\nSection 1.1 General…………………………………………………………………… 2<\/p>\n ARTICLE II<\/p>\n
REORGANIZATION AND RELATED TRANSACTIONS<\/p>\n
Section 2.1 The Reorganization…………………………………………………………. 13
\nSection 2.2 Assumption of Parent Liabilities…………………………………………….. 15
\nSection 2.3 Foreign Transfers………………………………………………………….. 15
\nSection 2.4 3M Approval……………………………………………………………….. 22<\/p>\n
ARTICLE III<\/p>\n
ASSUMPTION AND RETENTION OF LIABILITIES<\/p>\n
Section 3.1 Assumed Liabilities………………………………………………………… 22
\nSection 3.2 Retained Liabilities……………………………………………………….. 23<\/p>\n
ARTICLE IV<\/p>\n
THE DISTRIBUTION<\/p>\n
Section 4.1 The Distribution…………………………………………………………… 23
\nSection 4.2 Fractional Shares………………………………………………………….. 23
\nSection 4.3 3M Board Action……………………………………………………………. 24<\/p>\n
ARTICLE V<\/p>\n
INDEMNIFICATION, CLAIMS AND OTHER MATTERS<\/p>\n
Section 5.1 Indemnification……………………………………………………………. 24
\nSection 5.2 Procedure for Indemnification……………………………………………….. 27
\nSection 5.3 Other Claims by Indemnified Parties Against
\n Indemnifying Parties……………………………………………………….. 30
\nSection 5.4 Indemnifiable Losses under Sections
\n 5.1(a)(ii) and 5.1(b)(ii)…………………………………………………… 31
\nSection 5.5 No Beneficiaries…………………………………………………………… 31
\nSection 5.6 Special Provision Relating to Nishika Case……………………………………. 32
\nSection 5.7 Named Parties……………………………………………………………… 32<\/p>\n
ARTICLE VI<\/p>\n
CERTAIN ADDITIONAL MATTERS<\/p>\n
Section 6.1 Conveyancing and Assumption Instruments………………………………………. 33
\nSection 6.2 No Representations or Warranties; Exceptions………………………………….. 33
\nSection 6.3 Further Assurances; Subsequent Transfers……………………………………… 34
\nSection 6.4 Imation Officers and Directors………………………………………………. 36
\nSection 6.5 Resignations………………………………………………………………. 37
\nSection 6.6 Certain Intercompany Arrangements……………………………………………. 37
\nSection 6.7 Related Agreements…………………………………………………………. 37
\nSection 6.8 Sales and Transfer Taxes……………………………………………………. 37
\nSection 6.9 Signs; Use of 3M Name………………………………………………………. 38
\nSection 6.10 Supplies and Documents……………………………………………………… 38
\nSection 6.11 Plant Closings and Layoffs………………………………………………….. 38
\nSection 6.12 Shared Facility Arrangements………………………………………………… 39
\nSection 6.13 Leased Employees…………………………………………………………… 40
\nSection 6.14 Other Leased\/Shared Properties………………………………………………. 41
\nSection 6.15 Domestic Receivables and Payables……………………………………………. 41
\nSection 6.16 Diskette Anti-Dumping Duty Exemption…………………………………………. 43
\nSection 6.17 Repayment of Italian Debt…………………………………………………… 43
\nSection 6.18 GECC Financing Agreements…………………………………………………… 44
\nSection 6.19 Letters of Credit………………………………………………………….. 50
\nSection 6.20 Industrial Revenue Bonds……………………………………………………. 50<\/p>\n
ARTICLE VII<\/p>\n
ACCESS TO INFORMATION AND SERVICES<\/p>\n
Section 7.1 Provision of Corporate Records………………………………………………. 51
\nSection 7.2 Access to Information………………………………………………………. 51
\nSection 7.3 Production of Witnesses and Individuals………………………………………. 51
\nSection 7.4 Retention of Records……………………………………………………….. 52
\nSection 7.5 Confidentiality……………………………………………………………. 52
\nSection 7.6 Privileged Matters…………………………………………………………. 55
\nSection 7.7 Mail and Other Communications……………………………………………….. 56<\/p>\n
ARTICLE VIII<\/p>\n
EMPLOYEE MATTERS AND BENEFITS…………………………………………………. 57<\/p>\n
Section 8.1 Employment………………………………………………………………… 57
\nSection 8.2 Qualified and NonQualified Retirement and
\n Benefit Plans……………………………………………………………… 57
\nSection 8.3 Welfare Plans……………………………………………………………… 62
\nSection 8.4 Assumption of Certain Employee Related
\n Obligations……………………………………………………………….. 66
\nSection 8.5 Other Liabilities and Obligations……………………………………………. 67
\nSection 8.6 Preservation of Rights to Amend or Terminate
\n Plans…………………………………………………………………….. 67
\nSection 8.7 Reimbursement; Indemnification………………………………………………. 67
