of its Affiliates, and Used in the Specialty Products Business, as of the Effective Date, including the Copyrights set forth on Schedule B . Notwithstanding the foregoing, MatCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.

 

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(38)    “ MatCo Licensed IP ” means the MatCo Licensed Patents, MatCo Licensed Know-How and MatCo Licensed Copyrights.

(39)    “ MatCo Licensed Know-How ” means any and all Know-How to the extent Controlled by MatCo or any of its Affiliates, and Used in the Specialty Products Business, as of the Effective Date, including the Know-How set forth on Schedule C . Notwithstanding the foregoing, MatCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(40)    “ MatCo Licensed Patents ” means any and all MatCo Exclusively Licensed Patents and MatCo Non-Exclusively Licensed Patents.

(41)    “ MatCo Licensees ” means The Dow Chemical Company, Rohm and Haas Chemicals LLC, Rohm and Haas Company, Dow Silicones Corporation, Union Carbide Corporation, Materials Science Holding, LLC and Performance Materials NA, Inc.

(42)    “ MatCo Licensors ” means The Dow Chemical Company, a Delaware corporation and Performance Materials NA, Inc.

(43)    “ MatCo Non-Exclusive Patent Field ” means (a) with respect to each Patent described within subsection (i) of the SpecCo Non-Exclusively Licensed Patent definition, the field of use corresponding thereto on Schedule H , and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any SpecCo Exclusive Patent Field, (b) with respect to each Patent described within subsection (ii) of the SpecCo Non-Exclusively Licensed Patent definition, the MatCo Know-How Field and (c) with respect to each Patent described within subsection (iii) of the SpecCo Non-Exclusively Licensed Patent definition, the field of use in which the SpecCo Reference Patent for which such Patent described in subsection (iii) of the SpecCo Non-Exclusively Licensed Patent definition is a continuation, divisional, renewal, continuation-in-part, patent of addition, restoration, extension, supplementary protection certificate, reissue or re-examination, or to which such Patent described in subsection (iii) of the SpecCo Non-Exclusively Licensed Patent definition otherwise claims priority, (and, for clarity, that supports the claims of such Patent described in subsection (iii) of the SpecCo Non-Exclusively Licensed Patent definition) is licensed to MatCo and its Affiliates hereunder and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any SpecCo Exclusive Patent Field.

(44)     “ MatCo Non-Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule G to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any MatCo Licensed Know-How and are Controlled by MatCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP) (such Patents described in the foregoing subsections (i) and (ii), the “ MatCo Reference Patents ”).

(45)    “ MatCo Patent Fields ” means the MatCo Exclusive Patent Fields and the MatCo Non-Exclusive Patent Fields.

 

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(46)     “ MatCo Scheduled Licensed Patents ” means the MatCo Licensed Patents listed on Schedule E and Schedule G hereto, to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date (but expressly excluding any and all Excluded IP), which Schedules may be supplemented from time to time upon the written notice by MatCo or any of its Affiliates to SpecCo (which notice shall not be effective until twenty (20) days of receipt by SpecCo thereof) to include, to the extent Controlled by MatCo or any of its Affiliates at the relevant time, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, the Patents listed on Schedule E or Schedule G as of the Effective Date (as applicable), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents listed on Schedule E or Schedule G as of the Effective Date, as applicable.

(47)    “ Merger Time ” means the effective time of the mergers of E. I. du Pont de Nemours and Company and the Dow Chemical Company with wholly owned subsidiaries of DowDuPont, Inc.

(48)    “ MOD TM 5 Software Agreement ” means that certain MOD TM 5 Computerized Process Control Software Agreement entered into by and between Rofan Services LLC and Rohm and Haas Electronic Materials CMP, Inc., dated as of the Effective Date.

(49)    “ Non-Practicing Entity ” means any Person for which such Person’s (and all of its Affiliates’) principal source of revenue is the offering of licenses or covenants not to sue or seeking damages through the prosecution of lawsuits with respect to Patents.

(50)    “ Notifying Party ” has the meaning set forth in Section  2.7(a) .

(51)    “ OS&T License Agreement ” means that certain Operating Systems and Tools License Agreement entered into by and between Dow Global Technologies LLC and Rohm and Haas Electronic Materials CMP, Inc., dated as of the Effective Date.

(52)    “ Patent Challenge ” means any direct or indirect (including by voluntarily supporting an Action brought by another Person) challenge to the validity, patentability, enforceability or inventorship of any Scheduled Licensed Patent, including in (i) any court (including any declaratory judgment action), or (ii) activity or Action before a patent office or other Governmental Entity or registrar, including any reissue, reexamination, pre-grant review, post-grant review, opposition, inter partes review, third party observations, protest or similar proceeding.

(53)    “ Patent Challenge Liquidated Damages ” has the meaning set forth in Section  8.3(c)(ii)(4) .

(54)    “ Patent Challenge Notice ” has the meaning set forth in Section  8.3(a) .

(55)    “ Patents ” means patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof.

(56)    “ Personnel ” means, with respect to a Party or its Affiliates, such Party’s or Affiliate’s employees, officers, agents, consultants, and contractors, and any other Person over whom such Party or Affiliate exercises control.

 

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(57)    “ Product ” means, with respect to each Manufacturing Product Agreement, the definition for “Product” as set forth in such Manufacturing Product Agreement, including those products set forth on Schedule S and Schedule T hereto.

(58)    “ Product Field of Use ” means, with respect to a Product supplied by or on behalf of one Party or any of its Affiliates to the other Party or any of its Affiliates under a Manufacturing Product Agreement, the “Field of Use” for such Product, as such term is defined in the applicable Manufacturing Product Agreement.

(59)    “ Promote ” means to solicit customers for, solicit orders for, advertise, market or otherwise promote.

(60)    “ Receiving Party ” has the meaning set forth in Section  2.7(a) .

(61)    “ Regulatory Data ” means any and all regulatory data (including studies, data, raw data, efficacy data, reports, physical samples, reviews (including business risk reviews), opinions, self-GRAS determinations, information or other compliance requirements, including safety, risk and exposure assessments and modeling for product contamination or impurity issues), in written, electronic, computerized, digital, or other tangible or intangible media, actually submitted to, or maintained to support a submission to (whether submitted or not), a Governmental Entity or a Third Party to seek, obtain or maintain a Governmental Approval or demonstrate regulatory compliance.

(62)    “ Requesting Party ” has the meaning set forth in Section  2.12(a) .

(63)    “ Scheduled Licensed Patents ” means the MatCo Scheduled Licensed Patents and the SpecCo Scheduled Licensed Patents.

(64)    “ Seller ” means the Party that is, or has one or more Affiliates that are, the “Seller” under a Manufacturing Product Agreement.

(65)    “ Software ” means all computer programs (whether in source code, object code, or other form), software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials related to any of the foregoing.

(66)    “ SpecCo Exclusive Patent Field ” means, with respect to each MatCo Exclusively Licensed Patent, the field of use corresponding thereto on Schedule N , and natural evolutions thereof; provided that the license granted under Section  2.2(c) hereof shall be non-exclusive with respect to such natural evolutions, and such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field.

(67)    “ SpecCo Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule M to the extent Controlled by SpecCo or any of its Affiliates as of the Effective Date and (ii) to the extent Controlled by SpecCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents set forth on Schedule M (but in all cases expressly excluding any and all Excluded IP).

 

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(68)    “ SpecCo Know-How Field ” means the field of the Specialty Products Business, as defined in the Separation Agreement, including as set forth on, and subject to, Schedule L , and natural evolutions thereof.

(69)     “ SpecCo Licensed Copyrights ” means any and all Copyrights to the extent Controlled by SpecCo or any of its Affiliates, and Used in the Materials Science Business, as of the Effective Date, including the Copyrights set forth on Schedule J . Notwithstanding the foregoing, SpecCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.

(70)    “ SpecCo Licensed Engineering Standards ” means Engineering Standards (including as set forth on Schedule W(i) ), each, to the extent both (i) owned by SpecCo or any of its Affiliates, or with respect to which SpecCo or any of its Affiliates has the right to grant the license or other rights granted to MatCo hereunder without payment obligations to any Third Party, as of the Effective Date ( provided that , for any such Engineering Standards to be SpecCo Licensed Engineering Standards as of or prior to the AgCo Distribution, such Intellectual Property also must constitute a Specialty Products Asset) and (ii) (x) that is actually used in the operation of any Ethylene Copolymer Plant by MatCo or its Affiliates in the conduct of the Materials Science Business as of the Effective Date or (y) is reasonably necessary to use any Local Standard (including, for clarity, the Engineering Standards used in the creation, development or derivation of such Local Standard to the extent reasonably necessary to use such Local Standard), which SpecCo Licensed Engineering Standards, for clarity, include the DuPont Engineering Standards & Guidelines and the DuPont Pipe and Valve Codes & Specifications. Notwithstanding the foregoing, the SpecCo Licensed Engineering Standards shall expressly exclude (i) Regulatory Data, (ii) the MOD5 Systems Excluded IP owned by SpecCo or any of its Affiliates, (iii) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (iv) TMODS Systems (as that term is defined in the TMODS License Agreement), (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A .

(71)    “ SpecCo Licensed IP ” means the SpecCo Licensed Patents, SpecCo Licensed Know-How, and SpecCo Licensed Copyrights.

(72)    “ SpecCo Licensed Know-How ” means any and all Know-How to the extent Controlled by SpecCo or any of its Affiliates, and Used in the Materials Science Business, as of the Effective Date, including the Know-How set forth on Schedule K . Notwithstanding the foregoing, SpecCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(73)    “ SpecCo Licensed Patents ” means any and all SpecCo Non-Exclusively Licensed Patents and SpecCo Exclusively Licensed Patents.

(74)    “ SpecCo Licensed SHE Standards ” means the DuPont Safety, Health, and Environmental Standards (including as set forth on Schedule W(ii) ), each, to the extent both (i) owned by SpecCo or any of its Affiliates, or with respect to which SpecCo or any of its Affiliates has the right to grant the license or other rights granted to MatCo hereunder without payment obligations to any Third Party, as of the Effective Date ( provided that , for any such DuPont Safety, Health, and Environmental Standards to be SpecCo Licensed SHE Standards as of or prior to the AgCo Distribution, such Intellectual Property also must constitute a Specialty Products Asset) and (ii) (x) that is actually used in the operation of any Ethylene Copolymer Plant by MatCo or its Affiliates in the conduct of the Materials Science Business as of the Effective Date or (y) is

 

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reasonably necessary to use any Local Standard (including, for clarity, the DuPont Safety, Health, and Environmental Standards used in the creation, development or derivation of such Local Standard to the extent reasonably necessary to use such Local Standard). Notwithstanding the foregoing, the SpecCo Licensed SHE Standards shall expressly exclude (i) Regulatory Data, (ii) the MOD5 Systems Excluded IP owned by SpecCo or any of its Affiliates, (iii) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (iv) TMODS Systems (as that term is defined in the TMODS License Agreement), (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A .

(75)    “ SpecCo Licensed Standards ” means the SpecCo Licensed SHE Standards and the SpecCo Licensed Engineering Standards.

(76)    “ SpecCo Licensees ” means SP Holding IB, Inc., Specialty Products N&H, Inc., DuPont Electronics, Inc., DuPont Safety & Construction, Inc., DuPont Polymers, Inc., and Rohm and Haas Electronic Materials CMP, Inc.

(77)     “ SpecCo Licensors ” means SP Holding IB, Inc., Specialty Products N&H, Inc., DuPont Electronics, Inc., DuPont Safety & Construction, Inc., DuPont Polymers, Inc., Rohm and Haas Electronic Materials CMP Inc., DDP Specialty Electronic Materials US, Inc., DDP Specialty Electronic Materials US 5, LLC, DDP Specialty Electronic Materials US 8, LLC, DDP Specialty Electronic Materials US 9, LLC and Specialty Products US, LLC.

(78)    “ SpecCo Non-Exclusive Patent Field ” means (a) with respect to each Patent described within subsection (i) of the MatCo Non-Exclusively Licensed Patent definition, the field of use corresponding thereto on Schedule P , and natural evolutions thereof; provided that such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field, (b) with respect to each Patent described within subsection (ii) of the MatCo Non-Exclusively Licensed Patent definition, the SpecCo Know-How Field, and (c) with respect to each Patent described within subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition, the field of use in which the MatCo Reference Patent for which such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition is a continuation, divisional, renewal, continuation-in-part, patent of addition, restoration, extension, supplementary protection certificate, reissue, or re-examination, or to which such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition otherwise claims priority, (and, for clarity, that supports the claims of such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition) is licensed to SpecCo and its Affiliates hereunder and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field.

(79)    “ SpecCo Non-Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule O to the extent Controlled by SpecCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any SpecCo Licensed Know-How and are Controlled by SpecCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by SpecCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP) (such Patents described in the foregoing subsections (i) and (ii), the “ SpecCo Reference Patents ”).

 

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(80)     “ SpecCo Patent Fields ” means the SpecCo Exclusive Patent Fields and the SpecCo Non-Exclusive Patent Fields.

(81)     “ SpecCo Scheduled Licensed Patents ” means the SpecCo Licensed Patents listed on Schedule M and Schedule O hereto, to the extent Controlled by SpecCo or any of its Affiliates as of the Effective Date (but expressly excluding any and all Excluded IP), which Schedules may be supplemented from time to time upon the written notice by SpecCo or any of its Affiliates to MatCo (which notice shall not be effective until twenty (20) days of receipt by MatCo thereof) to include, to the extent Controlled by SpecCo or any of its Affiliates at the relevant time, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, the Patents listed on Schedule M or Schedule O as of the Effective Date (as applicable), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents listed on Schedule M or Schedule O as of the Effective Date, as applicable.

(82)    “ Sublicensee ” has the meaning set forth in Section  2.8(a) .

(83)    “ Term ” has the meaning set forth in Section  8.1 .

(84)    “ Terminated Licenses ” has the meaning set forth in Section  8.3(e) .

(85)    “ Third Party ” means any Person other than SpecCo, MatCo, and their respective Affiliates.

(86)    “ Third Party Infringement ” has the meaning set forth in Section  5.1 .

(87)    “ Third Party Payments ” means any and all obligations on the part of Licensor or its Affiliates to pay royalties, sublicense fees, milestones or other amounts to Third Parties pursuant to Contracts existing as of the Effective Date (or, in the case of Wrong Pockets Patents, Contracts existing as of the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, in each case to the extent that such obligation to pay arises from, or is a result of the grant to or exercise by Licensee or any Sublicensees of, any license, sublicense or other right to practice granted hereunder.

(88)    “ TMODS License Agreement ” means that certain DuPont TMODS Dynamic Process Simulation Software Agreement entered into by and between MatCo and SpecCo, dated as of the Effective Date.

(89)    “ Umbrella Secrecy Agreement ” means the Umbrella Secrecy Agreement, dated as of the Effective Date, between the Parties and the other signatories thereto.

(90)    “ Used ” means, with respect to the applicable Patent, Copyright or Know-How, that, as of the Effective Date, (i) such Intellectual Property is actually used, or (ii) (1) there is a bona fide plan and intention to use such Intellectual Property with a product that is expected to be commercially launched within eight and one half (8.5) years of the Effective Date or that is set forth on Schedule R , and (2) senior management has agreed to or approved, in writing, a capital investment or commitment to allocate resources or man-hours to implement such plan and intention, in each case in respect of the foregoing subsections (i) and (ii), as established by contemporaneous written records created in the ordinary course of business (which records shall be in a form consistent with the form that actual use, or similar plans and approvals, as applicable, were documented by the applicable Party (or its predecessors in interest) prior to the Merger Time).

 

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(91)    “ Wrong Pockets Notice ” shall have the meaning set forth in Section  2.7(a) .

(92)    “ Wrong Pockets Patent ” shall have the meaning set forth in Section  2.7(c) .

Section 1.2     References; Interpretation . For the purposes of this Agreement, (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) the Parties have each participated in the negotiation and drafting of this Agreement and, except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” means calendar days unless Business Days are expressly specified; (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (m) any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (n) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (o) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (p) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (q) any consent given by any Party pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “MatCo” shall also be deemed to refer to the applicable member of the MatCo Group, references to “SpecCo” shall also be deemed to refer to the applicable member of the SpecCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by MatCo or SpecCo shall be deemed to require MatCo or SpecCo, as the case may be, to cause the applicable members of the MatCo Group or the SpecCo Group, respectively, to take, or refrain from taking, any such action.

 

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ARTICLE II

GRANTS OF RIGHTS

Section 2.1     Licenses to MatCo of SpecCo Licensed IP .

(a)     Non-Exclusive License to Know-How and Copyrights . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the SpecCo Licensors hereby grant, and SpecCo shall cause its Affiliates to grant, to the relevant MatCo Licensees as set forth on Schedule Q , an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the SpecCo Licensed Know-How and the SpecCo Licensed Copyrights for any and all uses in the MatCo Know-How Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the applicable SpecCo Licensed IP set forth in this Section  2.1(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the MatCo Know-How Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such SpecCo Licensed IP, within the MatCo Know-How Field.

(b)     Non-Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the SpecCo Licensors hereby grant to the relevant MatCo Licensees as set forth on Schedule Q an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the SpecCo Non-Exclusively Licensed Patents for any and all uses in the applicable MatCo Non-Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the SpecCo Non-Exclusively Licensed Patents set forth in this Section  2.1(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable MatCo Non-Exclusive Patent Field.

(c)     Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the SpecCo Licensors hereby grant to the relevant MatCo Licensees as set forth on Schedule Q an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, exclusive (even as to SpecCo and its Affiliates, but subject to Section  8.3 ) license in, to and under the SpecCo Exclusively Licensed Patents for any and all uses in the applicable MatCo Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the SpecCo Exclusively Licensed Patents set forth in this Section  2.1(c) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable MatCo Exclusive Patent Field.

(d)     Products Supplied Under Manufacturing Product Agreements . With respect to Products supplied to MatCo or its Affiliates under the Manufacturing Product Agreement for which SpecCo or any of its Affiliates is Seller, the rights granted in this Section  2.1 shall include rights under the applicable SpecCo Licensed IP to (i) use, sell, offer for sale, market, promote, distribute, import and export, certify, submit for registration, and permit sub-registration of such Products (which, for clarity, are set forth on Schedule S ) and (ii) solely upon the delivery of a Shortfall Transition Request, a Voluntary Project Transition Request or a Termination Transition Request (as the foregoing terms are defined in the applicable Manufacturing Product Agreement) and solely to the extent permitted under the applicable Manufacturing Product Agreement, make and have made such Products, in each case of (i) and (ii), solely in the applicable Product Field of Use, but, notwithstanding anything to the contrary herein, shall not otherwise include rights to make or have made any such Products.

 

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(e)     Subject to the terms and conditions of this Agreement, the applicable SpecCo Licensors hereby grant, and shall cause their Affiliates to grant, those non-asserts set forth on, and subject to, Schedule I hereof.

Section 2.2     Licenses to SpecCo of MatCo Licensed IP .

(a)     Non-Exclusive License to Know-How and Copyrights . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant, and MatCo shall cause its Affiliates to grant, to the relevant SpecCo Licensees as set forth on Schedule Q an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the MatCo Licensed Know-How and MatCo Licensed Copyrights for any and all uses in the SpecCo Know-How Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the applicable MatCo Licensed IP set forth in this Section  2.2(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the SpecCo Know-How Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such MatCo Licensed IP, within the SpecCo Know-How Field.

(b)     Non-Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant to the relevant SpecCo Licensees as set forth on Schedule Q an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the MatCo Non-Exclusively Licensed Patents for any and all uses in the applicable SpecCo Non-Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the MatCo Non-Exclusively Licensed Patents set forth in this Section  2.2(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable SpecCo Non-Exclusive Patent Field.

(c)     Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant to the relevant SpecCo Licensees as set forth on Schedule Q an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, exclusive (even as to MatCo and its Affiliates, but subject to Section  8.3 ) license in, to and under the MatCo Exclusively Licensed Patents for any and all uses in the applicable SpecCo Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the MatCo Exclusively Licensed Patents set forth in this Section  2.2(c) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable SpecCo Exclusive Patent Field.

(d)     Products Supplied Under Manufacturing Product Agreements . With respect to Products supplied to SpecCo or its Affiliates under the Manufacturing Product Agreement for which MatCo or any of its Affiliates is Seller, the rights granted in this Section  2.2 shall include rights under the applicable MatCo Licensed IP to (i) use, sell, offer for sale, market, promote, distribute, import and export, certify, submit for registration, and permit sub-registration

 

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of such Products (which, for clarity, are set forth on Schedule T ) and (ii) solely upon the delivery of a Shortfall Transition Request, a Voluntary Project Transition Request or a Termination Transition Request (as the foregoing terms are defined in the applicable Manufacturing Product Agreement) and solely to the extent permitted under the applicable Manufacturing Product Agreement, make and have made such Products, in each case of (i) and (ii), solely in the applicable Product Field of Use, but, notwithstanding anything to the contrary herein, shall not otherwise include rights to make or have made any such Products.

(e)    Subject to the terms and conditions of this Agreement, the applicable MatCo Licensors hereby grant, and shall cause their Affiliates to grant, those non-asserts set forth on, and subject to, Schedule I hereof.

Section 2.3     Licenses for Product Supply .

(a)    Subject to the terms and conditions of this Agreement, MatCo hereby grants, and shall cause its Affiliates to grant, to SpecCo and its Affiliates a royalty-free, fully paid-up, worldwide non-exclusive license in, to and under (i) the MatCo Licensed IP, and (ii) any other Intellectual Property (except any Excluded IP) to the extent as of the Effective Date, MatCo or its Affiliates has the ability to grant the license set forth in this Section  2.3(a) , and the related rights set forth herein, on the terms and conditions set forth herein without violating any Contract entered into as of or prior to the Effective Date between MatCo or any of its Affiliates, on the one hand, and any Third Party, on the other hand (subject to Section  2.9 hereof), in each case (with respect to the foregoing subsections (i) and (ii)), solely to the extent reasonably necessary to perform SpecCo’s and its Affiliates’ obligations as Seller under the Manufacturing Product Agreements, including to manufacture for and supply to MatCo the Products under such Manufacturing Product Agreements in accordance with and subject to the terms thereof.

(b)    Subject to the terms and conditions of this Agreement, SpecCo hereby grants, and shall cause its Affiliates to grant, to MatCo and its Affiliates a royalty-free, fully paid-up, worldwide non-exclusive license in, to and under (i) the SpecCo Licensed IP and (ii) any other Intellectual Property (except any Excluded IP) to the extent as of the Effective Date, SpecCo or its Affiliates has the ability to grant the license set forth in this Section  2.3(b) , and the related rights set forth herein, on the terms and conditions set forth herein without violating any Contract entered into as of or prior to the Effective Date between SpecCo or any of its Affiliates, on the one hand, and any Third Party, on the other hand (subject to Section  2.9 hereof) ( provided that , for any such Intellectual Property to be licensed by SpecCo or any of its Affiliates under this Section  2.3(b) as of or prior to the AgCo Distribution, such Intellectual Property also must constitute a Specialty Products Asset), in each case (with respect to the foregoing subsections (i) and (ii)), solely to the extent reasonably necessary to perform MatCo’s and its Affiliates’ obligations as Seller under the Manufacturing Product Agreements, including to manufacture for and supply to SpecCo the Products under such Manufacturing Product Agreements in accordance with and subject to the terms thereof.

(c)    The licenses granted in this Section  2.3 shall be sublicensable in writing to subcontractors to the extent permitted under the applicable Manufacturing Product Agreements, in accordance with, and subject to, the terms of the applicable Manufacturing Product Agreements.

 

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Section 2.4     License to SpecCo Licensed Standards .

(a)    Subject to the terms and conditions of this Agreement, the applicable SpecCo Licensors hereby grant, and SpecCo shall cause its Affiliates to grant, to the relevant MatCo Licensees as set forth on Schedule Q an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), non-exclusive license to use the SpecCo Licensed Standards at the Licensed Facilities solely in connection with the conduct of the Materials Science Business by MatCo or any of its Affiliates. Without limiting the foregoing, the grant in this Section  2.4 includes a right and license to use, reproduce, distribute, display, perform, adapt, modify and create derivative works of the SpecCo Licensed Standards by and among the Authorized Users only for the licensed uses set forth in this Section  2.4 .

(b)    Notwithstanding anything to the contrary herein, neither SpecCo nor any of its Affiliates shall have any obligation with respect to training MatCo or any of its Affiliates to implement or use the SpecCo Licensed Standards. For clarity, the SpecCo Licensed Standards shall not be subject to any updates by SpecCo or its Affiliates (even if SpecCo or its Affiliates update the same for their own use). The Parties acknowledge that from time to time applicable Law may conflict with and supersede aspects of SpecCo Licensed Standards and Licensor shall have no obligation to Licensee with respect thereto in such event. For clarity, as between the Parties, MatCo shall own all Intellectual Property (including, for clarity, Copyrights) in any DuPont Safety, Health and Environmental Standards or Engineering Standards that constitute Intellectual Property included in the Materials Science Assets (“ Local Standards ”).

Section 2.5     Business Software License . Subject to the terms and conditions of this Agreement, Licensor (or its Affiliate, as applicable) hereby grants, and shall cause its Affiliates to grant, to Licensee (or its Affiliate, as applicable) an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to its Business Software for use solely in connection with, if such Licensee is SpecCo, the Specialty Products Business or, if such Licensee is MatCo, the Materials Science Business.

Section 2.6     Heritage Products License .

(a)    Subject to the terms and conditions of this Agreement, The Dow Chemical Company hereby grants, and MatCo shall cause its Affiliates to grant, to Rohm and Haas Electronic Materials CMP, Inc. an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to any and all Patents that (i) were Controlled by E. I. du Pont de Nemours and Company or any of its then-Affiliates as of immediately prior to the Merger Time and (ii) are Controlled by MatCo or any of its Affiliates as of the Effective Date as a result of the Internal Reorganization, together with, to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents (the foregoing, collectively, the “ MatCo Transferred Patents ”) to make (including have made), use, sell, offer for sale, import, and export, solely in the SpecCo Know-How Field, products sold commercially by or on behalf of E. I. du Pont de Nemours and Company and its then-Affiliates at any time prior to the Merger Time, other than products included in the Agriculture Business or the Materials Science

 

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Business (the “ SpecCo Heritage Products ”) in the same manner (in all material respects) as such SpecCo Heritage Products were made, used, sold, offered for sale, imported and exported by such Persons prior to the Merger Time (the “ SpecCo Restricted Heritage Uses ”) and updates, enhancements, modifications and similar evolutions thereof in which the essential character of such SpecCo Heritage Product and SpecCo Restricted Heritage Use are retained in all material respects. Solely to the extent its rights to such product derive from the license granted under this Section  2.6(a) , and upon MatCo’s written request identifying such product or use, SpecCo shall reasonably promptly demonstrate (and shall use commercially reasonable efforts to demonstrate within sixty (60) days following such request) to MatCo by clear and convincing evidence comprised of contemporaneous written records (which records shall be in a form consistent with the form that commercial sales (with respect to a purported SpecCo Heritage Product) or actual use (with respect to a purported SpecCo Restricted Heritage Use) was documented by SpecCo (or its predecessors in interest)) created prior to the Merger Time in the ordinary course of business that a product qualifies as a SpecCo Heritage Product (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant) and that the use thereof qualifies as a SpecCo Restricted Heritage Use (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant).

(b)    Subject to the terms and conditions of this Agreement, the applicable SpecCo Licensors hereby grant, and SpecCo shall cause its Affiliates to grant, to Performance Materials NA, Inc. an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to any and all Patents that (i) were Controlled by the Dow Chemical Company or any of its then-Affiliates as of immediately prior to the Merger Time, (ii) are Controlled by SpecCo or any of its Affiliates as of the Effective Date as a result of the Internal Reorganization, together with, to the extent Controlled by SpecCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents (the foregoing, collectively, the “ SpecCo Transferred Patents ”) to make (including have made), use, sell, offer for sale, import, and export, solely in the MatCo Know-How Field, products sold commercially by or on behalf of the Dow Chemical Company and its then-Affiliates at any time prior to the Merger Time, other than products included in the Agriculture Business or the Specialty Products Business (the “ MatCo Heritage Products ”) in the same manner (in all material respects) as such MatCo Heritage Products were made, used, sold, offered for sale, imported and exported by such Persons prior to the Merger Time (the “ MatCo Restricted Heritage Uses ”) and updates, enhancements, modifications and similar evolutions thereof in which the essential character of such MatCo Heritage Product and MatCo Restricted Heritage Use are retained in all material respects. Solely to the extent its rights to such product derive from the license granted under this Section  2.6(b) , and upon SpecCo’s written request identifying such product or use, MatCo shall reasonably promptly demonstrate (and shall use commercially reasonable efforts to demonstrate within sixty (60) days following such request) to SpecCo by clear and convincing evidence comprised of contemporaneous written records (which records shall be in a form consistent with the form that commercial sales (with respect to a purported MatCo Heritage Product) or actual use (with respect to a purported MatCo Restricted Heritage Use) was documented by MatCo (or its predecessors in interest)) created prior to the Merger Time in the ordinary course of business that a product qualifies as a MatCo Heritage Product (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant) and that the use thereof qualifies as a MatCo Restricted Heritage Use (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant).

 

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Section 2.7     Wrong Pockets .