\nSection 8.8 Stock Plans……………………………………………………………….. 68
\nSection 8.9 Limitation on Enforcement…………………………………………………… 70
\nSection 8.10 Employment Following the Distribution Date……………………………………. 70
\nSection 8.11 Foreign Service Employee and O.U.S. Transferred
\n Employee Obligations……………………………………………………….. 71<\/p>\n
ARTICLE IX<\/p>\n
INSURANCE<\/p>\n
Section 9.1 General…………………………………………………………………… 71
\nSection 9.2 Imation’s Insurance………………………………………………………… 71
\nSection 9.3 Access to 3M’s Insurance Program…………………………………………….. 71
\nSection 9.4 Insurance Recoveries……………………………………………………….. 73
\nSection 9.5 Assignment………………………………………………………………… 74<\/p>\n
ARTICLE X<\/p>\n
DISPUTE RESOLUTION<\/p>\n
Section 10.1 Mediation and Binding Arbitration……………………………………………. 74
\nSection 10.2 Initiation………………………………………………………………… 74
\nSection 10.3 Submission to Mediation…………………………………………………….. 74
\nSection 10.4 Selection of Mediator………………………………………………………. 75
\nSection 10.5 Mediation and Arbitration…………………………………………………… 75
\nSection 10.6 Selection of Arbitrator…………………………………………………….. 75
\nSection 10.7 Cost of Arbitration………………………………………………………… 76
\nSection 10.8 Arbitration Period…………………………………………………………. 76
\nSection 10.9 Treatment of Negotiation and Mediation……………………………………….. 76
\nSection 10.10 Confidentiality……………………………………………………………. 76
\nSection 10.11 Equitable Relief…………………………………………………………… 77
\nSection 10.12 Notices…………………………………………………………………… 77
\nSection 10.13 Consolidation……………………………………………………………… 77<\/p>\n
ARTICLE XI<\/p>\n
MISCELLANEOUS<\/p>\n
Section 11.1 Complete Agreement…………………………………………………………. 77
\nSection 11.2 Expenses………………………………………………………………….. 77
\nSection 11.3 Governing Law……………………………………………………………… 78
\nSection 11.4 Notices…………………………………………………………………… 78
\nSection 11.5 Amendment and Modification………………………………………………….. 79
\nSection 11.6 Termination……………………………………………………………….. 79
\nSection 11.7 Successors and Assigns……………………………………………………… 79
\nSection 11.8 No Third Party Beneficiaries………………………………………………… 80
\nSection 11.9 Counterparts………………………………………………………………. 80
\nSection 11.10 Interpretation…………………………………………………………….. 80
\nSection 11.11 Annexes, Etc………………………………………………………………. 80
\nSection 11.12 Construction of Agreements………………………………………………….. 81
\nSection 11.13 Legal Enforceability……………………………………………………….. 81
\nSection 11.14 Survival………………………………………………………………….. 81
\nSection 11.15 Guaranty………………………………………………………………….. 81<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
Annexes:<\/p>\n
ANNEX I – Assumed Liabilities
\nANNEX II – Retained Liabilities
\nANNEX III – Transferred Assets
\nANNEX IV – Enterprise Liabilities
\nANNEX V – Enterprise Assets<\/p>\n
Exhibits:<\/p>\n
Exhibit A – Corporate Services Transition Agreement
\nExhibit B – Environmental Matters Agreement
\nExhibit C – Intellectual Property Agreement
\nExhibit D – Joint Defense Agreement
\nExhibit E – Joint Representation and Defense Agreement
\nExhibit F – Tax Sharing Agreement
\nExhibit G – Services Agreements
\nExhibit H – Supply Agreements
\nExhibit I – Sales Agency Agreements
\nExhibit J – Redistribution Agreement
\nExhibit K – Contract Manufacturing Agreements
\nExhibit L – Reorganization Agreement for Italian Operations
\nExhibit M – Form of Foreign Asset Transfer Agreements
\nExhibit N – Contribution Agreement for French Operations
\nExhibit O – Minutes of Shareholders Meeting relating to
\n Argentinean Operations
\nExhibit P – Minutes of Quotaholders Meeting relating to Brazil-
\n ian Operations
\nExhibit Q – Shared Facility Agreements
\nExhibit R – Leased Employee Agreement<\/p>\n
Schedules:<\/p>\n
Schedule 1.1A – Transferred Businesses
\nSchedule 1.1B – Business Units Excluded from Transferred
\n Businesses
\nSchedule 1.1C – Imation Employees
\nSchedule 1.1D – Pilot Plant Assets
\nSchedule 1.1E – 3M Center Assets
\nSchedule 1.1F – Human Resources Codes