(a)     A Party (a “ Notifying Party ”) shall have the right to provide prompt written notice (a “ Wrong Pockets Notice ”) to the other Party (a “ Receiving Party ”), including in response to an inquiry from the Receiving Party, if, following the Effective Date:

(i)    a Notifying Party identifies a Patent Controlled by the other Party as of the Effective Date that is not included in the Licensed Patents licensed to such Notifying Party, and such Notifying Party reasonably believes that such Patent was Used in the Specialty Products Business or the Materials Science Business, as applicable, as of the Effective Date; or

(ii)    a Notifying Party identifies a Use by such Notifying Party of a Licensed Patent that is not (1) in the case of a Notifying Party that Controls such Licensed Patent, within the scope of its retained rights ( i.e. , such use is within the scope of the Receiving Party’s exclusively licensed field of use with respect to such Patent hereunder) or (2) in the case of a Notifying Party that is the Licensee, within such Notifying Party’s licensed field of use hereunder ( i.e. , such use is not captured by any MatCo Patent Field or SpecCo Patent Field, as applicable), and, in each case (in respect of the foregoing (1) and (2)), such Notifying Party reasonably believes that the Use of such Licensed Patent as of the Effective Date was within the Specialty Products Business (if SpecCo is the Notifying Party) or the Materials Science Business (if MatCo is the Notifying Party).

(b)    Each Wrong Pockets Notice shall both identify the applicable Patent and describe the Use thereof in the Specialty Products Business (if the Notifying Party is SpecCo), or the Materials Science Business (if the Notifying Party is MatCo), as of the Effective Date.

(c)    Unless otherwise agreed in writing by the Parties, if a Notifying Party provides a Wrong Pockets Notice in accordance with Section  2.7(a) , the Notifying Party shall, within sixty (60) days of providing the Wrong Pockets Notice, demonstrate to the Receiving Party by clear and convincing evidence (the “ Evidentiary Requirement ”) that the identified Patent was Used in the manner identified in the Wrong Pockets Notice within the Specialty Products Business (if the Notifying Party is SpecCo) or the Materials Science Business (if the Notifying Party is MatCo) as of the Effective Date (such evidence, the “ Demonstration of Use ”). The Receiving Party shall notify the Notifying Party in writing within thirty (30) days of receipt of the Demonstration of Use whether it reasonably believes in good faith that the Demonstration of Use satisfies the Evidentiary Requirement. Solely to the extent (with respect to the Patent and Use identified in the applicable Wrong Pockets Notice) that the Demonstration of Use satisfies the Evidentiary Requirements (whether determined by the Receiving Party in accordance with the foregoing, or in accordance with Section  9.1 ), or if the Receiving Party fails to provide the Notifying Party with a response regarding whether the Demonstration of Use satisfies the Evidentiary Requirements within the applicable thirty (30) day period in accordance with the foregoing, such Patent shall be licensed to the Notifying Party for such Use (in the case of a Wrong Pockets Notice described in Section  2.7(a)(i) ) (each such Patent, a “ Wrong Pockets Patent ”), such Use shall be included in the Notifying Party’s retained field of use with respect to such Patent (in

 

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the case of a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) ), or such Use shall be included in the Notifying Party’s field of use for such Patent (in the case of a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) ), as applicable, in each case, as further described in the following subsections (i) through (iii).

(i)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in Section  2.7(a)(i) , each Patent identified in such notice (if the Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) shall be a MatCo Non-Exclusively Licensed Patent if SpecCo is the Notifying Party or a SpecCo Non-Exclusively Licensed Patent if MatCo is the Notifying Party, and for clarity, the license to the Notifying Party therefor shall be non-exclusive and the field for which it is licensed pursuant to this Agreement (which, for clarity, shall be deemed to be a SpecCo Non-Exclusive Patent Field if SpecCo is the Notifying Party and a MatCo Non-Exclusive Patent Field if MatCo is the Notifying Party) shall be limited solely to the Use made by such Notifying Party and its Affiliates as of the Effective Date (to the extent that the Demonstration of Use therefor satisfies the Evidentiary Requirement) and natural evolutions thereof, subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

(ii)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) , each Use for a Licensed Patent identified in the Wrong Pockets Notice in the Notifying Party’s retained field of use for such Patent (to the extent the Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) shall be deemed to be a SpecCo Non-Exclusive Patent Field if SpecCo is the Receiving Party and a MatCo Non-Exclusive Patent Field if MatCo is the Receiving Party, and such Use and natural evolutions thereof shall no longer be included in the exclusive field for which such Patent is licensed to the Receiving Party pursuant to this Agreement; provided that the rights with respect to such Use retained by the Notifying Party shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of the Receiving Party or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

(iii)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) , each Use for a Licensed Patent identified in the Wrong Pockets Notice (to the extent that Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) and natural evolutions thereof shall be deemed to be a SpecCo Non-Exclusive Patent Field if SpecCo is the Notifying Party and a MatCo Non-Exclusive Patent Field if MatCo is the Notifying Party and the license granted to such field shall be nonexclusive; provided that the rights with respect to such Use retained by the Notifying Party shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of the Receiving Party or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

 

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(d)    Notwithstanding anything to the contrary herein, unless otherwise agreed upon by the Parties, each Party shall only have two (2) years after the Effective Date to provide a Wrong Pockets Notice pursuant to Section  2.7(a) to the other Party; provided that , in the case of Section  2.7(a)(i) , with respect to Patent applications filed prior to the Effective Date, such period shall extend until the date that is six (6) months after the publication of such Patent application if the expiration of such six (6) month period occurs after such two (2) year period expires.

(e)    Notwithstanding the foregoing Sections 2.7(a) through (d) , unless and only to the extent that the Receiving Party provides its prior written consent (which the Receiving Party may withhold in its sole discretion), in the event that the Parties expressly discussed prior to the Effective Date that:

(i)    any Patent would not be included in the Notifying Party’s Licensed Patents in the case of a Wrong Pockets Notice described in Section  2.7(a)(i) , such Patent shall not be included in the Notifying Party’s Licensed Patents ( provided that , in determining that such Patent would not be a Licensed Patent hereunder, the Parties discussed prior to the Effective Date the Use identified in the Wrong Pockets Notice for such Patent);

(ii)    any Use would not be included in the Notifying Party’s retained field of use for a specific Licensed Patent in the case of a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) , such Use shall not be included in the Notifying Party’s retained field of use for such Patent; and

(iii)    any Use would not be included in the Notifying Party’s field of use for a specific Licensed Patent in the case of a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) (as applicable), such Use shall not be included in the Notifying Party’s licensed field of use for such Patent.

(f)     For clarity, (i) SpecCo and its Affiliates shall not be required to submit a Wrong Pockets Notice with respect to any SpecCo Restricted Heritage Use of a SpecCo Heritage Product under a SpecCo Transferred Patent or any update, enhancement, modification or similar evolution thereof licensed under Section  2.6 , and (ii) MatCo and its Affiliates shall not be required to submit a Wrong Pockets Notice with respect to any MatCo Restricted Heritage Use of a MatCo Heritage Product under a MatCo Transferred Patent or any update, enhancement, modification or similar evolution thereof licensed under Section  2.6 .

Section 2.8     Sublicenses .

(a)    Licensee may sublicense the license and rights granted to Licensee under Sections 2.1 , 2.2 , 2.4, 2.5 and 2.6 (as applicable) to (a) its Affiliates and (b) Third Parties in connection with the operation of the business of Licensee or its Affiliates, but not for the independent use of any such Third Party, including distributors that need to practice the applicable Intellectual Property to provide ordinary course distribution services to Licensee and its Affiliates; provided that , with respect to the SpecCo Licensed Standards, sublicensing to such Third Parties shall be solely for such Third Parties to provide services to the Materials Science Business in the

 

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ordinary course at any or all Licensed Facilities (but not for the independent use of such Third Party), and (c) with the prior written consent of Licensor, other Third Parties (each such Affiliate or Third Party, or subcontractor granted a sublicense under Section  2.3 , a “ Sublicensee ”).

(b)    Each sublicense granted by a Licensee under the license granted to such Licensee in Sections 2.1 , 2.2 , 2.4 , 2.5 and 2.6 shall be granted pursuant to an agreement that (i) is subject to, and consistent with, the terms and conditions of this Agreement and includes provisions at least as protective of Licensor and its Affiliates as the provisions of this Agreement (except that such sublicense shall not be required to provide rights for Licensor to audit Sublicensee in accordance with, and subject to, Section  2.13 (1) if the sublicense is granted to an Affiliate, (2) with respect to sublicenses of Licensed Know-How, Licensed Copyrights or Business Software where the primary purpose of such arrangement with sublicensee is not to grant access to such Licensed Know-How, Licensed Copyrights or Business Software or (3) with respect to sublicenses of the licenses granted under Section  2.6 ), (ii) to the extent with respect to Licensed Patents or SpecCo Licensed Standards and if Sublicensee is a Third Party, provides that Licensor shall be an intended beneficiary thereunder with the right of direct enforcement against the Sublicensee (including, for clarity, with respect to the audit rights set forth in Section  2.13 to the extent applicable), and (iii) to the extent with respect to Licensed Patents or SpecCo Licensed Standards, is in writing if the Sublicensee is a Third Party. For clarity, granting a sublicense shall not relieve Licensee of any obligations hereunder and Licensee shall cause each of its Sublicensees to comply, and shall remain responsible for its Sublicensees’ compliance, with the terms hereof applicable to Licensee.

Section 2.9     Third Party Rights .

(a)    Notwithstanding anything to the contrary herein, the terms and conditions of this Agreement (including the licenses granted under Sections 2.1 through 2.6 ) are subject to any and all rights of and obligations owed to any Third Parties with respect to the Licensed IP under any Contracts existing as of the Effective Date (or in the case of any Wrong Pockets Patents, existing as of or prior to the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, and to the extent that, as a result of such rights or obligations, any license or other rights granted hereunder: (i) may not be granted without the consent of or payment of a fee or other consideration; or (ii) will cause Licensor or any of its Affiliates to be in breach of any of its or their obligations to any Third Party, the applicable licenses and other rights granted hereunder shall only be granted to the extent such consent has been obtained or such fee or other consideration has been paid. Except for any Intellectual Property licensed pursuant to Section  2.3 , the Parties shall use commercially reasonable efforts to obtain any such consents to the extent required to grant Licensee the rights granted hereunder; provided that , (i) the foregoing shall not require the Parties to duplicate any obligations undertaken under the Separation Agreement and (ii) notwithstanding anything herein to the contrary, Licensor shall have no obligation to agree to or make any payments or other concessions, except as mutually agreed in writing between the Parties, or participate in any act or omission that will cause Licensor to be in breach of its or their obligations to any Third Party. Notwithstanding the foregoing, Licensee shall not be deemed in breach of this Section  2.9(a) only if, and for such time, Licensee is not aware of such rights of or obligations owed to such Third Party.

(b)    Notwithstanding anything to the contrary herein, Third Party Payments, if any, with respect to the Licensed IP (except for any Intellectual Property licensed under Section  2.3 ) shall be Licensee’s sole responsibility. Licensee shall pay the Third Party Payments directly to the applicable Third Party; provided that if such Third Party does not permit

 

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Licensee to pay such Third Party Payments to such Third Party directly (whether pursuant to the applicable Contract or otherwise) after the Parties have used commercially reasonable efforts to permit the Licensee to pay the Third Party directly, the Parties shall cooperate in good faith to ensure that such Third Party Payments are paid by Licensee to Licensor in a manner that ensures Licensor’s payment thereof is in compliance with the obligations to the applicable Third Party. Such cooperation shall include Licensee (i) preparing and providing Licensor with reasonably detailed written reports reflecting calculation of the applicable Third Party Payments and any other information required by the applicable Third Parties and (ii) paying Licensor the applicable Third Party Payments by wire transfer of immediately available funds to the bank account designated by Licensor in writing no less than ten (10) days prior to the due date of such payment pursuant to the terms of the applicable Contract. If either Party becomes aware of any Third Party Payments, it shall reasonably promptly notify the other Party in writing, and notwithstanding anything to the contrary in this Section  2.9(b) , Licensee shall not be deemed in breach of this Section  2.9(b) if, and for such time, Licensee is not aware of the applicable Third Party Payments; provided that , upon learning of such Third Party Payments, Licensee shall promptly pay such Third Party Payments to the applicable Third Party directly (or such other Person as reasonably directed by Licensor) to the extent such Third Party Payments are past due.

(c)    Certain agreements subject to Subsections (a) and (b) hereof are set forth on Schedule U hereto.

Section 2.10     No Use or Promotion Outside Field . Each Party shall not, and shall cause its Affiliates to not: (a) as Licensee, exercise rights under any Licensed IP except to the extent expressly licensed hereunder or expressly agreed upon in advance in writing by Licensor, and (b) without limiting the foregoing, (1) if such Party is MatCo, Promote use of products or services (A) Covered by an issued SpecCo Licensed Patent outside the MatCo Patent Field, or (B) Covered by an issued MatCo Licensed Patent in the SpecCo Exclusive Patent Field, or (2) if such Party is SpecCo, Promote products or services (x) Covered by an issued MatCo Licensed Patent outside the SpecCo Patent Field, or (y) Covered by an issued SpecCo Licensed Patent in the MatCo Exclusive Patent Field (the field of use restrictions described in the foregoing clauses (1) and (2), “ Field Restrictions ”). There shall be no affirmative obligation hereunder on either Party to monitor its customers’ use of such Party’s products or services. For clarity, products or services sold by a Party under this Agreement are not authorized sales under the Patent licenses granted herein for any use outside the Field Restrictions.

Section 2.11     Reservation of Rights . Each Party reserves its and its Affiliates’ rights in and to all Intellectual Property that is not expressly licensed or otherwise granted hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon either Party, its Affiliates, or its Sublicensees by implication, estoppel, or otherwise as to any of the other Party’s Intellectual Property (including, for clarity, any Excluded IP, except to the extent expressly licensed under Section  2.4 ).

Section 2.12     Retention and Transfer of Licensed Know-How .

(a)    If SpecCo or MatCo (the “ Requesting Party ”) reasonably believes that any Know-How Materials are in possession or control of the other Party (such Party, the “ Holding Party ”) or any of its Affiliates and such Know-How Materials are not in the possession or control of the Requesting Party or any of its Affiliates, and the Requesting Party makes a request in writing during the two (2) year period following the Effective Date that the Holding Party deliver the

 

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Know-How Materials to the Requesting Party, the Holding Party shall review such request and, to the extent in the possession or control of the Holding Party or any of its Affiliates and, for purposes of Business Software only, is reasonably accessible to the Holding Party for purposes of transfer to the Requesting Party ( provided that , subject to the below provisos, such accessibility shall not take into account whether such Business Software is integrated with other Software), deliver the Know-How Materials to the Requesting Party as promptly as reasonably practicable and in any event within thirty (30) Business Days of receiving such request from the Requesting Party; provided that , the Holding Party shall notify the Requesting Party within such thirty (30) Business Day period if it reasonably believes that such request requires a longer period of review to determine if the request concerns MatCo Licensed Know-How, SpecCo Licensed Know-How, MatCo Licensed Copyrights, SpecCo Licensed Copyrights, SpecCo Licensed Standards or Business Software (as applicable) or to locate the applicable Know-How Materials, and the Holding Party shall take all reasonable steps to review and provide such Know-How Materials (as applicable) within an additional sixty (60) days of expiration of such initial thirty (30) Business Day period; provided , further , with respect to any Business Software requested by a Requesting Party hereunder that is integrated with other Software, the Parties shall discuss in good faith a reasonable deadline in lieu of the foregoing timing for delivering any such Business Software to the Requesting Party, and the Requesting Party agrees that it shall bear all reasonable out-of-pocket costs and expenses of preparing such Software for delivery subject to the Requesting Party’s advance approval of such costs; provided , further , to the extent the request does not constitute MatCo Licensed Know-How, MatCo Licensed Copyrights or Business Software (if the Requesting Party is SpecCo) or SpecCo Licensed Know-How, SpecCo Licensed Copyrights, SpecCo Licensed Standards, or Business Software (if the Requesting Party is MatCo), the Holding Party shall not be required to deliver such Know-How Materials to the Requesting Party, but shall provide the Requesting Party with an explanation in reasonable detail of the basis of such determination and shall make itself and its relevant Affiliates available to discuss in good faith with the Requesting Party.

(b)    For clarity, and notwithstanding anything to the contrary, in no event shall Licensor or its Affiliates be required hereunder to provide any written, electronic, computerized, digital or other tangible or intangible media to the extent comprising, containing, reflecting or embodying any MatCo Licensed Know-How, SpecCo Licensed Know-How, MatCo Licensed Copyrights, SpecCo Licensed Copyrights, SpecCo Licensed Standards, or Business Software to Licensee, that (i) has already been provided to, or is in the possession of, Licensee or its Affiliates or (ii) is used to make any Products. For the avoidance of doubt, nothing in this Agreement shall be interpreted as requiring that Licensor or any of its Affiliates transfer or grant access to tangible biological material to Licensee or any of its Affiliates.

Section 2.13     Audit . Not more than once per year, or at any time a Party has a reasonable, good faith belief that the other Party has materially breached this Agreement, or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement, and provides written notice to such other Party as well as detailed documentation or other evidence of such alleged breach, upon thirty (30) days’ advance written notice, such first Party may cause an independent Third Party auditor that is reasonably acceptable to the audited Party and subject to written confidentiality obligations that are reasonably acceptable to the audited Party to audit, during regular business hours and in a manner that complies with the reasonable building and security requirements of the audited Party and its Affiliates, the books, records and facilities of such audited Party and its Affiliates to the extent reasonably necessary to determine such audited Party’s and its Affiliates’ compliance with this Agreement or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement. Any audit conducted under this Section  2.13 shall

 

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not interfere unreasonably with the operations of such audited Party or any of its Affiliates. The Party requesting the audit shall pay the costs of conducting such audit; provided that if such audit reveals a material breach of this Agreement or (to the extent with respect to this Agreement), the Umbrella Secrecy Agreement, the audited Party shall pay all such costs. Upon conclusion of the audit, the Third Party auditor shall furnish to both Parties a report stating only its findings during such audit as to whether or not the audited Party is in compliance with this Agreement, and if such audit has revealed a breach, shall include no more information than is reasonably necessary to provide the basis for such finding. All information learned or obtained from such audit shall be deemed Confidential Information for purposes of this Agreement. Notwithstanding anything to the contrary in this Section, the audited Party may require that the Third Party conducting the audit pursuant to this Section  2.13 be accompanied by the audited Party’s (and in the case of an audit of its Affiliates or Sublicensees, its Affiliate’s or its Sublicensee’s, respectively) representatives at all times during such audit. For clarity, Licensee shall cause its Affiliates that are Sublicensees to comply with this Section  2.13 .

ARTICLE III

OWNERSHIP

Section 3.1     Ownership . As between the Parties (including their respective Affiliates), (a) SpecCo acknowledges and agrees that MatCo and its Affiliates own the MatCo Licensed IP, the Intellectual Property licensed to SpecCo under Section  2.3(a) , the Business Software licensed to SpecCo under Section  2.5 , and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 , (b) MatCo acknowledges and agrees that SpecCo and its Affiliates own the SpecCo Licensed IP, the Intellectual Property licensed to MatCo under Section  2.3(b) and Section  2.4 , the Business Software licensed to MatCo under Section  2.5 , and the Patents Controlled by SpecCo or any of its Affiliates and licensed under Section  2.6 , and (c) each Party acknowledges and agrees that (i) except to the extent expressly provided herein, neither Party, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Licensed IP licensed to such Party hereunder, and (ii) such Party shall not, and shall cause its Affiliates and its Sublicensees to not, represent or make any claim that they have ownership of any right, title or interest in any such Licensed IP. To the extent that a Party, its Affiliates or its Sublicensees (as applicable) is assigned or otherwise obtains ownership of any right, title or interest in or to any Licensed IP in contravention of this Section  3.1 , such Party hereby assigns, and shall cause its Affiliates and Sublicensees (as applicable) to assign, to the other Party (or to such Affiliate or Third Party designated by such other Party in writing) all such right, title and interest.

ARTICLE IV

PROSECUTION AND MAINTENANCE

Section 4.1     Responsibility and Cooperation .

(a)    Subject to Section  4.1(b) , as between the Parties, Licensor shall have sole responsibility (but not the obligation) for filing, prosecuting and maintaining all Patents within the Licensed IP with respect to which such Licensor or any of its Affiliates is granting a license to Licensee hereunder. Licensor shall be solely responsible for all costs and expenses incurred in connection with such filing, prosecution and maintenance.

(b)    If, during the Term, Licensor decides to abandon, or otherwise allow to lapse, any issued SpecCo Licensed Patent (if SpecCo is the Licensor) or MatCo Licensed Patent (if MatCo is the Licensor) or published application therefor, Licensor shall use commercially

 

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reasonable efforts to notify Licensee of such decision at least thirty (30) days prior to any deadline for taking action to avoid abandonment (or other loss of rights) of such Patent. Upon receipt of such notice, Licensee shall have the right to elect to assume responsibility for such prosecution and maintenance solely by providing Licensor with written notice of such election within thirty (30) days (or such shorter period requested where the final deadline is in less than thirty (30) days) following such notice from Licensor, and Licensor shall either: (i) withdraw its decision to abandon and continue prosecuting or maintaining such Patent at its expense; or (ii) assign, and hereby does assign, its entire right, title, and interest in such Patent to Licensee at Licensee’s sole cost and expense ( provided that , for clarity, Licensee shall not be required to pay any additional consideration to Licensor in exchange for such assignment, but shall be required to reimburse Licensor for its out-of-pocket costs and expenses incurred in connection with assigning such Patent); provided that , Licensor shall not be in breach of the foregoing if Licensor uses commercially reasonable efforts to notify Licensee of its decision to abandon (or otherwise lose rights) but inadvertently and in good faith fails to so notify Licensee. In the event that Licensor assigns a Licensed Patent to Licensee in accordance with the foregoing clause (ii), such Patent shall no longer be (i) if the Licensor is SpecCo, a SpecCo Licensed Patent and instead shall be a MatCo Non-Exclusively Licensed Patent, for which the applicable SpecCo Non-Exclusive Patent Field shall be all fields of use other than the MatCo Exclusive Patent Field applicable to such Patent (if any), or (ii) if the Licensor is MatCo, a MatCo Licensed Patent and instead shall be a SpecCo Non-Exclusively Licensed Patent, for which the applicable MatCo Non-Exclusive Patent Field shall be all fields of use other than the SpecCo Exclusive Patent Field applicable to such Patent (if any). Notwithstanding anything to the contrary herein, in the event that any Licensed Patent is assigned to Licensee pursuant to this Section  4.1(b) , such Licensed Patent shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates with respect to such Licensed Patent prior to the date of such assignment (to the extent that such terms and conditions do not conflict with any of the terms hereof), and unless otherwise agreed in writing, the assignee Party may abandon such Patent without notice or obligation of assignment to the other Party.

(c)    For clarity, Licensor’s obligations under Section  4.1(b) do not apply to the (i) filing or validating of any national or regional applications based on any international or regional Patent applications or filings (including any PCT or EPO applications) whether or not designated under such applications or filings, (ii) filing of any Patent application, including the filing of any divisional, continuation or continuation-in-part application, or (iii) maintaining or prosecuting of any unpublished Patent applications. If any Licensed Patent subject to this Section  4.1 is subject to the terms of any Contract existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound whereby a Third Party has the right to elect to assume responsibility for prosecution or maintenance of, or request assignment of, such Licensed Patent, and such Third Party elects not to exercise all such rights in such Licensed Patent, such Licensed Patent shall become subject to the terms of Section  4.1(b) , except if Licensor’s grant of such rights to Licensee, or Licensee’s exercise of such rights, would breach any contractual rights or obligations owed to such Third Party or any of its Affiliates. Licensor shall ensure that all current and future owners of the Licensed Patents are subject to the obligations to assign such Licensed Patents to Licensee contained in this Section  4.1 .

(d)    Upon the reasonable request of the Party that controls filing, prosecution or maintenance of any Exclusively Licensed IP in accordance with Section  4.1(a) or 4.1(b) , the other Party ( i.e. , the recipient of the exclusive license) shall provide reasonable assistance to such Party in connection with such activities (including by providing information, obtaining signatures and authorizations, and taking such other actions as may be required by

 

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applicable Law), and such requesting Party shall reimburse such other Party’s out-of-pocket costs incurred in connection therein. For clarity, neither such other Party nor any of its Affiliates shall be required by the foregoing in this Section  4.1 to take or omit to take any action that it reasonably believes contravenes any applicable Law.

Section 4.2     No Additional Obligations . For clarity, this Agreement shall not obligate either Party to disclose to the other Party, or maintain, register, monitor, prosecute, pay for or offer to pay for (including by offering remuneration to any inventors), defend, enforce or otherwise manage any Intellectual Property, except to the extent expressly set forth herein.

Section 4.3     Third Party Agreements . For clarity, and notwithstanding anything to the contrary in this Article IV , the Parties’ rights and obligations set forth in this Article IV shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section  2.9 .

ARTICLE V

ENFORCEMENT

Section 5.1     Notice . With respect to any Licensed IP, Licensee shall promptly notify Licensor in writing of (a) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation or other violation within the exclusive field for which Licensee has been granted a license hereunder of any such Licensed IP licensed to Licensee hereunder or (b) any Third Party allegations of invalidity or unenforceability of any Exclusively Licensed IP licensed to Licensee hereunder (each of the foregoing (a) and (b), a “ Third Party Infringement ”); provided that an attorney in Licensee’s or its Affiliates’ in-house legal department becomes aware of and reasonably believes that such Third Party Infringement may have occurred ( provided that , for clarity, Licensee shall have no obligation to independently investigate or conduct any infringement or other analysis of the conduct alleged to constitute a Third Party Infringement) and Licensee reasonably believes that such Third Party Infringement could be material to Licensor.

Section 5.2     Defense and Enforcement .

(a)     Licensor First Right . Subject to the remainder of this Section  5.2 , as between the Parties, Licensor shall have the first right, but not the obligation, at its own cost and expense, to control enforcement or defense against any Third Party Infringement of the Licensed IP under which Licensor is granting a license to Licensee hereunder (including by bringing an Action or entering into settlement discussions).

(b)     Licensee s Rights .

(i)    As between the Parties, Licensee shall have the right, but not the obligation, at its own cost and expense, to control enforcement or defense against any Third Party Infringement of the Exclusively Licensed IP with respect to which Licensee is granted a license hereunder (including by bringing an Action or entering into settlement discussions) if (1) Licensor provides Licensee with written notice that it is not exercising its right to control enforcement of such Exclusively Licensed IP (as described in Section  5.2(a) ) and that Licensee may do so at its option, or (2) Licensor fails to initiate, or file the relevant response to, the Action (if any), or commence settlement discussions, with respect to the applicable

 

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Third Party Infringement prior to or upon the earlier of (A) expiration of the one hundred eighty (180) day period following first receipt by either Party of notice from the other Party of such Third Party Infringement or (B) ten (10) Business Days prior to the deadline for filing, or filing the applicable response to, such Action (if any). Licensor shall use commercially reasonably efforts to notify Licensee of a decision not to exercise its right to control enforcement or defense, as applicable, with respect to any Exclusively Licensed IP, but shall have no liability for any good faith, inadvertent failure to so notify Licensee. Notwithstanding the foregoing, Licensee shall not have any right to control such enforcement or defense pursuant to the foregoing if Licensor provides Licensee with written notice that it is not exercising its right to control enforcement or defense, as applicable, of such Licensed IP (as described in Section  5.2(a) ) and that it has reasonably determined in good faith that the Licensed IP should not be enforced or defended at such time, and provides Licensee an opportunity to discuss such reasoning in good faith with Licensor.

(ii)    In the case of any infringement, misappropriation, or other violation, or any Third Party allegations of invalidity or unenforceability, of any Licensed IP non-exclusively licensed to Licensee hereunder, Licensee may request (which request Licensor may deny if Licensor reasonably determines that such Licensed IP should not be enforced or defended, and discusses its reasoning therefor with Licensee) that Licensor enforce or defend (as applicable) such Licensed IP (including by bringing an Action or entering into settlement discussions), and if such request is granted, such enforcement or defense (as applicable) shall be controlled by Licensor at Licensee’s sole cost and expense.

(c)     Cooperation . If the Party controlling enforcement or defense of any Licensed IP against any Third Party Infringement in accordance with Section  5.2(a) or 5.2(b) (such Party, the “ Controlling Party ”) brings an Action or enters into settlement discussions with respect thereto, the other Party shall provide reasonable assistance in connection therewith, at the Controlling Party’s request and such other Party shall be reimbursed for its reasonable out-of-pocket costs and expenses incurred in connection therewith. The Controlling Party shall keep the other Party regularly informed of the status and progress of such enforcement or defense, as applicable, and shall reasonably consider the other Party’s comments in connection with any Action or settlement discussions with respect thereto. Notwithstanding anything to the contrary herein, such other Party may, at its sole discretion and cost and expense, join as a party to any such Action; provided that , if necessary for standing purposes, such Party shall join such Action upon the Controlling Party’s reasonable request and the Controlling Party shall reimburse the other Party’s reasonable out-of-pocket costs and expenses incurred in connection therewith. Such other Party shall have the right to be represented by counsel (which shall act in an advisory capacity only, except for matters solely directed to such Party) of its own choice in any such Action at its own cost and expense (subject to reimbursement of such other Party’s costs and expenses as described in, and subject to, the immediately preceding sentence). Notwithstanding the foregoing, in the event of enforcement or defense in accordance with Section  5.2(b)(ii) , the Party that is not the Controlling Party shall be solely responsible for all costs and expenses incurred pursuant to this Section  5.2(c) .

(d)     Settlements . Notwithstanding anything to the contrary herein, the Controlling Party shall not, without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of the other Party, settle any Third Party Infringement (i) with respect to

 

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the Exclusively Licensed IP, if doing so would (a) adversely affect the validity, enforceability or scope, or admit non-infringement, of any such Exclusively Licensed IP that such other Party or its Affiliates are licensing to the Controlling Party hereunder or (b) specifically or by operation of law, grant or waive any of the Controlling Party’s rights under any such Exclusively Licensed IP within the field that the Controlling Party or its Affiliates are granting an exclusive license to the other Party hereunder or (ii) with respect to any Licensed IP, if doing so would give rise to liability or any other obligations of such other Party, its Affiliates or its Sublicensees for which the Controlling Party is unwilling or unable to, or otherwise does not, provide full indemnification.

(e)     Recoveries . Any and all amounts recovered by the Controlling Party in any Action regarding a Third Party Infringement or settlement with respect thereto shall, unless otherwise agreed (including in an agreement in connection with obtaining consent to settlement), be allocated first to reimburse the Controlling Party’s out-of-pocket costs and expenses incurred in connection with such Action or settlement (including its obligations to the other Party pursuant to Section  5.2(c) ) and next to the other Party’s out-of-pocket costs and expenses incurred in connection with such Action or settlement. Any and all remaining amounts recovered shall be (i) allocated proportionally between the Parties ( provided that the Third Party Infringement to which such recovery relates is of the Exclusively Licensed IP and within the exclusive field in which the applicable Licensee is granted a license hereunder) based on the impact of such Third Party Infringement on each Party’s relevant field of use or (ii) retained by the Controlling Party ( provided that , for purposes of this clause (ii), the Third Party Infringement to which such recovery relates is not of the Exclusively Licensed IP within the exclusive field in which the applicable Licensee is granted a license hereunder).

(f)     Interferences, etc . Notwithstanding anything to the contrary in Article IV or this Article V , in the event that any Third Party allegations of invalidity or unenforceability of any Patents included in the Licensed IP licensed to Licensee hereunder arise in an opposition, interference, reissue proceeding, reexamination or other patent office proceeding, Article IV shall govern the Parties’ rights and obligations with respect thereto.

Section 5.3     Third Party Agreements . For clarity, and notwithstanding anything to the contrary in this Article V , the Parties’ rights and obligations set forth in this Article V shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section  2.9 .

ARTICLE VI

INDEMNIFICATION

Section 6.1     Indemnification .

(a)    Each Party (the “ Indemnifying Party ”) agrees to indemnify, release, defend and hold harmless the other Party and its Affiliates and its and their directors, officers, agents, and successors (each, an “ Indemnitee ” and collectively, the “ Indemnitees ”) from and against any and all Indemnifiable Losses incurred or suffered by any of the Indemnitees, to the extent arising out of, relating to or resulting from (a) breach by the Indemnifying Party of this Agreement; (b) if the Indemnifying Party is the Licensee, use of the Licensed IP hereunder by or on behalf of such Party or its Sublicensees; and (c) if the Indemnifying Party is the Licensor, breach by or on behalf of Licensee, its Affiliates or its Sublicensees of any contractual rights of or contractual obligations owed to any Third Parties with respect to the Licensed IP; provided that ,

 

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prior to such breach, Licensor or any of its Affiliates is aware, and Licensee and its Affiliates are not aware, of such contractual rights or obligations, in each case (in respect of the foregoing subsections (a) through (c)), except to the extent that such Indemnifiable Losses (i) are subject to indemnification by the other Party pursuant to this Section  6.1 or (ii) arise out of fraud, bad faith, gross negligence or willful misconduct of the other Party or its Affiliates.

(b)    Except for the entitlement to specific performance or other equitable remedy, each solely as contemplated by Section  10.12 , the remedies provided in this Section  6.1 shall be deemed the sole and exclusive remedies of the Parties with respect to the subject matter of this Agreement, and the Parties each hereby waive to the extent permitted by applicable Law any other remedy to which they or any of their respective Indemnitees are entitled to hereunder at law or in equity with respect thereto.

Section 6.2     Indemnification Procedures . The indemnification procedures set forth in Sections 8.5 through 8.10 of the Separation Agreement shall apply to the matters indemnified hereunder, mutatis mutandis .

Section 6.3     Disclaimer of Representations and Warranties . EACH PARTY HEREBY ACKNOWLEDGES THAT, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OF THE OTHER ANCILLARY AGREEMENTS, EACH OF SPECCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE SPECCO GROUP) AND MATCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MATCO GROUP) UNDERSTANDS AND AGREES THAT NEITHER PARTY IS REPRESENTING OR WARRANTING IN ANY WAY UNDER THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY OR SCOPE OF THE LICENSED IP) AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OTHER ANCILLARY AGREEMENT, ALL LICENSED IP IS BEING LICENSED ON AN “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” BASIS.

Section 6.4     Limitation on Liability . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT (INCLUDING THIS ARTICLE VI ), EXCEPT WITH RESPECT TO BREACHES OF ARTICLE VII , NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AT LAW OR IN EQUITY, AND “LOSSES” SHALL NOT INCLUDE ANY AMOUNTS FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; PROVIDED THAT NOTHING HEREIN SHALL PREVENT ANY INDEMNITEE FROM BEING INDEMNIFIED PURSUANT TO ARTICLE VI FOR ALL COMPONENTS OF AWARDS AGAINST THEM IN ANY THIRD PARTY CLAIM.

ARTICLE VII

CONFIDENTIALITY

Section 7.1     Disclosure and Use Restrictions . The Parties acknowledge and agree that the Umbrella Secrecy Agreement is hereby incorporated into this Agreement, and shall apply to the transactions contemplated by this Agreement, mutatis mutandis . For the avoidance of doubt, Licensee’s material breach of the Umbrella Secrecy Agreement with respect to Confidential Information shall constitute a material breach of this Agreement.

 

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ARTICLE VIII

TERM

Section 8.1     Term . The terms of the licenses and other grants of rights (and related obligations) under this Agreement (the “ Term ”) shall remain in effect (a) to the extent with respect to the Patents licensed hereunder and Licensed Copyrights, on a Patent-by-Patent and Licensed Copyright-by-Licensed Copyright basis, until expiration, invalidation or abandonment of such Licensed Patent or Licensed Copyright (as applicable), (b) to the extent with respect to any Licensed Know-How, until such Licensed Know-How no longer constitutes Confidential Information; provided that , after expiration of the Term with respect to any Licensed Know-How, the licenses granted hereunder to such Know-How shall survive such expiration in perpetuity, and (c) with respect to Business Software and SpecCo Licensed Standards, in perpetuity. Notwithstanding the foregoing and anything to the contrary herein, the licenses granted in Section  2.3 and rights and obligations of the Parties to the extent with respect thereto shall terminate on a Product-by-Product basis upon termination of the applicable Manufacturing Product Agreement with respect to such Product.

Section 8.2     Effect of Termination .

(a)     Accrued Rights . Expiration of this Agreement, in part or in its entirety, shall be without prejudice to any rights which shall have accrued to the benefit of either Party prior to such expiration.

(b)     Survival . The following provisions of this Agreement, together with all other provisions of this Agreement that expressly specify that they survive, shall survive expiration of this Agreement, in part or in its entirety: Articles I , III , VI , VII , IX and X and this Section  8.2 .

Section 8.3     Patent Challenge .

(a)     Patent Challenge Notice . In the event of a Patent Challenge by Licensee or any of its Affiliates against any MatCo Scheduled Licensed Patents (if Licensor is MatCo) or SpecCo Scheduled Licensed Patents (if Licensor is SpecCo), Licensee shall notify Licensor promptly (but in no event more than ten (10) Business Days) after Licensee’s general counsel or chief patent counsel (or if such position does not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) first learns of such Patent Challenge (and if Licensor has not already been notified by Licensee of such Patent Challenge, Licensor shall use reasonable efforts to provide written notice to Licensee if Licensor’s chief patent counsel (or if such position does not exist, any of Licensor’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) knows such Patent Challenge has been filed) (each notice provided by either Party in accordance with this Section  8.3(a) , the “ Patent Challenge Notice ”). Upon a Licensee Challenge Executive learning of such a Patent Challenge or, if earlier, upon receipt of a Patent Challenge Notice in the event that such Patent Challenge Notice is provided by Licensor, Licensee shall promptly take all steps necessary (in accordance with applicable Law) to withdraw or have withdrawn such Patent Challenge.

 

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(b)     Discussion Process . In the event of a Patent Challenge by Licensee or any of its Affiliates against any MatCo Scheduled Licensed Patents (if Licensor is MatCo) or SpecCo Scheduled Licensed Patents (if Licensor is SpecCo), without limiting Licensee’s obligations in Section  8.3(a) , following Licensee’s written request (provided such request is made no more than ten (10) Business Days after the Patent Challenge Notice is provided to either Party) (each such request, the “ Discussion Notice ”), each Party shall commence the escalation process set forth in Sections 8.3(b)(i) through 8.3(b)(ii) below (the “ Escalation Process ”).

(i)    Within ten (10) Business Days of Licensor’s receipt of the Discussion Notice from Licensee, each Party’s respective presidents of any business unit or division to which the Patent Challenge relates (or if such position does not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) and general counsels will commence discussions (which, for clarity, may be in person or via videoconference or teleconference) that will last for a period of no more than fifteen (15) Business Days (unless otherwise agreed in writing by the Parties) (the period of such discussions, the “ Initial Executive Officer Escalation Period ”) regarding the Patent Challenge.

(ii)    Following completion of the Initial Executive Officer Escalation Period, either Party may, on written notice (“ Escalation Notice ”) to the other Party within five (5) Business Days of expiration of the Initial Executive Officer Escalation Period, submit such matter for discussion by their respective chief executive officers. Such chief executive officers shall commence discussions regarding the applicable Patent Challenge (which, for clarity, may be in person or via videoconference or teleconference) within ten (10) Business Days of the Escalation Notice, and such discussions will last for no more than ten (10) Business Days (unless otherwise agreed in writing by the Parties) (the period of such discussions, the “ CEO Escalation Period ”).

(iii)    All offers, promises, conduct and statements, whether oral or written, made in the course of the Escalation Process by any of the Parties or their Affiliates, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties or any of their Affiliates and, in any Action, shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state or foreign rule, and evidence of such discussions shall not be admissible in any future Action between the Parties, any of their Affiliates and/or any Indemnitee; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation or discussion.

(c)     Certain Inadvertent Patent Challenges .

(i)    For purposes of this Section  8.3 :

(1)    “ Inadvertent Patent Challenge ” means each Patent Challenge by Licensee or its Affiliates that (i) none of the Licensee Challenge Executives approved prior to or at the time of the filing of the Patent Challenge or (ii) none of the Licensee Challenge Executives that approved such Patent Challenge had actual knowledge

 

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at the time of the filing of such Patent Challenge that the applicable MatCo Scheduled Licensed Patent or SpecCo Scheduled Licensed Patent, as the case may be, was subject to the terms of this Section  8.3 . All Patent Challenges are presumed to be Inadvertent Patent Challenges absent clear and convincing evidence otherwise.

(2)    “ Licensee Challenge Executives ” means (i) Licensee’s chief patent counsel, (ii) the president of any business unit or division to which the Patent Challenge relates, (iii) any executive officer of Licensee or (iv) any executive officer of the ultimate parent entity of any member of Licensee’s Group at the time of such Patent Challenge (or, in each case of the foregoing (i) through (iv), if any such positions do not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities).

(ii)    In the case of an Inadvertent Patent Challenge, unless otherwise agreed in writing by the Parties, Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) below shall apply if and only if (x) Licensee has failed to withdraw, or have withdrawn, the Patent Challenge in accordance with Section  8.3(a) ( provided that such failure is a result of any Laws or other rules of any Governmental Entity or registrar with which such Patent Challenge was filed that preclude such withdrawal, and not attributable in any respect to any delay (or other act or omission that could reasonably be anticipated to preclude such withdrawal) within the reasonable control of Licensee) and (y) if requested by Licensor and solely to the extent permitted by applicable Law, as soon as reasonably practicable, Licensee submits (or has submitted) documentation to the applicable Governmental Entity or registrar retracting the arguments made in such Patent Challenge; provided , that , if Licensee has provided a Discussion Notice to Licensor in accordance with Section  8.3(b) , Licensor shall not exercise any of its rights or remedies set forth in Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) until (1) the CEO Escalation Period expires if an Escalation Notice is provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge or (2) the Initial Executive Officer Escalation Period expires if an Escalation Notice is not provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge.

(1)    In the case of the first such Inadvertent Patent Challenge (if any), Licensee shall pay Licensor fifty million dollars ($50,000,000) in liquidated damages, and Licensor may, at its option, terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates, or convert to non-exclusive any and all exclusive licenses granted under this Agreement to such Licensee or any of its Affiliates, with respect to all MatCo Patent Fields (if MatCo is the Licensee) or SpecCo Patent Fields (if SpecCo is Licensee) for which any and all Licensed Patents that are the subject of such Patent Challenge are licensed to such Licensee or any of its Affiliates hereunder (including, for clarity, the licenses and rights to any and all other Patents licensed to such Licensee and its Affiliates to the extent in such MatCo Patent Fields or SpecCo Patent Fields, as applicable).

(2)    In the case of the second such Inadvertent Patent Challenge (if any), Licensee shall pay Licensor one hundred million dollars ($100,000,000) in liquidated damages, and Licensor may, at its option, terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates, or convert to non-exclusive any and all exclusive licenses

 

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granted under this Agreement to such Licensee or any of its Affiliates, with respect to all MatCo Patent Fields (if MatCo is Licensee) or SpecCo Patent Fields (if SpecCo is Licensee) for which any and all Licensed Patents that are the subject of such Patent Challenge are licensed to such Licensee or any of its Affiliates hereunder (including, for clarity, the licenses and rights to any and all other Patents licensed to such Licensee and its Affiliates to the extent in such MatCo Patent Fields or SpecCo Patent Fields, as applicable).

(3)    In the case of the third such Inadvertent Patent Challenge (if any), or to the extent Licensor has not exercised all of its rights expressly set forth in this Section  8.3(c) , any Patent Challenge after the third such Inadvertent Patent Challenge, Licensor shall have the right to terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates with respect to Patents, or convert to non-exclusive any or all exclusive licenses to the Licensed Patents granted under this Agreement to such Licensee or any of its Affiliates.

(4)    Licensee shall pay amounts described in the foregoing subsections (1) and (2) (such amounts, the “ Patent Challenge Liquidated Damages ”) to Licensor within twenty (20) Business Days of Licensor’s written notice that it is exercising its rights under such subsection, and such payment shall be made by wire transfer of immediately available funds into an account designated in writing by Licensor. The Parties intend that the Patent Challenge Liquidated Damages constitute compensation, and not a penalty. The Parties acknowledge and agree that the harm to Licensor and its Affiliates caused by a Patent Challenge would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Patent Challenge Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from one or more Patent Challenges. Licensee’s payment of the Patent Challenge Liquidated Damages, together with the other remedies set forth in this Section  8.3 , are Licensee’s sole liability and entire obligation and Licensor’s exclusive remedies for each such Patent Challenge as described herein.

(d)     Other Patent Challenges . Unless otherwise agreed upon in writing by the Parties, in the case of (i) any Inadvertent Patent Challenge for which Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) do not apply (including, for clarity, any Inadvertent Patent Challenge for which Licensee does not comply with Section  8.3(a)) or (ii) any Patent Challenge that is not an Inadvertent Patent Challenge, in respect of the foregoing (i) and (ii), Licensor may, at Licensor’s option, (x) terminate this Agreement to the extent with respect to any and all licenses and rights granted to Licensee or any of its Affiliates hereunder with respect to Patents or (y) convert to non-exclusive any and all exclusive licenses to the Licensed Patents granted to Licensee or any of its Affiliates under this Agreement; provided that , if Licensee has provided a Discussion Notice to Licensor in accordance with Section  8.3(b) , Licensor shall not exercise any of its rights or remedies set forth in this Section  8.3(d) until (x) the CEO Escalation Period expires if an Escalation Notice is provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge or (y) the Initial Executive Officer Escalation Period expires if an Escalation Notice is not provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge.

(e)     Effects of Termination . Upon any termination by Licensor pursuant to this Section  8.3 , (i) any and all sublicenses that have been granted to a Sublicensee with respect to the licenses and rights that have been terminated (such licenses, the “ Terminated Licenses ”) shall automatically terminate and (ii) Licensee shall, and shall ensure that its Affiliates and

 

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Sublicensees, immediately cease use of all Licensed IP under the Terminated Licenses. For clarity, in the event that a Licensor elects to terminate this Agreement with respect to all licenses granted by such Licensor to Licensee under this Section  8.3 , this Agreement shall remain in full force and effect with respect to all licenses granted to such terminating Licensor by such terminated Licensee.

(f)    For avoidance of doubt, Licensor may not terminate any licenses or rights granted to Licensee or any of its Affiliates hereunder or convert to non-exclusive any exclusive licenses if Licensee complies with Section  8.3(a) with respect to an Inadvertent Patent Challenge, and such Inadvertent Patent Challenge is withdrawn.

ARTICLE IX

DISPUTE RESOLUTION

Section 9.1     N egotiation and Arbitration . In the event of a controversy, dispute or Action between the Parties arising out of, in connection with, or in relation to this Agreement or any of the transactions contemplated hereby, including with respect to the interpretation, performance, nonperformance, validity or breach thereof, and including any Action based on contract, tort, statute or constitution, including the arbitrability of such controversy, dispute or Action, the procedures as set forth in Article X of the Separation Agreement shall apply, mutatis mutandis .

ARTICLE X

MISCELLANEOUS

Section 10.1     Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, together with the Separation Agreement, the Umbrella Secrecy Agreement, other Ancillary Agreements and, solely to the extent and for the limited purpose of effecting the Internal Reorganization, the Conveyancing and Assumption Instruments, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Exhibit or Schedule hereto, the Exhibit or Schedule shall prevail. In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Separation Agreement, the terms and conditions of this Agreement shall control (except as expressly set forth in Section  12.1 of the Separation Agreement).

Section 10.2     Assignment .

(a)    Neither this Agreement nor any of the rights, interests or obligations of a Party under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by such Party without the prior written consent of the other Party (which consent may be granted or withheld in such other Party’s sole discretion); provided however , that such first Party (i) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to one or more of its Affiliates and (ii) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to the successor to all or a portion of the business or assets to which this Agreement relates; provided that , (x) the assigning Party shall promptly notify the non-assigning Party in writing of any assignments it makes under Section  10.2(a)(ii) and (y) in either case of (i) or (ii), the party to whom this Agreement is assigned shall agree in writing to be bound by the terms of this Agreement as if named as a “Party” hereto with respect to all or such portion of this Agreement so assigned. Notwithstanding the foregoing, in the event that a Party exercises

 

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its rights in accordance with the foregoing to assign this Agreement, in part or in whole, to a Non-Practicing Entity, and such assignment is a bona fide assignment, the Parties’ rights and obligations set forth in Section  8.3 to the extent with respect to such assignment to such Non-Practicing Entity shall have no force and effect (and, for clarity, any attempt to assign this Agreement, in part or in whole, to any Non-Practicing Entity with the intent to subsequently assign to any Person that is not a Non-Practicing Entity to circumvent Section  8.3 shall be void ab initio ).

(b)     Notwithstanding the foregoing:

(i)    in the event that a Party assigns or otherwise transfers its rights and obligations with respect to a Manufacturing Product Agreement to another Person in accordance with the terms thereof, the licenses set forth in Sections 2.1(d) , 2.2(d) , 2.3(a) and 2.3(b) (as applicable), together with any other provisions herein to the extent related thereto, may be assigned or otherwise transferred to such Third Party without the other Party’s consent; and

(ii)    MatCo may not assign any of the rights, interests or obligations under this Agreement with respect to the SpecCo Licensed Standards to any Third Party without the prior written consent of SpecCo, which consent shall not be unreasonably withheld, delayed or conditioned (but may assign this Agreement in accordance with Section  10.2(a) without such consent with respect to Local Standards, together with any SpecCo Licensed Standards, solely as and to the extent incorporated into and/or reasonably necessary to use such Local Standards as of the date of such assignment (“ Designated SpecCo Standards ”)); provided that in the event that SpecCo does not provide such consent, any Third Party to which MatCo assigns any right or obligation in accordance with Section  10.2(a)(ii) shall be, and hereby is, granted a transitional license with respect to the SpecCo Licensed Standards (other than the Designated SpecCo Standards) as follows: such assignee may continue to use under this Agreement such SpecCo Licensed Standards used by Licensee or the relevant site, facility and/or portion of the Materials Science Business prior to the applicable transaction for a transitional period of up to twelve (12) months to the extent reasonably necessary to transition to alternative technology ( provided that such transitional period may be extended upon reasonable request subject to the prior written consent of SpecCo, which consent may not be unreasonably withheld, delayed or conditioned), if such assignee agrees in writing that:

(1)    The SpecCo Licensed Standards shall be treated as Confidential Information of SpecCo under terms at least as restrictive as the terms in the Umbrella Secrecy Agreement;

(2)    The SpecCo Licensed Standards shall be used only within and for the support of the transferred business, site or facility and shall be shared only with Persons who have a reasonable need to know them for that purpose; and

(3)    No later than the end of the transitional period, all copies of the SpecCo Licensed Standards in the possession of the transferred business, site or facility shall be destroyed; provided that , for clarity, destruction of such SpecCo Licensed Standards shall not be required with respect to Designated SpecCo Standards otherwise licensed pursuant to the portion of the Agreement assigned. On request by SpecCo, the affected business, site or facility shall confirm that the required destruction has occurred.

 

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(c)    Any assignment or other disposition in violation of this Section  10.2 shall be void. No assignment shall relieve the assigning Party of any of its obligations under this Agreement that accrued prior to such assignment unless agreed to by the non-assigning Party.

Section 10.3     Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

 

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Section 10.4     Notices . All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or electronically mailed (with a response confirming receipt), and shall be directed to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section  10.4 ):

To SpecCo:

Prior to the AgCo Distribution:

DowDuPont Inc.

SP Holdings IB, Inc.

Specialty Products N&H, Inc.

DuPont Electronics, Inc.

DuPont Safety & Construction, Inc.

DuPont Polymers, Inc.

Rohm and Haas Electronic Materials CMP, Inc.

DDP Specialty Electronic Materials US, Inc.

DDP Specialty Electronic Materials US 5, Inc.

DDP Specialty Electronic Materials US 8, Inc.

DDP Specialty Electronic Materials US 9, Inc.

Specialty Products US, LLC

c/o E. I. du Pont de Nemours and Company

974 Centre Road

Wilmington, DE 19805

Attn: Stacy L. Fox

Email: Stacy.L.Fox@dupont.com

Facsimile: (302) 994-5094

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

  Attention:

Brandon Van Dyke, Esq.

  Email:

Brandon.VanDyke@skadden.com

  Facsimile:

(917) 777-3743

Following the Final Separation Date:

DowDuPont Inc.

SP Holdings IB, Inc.

Specialty Products N&H, Inc.

DuPont Electronics, Inc.

DuPont Safety & Construction, Inc.

DuPont Polymers, Inc.

Rohm and Haas Electronic Materials CMP, Inc.

DDP Specialty Electronic Materials US, Inc.

DDP Specialty Electronic Materials US 5, Inc.

DDP Specialty Electronic Materials US 8, Inc.

DDP Specialty Electronic Materials US 9, Inc.

Specialty Products US, LLC

c/o DuPont de Nemours, Inc.

974 Centre Road, Building 730

Wilmington, DE 19805

Attn: General Counsel

Email: Erik.T.Hoover@dupont.com

 

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with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

  Attention:

Brandon Van Dyke, Esq.

  Email:

Brandon.VanDyke@skadden.com

  Facsimile:

(917) 777-3743

To MatCo:

Dow Inc.

The Dow Chemical Company

Rohm and Haas Chemicals LLC

Rohm and Haas Company

Dow Silicones Corporation

Union Carbide Corporation

Materials Science Holding LLC

Performance Materials NA, Inc.

The Dow Chemical Company

2211 H.H. Dow Way

Midland, MI 48674

Attn: Chief IP Counsel, IP Legal

Email: DFrickey@dow.com

with a copy (which shall not constitute notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022-6069

  Attention:

George A. Casey, Esq.

Heiko Schiwek, Esq.

Jordan Altman, Esq.

  Email:

George.Casey@Shearman.com

HSchiwek@Shearman.com

Jordan.Altman@Shearman.com

  Facsimile:

(212) 848-7179

Section 10.5     Waivers . Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

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Any consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and the members of its Group).

Section 10.6     Amendments . This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 10.7     Affiliates . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Affiliate of such Party.

Section 10.8     Third Party Beneficiaries . Except as provided in Article VI relating to Indemnitees, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon Third Parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, in excess of those existing without reference to this Agreement.

Section 10.9     Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.10     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 10.11     Governing Law . This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

Section 10.12     Specific Performance . The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach this Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any such non-performance or breach. Accordingly, in the event of any actual or threatened default in or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article X (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 10.13     Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

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Section 10.14     No Duplication; No Double Recovery . Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

Section 10.15     Bankruptcy . All rights and licenses granted under or pursuant to this Agreement by a Licensor are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the United States Bankruptcy Code regardless of the form or type of intellectual property under or to which such rights and licenses are granted and regardless of whether the intellectual property is registered in or otherwise recognized by or applicable to the United States of America or any other country or jurisdiction. The Parties agree that each Licensee will retain and may fully exercise all of their rights and elections under the United States Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against a Party under the United States Bankruptcy Code, the Party hereto that is not a party to such proceeding will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party’s possession, will be promptly delivered to it (a) upon any such commencement of a bankruptcy proceeding upon the non-subject Party’s written request therefore, unless the Party subject to such proceeding continues to perform all of its obligations under this Agreement or (b) if not delivered under clause (a) above, following the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefore by the non-subject Party.

* * * * *

[End of page left intentionally blank]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

DOWDUPONT INC.    SP HOLDINGS IB, INC.

/s/ Jeanmarie F. Desmond

Name: Jeanmarie F. Desmond

Title:   Co-Controller

  

/s/ Calissa Brown

Name: Calissa Brown

Title:   Vice President

SPECIALTY PRODUCTS N&H, INC.    DUPONT ELECTRONICS, INC.

/s/ Calissa Brown

Name: Calissa Brown

Title:   Vice President

  

/s/ Calissa Brown

Name: Calissa Brown

Title:   Vice President

DUPONT SAFETY & CONSTRUCTION, INC.    DUPONT POLYMERS, INC.

/s/ Calissa Brown

Name: Calissa Brown

Title:   Vice President

  

/s/ Calissa Brown

Name: Calissa Brown

Title:   Vice President

ROHM AND HAAS ELECTRONIC MATERIALS CMP, INC.    DDP SPECIALTY ELECTRONIC MATERIALS US, INC.

/s/ Darryl P. Frickey

Name: Darryl P. Frickey

Title:   Assistant Secretary

  

/s/ Mark A. Bachman

Name: Mark A. Bachman

Title:   President

DDP SPECIALTY ELECTRONIC MATERIALS US 5, LLC    DDP SPECIALTY ELECTRONIC MATERIALS US 8, LLC

/s/ Mark A. Bachman

Name: Mark A. Bachman

Title:   President

  

/s/ Mark A. Bachman

Name: Mark A. Bachman

Title:   President

DDP SPECIALTY ELECTRONIC MATERIALS US 9, LLC    SPECIALTY PRODUCTS US, LLC

/s/ Eric P. Blackhurst

Name: Eric P. Blackhurst

Title:   Secretary

  

/s/ Eric P. Blackhurst

Name: Eric P. Blackhurst

Title:   Secretary

 

[Signature Page to MatCo/SpecCo Intellectual Property Cross License Agreement]


DOW INC.    THE DOW CHEMICAL COMPANY

/s/ Amy E. Wilson

Name: Amy E. Wilson

Title:   Secretary

  

/s/ Amy E. Wilson

Name: Amy E. Wilson

Title:   General Counsel and Corporate Secretary

ROHM AND HAAS CHEMICALS LLC    ROHM AND HAAS COMPANY

/s/ John B. Treangen

Name: John B. Treangen

Title:   Assistant Secretary

  

/s/ John B. Treangen

Name: John B. Treangen

Title:   Assistant Secretary

DOW SILICONES CORPORATION    UNION CARBIDE CORPORATION

/s/ Jonathan P. Wendt

Name: Jonathan P. Wendt

Title:   Secretary

  

/s/ Leah Trzcinski

Name: Leah Trzcinski

Title:  Vice President, General Counsel and Secretary

MATERIALS SCIENCE HOLDING LLC    PERFORMANCE MATERIALS NA, INC.

/s/ Eric P. Blackhurst

Name: Eric P. Blackhurst

Title:   Secretary

  

/s/ Michael P. Heffernan

Name: Michael P. Heffernan

Title:   President

 

[Signature Page to MatCo/SpecCo Intellectual Property Cross License Agreement]

Exhibit 10.4

EXECUTION VERSION

MATCO/AGCO INTELLECTUAL PROPERTY CROSS LICENSE AGREEMENT

by and among

DOW INC.,

MATCO LICENSORS,

MATCO LICENSEES,

CORTEVA, INC.,

AGCO LICENSORS

and

AGCO LICENSEES

Dated as of April 1, 2019


MATCO/AGCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT

This MATCO/AGCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT (this “ Agreement ”), dated as of April 1, 2019 (the “ Effective Date ”), is entered into by and among Corteva, Inc., a Delaware corporation (“ AgCo ”), the AgCo Licensors and the AgCo Licensees, on the one hand, and Dow Inc., a Delaware corporation (“ MatCo ”), the MatCo Licensors and the MatCo Licensees, on the other hand (each of AgCo and MatCo, a “ Party ” and together, the “ Parties ”).

WHEREAS , AgCo and MatCo are parties to that certain Separation and Distribution Agreement, dated April 1, 2019 (the “ Separation Agreement ”);

WHEREAS , as of and following the Effective Time (as defined in the Separation Agreement), each Party and its Affiliates have rights to certain Patents, Know-How, Copyrights and Software (each, as defined in the Separation Agreement); and

WHEREAS , in connection with the Separation Agreement, the MatCo Licensors wish to grant to the AgCo Licensees, and the AgCo Licensors wish to grant to the MatCo Licensees, a license and other rights to certain of such Patents, Know-How, Copyrights and Software, in each case as and to the extent set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1     General . As used in this Agreement, the following terms shall have the meanings set forth in this Section  1.1 . Capitalized terms that are not defined in this Agreement shall have the meanings set forth in the Separation Agreement.

(1)    “ Action ” means any demand, action, claim, cause of action, suit, countersuit, arbitration, inquiry, case, litigation, subpoena, proceeding or investigation (whether civil, criminal or administrative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority.

(2)    “ AgCo Exclusive Patent Field ” means, with respect to each MatCo Exclusively Licensed Patent, the field of use corresponding thereto on Schedule F , and natural evolutions thereof; provided that the license granted under Section  2.2(c) hereof shall be non-exclusive with respect to such natural evolutions, and such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field.

(3)    “ AgCo Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule E to the extent Controlled by AgCo or any of its Affiliates as of the Effective Date and (ii) to the extent Controlled by AgCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents set forth on Schedule E (but in all cases expressly excluding any and all Excluded IP).

 

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(4)    “ AgCo Know-How Field ” means the field of the Agriculture Business, as defined in the Separation Agreement, including as set forth on, and subject to, Schedule D , and natural evolutions thereof.

(5)     “ AgCo Licensed Copyrights ” means any and all Copyrights to the extent Controlled by AgCo or any of its Affiliates, and Used in the Materials Science Business, as of the Effective Date, including the Copyrights set forth on Schedule B . Notwithstanding the foregoing, AgCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.

(6)    “ AgCo Licensed Engineering Standards ” means Engineering Standards (including as set forth on Schedule I(i) ), each, to the extent both (i) owned by AgCo or any of its Affiliates, or with respect to which AgCo or any of its Affiliates has the right to grant the license or other rights granted to MatCo hereunder without payment obligations to any Third Party, as of the Effective Date ( provided that , for any such Engineering Standards to be AgCo Licensed Engineering Standards as of or prior to the AgCo Distribution, such Intellectual Property also must constitute an Agriculture Asset) and (ii) (x) that is actually used in the operation of any Transferred Facility by MatCo or its Affiliates in the conduct of the Materials Science Business as of the Effective Date or (y) is reasonably necessary to use any Local Standard (including, for clarity, the Engineering Standards used in the creation, development or derivation of such Local Standard to the extent reasonably necessary to use such Local Standard). Notwithstanding the foregoing, the AgCo Licensed Engineering Standards shall expressly exclude (i) Regulatory Data, (ii) the MOD5 Systems Excluded IP owned by AgCo or any of its Affiliates, (iii) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (iv)Trademarks, and (v) the Intellectual Property set forth on Schedule A .

(7)    “ AgCo Licensed IP ” means the AgCo Licensed Patents, AgCo Licensed Know-How, and AgCo Licensed Copyrights.

(8)    “ AgCo Licensed Know-How ” means any and all Know-How to the extent Controlled by AgCo or any of its Affiliates, and Used in the Materials Science Business, as of the Effective Date, including the Know-How set forth on Schedule C . Notwithstanding the foregoing, AgCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(9)    “ AgCo Licensed Patents ” means any and all AgCo Non-Exclusively Licensed Patents and AgCo Exclusively Licensed Patents.

(10)    “ AgCo Licensed SHE Standards ” means the DuPont Safety, Health, and Environmental Standards (including as set forth on Schedule I(ii) ), each, to the extent both (i) owned by AgCo or any of its Affiliates, or with respect to which AgCo or any of its Affiliates has the right to grant the license or other rights granted to MatCo hereunder without payment obligations to any Third Party, as of the Effective Date ( provided that , for any such DuPont Safety, Health, and Environmental Standards to be AgCo Licensed SHE Standards as of or prior to the AgCo Distribution, such Intellectual Property also must constitute an Agriculture Asset) and (ii) (x) that is actually used in the operation of any Transferred Facility by MatCo or its Affiliates in the conduct of the Materials Science Business as of the Effective Date or (y) is

 

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reasonably necessary to use any Local Standard (including, for clarity, the DuPont Safety, Health, and Environmental Standards used in the creation, development or derivation of such Local Standard to the extent reasonably necessary to use such Local Standard). Notwithstanding the foregoing, the AgCo Licensed SHE Standards shall expressly exclude (i) Regulatory Data, (ii) the MOD5 Systems Excluded IP owned by AgCo or any of its Affiliates, (iii) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (iv) Trademarks, and (v) the Intellectual Property set forth on Schedule A .

(11)    “ AgCo Licensed Standards ” means the AgCo Licensed SHE Standards and the AgCo Licensed Engineering Standards.

(12)    “ AgCo Licensees ” means E.I. du Pont de Nemours and Company with respect to the licenses granted hereunder by Performance Materials NA, Inc., and DDP Agrosciences U.S. Inc. with respect to the licenses granted hereunder by The Dow Chemical Company.

(13)     “ AgCo Licensors ” means E.I. du Pont de Nemours and Company and Dow Agrosciences LLC.

(14)    “ AgCo Non-Exclusive Patent Field ” means (a) with respect to each Patent described within subsection (i) of the MatCo Non-Exclusively Licensed Patent definition, the field of use corresponding thereto on Schedule H , and natural evolutions thereof; provided that such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field, (b) with respect to each Patent described within subsection (ii) of the MatCo Non-Exclusively Licensed Patent definition, the AgCo Know-How Field, and (c) with respect to each Patent described within subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition, the field of use in which the MatCo Reference Patent for which such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition is a continuation, divisional, renewal, continuation-in-part, patent of addition, restoration, extension, supplementary protection certificate, reissue, or re-examination, or to which such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition otherwise claims priority, (and, for clarity, that supports the claims of such Patent described in subsection (iii) of the MatCo Non-Exclusively Licensed Patent definition) is licensed to AgCo and its Affiliates hereunder and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any MatCo Exclusive Patent Field.

(15)    “ AgCo Non-Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule G to the extent Controlled by AgCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any AgCo Licensed Know-How and are Controlled by AgCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by AgCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP) (such Patents described in the foregoing subsections (i) and (ii), the “ AgCo Reference Patents ”).

(16)     “ AgCo Patent Fields ” means the AgCo Exclusive Patent Fields and the AgCo Non-Exclusive Patent Fields.

 

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(17)     “ AgCo Scheduled Licensed Patents ” means the AgCo Licensed Patents listed on Schedule E and Schedule G hereto, to the extent Controlled by AgCo or any of its Affiliates as of the Effective Date (but expressly excluding any and all Excluded IP), which Schedules may be supplemented from time to time upon the written notice by AgCo or any of its Affiliates to MatCo (which notice shall not be effective until twenty (20) days of receipt by MatCo thereof) to include, to the extent Controlled by AgCo or any of its Affiliates at the relevant time, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, the Patents listed on Schedule E or Schedule G as of the Effective Date (as applicable), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents listed on Schedule E or Schedule G as of the Effective Date, as applicable.

(18)    “ Authorized User ” means MatCo and its Affiliates, including, for clarity, any Person that becomes an Affiliate of MatCo after the Effective Date (but, subject to Section  10.2 , only for so long as such Person remains an Affiliate of MatCo) and its and their Personnel.

(19)    “ Business Software ” means with respect to a Licensor, all Software to the extent Controlled by such Licensor or any of its Affiliates as of the Effective Date, which Software is reasonably required as of the Effective Date for the conduct of (i) the Agriculture Business if the Licensee is AgCo, including as listed on section (i) of Schedule Q , or (ii) the Materials Science Business if the Licensee is MatCo, including as listed on section (ii) of Schedule Q , in each case (in respect of the foregoing (i) and (ii)), only if and to the extent such Licensee and its Affiliates have not been granted a license or other rights to use such Software under the Separation Agreement or any other Ancillary Agreement. Notwithstanding the foregoing, Business Software expressly excludes any and all Excluded IP.

(20)    “ Confidential Information ” shall have the meaning provided to it in the Umbrella Secrecy Agreement.

(21)    “ Contract ” means any agreement, contract, subcontract, obligation, note, indenture, instrument, option, lease, sublease, promise, arrangement, release, warranty, license, sublicense, insurance policy, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(22)    “ Controlled ” means, with respect to any Patent, Know-How, Copyright or Software, (a) such Intellectual Property is owned by the applicable Party or any of its Affiliates ( provided that , for any such Intellectual Property to be Controlled by AgCo or any of its Affiliates as of or prior to the AgCo Distribution, such Intellectual Property also must constitute an Agriculture Asset) and (b) such Party or any of its Affiliates has the ability to grant a license or other rights in, to or under such Patent, Know-How, Copyright or Software (respectively) on the terms and conditions set forth herein (other than pursuant to a license or other rights granted pursuant to this Agreement) without violating any Contract entered into as of or prior to the Effective Date between such Party or any of its Affiliates, on the one hand, and any Third Party, on the other hand.

(23)    “ Controlling Party ” has the meaning set forth in Section  5.2(c) .

(24)    “ Cover ” means, with respect to any Patent, in the absence of a license granted under an unexpired claim that has not been adjudicated, without limitation to Section  8.3 , to be invalid or unenforceable by a final, binding decision of a court or other Governmental Entity of

 

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competent jurisdiction that is unappealable or unappealed within the time permitted for appeal of such Patent (or if such Patent is a patent application, a claim in such patent application if such patent application were to issue as a patent), the practice of the applicable invention or technology, or performance of the applicable process, would infringe such claim. For clarity, and by way of example, an issued Patent Covers a product if, in the absence of a license granted under such a claim of such Patent, making, using, selling, offering for sale, importing or exporting such product infringes such claim.

(25)    “ Designated AgCo Standards ” has the meaning set forth in Section  10.2(b)(ii) .

(26)    “ Discussion Notice ” has the meaning set forth in Section  8.3(b) .

(27)    “ Engineering Models and Databases ” means (a) physical property databases, (b) empirical or mathematical dynamic or steady state models of processes, equipment and/or reactions and databases containing data resulting from such models, (c) computations of equipment or unit operation operating conditions including predictive or operational behavior and (d) databases with historical operational data.

(28)    “ Engineering Standards ” means standards, protocols, processes and policies, including engineering guidelines, for designing, constructing, maintaining and operating facilities.

(29)    “ Excluded IP ” means (i) DuPont Safety, Health and Environmental Standards (including AgCo Licensed SHE Standards), (ii) Engineering Standards (including the AgCo Licensed Engineering Standards), (iii) Regulatory Data, (iv) Operating Systems and Tools (as that term is defined in the OS&T License Agreement), (v) the Licensed Software, Plant Configuration, Firmware, MOD TM 5 Hardware and MOD TM 5 Systems (as the foregoing terms in this subsection (v) are defined in the MOD TM 5 Software Agreement) (collectively, the “ MOD5 Systems Excluded IP ”), (vi) Trademarks, and (vii) the Intellectual Property set forth on Schedule A .

(30)    “ Exclusively Licensed IP ” means the AgCo Exclusively Licensed Patents and the MatCo Exclusively Licensed Patents.

(31)    “ Governmental Approvals ” means the consents, registrations, approvals, licenses, permits, notifications or authorizations obtained or to be obtained from, any Governmental Entity.

(32)    “ Governmental Entity ” means any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.

(33)    “ Holding Party ” has the meaning set forth in Section  2.12(a) .

(34)    “ Indemnifying Party ” has the meaning set forth in Section  6.1(a) .

(35)    “ Indemnitees ” has the meaning set forth in Section  6.1(a) .

 

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(36)    “ Intellectual Property ” means all intellectual property and industrial property rights of any kind or nature, including all U.S. and foreign (i) Patents, (ii) trademarks, service marks, corporate names, trade names, Internet domain names, social media accounts or handles, logos, slogans, trade dress and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “ Trademarks ”), (iii) copyrights and copyrightable subject matter (collectively, “ Copyrights ”), (iv) rights of privacy and publicity, (v) moral rights and rights of attribution and integrity, (vi) Know-How, (vii) all applications and registrations for the foregoing and (viii) all rights and remedies against past, present, and future infringement, misappropriation, or other violation of the foregoing, in each case (with respect to the foregoing clauses (i) through (viii)), excluding all IT Assets (except Software).

(37)    “ IT Assets ” means all (i) Software (including any Copyrights therein), computer systems, public Internet protocol address blocks, telecommunications equipment and other information technology infrastructure (including servers and server equipment, computers (including laptop computers), computer equipment and hardware, printers, telephones (including cell phones and smartphones) and telephone equipment (including headsets), network devices and equipment (including routers, wireless access points, switches and hubs), fiber and backbone cabling and other telecommunications wiring, demarcation points and rooms, computer rooms and telecommunications closets), (ii) documentation, reference, resource and training materials to the extent relating thereto, and (iii) Contracts to the extent relating to any of the foregoing clauses (i) and (ii) (including Software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, public Internet protocol address block agreements, website hosting agreements, Software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements and telecommunications agreements); provided , that, notwithstanding the foregoing, IT Assets shall exclude Know-How contained or stored in any of the items described in the foregoing subsections (i) through (iii) and Patents that claim any such Know-How.

(38)    “ Know-How ” means trade secrets and rights in all other confidential and proprietary information, including know-how, inventions, algorithms, logic, standard operating conditions and procedures, proprietary processes, formulae, data, databases and other compilations of data, drawings, models and methodologies, including confidential information set forth in laboratory notebooks, laboratory reports, Plant Operating Documents, and Engineering Models and Databases (except to the extent such information is Covered by any Patents), in each case of the foregoing, to the extent confidential and proprietary. For the avoidance of doubt, “Know-How” includes notices of invention and invention disclosures for which a Patent has not been filed as of the Effective Date ( e.g. , NOIs and ICDs, as such terms are understood and used by the Parties as of the Effective Date).

(39)    “ Know-How Materials ” means those written, electronic, computerized, digital or other similar tangible or intangible media to the extent containing or embodying any MatCo Licensed Know-How, AgCo Licensed Know-How, MatCo Licensed Copyrights, AgCo Licensed Copyrights, AgCo Licensed Standards or Business Software.

(40)    “ Licensed Copyrights ” means (i) with respect to the licenses granted to MatCo hereunder, the AgCo Licensed Copyrights and the Copyrights licensed under Section  2.3(b) and 2.4 hereof, and (ii) with respect to the licenses granted to AgCo hereunder, the MatCo Licensed Copyrights and the Copyrights licensed under Section  2.3(a) hereof.

 

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(41)    “ Licensed Facility ” means any facility owned by or operated on behalf of an Authorized User.

(42)    “ Licensed IP ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the AgCo Licensed IP, the Intellectual Property licensed under Sections 2.3(b) and 2.4 hereof, the Patents Controlled by AgCo or any of its Affiliates and licensed under Section  2.6 hereof, and the Business Software Controlled by AgCo or any of its Affiliates, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable, hereunder, the MatCo Licensed IP, the Intellectual Property licensed under Section  2.3(a) hereof, the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and the Business Software Controlled by MatCo or any of its Affiliates.

(43)    “ Licensed Know-How ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the AgCo Licensed Know-How and the Know-How licensed under Sections 2.3(b) and 2.4 hereof, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable, hereunder, the MatCo Licensed Know-How and the Know-How licensed under Section  2.3(a) hereof.

(44)    “ Licensed Patents ” means (i) with respect to the licenses granted to MatCo or the MatCo Licensees, as applicable, hereunder, the AgCo Licensed Patents, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable hereunder, the MatCo Licensed Patents.

(45)    “ Licensee ” means (i) the relevant AgCo Licensee with respect to the MatCo Licensed IP and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and AgCo and its applicable Affiliates with respect to the Intellectual Property licensed under Section  2.3(a) hereof and the Business Software Controlled by MatCo or any of its Affiliates hereunder, and (ii) the relevant MatCo Licensees with respect to the AgCo Licensed IP, the Intellectual Property licensed under Section  2.4 hereof, and the Patents Controlled by AgCo or any of its Affiliates and licensed under Section  2.6 hereof, and MatCo and its applicable Affiliates with respect to the Intellectual Property licensed under Section  2.3(b) hereof and the Business Software Controlled by AgCo or any of its Affiliates hereunder.

(46)    “ Licensor ” means (i) the AgCo Licensors with respect to the AgCo Licensed IP, the Intellectual Property licensed under Section  2.4 hereof, and the Patents Controlled by AgCo or any of its Affiliates and licensed under Section  2.6 hereof, and AgCo with respect to the Intellectual Property licensed under Section  2.3(b) hereof, and the Business Software Controlled by AgCo or any of its Affiliates, and (ii) the MatCo Licensors with respect to the MatCo Licensed IP and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 hereof, and MatCo with respect to the Intellectual Property licensed under Section  2.3(a) hereof and the Business Software Controlled by MatCo or any of its Affiliates.

(47)    “ Local Standards ” has the meaning set forth in Section  2.4(b) .

(48)    “ Manufacturing Product Agreement ” means those certain Manufacturing Product Agreement(s) and Product for Resale Agreement(s) between MatCo or its Affiliate on the one hand and AgCo or a member of the AgCo Group on the other hand, that have been entered into as of the Effective Date.

(49)    “ MatCo Exclusive Patent Field ” means, with respect to each AgCo Exclusively Licensed Patent, the field of use corresponding thereto on Schedule N , and natural evolutions thereof; provided that the license granted under Section  2.1(c) hereof shall be non-exclusive with respect to such natural evolutions, and such natural evolutions shall in no event include uses in any AgCo Exclusive Patent Field.

 

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(50)    “ MatCo Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule M to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date and (ii) to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues, and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents set forth on Schedule M (but in all cases expressly excluding any and all Excluded IP).

(51)    “ MatCo Know-How Field ” means the field of the Materials Science Business, as defined in the Separation Agreement, including as set forth on, and subject to, Schedule L , and natural evolutions thereof.

(52)    “ MatCo Licensed Copyrights ” means any and all Copyrights to the extent Controlled by MatCo or any of its Affiliates, and Used in the Agriculture Business, as of the Effective Date, including the Copyrights set forth on Schedule J . Notwithstanding the foregoing, MatCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.

(53)    “ MatCo Licensed IP ” means the MatCo Licensed Patents, MatCo Licensed Know-How and MatCo Licensed Copyrights.

(54)    “ MatCo Licensed Know-How ” means any and all Know-How to the extent Controlled by MatCo or any of its Affiliates, and Used in the Agriculture Business, as of the Effective Date, including the Know-How set forth on Schedule K . Notwithstanding the foregoing, MatCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(55)    “ MatCo Licensed Patents ” means any and all MatCo Exclusively Licensed Patents and MatCo Non-Exclusively Licensed Patents.

(56)    “ MatCo Licensees ” means Performance Materials NA, Inc. with respect to the licenses granted hereunder by E.I. du Pont de Nemours and Company and The Dow Chemical Company with respect to the licenses granted hereunder by Dow Agrosciences LLC.

(57)    “ MatCo Licensors ” means Performance Materials, NA Inc., and The Dow Chemical Company.

(58)    “ MatCo Non-Exclusive Patent Field ” means (a) with respect to each Patent described within subsection (i) of the AgCo Non-Exclusively Licensed Patent definition, the field of use corresponding thereto on Schedule P , and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any AgCo Exclusive Patent Field, (b) with respect to each Patent described within subsection (ii) of the AgCo Non-Exclusively Licensed Patent definition, the MatCo Know-How Field and (c) with respect to each Patent described within subsection (iii) of the AgCo Non-Exclusively Licensed Patent definition, the field of use in which the AgCo Reference Patent for which such Patent described in subsection (iii) of the AgCo Non-Exclusively Licensed Patent definition is a continuation, divisional,

 

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renewal, continuation-in-part, patent of addition, restoration, extension, supplementary protection certificate, reissue or re-examination, or to which such Patent described in subsection (iii) of the AgCo Non-Exclusively Licensed Patent definition otherwise claims priority, (and, for clarity, that supports the claims of such Patent described in subsection (iii) of the AgCo Non-Exclusively Licensed Patent definition) is licensed to MatCo and its Affiliates hereunder and natural evolutions thereof; provided that , such natural evolutions shall in no event include uses in any AgCo Exclusive Patent Field.

(59)     “ MatCo Non-Exclusively Licensed Patents ” means any and all (i) Patents set forth on Schedule O to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any MatCo Licensed Know-How and are Controlled by MatCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP) (such Patents described in the foregoing subsections (i) and (ii), the “ MatCo Reference Patents ”).

(60)    “ MatCo Patent Fields ” means the MatCo Exclusive Patent Fields and the MatCo Non-Exclusive Patent Fields.

(61)     “ MatCo Scheduled Licensed Patents ” means the MatCo Licensed Patents listed on Schedule M and Schedule O hereto, to the extent Controlled by MatCo or any of its Affiliates as of the Effective Date (but expressly excluding any and all Excluded IP), which Schedules may be supplemented from time to time upon the written notice by MatCo or any of its Affiliates to AgCo (which notice shall not be effective until twenty (20) days of receipt by AgCo thereof) to include, to the extent Controlled by MatCo or any of its Affiliates at the relevant time, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, the Patents listed on Schedule M or Schedule O as of the Effective Date (as applicable), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents listed on Schedule M or Schedule O as of the Effective Date, as applicable.

(62)    “ Merger Time ” means the effective time of the mergers of E. I. du Pont de Nemours and Company and the Dow Chemical Company with wholly owned subsidiaries of DowDuPont, Inc.

(63)    “ MOD TM 5 Software Agreement ” means that certain MOD TM 5 Computerized Process Control Software Agreement entered into by and between Rofan Services LLC and DDP Agrosciences U.S. Inc., dated as of the Effective Date.

(64)    “ Non-Practicing Entity ” means any Person for which such Person’s (and all of its Affiliates’) principal source of revenue is the offering of licenses or covenants not to sue or seeking damages through the prosecution of lawsuits with respect to Patents.

(65)    “ Notifying Party ” has the meaning set forth in Section  2.7(a) .

 

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(66)    “ OS&T License Agreement ” means that certain Operating Systems and Tools License Agreement entered into by and between Dow Global Technologies LLC and DDP Agrosciences U.S. Inc., dated as of the Effective Date.

(67)    “ Patent Challenge ” means any direct or indirect (including by voluntarily supporting an Action brought by another Person) challenge to the validity, patentability, enforceability or inventorship of any Scheduled Licensed Patent, including in (i) any court (including any declaratory judgment action), or (ii) activity or Action before a patent office or other Governmental Entity or registrar, including any reissue, reexamination, pre-grant review, post-grant review, opposition, inter partes review, third party observations, protest or similar proceeding.

(68)    “ Patent Challenge Liquidated Damages ” has the meaning set forth in Section  8.3(c)(ii)(4) .

(69)    “ Patent Challenge Notice ” has the meaning set forth in Section  8.3(a) .

(70)    “ Patents ” means patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof.

(71)    “ Personnel ” means, with respect to a Party or its Affiliates, such Party’s or Affiliate’s employees, officers, agents, consultants, and contractors, and any other Person over whom such Party or Affiliate exercises control.

(72)    “ Product ” means, with respect to each Manufacturing Product Agreement, the definition for “Product” as set forth in such Manufacturing Product Agreement, including those products set forth on Schedule S and Schedule T hereto.

(73)    “ Product Field of Use ” means, with respect to a Product supplied by or on behalf of one Party or any of its Affiliates to the other Party or any of its Affiliates under a Manufacturing Product Agreement, the “Field of Use” for such Product, as such term is defined in the applicable Manufacturing Product Agreement.

(74)    “ Promote ” means to solicit customers for, solicit orders for, advertise, market or otherwise promote.

(75)    “ Receiving Party ” has the meaning set forth in Section  2.7(a) .

(76)    “ Regulatory Data ” means any and all regulatory data (including studies, data, raw data, efficacy data, reports, physical samples, reviews (including business risk reviews), opinions, self-GRAS determinations, information or other compliance requirements, including safety, risk and exposure assessments and modeling for product contamination or impurity issues), in written, electronic, computerized, digital, or other tangible or intangible media, actually submitted to, or maintained to support a submission to (whether submitted or not), a Governmental Entity or a Third Party to seek, obtain or maintain a Governmental Approval or demonstrate regulatory compliance.

(77)    “ Requesting Party ” has the meaning set forth in Section  2.12(a) .

(78)    “ Scheduled Licensed Patents ” means the MatCo Scheduled Licensed Patents and the AgCo Scheduled Licensed Patents.

 

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(79)    “ Seller ” means the Party that is, or has one or more Affiliates that are, the “Seller” under a Manufacturing Product Agreement.

(80)    “ Software ” means all computer programs (whether in source code, object code, or other form), software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials related to any of the foregoing.

(81)     “ Sublicensee ” has the meaning set forth in Section  2.8(a) .

(82)    “ Term ” has the meaning set forth in Section  8.1 .

(83)    “ Terminated Licenses ” has the meaning set forth in Section  8.3(e) .

(84)    “ Third Party ” means any Person other than AgCo, MatCo, and their respective Affiliates.

(85)    “ Third Party Infringement ” has the meaning set forth in Section  5.1 .

(86)    “ Third Party Payments ” means any and all obligations on the part of Licensor or its Affiliates to pay royalties, sublicense fees, milestones or other amounts to Third Parties pursuant to Contracts existing as of the Effective Date (or, in the case of Wrong Pockets Patents, Contracts existing as of the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, in each case to the extent that such obligation to pay arises from, or is a result of the grant to or exercise by Licensee or any Sublicensees of, any license, sublicense or other right to practice granted hereunder.

(87)    “ Transferred Facility ” means any sites and facilities that were owned by AgCo or one of its Affiliates prior to the Effective Date and transferred to MatCo or one of its Affiliates as of the Effective Date as a result of the Internal Reorganization.

(88)    “ Umbrella Secrecy Agreement ” means the Umbrella Secrecy Agreement, dated as of the Effective Date, between MatCo, AgCo and the other signatories thereto.

(89)    “ Used ” means, with respect to the applicable Patent, Copyright or Know-How, that, as of the Effective Date, (i) such Intellectual Property is actually used, or (ii) (1) there is a bona fide plan and intention to use such Intellectual Property with a product that is expected to be commercially launched within eight and one half (8.5) years of the Effective Date or that is set forth on Schedule R , and (2) senior management has agreed to or approved, in writing, a capital investment or commitment to allocate resources or man-hours to implement such plan and intention, in each case in respect of the foregoing subsections (i) and (ii), as established by contemporaneous written records created in the ordinary course of business (which records shall be in a form consistent with the form that actual use, or similar plans and approvals, as applicable, were documented by the applicable Party (or its predecessors in interest) prior to the Merger Time).

(90)    “ Wrong Pockets Notice ” shall have the meaning set forth in Section  2.7(a) .

(91)    “ Wrong Pockets Patent ” shall have the meaning set forth in Section  2.7(c) .

 

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Section 1.2     References; Interpretation . For the purposes of this Agreement, (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) the Parties have each participated in the negotiation and drafting of this Agreement and, except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” means calendar days unless Business Days are expressly specified; (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (m) any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (n) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (o) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (p) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (q) any consent given by any Party pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “MatCo” shall also be deemed to refer to the applicable member of the MatCo Group, references to “AgCo” shall also be deemed to refer to the applicable member of the AgCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by MatCo or AgCo shall be deemed to require MatCo or AgCo, as the case may be, to cause the applicable members of the MatCo Group or the AgCo Group, respectively, to take, or refrain from taking, any such action.

ARTICLE II

GRANTS OF RIGHTS

Section 2.1     Licenses to MatCo of AgCo Licensed IP .

(a)     Non-Exclusive License to Know-How and Copyrights . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the AgCo Licensors hereby grant, and AgCo shall cause its Affiliates to grant, to the relevant MatCo Licensees an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the AgCo Licensed Know-How and the AgCo Licensed Copyrights for any and all uses in the MatCo Know-How Field. For clarity, subject to the terms and conditions of this Agreement, the

 

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license in, to and under the applicable AgCo Licensed IP set forth in this Section  2.1(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the MatCo Know-How Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such AgCo Licensed IP, within the MatCo Know-How Field.

(b)     Non-Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the AgCo Licensors hereby grant to the relevant MatCo Licensees as set forth on Schedule G , as applicable, an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the AgCo Non-Exclusively Licensed Patents for any and all uses in the applicable MatCo Non-Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the AgCo Non-Exclusively Licensed Patents set forth in this Section  2.1(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable MatCo Non-Exclusive Patent Field.

(c)     Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.1(d) ), the AgCo Licensors hereby grant to the relevant MatCo Licensees as set forth on Schedule E , as applicable, an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, exclusive (even as to AgCo and its Affiliates, but subject to Section  8.3 ) license in, to and under the AgCo Exclusively Licensed Patents for any and all uses in the applicable MatCo Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the AgCo Exclusively Licensed Patents set forth in this Section  2.1(c) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable MatCo Exclusive Patent Field.

(d)     Products Supplied Under Manufacturing Product Agreements . With respect to Products supplied to MatCo or its Affiliates under the Manufacturing Product Agreement for which AgCo or any of its Affiliates is Seller, the rights granted in this Section  2.1 shall include rights under the applicable AgCo Licensed IP to (i) use, sell, offer for sale, market, promote, distribute, import and export, certify, submit for registration, and permit sub-registration of such Products (which, for clarity, are set forth on Schedule S ) and (ii) solely upon the delivery of a Shortfall Transition Request, a Voluntary Project Transition Request or a Termination Transition Request (as the foregoing terms are defined in the applicable Manufacturing Product Agreement) and solely to the extent permitted under the applicable Manufacturing Product Agreement, make and have made such Products, in each case of (i) and (ii), solely in the applicable Product Field of Use, but, notwithstanding anything to the contrary herein, shall not otherwise include rights to make or have made any such Products.

Section 2.2     Licenses to AgCo of MatCo Licensed IP .

(a)     Non-Exclusive License to Know-How and Copyrights . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant, and MatCo shall cause its Affiliates to grant, to the relevant AgCo Licensees an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the

 

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MatCo Licensed Know-How and MatCo Licensed Copyrights for any and all uses in the AgCo Know-How Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the applicable MatCo Licensed IP set forth in this Section  2.2(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the AgCo Know-How Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such MatCo Licensed IP, within the AgCo Know-How Field.

(b)     Non-Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant to the relevant AgCo Licensees as set forth on Schedule O , as applicable, an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license in, to and under the MatCo Non-Exclusively Licensed Patents for any and all uses in the applicable AgCo Non-Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the MatCo Non-Exclusively Licensed Patents set forth in this Section  2.2(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable AgCo Non-Exclusive Patent Field.

(c)     Exclusive License to Patents . Subject to the terms and conditions of this Agreement (including Section  2.2(d) ), the MatCo Licensors hereby grant to the relevant AgCo Licensees as set forth on Schedule M , as applicable, an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, exclusive (even as to MatCo and its Affiliates, but subject to Section  8.3 ) license in, to and under the MatCo Exclusively Licensed Patents for any and all uses in the applicable AgCo Exclusive Patent Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the MatCo Exclusively Licensed Patents set forth in this Section  2.2(c) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the applicable AgCo Exclusive Patent Field.

(d)     Products Supplied Under Manufacturing Product Agreements . With respect to Products supplied to AgCo or its Affiliates under the Manufacturing Product Agreement for which MatCo or any of its Affiliates is Seller, the rights granted in this Section  2.2 shall include rights under the applicable MatCo Licensed IP to (i) use, sell, offer for sale, market, promote, distribute, import and export, certify, submit for registration, and permit sub-registration of such Products (which, for clarity, are set forth on Schedule T ) and (ii) solely upon the delivery of a Shortfall Transition Request, a Voluntary Project Transition Request or a Termination Transition Request (as the foregoing terms are defined in the applicable Manufacturing Product Agreement) and solely to the extent permitted under the applicable Manufacturing Product Agreement, make and have made such Products, in each case of (i) and (ii), solely in the applicable Product Field of Use, but, notwithstanding anything to the contrary herein, shall not otherwise include rights to make or have made any such Products.

Section 2.3     Licenses for Product Supply .

(a)    Subject to the terms and conditions of this Agreement, MatCo hereby grants, and shall cause its Affiliates to grant, to AgCo and its Affiliates a royalty-free, fully paid-up, worldwide non-exclusive license in, to and under (i) the MatCo Licensed IP, and

 

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(ii) any other Intellectual Property (except any Excluded IP) to the extent as of the Effective Date, MatCo or its Affiliates has the ability to grant the license set forth in this Section  2.3(a) , and the related rights set forth herein, on the terms and conditions set forth herein without violating any Contract entered into as of or prior to the Effective Date between MatCo or any of its Affiliates, on the one hand, and any Third Party, on the other hand (subject to Section  2.9 hereof), in each case (with respect to the foregoing subsections (i) and (ii)), solely to the extent reasonably necessary to perform AgCo’s and its Affiliates’ obligations as Seller under the Manufacturing Product Agreements, including to manufacture for and supply to MatCo the Products under such Manufacturing Product Agreements in accordance with and subject to the terms thereof.

(b)    Subject to the terms and conditions of this Agreement, AgCo hereby grants, and shall cause its Affiliates to grant, to MatCo and its Affiliates a royalty-free, fully paid-up, worldwide non-exclusive license in, to and under (i) the AgCo Licensed IP and (ii) any other Intellectual Property (except any Excluded IP) to the extent as of the Effective Date, AgCo or its Affiliates has the ability to grant the license set forth in this Section  2.3(b) , and the related rights set forth herein, on the terms and conditions set forth herein without violating any Contract entered into as of or prior to the Effective Date between AgCo or any of its Affiliates, on the one hand, and any Third Party, on the other hand (subject to Section  2.9 hereof) ( provided that , for any such Intellectual Property to be licensed by AgCo or any of its Affiliates under this Section  2.3(b) as of or prior to the AgCo Distribution, such Intellectual Property also must constitute an Agriculture Asset), in each case (with respect to the foregoing subsections (i) and (ii)), solely to the extent reasonably necessary to perform MatCo’s and its Affiliates’ obligations as Seller under the Manufacturing Product Agreements, including to manufacture for and supply to AgCo the Products under such Manufacturing Product Agreements in accordance with and subject to the terms thereof.

(c)    The licenses granted in this Section  2.3 shall be sublicensable in writing to subcontractors to the extent permitted under the applicable Manufacturing Product Agreements, in accordance with, and subject to, the terms of the applicable Manufacturing Product Agreements.

Section 2.4     License to AgCo Licensed Standards .

(a)    Subject to the terms and conditions of this Agreement, the applicable AgCo Licensors hereby grant, and AgCo shall cause its Affiliates to grant, to the relevant MatCo Licensees, an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), non-exclusive license to use the AgCo Licensed Standards at the Licensed Facilities solely in connection with the conduct of the Materials Science Business by MatCo or any of its Affiliates. Without limiting the foregoing, the grant in this Section  2.4 includes a right and license to use, reproduce, distribute, display, perform, adapt, modify and create derivative works of the AgCo Licensed Standards by and among the Authorized Users only for the licensed uses set forth in this Section  2.4 .

(b)    Notwithstanding anything to the contrary herein, neither AgCo nor any of its Affiliates shall have any obligation with respect to training MatCo or any of its Affiliates to implement or use the AgCo Licensed Standards. For clarity, the AgCo Licensed Standards shall not be subject to any updates by AgCo or its Affiliates (even if AgCo or its Affiliates update the same for their own use). The Parties acknowledge that from time to time applicable Law may conflict with and supersede aspects of AgCo Licensed Standards and

 

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Licensor shall have no obligation to Licensee with respect thereto in such event. For clarity, as between the Parties, MatCo shall own all Intellectual Property (including, for clarity, Copyrights) in any DuPont Safety, Health and Environmental Standards or Engineering Standards that constitute Intellectual Property included in the Materials Science Assets (“ Local Standards ”).

Section 2.5     Business Software License . Subject to the terms and conditions of this Agreement, Licensor (or its Affiliate, as applicable) hereby grants, and shall cause its Affiliates to grant, to Licensee (or its Affiliate, as applicable) an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to its Business Software for use solely in connection with, if such Licensee is AgCo, the Agriculture Business or, if such Licensee is MatCo, the Materials Science Business.

Section 2.6     Heritage Products License .

(a)    Subject to the terms and conditions of this Agreement, The Dow Chemical Company hereby grants, and MatCo shall cause its Affiliates to grant, to E. I. du Pont de Nemours and Company an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to any and all Patents that (i) were Controlled by E. I. du Pont de Nemours and Company or any of its then-Affiliates as of immediately prior to the Merger Time and (ii) are Controlled by MatCo or any of its Affiliates as of the Effective Date as a result of the Internal Reorganization, together with, to the extent Controlled by MatCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents (the foregoing, collectively, the “ MatCo Transferred Patents ”) to make (including have made), use, sell, offer for sale, import, and export, solely in the AgCo Know-How Field, products sold commercially by or on behalf of E. I. du Pont de Nemours and Company and its then-Affiliates at any time prior to the Merger Time, other than products included in the Specialty Products Business or the Materials Science Business (the “ AgCo Heritage Products ”) in the same manner (in all material respects) as such AgCo Heritage Products were made, used, sold, offered for sale, imported and exported by such Persons prior to the Merger Time (the “ AgCo Restricted Heritage Uses ”) and updates, enhancements, modifications and similar evolutions thereof in which the essential character of such AgCo Heritage Product and AgCo Restricted Heritage Use are retained in all material respects. Solely to the extent its rights to such product derive from the license granted under this Section  2.6(a) , and upon MatCo’s written request identifying such product or use, AgCo shall reasonably promptly demonstrate (and shall use commercially reasonable efforts to demonstrate within sixty (60) days following such request) to MatCo by clear and convincing evidence comprised of contemporaneous written records (which records shall be in a form consistent with the form that commercial sales (with respect to a purported AgCo Heritage Product) or actual use (with respect to a purported AgCo Restricted Heritage Use) was documented by AgCo (or its predecessors in interest)) created prior to the Merger Time in the ordinary course of business that a product qualifies as an AgCo Heritage Product (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant) and that the use thereof qualifies as an AgCo Restricted Heritage Use (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant).

 

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(b)    Subject to the terms and conditions of this Agreement, the applicable AgCo Licensors hereby grant, and AgCo shall cause its Affiliates to grant, to Performance Materials NA, Inc. an irrevocable (subject to Section  8.3 ), royalty-free, fully paid-up, sublicensable (to the extent permitted in Section  2.8 ), transferable (subject to Section  10.2 ), worldwide, non-exclusive license to any and all Patents that (i) were Controlled by the Dow Chemical Company or any of its then-Affiliates as of immediately prior to the Merger Time, (ii) are Controlled by AgCo or any of its Affiliates as of the Effective Date as a result of the Internal Reorganization, together with, to the extent Controlled by AgCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, such Patents and foreign equivalents thereof, in each case to the extent the claims are supported by such Patents (the foregoing, collectively, the “ AgCo Transferred Patents ”) to make (including have made), use, sell, offer for sale, import, and export, solely in the MatCo Know-How Field, products sold commercially by or on behalf of the Dow Chemical Company and its then-Affiliates at any time prior to the Merger Time, other than products included in the Agriculture Business or the Specialty Products Business (the “ MatCo Heritage Products ”) in the same manner (in all material respects) as such MatCo Heritage Products were made, used, sold, offered for sale, imported and exported by such Persons prior to the Merger Time (the “ MatCo Restricted Heritage Uses ”) and updates, enhancements, modifications and similar evolutions thereof in which the essential character of such MatCo Heritage Product and MatCo Restricted Heritage Use are retained in all material respects. Solely to the extent its rights to such product derive from the license granted under this Section  2.6(b) , and upon AgCo’s written request identifying such product or use, MatCo shall reasonably promptly demonstrate (and shall use commercially reasonable efforts to demonstrate within sixty (60) days following such request) to AgCo by clear and convincing evidence comprised of contemporaneous written records (which records shall be in a form consistent with the form that commercial sales (with respect to a purported MatCo Heritage Product) or actual use (with respect to a purported MatCo Restricted Heritage Use) was documented by MatCo (or its predecessors in interest)) created prior to the Merger Time in the ordinary course of business that a product qualifies as a MatCo Heritage Product (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant) and that the use thereof qualifies as a MatCo Restricted Heritage Use (or an update, enhancement, modification or similar evolution thereof within the scope of the foregoing license grant).

Section 2.7     Wrong Pockets .

(a)     A Party (a “ Notifying Party ”) shall have the right to provide prompt written notice (a “ Wrong Pockets Notice ”) to the other Party (a “ Receiving Party ”), including in response to an inquiry from the Receiving Party, if, following the Effective Date:

(i)    a Notifying Party identifies a Patent Controlled by the other Party as of the Effective Date that is not included in the Licensed Patents licensed to such Notifying Party, and such Notifying Party reasonably believes that such Patent was Used in the Agriculture Business or the Materials Science Business, as applicable, as of the Effective Date; or

(ii)    a Notifying Party identifies a Use by such Notifying Party of a Licensed Patent that is not (1) in the case of a Notifying Party that Controls such Licensed Patent, within the scope of its retained rights ( i.e. , such use is within the scope of the Receiving Party’s exclusively licensed field of use

 

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with respect to such Patent hereunder) or (2) in the case of a Notifying Party that is the Licensee, within such Notifying Party’s licensed field of use hereunder ( i.e. , such use is not captured by any MatCo Patent Field or AgCo Patent Field, as applicable), and, in each case (in respect of the foregoing (1) and (2)), such Notifying Party reasonably believes that the Use of such Licensed Patent as of the Effective Date was within the Agriculture Business (if AgCo is the Notifying Party) or the Materials Science Business (if MatCo is the Notifying Party).

(b)    Each Wrong Pockets Notice shall both identify the applicable Patent and describe the Use thereof in the Agriculture Business (if the Notifying Party is AgCo), or the Materials Science Business (if the Notifying Party is MatCo), as of the Effective Date.

(c)    Unless otherwise agreed in writing by the Parties, if a Notifying Party provides a Wrong Pockets Notice in accordance with Section  2.7(a) , the Notifying Party shall, within sixty (60) days of providing the Wrong Pockets Notice, demonstrate to the Receiving Party by clear and convincing evidence (the “ Evidentiary Requirement ”) that the identified Patent was Used in the manner identified in the Wrong Pockets Notice within the Agriculture Business (if the Notifying Party is AgCo) or the Materials Science Business (if the Notifying Party is MatCo) as of the Effective Date (such evidence, the “ Demonstration of Use ”). The Receiving Party shall notify the Notifying Party in writing within thirty (30) days of receipt of the Demonstration of Use whether it reasonably believes in good faith that the Demonstration of Use satisfies the Evidentiary Requirement. Solely to the extent (with respect to the Patent and Use identified in the applicable Wrong Pockets Notice) that the Demonstration of Use satisfies the Evidentiary Requirements (whether determined by the Receiving Party in accordance with the foregoing, or in accordance with Section  9.1 ), or if the Receiving Party fails to provide the Notifying Party with a response regarding whether the Demonstration of Use satisfies the Evidentiary Requirements within the applicable thirty (30) day period in accordance with the foregoing, such Patent shall be licensed to the Notifying Party for such Use (in the case of a Wrong Pockets Notice described in Section  2.7(a)(i) ) (each such Patent, a “ Wrong Pockets Patent ”), such Use shall be included in the Notifying Party’s retained field of use with respect to such Patent (in the case of a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) ), or such Use shall be included in the Notifying Party’s field of use for such Patent (in the case of a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) ), as applicable, in each case, as further described in the following subsections (i) through (iii).

(i)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in Section  2.7(a)(i) , each Patent identified in such notice (if the Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) shall be a MatCo Non-Exclusively Licensed Patent if AgCo is the Notifying Party or an AgCo Non-Exclusively Licensed Patent if MatCo is the Notifying Party, and for clarity, the license to the Notifying Party therefor shall be non-exclusive and the field for which it is licensed pursuant to this Agreement (which, for clarity, shall be deemed to be an AgCo Non-Exclusive Patent Field if AgCo is the Notifying Party and a MatCo Non-Exclusive Patent Field if MatCo is the Notifying Party) shall be limited solely to the Use made by such Notifying Party and its Affiliates as of the Effective Date (to the extent that the Demonstration of Use therefor satisfies the Evidentiary Requirement) and natural evolutions thereof, subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

 

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(ii)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) , each Use for a Licensed Patent identified in the Wrong Pockets Notice in the Notifying Party’s retained field of use for such Patent (to the extent the Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) shall be deemed to be an AgCo Non-Exclusive Patent Field if AgCo is the Receiving Party and a MatCo Non-Exclusive Patent Field if MatCo is the Receiving Party, and such Use and natural evolutions thereof shall no longer be included in the exclusive field for which such Patent is licensed to the Receiving Party pursuant to this Agreement; provided that the rights with respect to such Use retained by the Notifying Party shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of the Receiving Party or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

(iii)    Subject to the foregoing in this Section  2.7(c) , unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) , each Use for a Licensed Patent identified in the Wrong Pockets Notice (to the extent that Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section  2.7(c) ) and natural evolutions thereof shall be deemed to be an AgCo Non-Exclusive Patent Field if AgCo is the Notifying Party and a MatCo Non-Exclusive Patent Field if MatCo is the Notifying Party and the license granted to such field shall be nonexclusive; provided that the rights with respect to such Use retained by the Notifying Party shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of the Receiving Party or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

(d)    Notwithstanding anything to the contrary herein, unless otherwise agreed upon by the Parties, each Party shall only have two (2) years after the Effective Date to provide a Wrong Pockets Notice pursuant to Section  2.7(a) to the other Party; provided that , in the case of Section  2.7(a)(i) , with respect to Patent applications filed prior to the Effective Date, such period shall extend until the date that is six (6) months after the publication of such Patent application if the expiration of such six (6) month period occurs after such two (2) year period expires.

 

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(e)    Notwithstanding the foregoing Sections 2.7(a) through (d) , unless and only to the extent that the Receiving Party provides its prior written consent (which the Receiving Party may withhold in its sole discretion), in the event that the Parties expressly discussed prior to the Effective Date that:

(i)    any Patent would not be included in the Notifying Party’s Licensed Patents in the case of a Wrong Pockets Notice described in Section  2.7(a)(i) , such Patent shall not be included in the Notifying Party’s Licensed Patents ( provided that , in determining that such Patent would not be a Licensed Patent hereunder, the Parties discussed prior to the Effective Date the Use identified in the Wrong Pockets Notice for such Patent);

(ii)    any Use would not be included in the Notifying Party’s retained field of use for a specific Licensed Patent in the case of a Wrong Pockets Notice described in subsection (1) of Section  2.7(a)(ii) , such Use shall not be included in the Notifying Party’s retained field of use for such Patent; and

(iii)    any Use would not be included in the Notifying Party’s field of use for a specific Licensed Patent in the case of a Wrong Pockets Notice described in subsection (2) of Section  2.7(a)(ii) (as applicable), such Use shall not be included in the Notifying Party’s licensed field of use for such Patent.

(f)     For clarity, (i) AgCo and its Affiliates shall not be required to submit a Wrong Pockets Notice with respect to any AgCo Restricted Heritage Use of an AgCo Heritage Product under an AgCo Transferred Patent or any update, enhancement, modification or similar evolution thereof licensed under Section  2.6 , and (ii) MatCo and its Affiliates shall not be required to submit a Wrong Pockets Notice with respect to any MatCo Restricted Heritage Use of a MatCo Heritage Product under a MatCo Transferred Patent or any update, enhancement, modification or similar evolution thereof licensed under Section  2.6 .

Section 2.8     Sublicenses .

(a)    Licensee may sublicense the license and rights granted to Licensee under Sections 2.1 , 2.2 , 2.4, 2.5 and 2.6 (as applicable) to (a) its Affiliates and (b) Third Parties in connection with the operation of the business of Licensee or its Affiliates, but not for the independent use of any such Third Party, including distributors that need to practice the applicable Intellectual Property to provide ordinary course distribution services to Licensee and its Affiliates; provided that , with respect to the AgCo Licensed Standards, sublicensing to such Third Parties shall be solely for such Third Parties to provide services to the Materials Science Business in the ordinary course at any or all Licensed Facilities (but not for the independent use of such Third Party), and (c) with the prior written consent of Licensor, other Third Parties (each such Affiliate or Third Party, or subcontractor granted a sublicense under Section  2.3 , a “ Sublicensee ”).

(b)    Each sublicense granted by a Licensee under the license granted to such Licensee in Sections 2.1 , 2.2 , 2.4 , 2.5 and 2.6 shall be granted pursuant to an agreement that (i) is subject to, and consistent with, the terms and conditions of this Agreement and includes provisions at least as protective of Licensor and its Affiliates as the provisions of this Agreement (except that such sublicense shall not be required to provide rights for Licensor to audit Sublicensee in accordance with, and subject to, Section  2.13 (1) if the sublicense is granted to an Affiliate, (2) with respect to sublicenses of Licensed Know-How, Licensed Copyrights or Business Software where the primary purpose of such arrangement with sublicensee is not to grant access to such Licensed Know-How, Licensed Copyrights or Business Software or (3) with respect to sublicenses of the licenses granted under Section  2.6 ), (ii) to the extent with respect to Licensed Patents or AgCo Licensed Standards and if Sublicensee is a Third Party, provides that

 

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Licensor shall be an intended beneficiary thereunder with the right of direct enforcement against the Sublicensee (including, for clarity, with respect to the audit rights set forth in Section  2.13 to the extent applicable), and (iii) to the extent with respect to Licensed Patents or AgCo Licensed Standards, is in writing if the Sublicensee is a Third Party. For clarity, granting a sublicense shall not relieve Licensee of any obligations hereunder and Licensee shall cause each of its Sublicensees to comply, and shall remain responsible for its Sublicensees’ compliance, with the terms hereof applicable to Licensee.

Section 2.9     Third Party Rights .

(a)    Notwithstanding anything to the contrary herein, the terms and conditions of this Agreement (including the licenses granted under Sections 2.1 through 2.6 ) are subject to any and all rights of and obligations owed to any Third Parties with respect to the Licensed IP under any Contracts existing as of the Effective Date (or in the case of any Wrong Pockets Patents, existing as of or prior to the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, and to the extent that, as a result of such rights or obligations, any license or other rights granted hereunder: (i) may not be granted without the consent of or payment of a fee or other consideration; or (ii) will cause Licensor or any of its Affiliates to be in breach of any of its or their obligations to any Third Party, the applicable licenses and other rights granted hereunder shall only be granted to the extent such consent has been obtained or such fee or other consideration has been paid. Except for any Intellectual Property licensed pursuant to Section  2.3 , the Parties shall use commercially reasonable efforts to obtain any such consents to the extent required to grant Licensee the rights granted hereunder; provided that , (i) the foregoing shall not require the Parties to duplicate any obligations undertaken under the Separation Agreement and (ii) notwithstanding anything herein to the contrary, Licensor shall have no obligation to agree to or make any payments or other concessions, except as mutually agreed in writing between the Parties, or participate in any act or omission that will cause Licensor to be in breach of its or their obligations to any Third Party. Notwithstanding the foregoing, Licensee shall not be deemed in breach of this Section  2.9(a) only if, and for such time, Licensee is not aware of such rights of or obligations owed to such Third Party.

(b)    Notwithstanding anything to the contrary herein, Third Party Payments, if any, with respect to the Licensed IP (except for any Intellectual Property licensed under Section  2.3 ) shall be Licensee’s sole responsibility. Licensee shall pay the Third Party Payments directly to the applicable Third Party; provided that if such Third Party does not permit Licensee to pay such Third Party Payments to such Third Party directly (whether pursuant to the applicable Contract or otherwise) after the Parties have used commercially reasonable efforts to permit the Licensee to pay the Third Party directly, the Parties shall cooperate in good faith to ensure that such Third Party Payments are paid by Licensee to Licensor in a manner that ensures Licensor’s payment thereof is in compliance with the obligations to the applicable Third Party. Such cooperation shall include Licensee (i) preparing and providing Licensor with reasonably detailed written reports reflecting calculation of the applicable Third Party Payments and any other information required by the applicable Third Parties and (ii) paying Licensor the applicable Third Party Payments by wire transfer of immediately available funds to the bank account designated by Licensor in writing no less than ten (10) days prior to the due date of such payment pursuant to the terms of the applicable Contract. If either Party becomes aware of any Third Party Payments, it shall reasonably promptly notify the other Party in writing, and notwithstanding anything to the contrary in this Section  2.9(b) , Licensee shall not be deemed in breach of this Section  2.9(b) if, and for such time, Licensee is not aware of the applicable Third

 

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Party Payments; provided that , upon learning of such Third Party Payments, Licensee shall promptly pay such Third Party Payments to the applicable Third Party directly (or such other Person as reasonably directed by Licensor) to the extent such Third Party Payments are past due.

(c)    Certain agreements subject to Subsections (a) and (b) hereof are set forth on Schedule U hereto.

Section 2.10     No Use or Promotion Outside Field . Each Party shall not, and shall cause its Affiliates to not: (a) as Licensee, exercise rights under any Licensed IP except to the extent expressly licensed hereunder or expressly agreed upon in advance in writing by Licensor, and (b) without limiting the foregoing, (1) if such Party is MatCo, Promote use of products or services (A) Covered by an issued AgCo Licensed Patent outside the MatCo Patent Field, or (B) Covered by an issued MatCo Licensed Patent in the AgCo Exclusive Patent Field, or (2) if such Party is AgCo, Promote products or services (x) Covered by an issued MatCo Licensed Patent outside the AgCo Patent Field, or (y) Covered by an issued AgCo Licensed Patent in the MatCo Exclusive Patent Field (the field of use restrictions described in the foregoing clauses (1) and (2), “ Field Restrictions ”). There shall be no affirmative obligation hereunder on either Party to monitor its customers’ use of such Party’s products or services. For clarity, products or services sold by a Party under this Agreement are not authorized sales under the Patent licenses granted herein for any use outside the Field Restrictions.

Section 2.11     Reservation of Rights . Each Party reserves its and its Affiliates’ rights in and to all Intellectual Property that is not expressly licensed or otherwise granted hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon either Party, its Affiliates, or its Sublicensees by implication, estoppel, or otherwise as to any of the other Party’s Intellectual Property (including, for clarity, any Excluded IP, except to the extent expressly licensed under Section  2.4 ).

Section 2.12     Retention and Transfer of Licensed Know-How .

(a)    If AgCo or MatCo (the “ Requesting Party ”) reasonably believes that any Know-How Materials are in possession or control of the other Party (such Party, the “ Holding Party ”) or any of its Affiliates and such Know-How Materials are not in the possession or control of the Requesting Party or any of its Affiliates, and the Requesting Party makes a request in writing during the two (2) year period following the Effective Date that the Holding Party deliver the Know-How Materials to the Requesting Party, the Holding Party shall review such request and, to the extent in the possession or control of the Holding Party or any of its Affiliates and, for purposes of Business Software only, is reasonably accessible to the Holding Party for purposes of transfer to the Requesting Party (provided that, subject to the below provisos, such accessibility shall not take into account whether such Business Software is integrated with other Software), deliver the Know-How Materials to the Requesting Party as promptly as reasonably practicable and in any event within thirty (30) Business Days of receiving such request from the Requesting Party; provided that , the Holding Party shall notify the Requesting Party within such thirty (30) Business Day period if it reasonably believes that such request requires a longer period of review to determine if the request concerns MatCo Licensed Know-How, AgCo Licensed Know-How, MatCo Licensed Copyrights, AgCo Licensed Copyrights, AgCo Licensed Standards or Business Software (as applicable) or to locate the applicable Know-How Materials, and the Holding Party shall take all reasonable steps to review and provide such Know-How Materials (as applicable) within an additional sixty (60) days of

 

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expiration of such initial thirty (30) Business Day period; provided , further , with respect to any Business Software requested by a Requesting Party hereunder that is integrated with other Software, the Parties shall discuss in good faith a reasonable deadline in lieu of the foregoing timing for delivering any such Business Software to the Requesting Party, and the Requesting Party agrees that it shall bear all reasonable out-of-pocket costs and expenses of preparing such Software for delivery subject to the Requesting Party’s advance approval of such costs; provided , further , to the extent the request does not constitute MatCo Licensed Know-How, MatCo Licensed Copyrights or Business Software (if the Requesting Party is AgCo) or AgCo Licensed Know-How, AgCo Licensed Copyrights, AgCo Licensed Standards, or Business Software (if the Requesting Party is MatCo), the Holding Party shall not be required to deliver such Know-How Materials to the Requesting Party, but shall provide the Requesting Party with an explanation in reasonable detail of the basis of such determination and shall make itself and its relevant Affiliates available to discuss in good faith with the Requesting Party.

(b)    For clarity, and notwithstanding anything to the contrary, in no event shall Licensor or its Affiliates be required hereunder to provide any written, electronic, computerized, digital or other tangible or intangible media to the extent comprising, containing, reflecting or embodying any MatCo Licensed Know-How, AgCo Licensed Know-How, MatCo Licensed Copyrights, AgCo Licensed Copyrights, AgCo Licensed Standards, or Business Software to Licensee, that (i) has already been provided to, or is in the possession of, Licensee or its Affiliates or (ii) is used to make any Products. For the avoidance of doubt, nothing in this Agreement shall be interpreted as requiring that Licensor or any of its Affiliates transfer or grant access to tangible biological material to Licensee or any of its Affiliates.

Section 2.13     Audit . Not more than once per year, or at any time a Party has a reasonable, good faith belief that the other Party has materially breached this Agreement, or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement, and provides written notice to such other Party as well as detailed documentation or other evidence of such alleged breach, upon thirty (30) days’ advance written notice, such first Party may cause an independent Third Party auditor that is reasonably acceptable to the audited Party and subject to written confidentiality obligations that are reasonably acceptable to the audited Party to audit, during regular business hours and in a manner that complies with the reasonable building and security requirements of the audited Party and its Affiliates, the books, records and facilities of such audited Party and its Affiliates to the extent reasonably necessary to determine such audited Party’s and its Affiliates’ compliance with this Agreement or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement. Any audit conducted under this Section  2.13 shall not interfere unreasonably with the operations of such audited Party or any of its Affiliates. The Party requesting the audit shall pay the costs of conducting such audit; provided that if such audit reveals a material breach of this Agreement or (to the extent with respect to this Agreement), the Umbrella Secrecy Agreement, the audited Party shall pay all such costs. Upon conclusion of the audit, the Third Party auditor shall furnish to both Parties a report stating only its findings during such audit as to whether or not the audited Party is in compliance with this Agreement, and if such audit has revealed a breach, shall include no more information than is reasonably necessary to provide the basis for such finding. All information learned or obtained from such audit shall be deemed Confidential Information for purposes of this Agreement. Notwithstanding anything to the contrary in this Section, the audited Party may require that the Third Party conducting the audit pursuant to this Section  2.13 be accompanied by the audited Party’s (and in the case of an audit of its Affiliates or Sublicensees, its Affiliate’s or its Sublicensee’s, respectively) representatives at all times during such audit. For clarity, Licensee shall cause its Affiliates that are Sublicensees to comply with this Section  2.13 .

 

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ARTICLE III

OWNERSHIP

Section 3.1     Ownership . As between the Parties (including their respective Affiliates), (a) AgCo acknowledges and agrees that MatCo and its Affiliates own the MatCo Licensed IP, the Intellectual Property licensed to AgCo under Section  2.3(a) , the Business Software licensed to AgCo under Section  2.5 , and the Patents Controlled by MatCo or any of its Affiliates and licensed under Section  2.6 , (b) MatCo acknowledges and agrees that AgCo and its Affiliates own the AgCo Licensed IP, the Intellectual Property licensed to MatCo under Section  2.3(b) and Section  2.4 , the Business Software licensed to MatCo under Section  2.5 , and the Patents Controlled by AgCo or any of its Affiliates and licensed under Section  2.6 , and (c) each Party acknowledges and agrees that (i) except to the extent expressly provided herein, neither Party, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Licensed IP licensed to such Party hereunder, and (ii) such Party shall not, and shall cause its Affiliates and its Sublicensees to not, represent or make any claim that they have ownership of any right, title or interest in any such Licensed IP. To the extent that a Party, its Affiliates or its Sublicensees (as applicable) is assigned or otherwise obtains ownership of any right, title or interest in or to any Licensed IP in contravention of this Section  3.1 , such Party hereby assigns, and shall cause its Affiliates and Sublicensees (as applicable) to assign, to the other Party (or to such Affiliate or Third Party designated by such other Party in writing) all such right, title and interest.

ARTICLE IV

PROSECUTION AND MAINTENANCE

Section 4.1     Responsibility and Cooperation .

(a)    Subject to Section  4.1(b) , as between the Parties, Licensor shall have sole responsibility (but not the obligation) for filing, prosecuting and maintaining all Patents within the Licensed IP with respect to which such Licensor or any of its Affiliates is granting a license to Licensee hereunder. Licensor shall be solely responsible for all costs and expenses incurred in connection with such filing, prosecution and maintenance.

(b)    If, during the Term, Licensor decides to abandon, or otherwise allow to lapse, any issued AgCo Licensed Patent (if AgCo is the Licensor) or MatCo Licensed Patent (if MatCo is the Licensor) or published application therefor, Licensor shall use commercially reasonable efforts to notify Licensee of such decision at least thirty (30) days prior to any deadline for taking action to avoid abandonment (or other loss of rights) of such Patent. Upon receipt of such notice, Licensee shall have the right to elect to assume responsibility for such prosecution and maintenance solely by providing Licensor with written notice of such election within thirty (30) days (or such shorter period requested where the final deadline is in less than thirty (30) days) following such notice from Licensor, and Licensor shall either: (i) withdraw its decision to abandon and continue prosecuting or maintaining such Patent at its expense; or (ii) assign, and hereby does assign, its entire right, title, and interest in such Patent to Licensee at Licensee’s sole cost and expense ( provided that , for clarity, Licensee shall not be required to pay any additional consideration to Licensor in exchange for such assignment, but shall be required to reimburse Licensor for its out-of-pocket costs and expenses incurred in connection with assigning such Patent); provided that , Licensor shall not be in breach of the foregoing if Licensor uses commercially reasonable efforts to notify Licensee of its decision to abandon (or otherwise lose rights) but inadvertently and in good faith fails to so notify Licensee. In the event that

 

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Licensor assigns a Licensed Patent to Licensee in accordance with the foregoing clause (ii), such Patent shall no longer be (i) if the Licensor is AgCo, an AgCo Licensed Patent and instead shall be a MatCo Non-Exclusively Licensed Patent, for which the applicable AgCo Non-Exclusive Patent Field shall be all fields of use other than the MatCo Exclusive Patent Field applicable to such Patent (if any), or (ii) if the Licensor is MatCo, a MatCo Licensed Patent and instead shall be an AgCo Non-Exclusively Licensed Patent, for which the applicable MatCo Non-Exclusive Patent Field shall be all fields of use other than the AgCo Exclusive Patent Field applicable to such Patent (if any). Notwithstanding anything to the contrary herein, in the event that any Licensed Patent is assigned to Licensee pursuant to this Section  4.1(b) , such Licensed Patent shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates with respect to such Licensed Patent prior to the date of such assignment (to the extent that such terms and conditions do not conflict with any of the terms hereof), and unless otherwise agreed in writing, the assignee Party may abandon such Patent without notice or obligation of assignment to the other Party.

(c)    For clarity, Licensor’s obligations under Section  4.1(b) do not apply to the (i) filing or validating of any national or regional applications based on any international or regional Patent applications or filings (including any PCT or EPO applications) whether or not designated under such applications or filings, (ii) filing of any Patent application, including the filing of any divisional, continuation or continuation-in-part application, or (iii) maintaining or prosecuting of any unpublished Patent applications. If any Licensed Patent subject to this Section  4.1 is subject to the terms of any Contract existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound whereby a Third Party has the right to elect to assume responsibility for prosecution or maintenance of, or request assignment of, such Licensed Patent, and such Third Party elects not to exercise all such rights in such Licensed Patent, such Licensed Patent shall become subject to the terms of Section  4.1(b) , except if Licensor’s grant of such rights to Licensee, or Licensee’s exercise of such rights, would breach any contractual rights or obligations owed to such Third Party or any of its Affiliates. Licensor shall ensure that all current and future owners of the Licensed Patents are subject to the obligations to assign such Licensed Patents to Licensee contained in this Section  4.1 .

(d)    Upon the reasonable request of the Party that controls filing, prosecution or maintenance of any Exclusively Licensed IP in accordance with Section  4.1(a) or 4.1(b) , the other Party ( i.e. , the recipient of the exclusive license) shall provide reasonable assistance to such Party in connection with such activities (including by providing information, obtaining signatures and authorizations, and taking such other actions as may be required by applicable Law), and such requesting Party shall reimburse such other Party’s out-of-pocket costs incurred in connection therein. For clarity, neither such other Party nor any of its Affiliates shall be required by the foregoing in this Section  4.1 to take or omit to take any action that it reasonably believes contravenes any applicable Law.

Section 4.2     No Additional Obligations . For clarity, this Agreement shall not obligate either Party to disclose to the other Party, or maintain, register, monitor, prosecute, pay for or offer to pay for (including by offering remuneration to any inventors), defend, enforce or otherwise manage any Intellectual Property, except to the extent expressly set forth herein.

Section 4.3     Third Party Agreements . For clarity, and notwithstanding anything to the contrary in this Article IV , the Parties’ rights and obligations set forth in this Article IV shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section  2.9 .

 

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ARTICLE V

ENFORCEMENT

Section 5.1     Notice . With respect to any Licensed IP, Licensee shall promptly notify Licensor in writing of (a) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation or other violation within the exclusive field for which Licensee has been granted a license hereunder of any such Licensed IP licensed to Licensee hereunder or (b) any Third Party allegations of invalidity or unenforceability of any Exclusively Licensed IP licensed to Licensee hereunder (each of the foregoing (a) and (b), a “ Third Party Infringement ”); provided that an attorney in Licensee’s or its Affiliates’ in-house legal department becomes aware of and reasonably believes that such Third Party Infringement may have occurred ( provided that , for clarity, Licensee shall have no obligation to independently investigate or conduct any infringement or other analysis of the conduct alleged to constitute a Third Party Infringement) and Licensee reasonably believes that such Third Party Infringement could be material to Licensor.

Section 5.2     Defense and Enforcement .

(a)     Licensor First Right . Subject to the remainder of this Section  5.2 , as between the Parties, Licensor shall have the first right, but not the obligation, at its own cost and expense, to control enforcement or defense against any Third Party Infringement of the Licensed IP under which Licensor is granting a license to Licensee hereunder (including by bringing an Action or entering into settlement discussions).

(b)     Licensee s Rights .

(i)    As between the Parties, Licensee shall have the right, but not the obligation, at its own cost and expense, to control enforcement or defense against any Third Party Infringement of the Exclusively Licensed IP with respect to which Licensee is granted a license hereunder (including by bringing an Action or entering into settlement discussions) if (1) Licensor provides Licensee with written notice that it is not exercising its right to control enforcement of such Exclusively Licensed IP (as described in Section  5.2(a) ) and that Licensee may do so at its option, or (2) Licensor fails to initiate, or file the relevant response to, the Action (if any), or commence settlement discussions, with respect to the applicable Third Party Infringement prior to or upon the earlier of (A) expiration of the one hundred eighty (180) day period following first receipt by either Party of notice from the other Party of such Third Party Infringement or (B) ten (10) Business Days prior to the deadline for filing, or filing the applicable response to, such Action (if any). Licensor shall use commercially reasonably efforts to notify Licensee of a decision not to exercise its right to control enforcement or defense, as applicable, with respect to any Exclusively Licensed IP, but shall have no liability for any good faith, inadvertent failure to so notify Licensee. Notwithstanding the foregoing, Licensee shall not have any right to control such enforcement or defense pursuant to the foregoing if Licensor provides Licensee with written notice that it is not exercising its right to control enforcement or defense, as applicable, of such Licensed IP (as described in Section  5.2(a) ) and that it has reasonably determined in good faith that the Licensed IP should not be enforced or defended at such time, and provides Licensee an opportunity to discuss such reasoning in good faith with Licensor.

 

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(ii)    In the case of any infringement, misappropriation, or other violation, or any Third Party allegations of invalidity or unenforceability, of any Licensed IP non-exclusively licensed to Licensee hereunder, Licensee may request (which request Licensor may deny if Licensor reasonably determines that such Licensed IP should not be enforced or defended, and discusses its reasoning therefor with Licensee) that Licensor enforce or defend (as applicable) such Licensed IP (including by bringing an Action or entering into settlement discussions), and if such request is granted, such enforcement or defense (as applicable) shall be controlled by Licensor at Licensee’s sole cost and expense.

(c)     Cooperation . If the Party controlling enforcement or defense of any Licensed IP against any Third Party Infringement in accordance with Section  5.2(a) or 5.2(b) (such Party, the “ Controlling Party ”) brings an Action or enters into settlement discussions with respect thereto, the other Party shall provide reasonable assistance in connection therewith, at the Controlling Party’s request and such other Party shall be reimbursed for its reasonable out-of-pocket costs and expenses incurred in connection therewith. The Controlling Party shall keep the other Party regularly informed of the status and progress of such enforcement or defense, as applicable, and shall reasonably consider the other Party’s comments in connection with any Action or settlement discussions with respect thereto. Notwithstanding anything to the contrary herein, such other Party may, at its sole discretion and cost and expense, join as a party to any such Action; provided that , if necessary for standing purposes, such Party shall join such Action upon the Controlling Party’s reasonable request and the Controlling Party shall reimburse the other Party’s reasonable out-of-pocket costs and expenses incurred in connection therewith. Such other Party shall have the right to be represented by counsel (which shall act in an advisory capacity only, except for matters solely directed to such Party) of its own choice in any such Action at its own cost and expense (subject to reimbursement of such other Party’s costs and expenses as described in, and subject to, the immediately preceding sentence). Notwithstanding the foregoing, in the event of enforcement or defense in accordance with Section  5.2(b)(ii) , the Party that is not the Controlling Party shall be solely responsible for all costs and expenses incurred pursuant to this Section  5.2(c) .

(d)     Settlements . Notwithstanding anything to the contrary herein, the Controlling Party shall not, without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of the other Party, settle any Third Party Infringement (i) with respect to the Exclusively Licensed IP, if doing so would (a) adversely affect the validity, enforceability or scope, or admit non-infringement, of any such Exclusively Licensed IP that such other Party or its Affiliates are licensing to the Controlling Party hereunder or (b) specifically or by operation of law, grant or waive any of the Controlling Party’s rights under any such Exclusively Licensed IP within the field that the Controlling Party or its Affiliates are granting an exclusive license to the other Party hereunder or (ii) with respect to any Licensed IP, if doing so would give rise to liability or any other obligations of such other Party, its Affiliates or its Sublicensees for which the Controlling Party is unwilling or unable to, or otherwise does not, provide full indemnification.

(e)     Recoveries . Any and all amounts recovered by the Controlling Party in any Action regarding a Third Party Infringement or settlement with respect thereto shall,

 

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unless otherwise agreed (including in an agreement in connection with obtaining consent to settlement), be allocated first to reimburse the Controlling Party’s out-of-pocket costs and expenses incurred in connection with such Action or settlement (including its obligations to the other Party pursuant to Section  5.2(c) ) and next to the other Party’s out-of-pocket costs and expenses incurred in connection with such Action or settlement. Any and all remaining amounts recovered shall be (i) allocated proportionally between the Parties ( provided that the Third Party Infringement to which such recovery relates is of the Exclusively Licensed IP and within the exclusive field in which the applicable Licensee is granted a license hereunder) based on the impact of such Third Party Infringement on each Party’s relevant field of use or (ii) retained by the Controlling Party ( provided that , for purposes of this clause (ii), the Third Party Infringement to which such recovery relates is not of the Exclusively Licensed IP within the exclusive field in which the applicable Licensee is granted a license hereunder).

(f)     Interferences, etc . Notwithstanding anything to the contrary in Article IV or this Article V , in the event that any Third Party allegations of invalidity or unenforceability of any Patents included in the Licensed IP licensed to Licensee hereunder arise in an opposition, interference, reissue proceeding, reexamination or other patent office proceeding, Article IV shall govern the Parties’ rights and obligations with respect thereto.

Section 5.3     Third Party Agreements . For clarity, and notwithstanding anything to the contrary in this Article V , the Parties’ rights and obligations set forth in this Article V shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section  2.9 .

ARTICLE VI

INDEMNIFICATION

Section 6.1     Indemnification .

(a)    Each Party (the “ Indemnifying Party ”) agrees to indemnify, release, defend and hold harmless the other Party and its Affiliates and its and their directors, officers, agents, and successors (each, an “ Indemnitee ” and collectively, the “ Indemnitees ”) from and against any and all Indemnifiable Losses incurred or suffered by any of the Indemnitees, to the extent arising out of, relating to or resulting from (a) breach by the Indemnifying Party of this Agreement; (b) if the Indemnifying Party is the Licensee, use of the Licensed IP hereunder by or on behalf of such Party or its Sublicensees; and (c) if the Indemnifying Party is the Licensor, breach by or on behalf of Licensee, its Affiliates or its Sublicensees of any contractual rights of or contractual obligations owed to any Third Parties with respect to the Licensed IP; provided that , prior to such breach, Licensor or any of its Affiliates is aware, and Licensee and its Affiliates are not aware, of such contractual rights or obligations, in each case (in respect of the foregoing subsections (a) through (c)), except to the extent that such Indemnifiable Losses (i) are subject to indemnification by the other Party pursuant to this Section  6.1 or (ii) arise out of fraud, bad faith, gross negligence or willful misconduct of the other Party or its Affiliates.

(b)    Except for the entitlement to specific performance or other equitable remedy, each solely as contemplated by Section  10.12 , the remedies provided in this Section  6.1 shall be deemed the sole and exclusive remedies of the Parties with respect to the subject matter of this Agreement, and the Parties each hereby waive to the extent permitted by applicable Law any other remedy to which they or any of their respective Indemnitees are entitled to hereunder at law or in equity with respect thereto.

 

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Section 6.2     Indemnification Procedures . The indemnification procedures set forth in Sections 8.5 through 8.10 of the Separation Agreement shall apply to the matters indemnified hereunder, mutatis mutandis .

Section 6.3     Disclaimer of Representations and Warranties . EACH PARTY HEREBY ACKNOWLEDGES THAT, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OF THE OTHER ANCILLARY AGREEMENTS, EACH OF AGCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE AGCO GROUP) AND MATCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MATCO GROUP) UNDERSTANDS AND AGREES THAT NEITHER PARTY IS REPRESENTING OR WARRANTING IN ANY WAY UNDER THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY OR SCOPE OF THE LICENSED IP) AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OTHER ANCILLARY AGREEMENT, ALL LICENSED IP IS BEING LICENSED ON AN “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” BASIS.

Section 6.4     Limitation on Liability . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT (INCLUDING THIS ARTICLE VI ), EXCEPT WITH RESPECT TO BREACHES OF ARTICLE VII , NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AT LAW OR IN EQUITY, AND “LOSSES” SHALL NOT INCLUDE ANY AMOUNTS FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; PROVIDED THAT NOTHING HEREIN SHALL PREVENT ANY INDEMNITEE FROM BEING INDEMNIFIED PURSUANT TO ARTICLE VI FOR ALL COMPONENTS OF AWARDS AGAINST THEM IN ANY THIRD PARTY CLAIM.

ARTICLE VII

CONFIDENTIALITY

Section 7.1     Disclosure and Use Restrictions . The Parties acknowledge and agree that the Umbrella Secrecy Agreement is hereby incorporated into this Agreement, and shall apply to the transactions contemplated by this Agreement, mutatis mutandis . For the avoidance of doubt, Licensee’s material breach of the Umbrella Secrecy Agreement with respect to Confidential Information shall constitute a material breach of this Agreement.

ARTICLE VIII

TERM

Section 8.1     Term . The terms of the licenses and other grants of rights (and related obligations) under this Agreement (the “ Term ”) shall remain in effect (a) to the extent with respect to the Patents licensed hereunder and Licensed Copyrights, on a Patent-by-Patent and Licensed Copyright-by-Licensed Copyright basis, until expiration, invalidation or abandonment of such Licensed Patent or Licensed Copyright (as applicable), (b) to the extent

 

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with respect to any Licensed Know-How, until such Licensed Know-How no longer constitutes Confidential Information; provided that , after expiration of the Term with respect to any Licensed Know-How, the licenses granted hereunder to such Know-How shall survive such expiration in perpetuity, and (c) with respect to Business Software and AgCo Licensed Standards, in perpetuity. Notwithstanding the foregoing and anything to the contrary herein, the licenses granted in Section  2.3 and rights and obligations of the Parties to the extent with respect thereto shall terminate on a Product-by-Product basis upon termination of the applicable Manufacturing Product Agreement with respect to such Product.

Section 8.2     Effect of Termination .

(a)     Accrued Rights . Expiration of this Agreement, in part or in its entirety, shall be without prejudice to any rights which shall have accrued to the benefit of either Party prior to such expiration.

(b)     Survival . The following provisions of this Agreement, together with all other provisions of this Agreement that expressly specify that they survive, shall survive expiration of this Agreement, in part or in its entirety: Articles I, III, VI, VII, IX and X and this Section  8.2 .

Section 8.3     Patent Challenge .

(a)     Patent Challenge Notice . In the event of a Patent Challenge by Licensee or any of its Affiliates against any MatCo Scheduled Licensed Patents (if Licensor is MatCo) or AgCo Scheduled Licensed Patents (if Licensor is AgCo), Licensee shall notify Licensor promptly (but in no event more than ten (10) Business Days) after Licensee’s general counsel or chief patent counsel (or if such position does not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) first learns of such Patent Challenge (and if Licensor has not already been notified by Licensee of such Patent Challenge, Licensor shall use reasonable efforts to provide written notice to Licensee if Licensor’s chief patent counsel (or if such position does not exist, any of Licensor’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) knows such Patent Challenge has been filed) (each notice provided by either Party in accordance with this Section  8.3(a) , the “ Patent Challenge Notice ”). Upon a Licensee Challenge Executive learning of such a Patent Challenge or, if earlier, upon receipt of a Patent Challenge Notice in the event that such Patent Challenge Notice is provided by Licensor, Licensee shall promptly take all steps necessary (in accordance with applicable Law) to withdraw or have withdrawn such Patent Challenge.

(b)     Discussion Process . In the event of a Patent Challenge by Licensee or any of its Affiliates against any MatCo Scheduled Licensed Patents (if Licensor is MatCo) or AgCo Scheduled Licensed Patents (if Licensor is AgCo), without limiting Licensee’s obligations in Section  8.3(a) , following Licensee’s written request (provided such request is made no more than ten (10) Business Days after the Patent Challenge Notice is provided to either Party) (each such request, the “ Discussion Notice ”), each Party shall commence the escalation process set forth in Sections 8.3(b)(i) through 8.3(b)(ii) below (the “ Escalation Process ”).

(i)    Within ten (10) Business Days of Licensor’s receipt of the Discussion Notice from Licensee, each Party’s respective presidents of any business unit or division to which the Patent Challenge relates (or if such position

 

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does not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities) and general counsels will commence discussions (which, for clarity, may be in person or via videoconference or teleconference) that will last for a period of no more than fifteen (15) Business Days (unless otherwise agreed in writing by the Parties) (the period of such discussions, the “ Initial Executive Officer Escalation Period ”) regarding the Patent Challenge.

(ii)    Following completion of the Initial Executive Officer Escalation Period, either Party may, on written notice (“ Escalation Notice ”) to the other Party within five (5) Business Days of expiration of the Initial Executive Officer Escalation Period, submit such matter for discussion by their respective chief executive officers. Such chief executive officers shall commence discussions regarding the applicable Patent Challenge (which, for clarity, may be in person or via videoconference or teleconference) within ten (10) Business Days of the Escalation Notice, and such discussions will last for no more than ten (10) Business Days (unless otherwise agreed in writing by the Parties) (the period of such discussions, the “ CEO Escalation Period ”).

(iii)    All offers, promises, conduct and statements, whether oral or written, made in the course of the Escalation Process by any of the Parties or their Affiliates, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties or any of their Affiliates and, in any Action, shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state or foreign rule, and evidence of such discussions shall not be admissible in any future Action between the Parties, any of their Affiliates and/or any Indemnitee; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation or discussion.

(c)     Certain Inadvertent Patent Challenges .

(i)    For purposes of this Section  8.3 :

(1)    “ Inadvertent Patent Challenge ” means each Patent Challenge by Licensee or its Affiliates that (i) none of the Licensee Challenge Executives approved prior to or at the time of the filing of the Patent Challenge or (ii) none of the Licensee Challenge Executives that approved such Patent Challenge had actual knowledge at the time of the filing of such Patent Challenge that the applicable MatCo Scheduled Licensed Patent or AgCo Scheduled Licensed Patent, as the case may be, was subject to the terms of this Section  8.3 . All Patent Challenges are presumed to be Inadvertent Patent Challenges absent clear and convincing evidence otherwise.

(2)    “ Licensee Challenge Executives ” means (i) Licensee’s chief patent counsel, (ii) the president of any business unit or division to which the Patent Challenge relates, (iii) any executive officer of Licensee or (iv) any executive officer of the ultimate parent entity of any member of Licensee’s Group at the time of such Patent Challenge (or, in each case of the foregoing (i) through (iv), if any such positions do not exist, any of Licensee’s or its Affiliates’ employees with substantially similar or greater seniority, and responsibilities that include substantially similar responsibilities).

 

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(ii)    In the case of an Inadvertent Patent Challenge, unless otherwise agreed in writing by the Parties, Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) below shall apply if and only if (x) Licensee has failed to withdraw, or have withdrawn, the Patent Challenge in accordance with Section  8.3(a) ( provided that such failure is a result of any Laws or other rules of any Governmental Entity or registrar with which such Patent Challenge was filed that preclude such withdrawal, and not attributable in any respect to any delay (or other act or omission that could reasonably be anticipated to preclude such withdrawal) within the reasonable control of Licensee) and (y) if requested by Licensor and solely to the extent permitted by applicable Law, as soon as reasonably practicable, Licensee submits (or has submitted) documentation to the applicable Governmental Entity or registrar retracting the arguments made in such Patent Challenge; provided , that, if Licensee has provided a Discussion Notice to Licensor in accordance with Section  8.3(b) , Licensor shall not exercise any of its rights or remedies set forth in Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) until (1) the CEO Escalation Period expires if an Escalation Notice is provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge or (2) the Initial Executive Officer Escalation Period expires if an Escalation Notice is not provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge.

(1)    In the case of the first such Inadvertent Patent Challenge (if any), Licensee shall pay Licensor fifty million dollars ($50,000,000) in liquidated damages, and Licensor may, at its option, terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates, or convert to non-exclusive any and all exclusive licenses granted under this Agreement to such Licensee or any of its Affiliates, with respect to all MatCo Patent Fields (if MatCo is the Licensee) or AgCo Patent Fields (if AgCo is Licensee) for which any and all Licensed Patents that are the subject of such Patent Challenge are licensed to such Licensee or any of its Affiliates hereunder (including, for clarity, the licenses and rights to any and all other Patents licensed to such Licensee and its Affiliates to the extent in such MatCo Patent Fields or AgCo Patent Fields, as applicable).

(2)    In the case of the second such Inadvertent Patent Challenge (if any), Licensee shall pay Licensor one hundred million dollars ($100,000,000) in liquidated damages, and Licensor may, at its option, terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates, or convert to non-exclusive any and all exclusive licenses granted under this Agreement to such Licensee or any of its Affiliates, with respect to all MatCo Patent Fields (if MatCo is Licensee) or AgCo Patent Fields (if AgCo is Licensee) for which any and all Licensed Patents that are the subject of such Patent Challenge are licensed to such Licensee or any of its Affiliates hereunder (including, for clarity, the licenses and rights to any and all other Patents licensed to such Licensee and its Affiliates to the extent in such MatCo Patent Fields or AgCo Patent Fields, as applicable).

 

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(3)    In the case of the third such Inadvertent Patent Challenge (if any), or to the extent Licensor has not exercised all of its rights expressly set forth in this Section  8.3(c) , any Patent Challenge after the third such Inadvertent Patent Challenge, Licensor shall have the right to terminate this Agreement to the extent with respect to any and all licenses and rights granted under this Agreement to such Licensee or any of its Affiliates with respect to Patents, or convert to non-exclusive any or all exclusive licenses to the Licensed Patents granted under this Agreement to such Licensee or any of its Affiliates.

(4)    Licensee shall pay amounts described in the foregoing subsections (1) and (2) (such amounts, the “ Patent Challenge Liquidated Damages ”) to Licensor within twenty (20) Business Days of Licensor’s written notice that it is exercising its rights under such subsection, and such payment shall be made by wire transfer of immediately available funds into an account designated in writing by Licensor. The Parties intend that the Patent Challenge Liquidated Damages constitute compensation, and not a penalty. The Parties acknowledge and agree that the harm to Licensor and its Affiliates caused by a Patent Challenge would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Patent Challenge Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from one or more Patent Challenges. Licensee’s payment of the Patent Challenge Liquidated Damages, together with the other remedies set forth in this Section  8.3 , are Licensee’s sole liability and entire obligation and Licensor’s exclusive remedies for each such Patent Challenge as described herein.

(d)     Other Patent Challenges . Unless otherwise agreed upon in writing by the Parties, in the case of (i) any Inadvertent Patent Challenge for which Sections 8.3(c)(ii)(1) through 8.3(c)(ii)(4) do not apply (including, for clarity, any Inadvertent Patent Challenge for which Licensee does not comply with Section  8.3(a)) or (ii) any Patent Challenge that is not an Inadvertent Patent Challenge, in respect of the foregoing (i) and (ii), Licensor may, at Licensor’s option, (x) terminate this Agreement to the extent with respect to any and all licenses and rights granted to Licensee or any of its Affiliates hereunder with respect to Patents or (y) convert to non-exclusive any and all exclusive licenses to the Licensed Patents granted to Licensee or any of its Affiliates under this Agreement; provided that , if Licensee has provided a Discussion Notice to Licensor in accordance with Section  8.3(b) , Licensor shall not exercise any of its rights or remedies set forth in this Section  8.3(d) until (x) the CEO Escalation Period expires if an Escalation Notice is provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge or (y) the Initial Executive Officer Escalation Period expires if an Escalation Notice is not provided in accordance with Section  8.3(b)(ii) in respect of such Patent Challenge.

(e)     Effects of Termination . Upon any termination by Licensor pursuant to this Section  8.3 , (i) any and all sublicenses that have been granted to a Sublicensee with respect to the licenses and rights that have been terminated (such licenses, the “ Terminated Licenses ”) shall automatically terminate and (ii) Licensee shall, and shall ensure that its Affiliates and Sublicensees, immediately cease use of all Licensed IP under the Terminated Licenses. For clarity, in the event that a Licensor elects to terminate this Agreement with respect to all licenses granted by such Licensor to Licensee under this Section  8.3 , this Agreement shall remain in full force and effect with respect to all licenses granted to such terminating Licensor by such terminated Licensee.

 

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(f)    For avoidance of doubt, Licensor may not terminate any licenses or rights granted to Licensee or any of its Affiliates hereunder or convert to non-exclusive any exclusive licenses if Licensee complies with Section  8.3(a) with respect to an Inadvertent Patent Challenge, and such Inadvertent Patent Challenge is withdrawn.

ARTICLE IX

DISPUTE RESOLUTION

Section 9.1     N egotiation and Arbitration . In the event of a controversy, dispute or Action between the Parties arising out of, in connection with, or in relation to this Agreement or any of the transactions contemplated hereby, including with respect to the interpretation, performance, nonperformance, validity or breach thereof, and including any Action based on contract, tort, statute or constitution, including the arbitrability of such controversy, dispute or Action, the procedures as set forth in Article X of the Separation Agreement shall apply, mutatis mutandis .

ARTICLE X

MISCELLANEOUS

Section 10.1     Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, together with the Separation Agreement, the Umbrella Secrecy Agreement, other Ancillary Agreements and, solely to the extent and for the limited purpose of effecting the Internal Reorganization, the Conveyancing and Assumption Instruments, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Exhibit or Schedule hereto, the Exhibit or Schedule shall prevail. In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Separation Agreement, the terms and conditions of this Agreement shall control (except as expressly set forth in Section 12.1 of the Separation Agreement).

Section 10.2     Assignment .

(a)    Neither this Agreement nor any of the rights, interests or obligations of a Party under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by such Party without the prior written consent of the other Party (which consent may be granted or withheld in such other Party’s sole discretion); provided however , that such first Party (i) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to one or more of its Affiliates and (ii) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to the successor to all or a portion of the business or assets to which this Agreement relates; provided that , (x) the assigning Party shall promptly notify the non-assigning Party in writing of any assignments it makes under Section  10.2(a)(ii) and (y) in either case of (i) or (ii), the party to whom this Agreement is assigned shall agree in writing to be bound by the terms of this Agreement as if named as a “Party” hereto with respect to all or such portion of this Agreement so assigned. Notwithstanding the foregoing, in the event that a Party exercises its rights in accordance with the foregoing to assign this Agreement, in part or in whole, to a Non-Practicing Entity, and such assignment is a bona fide assignment, the Parties’ rights and obligations set forth in Section  8.3 to the extent with respect to such assignment to such Non-Practicing Entity shall have no force and effect (and, for clarity, any attempt to assign this Agreement, in part or in whole, to any Non-Practicing Entity with the intent to subsequently assign to any Person that is not a Non-Practicing Entity to circumvent Section  8.3 shall be void ab initio ).

 

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(b)     Notwithstanding the foregoing:

(i)    in the event that a Party assigns or otherwise transfers its rights and obligations with respect to a Manufacturing Product Agreement to another Person in accordance with the terms thereof, the licenses set forth in Sections 2.1(d) , 2.2(d) , 2.3(a) and 2.3(b) (as applicable), together with any other provisions herein to the extent related thereto, may be assigned or otherwise transferred to such Third Party without the other Party’s consent; and

(ii)    MatCo may not assign any of the rights, interests or obligations under this Agreement with respect to the AgCo Licensed Standards to any Third Party without the prior written consent of AgCo, which consent shall not be unreasonably withheld, delayed or conditioned (but may assign this Agreement in accordance with Section  10.2(a) without such consent with respect to Local Standards, together with any AgCo Licensed Standards, solely as and to the extent incorporated into and/or reasonably necessary to use such Local Standards as of the date of such assignment (“ Designated AgCo Standards ”)); provided that in the event that AgCo does not provide such consent, any Third Party to which MatCo assigns any right or obligation in accordance with Section  10.2(a)(ii) shall be, and hereby is, granted a transitional license with respect to the AgCo Licensed Standards (other than the Designated AgCo Standards) as follows: such assignee may continue to use under this Agreement such AgCo Licensed Standards used by Licensee or the relevant site, facility and/or portion of the Materials Science Business prior to the applicable transaction for a transitional period of up to twelve (12) months to the extent reasonably necessary to transition to alternative technology ( provided that such transitional period may be extended upon reasonable request subject to the prior written consent of AgCo, which consent may not be unreasonably withheld, delayed or conditioned), if such assignee agrees in writing that:

(1)    The AgCo Licensed Standards shall be treated as Confidential Information of AgCo under terms at least as restrictive as the terms in the Umbrella Secrecy Agreement;

(2)    The AgCo Licensed Standards shall be used only within and for the support of the transferred business, site or facility and shall be shared only with Persons who have a reasonable need to know them for that purpose; and

(3)    No later than the end of the transitional period, all copies of the AgCo Licensed Standards in the possession of the transferred business, site or facility shall be destroyed; provided that , for clarity, destruction of such AgCo Licensed Standards shall not be required with respect to Designated AgCo Standards otherwise licensed pursuant to the portion of the Agreement assigned. On request by AgCo, the affected business, site or facility shall confirm that the required destruction has occurred.

 

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(c)    Any assignment or other disposition in violation of this Section  10.2 shall be void. No assignment shall relieve the assigning Party of any of its obligations under this Agreement that accrued prior to such assignment unless agreed to by the non-assigning Party.

Section 10.3     Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

Section 10.4     Notices . All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or electronically mailed (with a response confirming receipt), and shall be directed to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section  10.4 ):

To AgCo:

Prior to the AgCo Distribution:

Corteva, Inc.

E.I. du Pont de Nemours and Company

Dow Agrosciences LLC

DDP Agrosciences U.S. Inc.

c/o E. I. du Pont de Nemours and Company

974 Centre Road

Wilmington, DE 19805

Attn:   Stacy L. Fox

Email: Stacy.L.Fox@dupont.com

  Facsimile:

(302) 994-5094

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

  Attention:

Brandon Van Dyke, Esq.

  Email:

Brandon.VanDyke@skadden.com

  Facsimile:

(917) 777-3743

Following the Final Separation Date:

Corteva, Inc.

E.I. du Pont de Nemours and Company

Dow Agrosciences LLC

DDP Agrosciences U.S. Inc.

c/o Corteva, Inc.

974 Centre Road, Building 735

Wilmington, DE 19805

  Attn:

General Counsel

  Email:

cornel.b.fuerer@corteva.com

 

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with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

  Attention:

Brandon Van Dyke, Esq.

  Email:

Brandon.VanDyke@skadden.com

  Facsimile:

(917) 777-3743

To MatCo:

Dow Inc.

The Dow Chemical Company

Performance Materials NA, Inc.

c/o The Dow Chemical Company

2211 H.H. Dow Way

Midland, MI 48674

  Attn:

Chief IP Counsel, IP Legal

  Email:

DFrickey@dow.com

with a copy (which shall not constitute notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022-6069

  Attention:

George A. Casey, Esq.

Heiko Schiwek, Esq.

Jordan Altman, Esq.

  Email:

George.Casey@Shearman.com

HSchiwek@Shearman.com

Jordan.Altman@Shearman.com

  Facsimile:

(212) 848-7179

Section 10.5     Waivers . Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and the members of its Group).

 

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Section 10.6     Amendments . This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 10.7     Affiliates . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Affiliate of such Party.

Section 10.8     Third Party Beneficiaries . Except as provided in Article VI relating to Indemnitees, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon Third Parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, in excess of those existing without reference to this Agreement.

Section 10.9     Title and Headings . Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.10     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 10.11     Governing Law . This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

Section 10.12     Specific Performance . The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach this Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any such non-performance or breach. Accordingly, in the event of any actual or threatened default in or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article X (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 10.13     Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

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Section 10.14     No Duplication; No Double Recovery . Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

Section 10.15     Bankruptcy . All rights and licenses granted under or pursuant to this Agreement by a Licensor are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the United States Bankruptcy Code regardless of the form or type of intellectual property under or to which such rights and licenses are granted and regardless of whether the intellectual property is registered in or otherwise recognized by or applicable to the United States of America or any other country or jurisdiction. The Parties agree that each Licensee will retain and may fully exercise all of their rights and elections under the United States Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against a Party under the United States Bankruptcy Code, the Party hereto that is not a party to such proceeding will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party’s possession, will be promptly delivered to it (a) upon any such commencement of a bankruptcy proceeding upon the non-subject Party’s written request therefore, unless the Party subject to such proceeding continues to perform all of its obligations under this Agreement or (b) if not delivered under clause (a) above, following the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefore by the non-subject Party.

* * * * *

[End of page left intentionally blank]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

CORTEVA, INC.
By:   /s/ James C. Collins, Jr.
Name:   James C. Collins, Jr.
Title:   Chief Executive Officer

 

E.I. DU PONT DE NEMOURS AND COMPANY
By:   /s/ Marian Flattery
Name:   Marian Flattery
Title:   Associate General Counsel

 

DOW AGROSCIENCES LLC
By:   /s/ Gary McGuire
Name:   Gary McGuire
Title:   Vice President and Treasurer

 

DDP AGROSCIENCES US, INC.
By:   /s/ Mark A. Bachman
Name:   Mark A. Bachman
Title:   President

 

[Signature Page to MatCo/AgCo Intellectual Property Cross License Agreement]


DOW INC.
By:   /s/ Amy E. Wilson
Name: Amy E. Wilson
Title: Secretary

 

THE DOW CHEMICAL COMPANY
By: /s/ Darryl P. Frickey
Name: Darryl P. Frickey
Title: Assistant General Counsel

 

PERFORMANCE MATERIALS NA, INC.
By: /s/ Michael P. Heffernan
Name: Michael P. Heffernan
Title: President

 

[Signature Page to MatCo/AgCo Intellectual Property Cross License Agreement]

Exhibit 99.1

 

LOGO

DowDuPont Completes Spin-off of Dow Inc.

Completes Separation of Materials Science Division and Advances Toward Formation of Three Independent Public Companies

WILMINGTON, Del., April 1, 2019 – DowDuPont Inc. (NYSE: DWDP) today announced that it has completed the separation of its Materials Science Division through the spin-off of Dow Inc. (“Dow”). Dow begins “regular way” trading tomorrow on the NYSE under the symbol “DOW.” DowDuPont common stockholders received one share of common stock of Dow for every three shares of DowDuPont common stock they held as of the close of business on March 21, 2019. DowDuPont common stockholders will also receive cash in lieu of fractional shares of Dow common stock.

“Today’s announcement completes our first step toward creating three strong, independent growth companies set to be industry leaders focused on driving innovation and delivering long-term value for shareholders,” said Ed Breen, chief executive officer of DowDuPont. “Dow begins its next chapter as a more focused, disciplined and market-oriented company, and I am excited for the tremendous opportunities ahead for its employees, shareholders, and customers.”

DowDuPont remains on track to complete the previously announced separation of its Agriculture Division (Corteva Agriscience ) on June 1, 2019 through the intended distribution of all of the shares of common stock of its wholly owned subsidiary, Corteva, Inc., which holds the Company’s Agriculture Division, to the holders of the Company’s common stock on a pro rata basis (the “Corteva Distribution”). Subsequent to the Corteva Distribution, DowDuPont would hold the Specialty Products Division and be renamed “DuPont.”

About DowDuPont Inc.

DowDuPont (NYSE: DWDP) is a holding company with the intent to form strong, independent, publicly traded companies in agriculture (Corteva Agriscence ) and specialty products (DuPont) sectors. Upon completion of the intended separation of Corteva Agriscence , the companies will lead their respective industries by delivering differentiated products and solutions and science-based innovation to meet the needs of customers and help solve global challenges. For more information, please visit us at www.dow-dupont.com.

Cautionary Statement Regarding Forward Looking Statements

This communication contains “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. In this context, forward-looking statements often address expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “target,” and similar expressions and variations or negatives of these words.

Forward-looking statements by their nature address matters that are, to varying degrees, uncertain, including statements about the Corteva Distribution. Forward-looking statements, including those related to DowDuPont’s ability to complete, or to make any filing or take any other action required to be taken to complete, the Corteva Distribution, are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements. Forward-looking statements also involve risks and uncertainties, many of which that are beyond DowDuPont’s control. Some of the important factors that could cause DowDuPont’s actual results to differ materially from those projected in any such forward-looking statements include, but are not limited to: (i) ability and costs to achieve all the expected benefits from the Corteva Distribution and the April 1, 2019 distribution by DowDuPont of all of the shares of common stock of Dow Inc. on a pro rata basis to the holders of DowDuPont common stock (the “Dow Distribution”); (ii) restrictions under intellectual property cross license agreements entered into or to be entered into in connection with the Corteva Distribution and the Dow Distribution; (iii) ability to receive third-party consents required under the separation agreement entered into in connection with the Corteva Distribution and the Dow Distribution; (iv) non-compete restrictions under the separation agreement entered into in connection with the Corteva Distribution and the Dow Distribution; (v) the incurrence of significant costs in connection with the Corteva Distribution and the Dow Distribution , including increased costs from supply, service and other arrangements that, prior to the Dow Distribution, were between entities under the common control of DowDuPont; (vi) risks outside the control of DowDuPont which could impact the decision of the DowDuPont Board of Directors to proceed with the Corteva Distribution, including, among others, global economic conditions, instability in credit markets, declining consumer and business confidence, fluctuating commodity prices


and interest rates, volatile foreign currency exchange rates, tax considerations, other challenges that could affect the global economy, specific market conditions in one or more of the industries of the businesses proposed to be separated, and changes in the regulatory or legal environment and the requirement to redeem $12.7 billion of DowDuPont notes if the Corteva Distribution is abandoned or delayed beyond May 1, 2020; (vii) potential liability arising from fraudulent conveyance and similar laws in connection with the Corteva Distribution and/or the Dow Distribution; (viii) disruptions or business uncertainty, including from the Corteva Distribution, could adversely impact DowDuPont’s business or financial performance and its ability to retain and hire key personnel; (ix) uncertainty as to the long-term value of DowDuPont common stock; (x) potential inability to access the capital markets; and (xi) risks to DowDuPont’s business, operations and results of operations from: the availability of and fluctuations in the cost of feedstocks and energy; balance of supply and demand and the impact of balance on prices; failure to develop and market new products and optimally manage product life cycles; ability, cost and impact on business operations, including the supply chain, of responding to changes in market acceptance, rules, regulations and policies and failure to respond to such changes; outcome of significant litigation, environmental matters and other commitments and contingencies; failure to appropriately manage process safety and product stewardship issues; global economic and capital market conditions, including the continued availability of capital and financing, as well as inflation, interest and currency exchange rates; changes in political conditions, including trade disputes and retaliatory actions; business or supply disruptions; security threats, such as acts of sabotage, terrorism or war, natural disasters and weather events and patterns which could result in a significant operational event for DowDuPont, adversely impact demand or production; ability to discover, develop and protect new technologies and to protect and enforce DowDuPont’s intellectual property rights; failure to effectively manage acquisitions, divestitures, alliances, joint ventures and other portfolio changes; unpredictability and severity of catastrophic events, including, but not limited to, acts of terrorism or outbreak of war or hostilities, as well as management’s response to any of the aforementioned factors. These risks are and will be more fully discussed in DowDuPont’s current, quarterly and annual reports and other filings made with the U.S. Securities and Exchange Commission, in each case, as may be amended from time to time in future filings with the SEC. While the list of factors presented here is considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on DowDuPont’s or Corteva, Inc.’s consolidated financial condition, results of operations, credit rating or liquidity. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. DowDuPont assumes no obligation to publicly provide revisions or updates to any forward-looking statements whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws. A detailed discussion of some of the significant risks and uncertainties which may cause results and events to differ materially from such forward-looking statements is included in the section titled “Risk Factors” (Part I, Item 1A) of DowDuPont’s 2018 Annual Report on Form 10-K.

#    #    #

4/1/19

 

DuPont Media

  Corteva Media

Dan Turner

302-996-8372

daniel.a.turner@dupont.com

 

Gregg Schmidt

302-996-8368

gregg.m.schmidt@corteva.com

DuPont Investor Relations

  Corteva Investor Relations

Lori Koch

302-999-5631

Lori.d.koch@dupont.com

 

Megan Britt

302-996-8881

megan.britt@corteva.com

 

2

Exhibit 99.2

UNAUDITED PRO FORMA FINANCIAL INFORMATION

Overview

Effective August 31, 2017, pursuant to the merger of equals transaction contemplated by the Agreement and Plan of Merger, dated as of December 11, 2015, as amended on March 31, 2017, The Dow Chemical Company and its consolidated subsidiaries (“Historical Dow”) and E. I. du Pont de Nemours and Company and its consolidated subsidiaries (“Historical DuPont”) each merged with subsidiaries of DowDuPont Inc. (“DowDuPont”) and as a result, Historical Dow and Historical DuPont became subsidiaries of DowDuPont (the “Merger”). Subsequent to the Merger, Historical Dow and Historical DuPont engaged in a series of internal reorganization and realignment steps to realign their businesses into three subgroups: agriculture, materials science and specialty products. Dow Inc. (“Dow”) was formed as a wholly owned subsidiary of DowDuPont to serve as the holding company for the materials science business and Corteva Inc. (“Corteva”) was formed as a wholly owned subsidiary of DowDuPont to serve as the holding company for the agriculture business.

DowDuPont previously announced its intent to separate into three, independent, publicly traded companies through the Dow Distribution followed by the intended Corteva Distribution (together the “Distributions”). Following the Distributions, DowDuPont will continue to hold the specialty products business and operate as “DuPont” and as such, is referred to as DuPont in this Unaudited Pro Forma Financial Information.

In contemplation of the Distributions and to achieve the respective credit profiles of each of the intended future companies, in the fourth quarter of 2018, DowDuPont consummated a public underwritten offer of eight series of senior unsecured notes (the “DowDuPont Notes”) in an aggregate principal amount of $12.7 billion and also entered into a term loan agreement consisting of two term loan facilities (“Term Loan Facilities”) in the aggregate principal amount of $3.0 billion; the funds from such Term Loan Facilities were not drawn as of December 31, 2018 but are expected to be drawn prior to the Corteva Distribution (collectively referred to herein as “the Financings”). The net proceeds from the Financings either have been or are intended to reduce or otherwise delever the outstanding liabilities allocable to Dow and Corteva and also were used to fund DowDuPont’s $3.0 billion share repurchase program announced in November 2018 (“Share Repurchase Program”).

Spin-Off of Dow

Effective as of 5:00 p.m. on April 1, 2019, DowDuPont completed the Dow Distribution. Immediately after the distribution, DowDuPont does not beneficially own any equity interest in Dow and will no longer consolidate Dow into its financial results. Beginning in the second quarter of 2019, Dow’s historical financial results for periods prior to April 1, 2019 will be reflected in DuPont’s consolidated financial statements as discontinued operations.

Intended Spin-Off of Corteva

On June 1, 2019, DowDuPont intends to complete the Corteva Distribution. As of the effective date and time of the intended distribution, it is expected that DowDuPont will not beneficially own any equity interest in Corteva and will no longer consolidate Corteva into its financial results. Beginning in the second quarter of 2019, Corteva’s historical financial results for periods prior to June 1, 2019 will be reflected in DuPont’s consolidated financial statements as discontinued operations.

Unaudited Pro Forma Financial Information

The following unaudited pro forma financial information and accompanying notes (the “pro forma financial statements”) are derived from DowDuPont’s historical consolidated financial statements and accompanying notes, adjusted to give effect to the Merger, the Dow Distribution and the intended Corteva Distribution, both of which will be treated as discontinued operations, and the Financings, including the use and intended use of proceeds from such Financings (collectively “the Transactions”). The historical consolidated financial information has been adjusted to give effect to pro forma events that are (1) directly attributable to the Transactions, (2) factually supportable and (3) with respect to the statements of operations, expected to have a continuing impact on the results. Information in the pro forma financial statements is presented as follows:

 

   

The unaudited pro forma consolidated balance sheet is presented as the Distributions, along with intended borrowings under the Term Loan Facilities and intended use of proceeds from the Financings, had been consummated on December 31, 2018.

 

   

The unaudited pro forma consolidated statements of operations for the years ended December 31, 2018 and 2017 give effect to the pro forma discontinued operations presentation of the materials science and agriculture businesses, further adjusted to present the Merger, Financings and Distributions as if they had been consummated on January 1, 2017.

 

   

The unaudited pro forma consolidated statement of operations for the year ended December 31, 2016 gives effect only to the pro forma discontinued operations presentation of the materials science and agriculture businesses of Historical Dow as if the Distributions had occurred on January 1, 2016.

 

1


For purposes of our financial statement presentation, Historical Dow was determined to be the accounting acquirer in the Merger, and Historical DuPont’s assets and liabilities were reflected at fair value as of the close of the Merger in the historical financial statements of DowDuPont. As a result, the historical financial statements of Historical Dow for periods prior to the Merger are considered to be the historical financial statements of DowDuPont. Therefore, the unaudited pro forma consolidated statements of operations for the year ended December 31, 2016 reflects the results of Historical Dow’s operations only, adjusted to remove the results that are directly attributable to the operations of the Historical Dow materials science and agriculture businesses.

The pro forma financial statements are based on and should be read in conjunction with the separate historical financial statements contained in our Annual Report on Form 10-K for the period ended December 31, 2018 and in each of Historical Dow’s and Historical DuPont’s Annual Reports on Form 10-K for the year ended December 31, 2018. The pro forma financial statements, prepared in accordance with Article 11 of SEC Regulation S-X, are presented for informational purposes only, and do not purport to represent what our results of operations or financial position would have been had the Transactions occurred on the dates indicated, nor do they purport to project the results of operations or financial position for any future period or as of any future date.

The unaudited pro forma consolidated statements of operations for the years ended December 31, 2018 and 2017 include costs of approximately $1.0 billion and $1.2 billion, respectively, previously allocated to the materials science and agriculture businesses that did not meet the definition of expenses related to discontinued operations in accordance with Financial Accounting Standards Board Accounting Standards Codification 205, “Presentation of Financial Statements” (“ASC 205”) and thus are reflected in DuPont’s pro forma income (loss) from continuing operations. A significant portion of these costs relate to Historical Dow and consist of leveraged services provided through service centers, as well as other corporate overhead costs related to information technology, finance, manufacturing, research & development, sales & marketing, supply chain, human resources, sourcing & logistics, legal and communications, public affairs & government affairs functions. These costs related to Historical Dow will not be incurred by DowDuPont (and DuPont post the Corteva Distribution) subsequent to the distribution of Dow on April 1, 2019.

Pro forma provision (credit) for income taxes on continuing operations also includes the impact of the Tax Cuts and Jobs Act (“The Act”) which was enacted on December 22, 2017. The Act, among other things, reduces the U.S. federal corporate income tax rate from 35 percent to 21 percent, requires companies to pay a one-time transition tax on earnings of foreign subsidiaries that were previously deferred, creates new provisions related to foreign sourced earnings, eliminates the domestic manufacturing deduction and moves to a territorial system. In accordance with Staff Accounting Bulletin 118, income tax effects of The Act were refined upon obtaining, preparing or analyzing additional information during the measurement period. At December 31, 2018, DowDuPont completed its accounting for the tax effects of The Act.

One-time transaction-related costs incurred prior to, or concurrent with, the closing of the Merger and subsequent Distributions are not included in the unaudited pro forma consolidated statements of income. In addition, the pro forma financial statements do not reflect restructuring or integration activities or other costs following the Distributions that may be incurred to achieve cost or growth synergies of DuPont. As no assurance can be made that these costs will be incurred or the growth synergies will be achieved, no adjustment has been made.

The pro forma financial statements do not reflect the following financial impacts related to the Separation and Distribution agreement and other related agreements:

 

   

DuPont has entered into certain various manufacturing, supply and service related agreements with Dow and Corteva in connection with the Distributions. These agreements provide for different pricing than the historical intercompany and intracompany practices of Historical DowDuPont. The financial impact of these agreements is expected to result in an unfavorable impact to “Income (loss) from continuing operations before income taxes” of approximately $60 million to $80 million for the years ended December 31, 2018 and 2017 which has not been reflected in the unaudited pro forma consolidated statements of income.

 

   

Certain tax asset and liability balances may differ from the balances presented in the unaudited pro forma consolidated balance sheet below, pursuant to the implementation of the Tax Matters Agreement. Additionally, as set forth in the Tax Matters Agreement, the parties anticipate an amendment on or prior to June 1, 2019, in connection with the separation of Corteva from DowDuPont, to allocate certain liabilities and other items between DuPont and Corteva. The full financial impact of the Tax Matters Agreement, including any anticipated amendments thereto, cannot be determined at this time.

 

2


DuPont

Unaudited Pro Forma Consolidated Balance Sheet

as of December 31, 2018

 

     DowDuPont     Distribution
of Dow 1
    Intended
Distribution
of Corteva 2
    DuPont
Adjusted 3
    Financing
Pro Forma
Adjustments
    DuPont
Pro Forma
 

(in millions)

   As Reported    

 

   

 

    (subtotal)     Note 2    

 

 
Assets                                     

Current assets

            

Cash and cash equivalents

   $ 13,482     $ (2,723   $ (2,211   $ 8,548     $ (6,380 )(a)    $ 2,168  

Marketable securities

     134       (100     (5     29       —         29  

Accounts and notes receivable – net

     17,339       (8,939     (5,009     3,391       —         3,391  

Inventories

     16,621       (6,891     (5,258     4,472       —         4,472  

Other current assets

     2,027       (800     (922     305       —         305  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current assets

     49,603       (19,453     (13,405     16,745       (6,380     10,365  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Investments

            

Investment in nonconsolidated affiliates

     5,204       (3,315     (138     1,751       —         1,751  

Other investments

     2,701       (2,646     (27     28       —         28  

Noncurrent receivables

     477       (358     (72     47       —         47  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total investments

     8,382       (6,319     (237     1,826       —         1,826  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net property

     35,848       (21,417     (4,530     9,901       —         9,901  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Goodwill

     59,032       (9,845     (14,691     34,496       —         34,496  

Other intangible assets

     30,965       (4,225     (12,055     14,685       —         14,685  

Deferred income tax assets

     1,724       (1,186     (365     173       —         173  

Deferred charges and other assets

     2,476       (742     (1,688     46       —         46  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets

   $ 188,030     $ (63,187   $ (46,971   $ 77,872     $ (6,380   $ 71,492  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
Liabilities and Equity                                     

Current liabilities

            

Notes payable

   $ 2,165     $ (636   $ (1,529   $ —       $ —       $ —    

Long-term debt due within one-year

     637       —         (622     15       —         15  

Accounts payable

     13,113       (6,867     (3,627     2,619       —         2,619  

Income taxes payable

     857       (557     (185     115       —         115  

Accrued and other current liabilities

     7,943       (2,931     (3,883     1,129       —         1,129  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current liabilities

     24,715       (10,991     (9,846     3,878       —         3,878  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Long-term debt

     37,662       (19,254     (5,784     12,624       2,994  (b)      15,618  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Other noncurrent liabilities

            

Deferred income tax liabilities

     5,435       256       (1,693     3,998       —         3,998  

Pension and other postemployment benefits

     15,909       (8,943     (5,640     1,326       —         1,326  

Asbestos-related liabilities

     1,142       (1,142     —         —         —         —    

Other noncurrent obligations

     6,988       (4,674     (1,731     583       —         583  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total other noncurrent liabilities

     29,474       (14,503     (9,064     5,907       —         5,907  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Stockholders’ equity

            

Common stock

     24       —         —         24       —         24  

Additional paid-in capital

     81,960       —         (20,775     61,185       (7,795 )(c)      53,390  

Retained earnings

     30,536       (26,781     (3,755     —         —         —    

Accumulated other comprehensive loss

     (12,394     9,077       2,519       (798     —         (798

Unearned ESOP shares

     (134     134       —         —         —         —    

Treasury stock at cost

     (5,421     —         —         (5,421     (1,579 )(d)      (7,000
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total stockholders’ equity

     94,571       (17,570     (22,011     54,990       (9,374     45,616  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Noncontrolling interests

     1,608       (869     (266     473       —         473  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total equity

     96,179       (18,439     (22,277     55,463       (9,374     46,089  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities and equity

   $ 188,030     $ (63,187   $ (46,971   $ 77,872     $ (6,380   $ 71,492  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
1.

Represents the distribution of Dow in accordance with the discontinued operations guidance in ASC 205.

2.

Represents the intended distribution of Corteva in accordance with the discontinued operations guidance in ASC 205.

3.

Represents the Company’s current best estimate of DuPont’s unaudited pro forma consolidated balance sheet, reflecting the discontinued operations of Dow and Corteva. Actual results could differ from these estimates.

See accompanying Notes to the Unaudited Pro Forma Financial Information.

 

3


DuPont

Unaudited Pro Forma Consolidated Statement of Operations

for the Year Ended December 31, 2018

 

     DowDuPont      Distribution
of Dow 1
     Intended
Distribution
of Corteva 2
     DuPont
Adjusted 3
     Separation
and
Financing
Pro Forma
Adjustments
    DuPont
Pro Forma
 

(in millions, except per share amounts)

   As Reported                    (subtotal)      Note 3        

Net sales

   $ 85,977      $ (49,224)      $ (14,159)      $ 22,594      $ —       $ 22,594  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Cost of sales

     65,333        (40,187)        (9,838)        15,308        —         15,308  

Research and development expenses

     3,060        (670)        (1,320)        1,070        —         1,070  

Selling, general and administrative expenses

     6,709        (1,304)        (2,377)        3,028        —         3,028  

Amortization of intangibles

     1,903        (469)        (390)        1,044        —         1,044  

Restructuring, goodwill impairment and asset related charges – net

     1,105        (219)        (739)        147        —         147  

Integration and separation costs

     2,463        (135)        (441)        1,887        (493) (a)      1,394  

Equity in earnings of nonconsolidated affiliates

     1,001        (554)        —          447        —         447  

Sundry income – net

     592        (242)        (258)        92        —         92  

Interest expense and amortization of debt discount

     1,504        (1,062)        (387)        55        629  (b)      684  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

     5,493        (5,974)        1,075         594        (136)       458  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Provision (credit) for income taxes on continuing operations

     1,489        (1,468)        187         208        (31) (a)(b)      177  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Income (loss) from continuing operations, net of tax

     4,004        (4,506)        888         386        (105)       281  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Net income from continuing operations attributable to noncontrolling interests

     155        (101)        (15)        39        —         39  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Net income (loss) from continuing operations available to DuPont common stockholders

   $ 3,849      $ (4,405)      $ 903       $ 347      $ (105)     $ 242  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Earnings per common share from continuing operations (Note 5):

                
  

 

 

               

 

 

 

Basic 4

   $ 1.66                 $ 0.10  

Diluted 4

   $ 1.65                 $ 0.10  
  

 

 

               

 

 

 

Weighted average common shares outstanding (Note 5):

                
  

 

 

               

 

 

 

Basic

     2,301.0                   2,301.0  

Diluted

     2,315.5                   2,315.5  
  

 

 

               

 

 

 
1.

Represents the distribution of Dow in accordance with the discontinued operations guidance in ASC 205.

2.

Represents the intended distribution of Corteva in accordance with the discontinued operations guidance in ASC 205.

3.

Represents the Company’s current best estimate of DuPont’s retrospectively revised historical consolidated statement of operations for the year ended December 31, 2018 reflecting the discontinued operations of Dow and Corteva. Actual results could differ from these estimates.

4.

Basic and diluted earnings per share is calculated by dividing net income available to DuPont common stockholders by our weighted-average number of common shares outstanding. Net income available for DuPont common stockholders is reduced by $17 million of net income attributable to deferred stock awards, as these awards are considered participating securities due to the Company’s practice of paying dividend equivalents on unvested shares.

See accompanying Notes to the Unaudited Pro Forma Financial Information.

 

4


DuPont

Unaudited Pro Forma Combined Statement of Operations

for the Year Ended December 31, 2017

 

    DowDuPont     Distribution
of Dow 1
    Intended
Distribution
of Corteva 2
    DuPont
Adjusted 3
    Historical
DuPont As
Adjusted

(1/1/2017 -
8/31/2017)   4
    Merger
Pro Forma
Adjustments
    Separation
and
Financing
Pro Forma
Adjustments
    DuPont
Pro Forma
 

(in millions, except per share amounts)

  As Reported                 (subtotal)     Note 4     Note 3     Note 3        

Net sales

  $ 62,484      $ (43,449)     $ (7,363)     $ 11,672      $ 9,334      $ (6) (a)    $ —       $ 21,000   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cost of sales

    49,791        (35,434)       (5,199)       9,158        6,252       


138 

(a) 

(c) 

(f) 

    —         15,548   

Research and development expenses

    2,141        (669)       (815)       657        424        (c)      —         1,090   

Selling, general and administrative expenses

    4,064        (1,322)       (1,127)       1,615        1,349        20  (c)      —         2,984   

Amortization of intangibles

    1,013        (400)       (108)       505        101        404  (d)      —         1,010   

Restructuring, goodwill impairment and asset related charges – net

    3,280        (2,740)       (252)       288        311        (9) (b)      —         590   

Integration and separation costs

    1,101        (31)       (63)       1,007        356        (148) (b)      (405) (a)      810   

Equity in earnings of nonconsolidated affiliates

    764        (394)       (3)       367        58        (15) (e)      —         410   

Sundry income (expense) – net

    417        (28)       (323)       66        (135)       —         —         (69)  

Interest expense and amortization of debt discount

    1,082        (915)       (167)       —         —         —         684  (b)      684   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

    1,193        (2,360)       42        (1,125)       464        (435)       (279)       (1,375)  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Credit for income taxes on continuing operations 5

    (476)       (1,250)       334        (1,392)       (280)       (126) (g)      (105) (a)(b)      (1,903)  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations, net of tax

    1,669        (1,110)       (292)       267        744        (309)       (174)       528   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to noncontrolling interests

    132        (101)       (15)       16        15        —         —         31   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss) from continuing operations available to DuPont common stockholders

  $ 1,537      $ (1,009)     $ (277)     $ 251      $ 729      $ (309)     $ (174)     $ 497   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Earnings per common share from continuing operations (Note 5):

               
 

 

 

               

 

 

 

Basic 6

  $ 0.97                  $ 0.21   
   

 

 

 

Diluted 6

  $ 0.95                  $ 0.21   
 

 

 

               

 

 

 

Weighted average common shares outstanding (Note 5):

               
 

 

 

               

 

 

 

Basic

    1,579.8                    2,323.9   

Diluted

    1,598.1                    2,346.1   
 

 

 

               

 

 

 

 

1.

Represents the distribution of Dow in accordance with the discontinued operations guidance in ASC 205. Reflects a full year of results of Historical Dow’s materials science business along with Historical DuPont’s materials science business for the post-merger period September 1 through December 31, 2017.

2.

Represents the intended distribution of Corteva in accordance with the discontinued operations guidance in ASC 205. Reflects a full year of results of Historical Dow’s agriculture business along with Historical DuPont’s agriculture business for the post-merger period September 1 through December 31, 2017.

3.

Represents the Company’s current best estimate of DuPont’s retrospectively revised historical consolidated statement of operations for the year ended December 31, 2017 reflecting the discontinued operations of Dow and Corteva. Actual results could differ from these estimates.

4.

Reflects Historical DuPont for the pre-merger period from January 1 through August 31, 2017 after giving effect to the distributions of Historical DuPont’s materials science and agriculture businesses, see Note 4 for further details.

5.

In connection with The Act, credit for income taxes on continuing operations includes a provisional benefit of $2,666 million related to the remeasurement of deferred taxes, partially offset by a provisional charge of $1,580 million related to the one-time transition tax liability for foreign subsidiaries.

6.

Basic and diluted earnings per share is calculated by dividing net income available to DuPont common stockholders by the weighted-average number of common shares outstanding. Net income available for DuPont common stockholders is reduced by $13 million of net income attributable to deferred stock awards, as these awards are considered participating securities due to the Company’s practice of paying dividend equivalents on unvested shares.

See accompanying Notes to the Unaudited Pro Forma Financial Information.

 

5


DuPont

Unaudited Pro Forma Consolidated Statement of Operations

for the Year Ended December 31, 2016

 

     DowDuPont      Distribution of
Historical Dow
Materials
Science 1
    Intended
Distribution of
Historical Dow
Agriculture 2
    DuPont Pro
Forma 3, 4
 

(in millions, except per share amounts)

   As Reported                     

Net sales

   $ 48,158      $ (36,099   $ (6,029   $ 6,030  
  

 

 

    

 

 

   

 

 

   

 

 

 

Cost of sales

     37,668        (29,325     (3,891     4,452  

Research and development expenses

     1,593        (606     (563     424  

Selling, general and administrative expenses

     2,953        (1,282     (697     974  

Amortization of intangibles

     544        (316     (18     210  

Restructuring, goodwill impairment and asset related charges – net

     595        (579     (11     5  

Integration and separation costs

     349        —         —         349  

Asbestos-related charge

     1,113        (1,113     —         —    

Equity in earnings of nonconsolidated affiliates

     442        (188     (5     249  

Sundry income – net

     1,486        (598     (40     848  

Interest expense and amortization of debt discount

     858        (827     (29     2  
  

 

 

    

 

 

   

 

 

   

 

 

 

Income from continuing operations before income taxes

     4,413        (2,837     (865     711  
  

 

 

    

 

 

   

 

 

   

 

 

 

Provision (credit) for income taxes on continuing operations

     9        (275     94       (172
  

 

 

    

 

 

   

 

 

   

 

 

 

Income from continuing operations, net of tax

     4,404        (2,562     (959     883  
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to noncontrolling interests

     86        (53     (7     26  
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to DuPont

     4,318        (2,509     (952     857  
  

 

 

    

 

 

   

 

 

   

 

 

 

Preferred stock dividends

     340        —         —         340  
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income from continuing operations available to DuPont common stockholders

   $ 3,978      $ (2,509   $ (952   $ 517  
  

 

 

    

 

 

   

 

 

   

 

 

 

Earnings per common share from continuing operations (Note 5):

         

Basic 5

   $ 3.57          $ 0.45  

Diluted 5

   $ 3.52          $ 0.44  
  

 

 

        

 

 

 

Weighted average common shares outstanding (Note 5):

         

Basic

     1,108.1            1,108.1  

Diluted

     1,123.2            1,123.2  
  

 

 

        

 

 

 

 

1.

Represents the distribution of Historical Dow’s materials science business in accordance with the discontinued operations guidance in ASC 205.

2.

Represents the intended distribution of Historical Dow’s agriculture business in accordance with the discontinued operations guidance in ASC 205.

3.

Represents the Company’s current best estimate of DuPont’s unaudited pro forma consolidated statement of operations for the year ended December 31, 2016 reflecting the discontinued operations of Historical Dow’s materials science and agriculture businesses. Actual results could differ from these estimates.

4.

The pro forma results for the year ended December 31, 2016, were impacted by a net pre-tax benefit of $374 million comprised of the following non-recurring items: a non-taxable gain of $828 million related to the Dow Silicones ownership restructuring reflected in sundry income—net; a benefit of $11 million for litigation related charges, awards and adjustments reflected in sundry income—net; integration and separation costs of $349 million; a $104 million charge for the fair value step-up of Dow Silicones’s inventories reflected in cost of sales; a pretax loss of $7 million related to the early redemption of debt incurred by Dow Silicones reflected in equity in earnings of nonconsolidated affiliates and restructuring, goodwill impairment and asset related charges—net of $5 million. In addition, the pro forma financial statements for the year ended December 31, 2016 include costs of approximately $1.0 billion previously allocated to our materials science and agriculture businesses that did not meet the definition of discontinued operations in accordance with ASC 205.

5.

Basic and diluted earnings per share is calculated by dividing net income available to DuPont common stockholders by weighted-average number of common shares outstanding. Net income available to DuPont common stockholders is reduced by $22 million of net income attributable to deferred stock awards, as these awards are considered participating securities due to the DowDuPont’s practice of paying dividend equivalents on unvested shares.

See accompanying Notes to the Unaudited Pro Forma Financial Information.

 

6


NOTES TO THE UNAUDITED PRO FORMA FINANCIAL INFORMATION

NOTE 1 – BASIS OF PRESENTATION

In addition to giving effect to the Dow Distribution, the unaudited pro forma financial information has been further adjusted to reflect the intended Corteva Distribution and the Financings. The pro forma adjustments related to the Distributions have been prepared in accordance with discontinued operations guidance in ASC 205 and therefore do not allocate any of our general overhead expenses to the discontinued operations of the materials science and agriculture businesses. As such, the pro forma financial statements do not reflect what DuPont’s results of operations would have been on a stand-alone basis and are not necessarily indicative of future results of operations. In addition, our current estimates for discontinued operations are preliminary and actual results could differ from these estimates.

For periods prior to the Merger, the historical financial statements of Historical Dow are considered to be the historical financial statements of DowDuPont. For comparative purposes given the significance, the unaudited pro forma combined statement of operations for the year ended December 31, 2017 is presented herein giving effect to the Merger as if it had occurred on January 1, 2017 in order to reflect a full year of results of Historical DuPont’s specialty products business. The historical statement of operations of Historical DuPont for the pre-Merger period from January 1, 2017 through August 31, 2017 reflects certain reclassifications to align the financial statement presentation of Historical DuPont and DowDuPont. See “Note 4 Historical DuPont Discontinued Operations and Reclassification Adjustments” herein for additional information. Transactions between Historical Dow and Historical DuPont during the period January 1, 2017 through August 31, 2017 have been eliminated as if Historical Dow and Historical DuPont were consolidated affiliates.

NOTE 2 – ADJUSTMENTS TO THE UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET

Financing Pro Forma Adjustments:

The unaudited pro forma consolidated balance sheet reflects the following adjustments:

 

(a)

Adjustment to cash represents the following:

 

(in millions)

   As of
December  31,
2018
 

Amounts borrowed under the Term Loan Facilities

   $ 3,000  

Cash contribution to Dow

     (2,024

Cash contribution to Corteva

     (5,771

Share repurchase program

     (1,579

Cash payment for financing fees

     (6
  

 

 

 

Total adjustment to cash

   $ (6,380
  

 

 

 

In the fourth quarter of 2018, DowDuPont received net proceeds of $12.6 billion after the underwriting discount from consummating the public underwritten offer of DowDuPont Notes. DowDuPont intends to receive an additional $3.0 billion from drawing on its Term Loan Facilities prior to the distribution of Corteva. Of the remaining proceeds available as of December 31, 2018 and to be made available from the Financings, approximately $2.0 billion was contributed to Dow on April 1, 2019 in connection with the Dow Distribution and approximately $5.8 billion is expected to be contributed to Corteva in connection with the Corteva Distribution. Further, approximately $1.6 billion was used in first quarter 2019 to fund completion of the Share Repurchase Program.

 

(b)

Adjustment to long-term debt represents the following:

 

(in millions)

   As of
December  31,
2018
 

Record the Term Loan Facilities

   $ 3,000  

Less: financing fees

     (6
  

 

 

 

Total adjustment to long-term debt

   $ 2,994  
  

 

 

 

The Term Loan Facilities, which consists of three-year terms and variable interest rates, are expected to be drawn by the Company prior to the distribution of Corteva.

 

(c)

Reflects the impact to additional paid-in capital from the pro forma adjustments described above.

 

(d)

Reflects the impact to treasury stock from the pro forma adjustments described above.

 

7


NOTE 3 – ADJUSTMENTS TO THE UNAUDITED PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS

Separation Pro Forma Adjustments:

The pro forma financial statements reflect the following adjustments related to the Distributions:

 

(a)

Adjustment to eliminate one-time transaction costs directly attributable to the expected distribution transactions. The below represents the impact to the respective unaudited pro forma consolidated statements of income.

 

(in millions)

   Year Ended
December
 31,
2018
     Year Ended
December
 31,
2017
 

Integration and separation costs

   $ (493    $ (405

Provision for income taxes on continuing operations 1

     114        141  
  

 

 

    

 

 

 
1.

Represents the income tax effect of the elimination of one-time transaction costs directly attributable to the expected distribution transactions calculated using enacted statutory tax rates applicable in each period at the legal entity in which the pre-tax adjustments were made.

Financing Pro Forma Adjustments:

The unaudited pro forma consolidated statements of operations for the years ended December 31, 2018 and 2017, reflect the following adjustments:

 

(b)

Adjustment to interest expense consists of the following:

 

(in millions)

   Year Ended
December  31,
2018
     Year Ended
December  31,
2017
 

Cash interest expense related to the Financings 1

   $ 612      $ 666  

Amortization of deferred financing fees

     17        18  
  

 

 

    

 

 

 

Pro forma adjustment to interest expense

   $ 629      $ 684  
  

 

 

    

 

 

 

Provision for income taxes on continuing operations 2

   $ (145    $ (246
  

 

 

    

 

 

 
1.

Comprised of interest expense related to the Financing. The weighted average cash interest rate is approximately 4.2%. A 0.125% increase or decrease in the weighted average interest rate would increase or decrease the pro forma interest expense adjustment for the years ended December 31, 2018 and 2017 by $18 million and $20 million, respectively.

2.

Represents the income tax effect on the pro forma adjustment to interest expense calculated using enacted statutory tax rates applicable in each period at the legal entity in which the pre-tax adjustments were made.

Merger Pro Forma Adjustments:

The unaudited pro forma combined statement of operations for the year ended December 31, 2017 reflects the following adjustments related to the Merger:

 

(a)

Transactions between Historical Dow and Historical DuPont have been eliminated as if they were consolidated affiliates for the entire period presented. Adjustment reflects the elimination of net sales and cost of sales of $6 million for the period January 1 through August 31, 2017.

 

(b)

Represents the elimination of one-time merger related transaction costs of $148 million from integration and separation costs for the period January 1 through August 31, 2017 and $9 million from restructuring, goodwill impairment and asset-related charges—net for the period January 1 through August 31, 2017.

 

(c)

Represents estimated additional depreciation expense of $147 million in cost of sales, $9 million in research and development expenses, and $20 million in selling, general and administrative expenses, resulting from the fair value adjustment to net property for the period January 1 through August 31, 2017 related to the ongoing specialty products businesses.

 

(d)

Represents estimated additional amortization expense of $404 million resulting from the fair value adjustment to intangibles for the period January 1 through August 31, 2017 reflected in amortization of intangibles related to the ongoing specialty products businesses.

 

(e)

Represents a reduction to equity in earnings of nonconsolidated affiliates of $15 million for the period January 1 through August 31, 2017 related to the amortization of the fair value adjustment to Historical DuPont’s investments in nonconsolidated affiliates.

 

(f)

Represents a reduction to cost of sales of $3 million for the period January 1 through August 31, 2017, due to conforming Historical DuPont’s accounting policy of deferring and amortizing expenses for planned major maintenance activities to DowDuPont’s accounting policy of directly expensing the costs as incurred.

 

(g)

Represents the income tax effect of the merger pro forma adjustments calculated using enacted statutory rates applicable in each period at the legal entity in which the pre-tax adjustments were made.

 

8


NOTE 4 – HISTORICAL DUPONT DISCONTINUED OPERATIONS AND RECLASSIFICATION ADJUSTMENTS

The pro forma financial statements, as shown below, present the pro forma results of operations of Historical DuPont, for the period January 1 through August 31, 2017, after giving effect to the distributions of Historical DuPont’s agriculture and materials science businesses, which are presented below in accordance with ASC 205 as discontinued operations. Additionally, Historical DuPont’s financial statement presentation does not conform to our financial statement presentation. In order to align the financial statement presentation of Historical DuPont’s to that of DowDuPont, certain reclassification adjustments below have been made to Historical DuPont’s statement of operations.

The table below summarizes the discontinued operations and certain reclassifications made to Historical DuPont’s statement of operations to conform to DowDuPont’s presentation for the period of January 1 through August 31, 2017:

 

(in millions)

   Historical
DuPont
(1/1/2017 -
 8/31/2017)
    Distribution of
Historical
DuPont
Materials
Science
(1/1/2017 -
 8/31/2017)
    Intended
Distribution of
Historical
DuPont
Agriculture
(1/1/2017 -
 8/31/2017)
    Reclassification
Adjustments
1
    Historical
DuPont
As Adjusted
(1/1/2017 -
 8/31/2017)
 

Net sales

   $ 17,281     $ (1,076   $ (6,894   $ 23     $ 9,334  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cost of goods sold

     10,052       (641     (3,428     269       6,252  

Other operating charges

     504       3       (167     (340     —    

Research and development expense

     1,022       (16     (556     (26     424  

Selling, general and administrative expenses

     3,222       (101     (1,415     (357     1,349  

Amortization of intangibles

     —         —         —         101       101  

Restructuring and asset related charges – net

     323       —         (12     —         311  

Integration and separation costs

     —         —         —         356       356  

Equity in earnings of nonconsolidated affiliates

     —         —         —         58       58  

Sundry income (expense) – net

     (113     (23     119       (118     (135

Interest expense

     254       —         (254     —         —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from continuing operations before income taxes

     1,791       (344     (943     (40     464  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Provision (credit) for income taxes on continuing operations

     149       (105     (284     (40     (280
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income from continuing operations after income taxes

     1,642       (239     (659     —         744  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to noncontrolling interests

     18       —         (3     —         15  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to DuPont

   $ 1,624     $ (239   $ (656   $ —       $ 729  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
1.

Reclassification adjustments to conform Historical DuPont financial statement presentation to DowDuPont’s financial statement presentation.

 

9


NOTE 5 – DUPONT EARNINGS PER SHARE INFORMATION

The unaudited pro forma basic and diluted earnings per share for the period presented are based on pro forma net (loss) income from continuing operations attributable to DuPont common stockholders divided by basic and diluted weighted-average number of common shares outstanding. The pro forma shares outstanding for the year ended December 31, 2017 are impacted by the shares issued by DowDuPont as stock consideration in connection with the Merger, as well as Historical DuPont equity awards that were converted into DowDuPont equity awards as a result of the Merger.

The table below contains a reconciliation of the numerator for basic and diluted earnings per share calculations for the periods indicated:

 

(in millions)

   Year Ended
December  31,
2018
     Year Ended
December
 31,
2017
     Year Ended
December
 31,
2016
 

Pro forma net income (loss) from continuing operations available to DuPont common stockholders

   $ 242      $ 497      $ 517  

Net income from continuing operations attributable to participating securities 1

     (17      (13      (22
  

 

 

    

 

 

    

 

 

 

Pro forma net income (loss) from continuing operations available to DuPont common stockholders – basic and diluted

   $ 225      $ 484      $ 495  
  

 

 

    

 

 

    

 

 

 
1.

Deferred stock awards are considered participating securities due to DowDuPont’s practice of paying dividend equivalents on unvested shares.

The denominators for basic and diluted earnings per share calculations for the years ended December 31, 2018 and December 31, 2016 are prepared on the same basis as the Historical DowDuPont weighted-average common shares presented in the unaudited pro forma consolidated statements of operations. The table below contains a reconciliation of the denominator for basic and diluted earnings per share calculations for the year ended December 31, 2017.

 

(in millions)

   Year Ended
December  31,
2017
 

DowDuPont weighted-average common shares – basic

     1,579.8  

Weighted-average shares issued to Historical DuPont stockholders as consideration for the Merger 1

     744.1  
  

 

 

 

DuPont weighted-average common shares – basic

     2,323.9  
  

 

 

 

Plus dilutive effect of DowDuPont equity compensation plans

     22.2  
  

 

 

 

DuPont weighted-average common shares – diluted

     2,346.1  
  

 

 

 

Equity awards and deferred stock awards excluded from earnings per share calculations 2

     1.4  
  

 

 

 
1.

As a result of the Merger, share amounts for the year ended December 31, 2017, reflect a weighted average effect of Dow shares outstanding prior to August 31, 2017 and DowDuPont shares outstanding on and after August 31, 2017. As such, for purposes of calculating pro forma basic and diluted earnings per share, the impact of the shares issued to Historical DuPont stockholders as part of the Merger, have been included as if the Merger had been consummated on January 1, 2017.

2.

These outstanding options to purchase shares of common stock and deferred stock awards were excluded from the calculation of diluted earnings per share because the effect of including them would have been antidilutive.

 

10

Exhibit 99.3

Reconciliation of Non-GAAP Measures (Unaudited)

Pro forma operating EBITDA is a supplemental measure of performance that is not required by, or presented in accordance with, GAAP. Subsequent to the Distributions, DuPont management intends to utilize pro forma operating EBITDA because management believes that this measure provides additional information about the ability to meet future debt service, capital expenditures and working capital requirements. Pro forma operating EBITDA - DuPont is defined as pro forma earnings (i.e. pro forma “Income (loss) from continuing operations before income taxes”) before interest, depreciation, amortization, non-operating pension / OPEB benefits / charges, and foreign exchange gains / losses, excluding the impact of adjusted significant items.

Pro forma information used in the calculation of pro forma operating EBITDA - DuPont was determined in accordance with Article 11 of Regulation S-X and was derived from DowDuPont’s historical consolidated financial statements and accompanying notes, adjusted to give effect to the Transactions as if they had been consummated on January 1, 2017. The pro forma financial statements were based on and should be read in conjunction with the separate historical financial statements contained in DowDuPont’s Annual Report on Form 10-K for the year ended December 31, 2018 and in each of Historical Dow and Historical DuPont’s Annual Reports on Form 10-K for the year ended December 31, 2018.

For the years ended December 31, 2018 and 2017, pro forma operating EBITDA - DuPont was $4.9 billion and $4.0 billion, respectively. The unaudited pro forma consolidated statements of operations for the years ended December 31, 2018 and 2017 include costs of approximately $1.0 billion and $1.2 billion, respectively, previously allocated to the agriculture and materials science businesses that did not meet the definition of discontinued operations in accordance with ASC 205. A significant portion of these costs relate to Historical Dow and consist of leveraged services provided through service centers, as well as other corporate overhead costs related to information technology, finance, manufacturing, research & development, sales & marketing, supply chain, human resources, sourcing & logistics, legal and communications, public affairs & government affairs functions. These costs related to Historical Dow will not be incurred by DowDuPont (and DuPont post the Corteva Distribution) subsequent to the distribution of Dow on April 1, 2019.

The reconciliation between pro forma operating EBITDA - DuPont and pro forma income from continuing operations, net of tax - DuPont, its most directly comparable GAAP measure, is as follows for the periods indicated:

 

(in millions)

   Year Ended
December  31,
2018
     Year Ended
December
 31,
2017
 

Pro forma income from continuing operations, net of tax - DuPont

   $ 281      $ 528  

+ Provision (credit) for income taxes on continuing operations

     177        (1,903
  

 

 

    

 

 

 

Pro forma income (loss) from continuing operations before income taxes

   $ 458      $ (1,375
  

 

 

    

 

 

 

+ Depreciation and amortization

     2,170        2,131  

– Interest income 1

     (39      (22

+ Interest expense and amortization of debt discount

     684        684  

- Non-operating pension/OPEB benefit

     (96      (57

+ Foreign exchange losses, net 1, 2

     43        493  

+ Adjusted significant items

     1,704        2,176  
  

 

 

    

 

 

 

Pro forma operating EBITDA - DuPont

   $ 4,924      $ 4,030  
  

 

 

    

 

 

 
1.

Reflected in sundry income (expense) - net.

2.

Excludes a $50 million pretax foreign exchange loss included in adjusted significant items, related to adjustments to Historical DuPont’s foreign currency exchange contracts as a result of U.S. tax reform during the year ended December 31, 2018.

Adjusted Significant Items

 

(in millions)

   Year Ended
December
 31,
2018
     Year Ended
December
 31,
2017
 

Merger-related inventory step-up amortization 1

   $ 72      $ 938  

Net loss (gain) on change in joint venture ownership and sale of assets 2

     41        (162

Integration and separation costs

     1,394        810  

Income tax related item 3

     50        —    

Restructuring and asset-related charges - net

     147        590  
  

 

 

    

 

 

 

Total adjusted significant items

   $ 1,704      $ 2,176  
  

 

 

    

 

 

 

 

1.

Reflected in cost of sales.

2.

Reflected in sundry income (expense) - net.

3.

Includes a foreign exchange loss related to adjustments to Historical DuPont’s foreign currency exchange contracts as a result of U.S. tax reform.

 

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Reconciliation to Operating EBITDA / Pro Forma Operating EBITDA of the Specialty Products Division of DowDuPont

DowDuPont’s current measure of profit/loss for segment reporting purposes for the years ended December 31, 2018 and 2017 is operating EBITDA and pro forma operating EBITDA, respectively, as this is the manner in which DowDuPont’s chief operating decision maker (“CODM”) assesses performance and allocates resources. DowDuPont defines operating EBITDA as earnings (i.e., “Income from continuing operations before income taxes”) before interest, depreciation, amortization, and foreign exchange gains (losses), excluding the impact of significant items and pro forma operating EBITDA as pro forma earnings (i.e., pro forma “Income from continuing operations before income taxes”) before interest, depreciation, amortization, and foreign exchange gains (losses), excluding the impact of significant items. Operating EBITDA and pro forma operating EBITDA for the specialty products division of DowDuPont is based on the combined results of DowDuPont’s Electronics & Imaging, Nutrition & Biosciences, Transportation & Advanced Polymers, and Safety & Construction segments. The specialty products division of DowDuPont does not include amounts reflected in DowDuPont Corporate.

Pro forma adjustments used in the calculation of pro forma operating EBITDA for the specialty products division were determined in accordance with Article 11 of Regulation S-X and were based on the historical consolidated financial statements of Historical Dow and Historical DuPont, adjusted to give effect to the Merger only as if it had been consummated on January 1, 2016. The unaudited pro forma historical division information has been presented for informational purposes only and is not necessarily indicative of what the specialty products division’s results of operations actually would have been had the Merger been completed as of January 1, 2016, nor is it indicative of the future operating results of the specialty products division. The unaudited pro forma operating EBITDA for the specialty products division does not reflect restructuring or integration activities or other costs that may be incurred to achieve cost or growth synergies of DuPont.

A reconciliation between pro forma operating EBITDA - DuPont and operating EBITDA and pro forma operating EBITDA of the specialty products division of DowDuPont (1)  for the years ended December 31, 2018 and 2017, respectively, is as follows:

 

(in millions)

   Year Ended
December  31,
2018
     Year Ended
December  31,
2017
 

Pro forma operating EBITDA - DuPont

   $ 4,924      $ 4,030  
  

 

 

    

 

 

 

+ Historical Dow costs to be eliminated at separation of Dow (2)

     929        1,042  

+ Historical DuPont corporate costs (3)

     350        390  

+ Pre-commercial and other business support costs (4)

     180        245  

+ Non-operating pension/OPEB & Other (5)

     280        (58
  

 

 

    

 

 

 

Operating EBITDA / Pro forma operating EBITDA - specialty products division of DowDuPont

   $ 6,663      $ 5,649  
  

 

 

    

 

 

 

 

1.

Operating EBITDA and pro forma operating EBITDA for the specialty products division of DowDuPont is based on the combined results of DowDuPont’s Electronics & Imaging, Nutrition & Biosciences, Transportation & Advanced Polymers, and Safety & Construction segments as disclosed in DowDuPont’s Annual Form 10-K for the year ended December 31, 2018 filed with the SEC on February 11, 2019. The specialty products division of DowDuPont does not include amounts reflected in DowDuPont Corporate.

2.

Historical Dow costs previously allocated to the agriculture and materials sciences businesses that did not meet the definition of discontinued operations in accordance with ASC 205

3.

Includes approximately $115 million and $130 million of Historical DuPont costs previously allocated to the agriculture and materials science businesses that did not meet the definition of discontinued operations in accordance with ASC 205 for the years ended December 31, 2018 and 2017, respectively. The remaining costs were previously included in DowDuPont Corporate.

4.

Pre-commercial and other business support costs supporting the segments that were previously reflected in DowDuPont Corporate but are expected to be reflected in DuPont segment results after the separations and distributions.

5.

Non-operating pension / OPEB costs & benefits are allocated by DowDuPont to its segments and are included in DowDuPont’s segment reporting measure. DuPont intends to exclude these amounts from its measure of pro forma operating EBITDA.

 

2