\nSchedule 5.1(a) – 3M Information in Information Statement
\nSchedule 6.12(a) – Domestic Shared Facilities
\nSchedule 6.14(a) – Assigned Third Party Leases
\nSchedule 6.14(b) – 3M Leased Properties
\nSchedule 6.15(a) – Trade Receivables\/Payables Settlement Schedule
\nSchedule 8.11 – Foreign Service Employee Obligations
\nSchedule 9.3 – Pre-Distribution Date Insurance Claims<\/p>\n
TRANSFER AND DISTRIBUTION AGREEMENT<\/p>\n
TRANSFER AND DISTRIBUTION AGREEMENT, dated as of June 18,
\n1996, by and between Minnesota Mining and Manufacturing Company, a Delaware
\ncorporation (“3M”), and Imation Corp., a Delaware corporation and a wholly owned
\nsubsidiary of 3M (“Imation”).<\/p>\n
WHEREAS, 3M has, among other endeavors, been engaged in the
\nresearch, manufacturing and marketing of products in its Imaging Systems Group
\n(the “Imaging Systems Group”) and Memory Technologies Group (collectively,
\nincluding the business units and plants set forth on Schedule 1.1A hereto, but
\nnot including the business units and plants set forth on Schedule 1.1B hereto,
\nthe “Transferred Businesses”);<\/p>\n
WHEREAS, the Board of Directors of 3M has determined that the
\ninterests of 3M’s businesses and shareholders would be best served by separating
\nits businesses into two separate companies, one consisting of the Transferred
\nBusinesses and the other consisting of 3M’s core businesses (the “Core
\nBusinesses”);<\/p>\n
WHEREAS, in furtherance of the foregoing, 3M wishes to
\ntransfer and assign to Imation substantially all of the assets and properties of
\nthe Transferred Businesses specified in this Agreement in exchange for (i) the
\nassumption by Imation of substantially all of the liabilities and obligations
\nrelating to the Transferred Businesses specified in this Agreement and (ii) the
\nissuance to 3M by Imation of shares of its common stock, par value $.01 per
\nshare (the “Imation Common Stock”);<\/p>\n
WHEREAS, Imation is willing to assume such liabilities and
\nobligations and to issue such shares of Imation Common Stock to 3M in exchange
\nfor such assets and properties;<\/p>\n
WHEREAS, 3M intends to distribute all of the outstanding
\nshares of Imation Common Stock, on a pro rata basis, to the holders of the
\ncommon stock of 3M, without par value (the “3M Common Stock”) (such distribution
\nhereinafter referred to as the “Distribution”);<\/p>\n
WHEREAS, 3M and Imation have determined that it is necessary
\nand desirable to set forth the principal corporate transactions required to
\neffect the Distribution and to set forth other agreements that will govern
\ncertain other matters in connection with the Distribution.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the
\nmutual covenants and agreements contained herein and intending to be legally
\nbound hereby, 3M and Imation hereby agree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
Section 1.1 General. As used in this Agreement, capitalized
\nterms defined immediately after their use shall have the respective meanings
\nthereby provided and the following terms shall have the following meanings (such
\nmeanings to be equally applicable to both the singular and plural forms of the
\nterms defined):<\/p>\n
Accrued Benefits: shall have the meaning set forth in Section
\n8.2(e)(ii) hereof.<\/p>\n
Action: any action, claim, suit, arbitration, inquiry,
\nsubpoena, discovery request, proceeding or investigation by or before any court
\nor grand jury, any governmental or other regulatory or administrative agency or
\ncommission or any arbitration tribunal.<\/p>\n
Affiliate: with respect to any specified person, a person
\nthat, directly or indirectly, through one or more intermediaries, controls, or
\nis controlled by, or is under common control with, such specified person;
\nprovided, however, that 3M and Imation shall not be deemed to be Affiliates of
\neach other for purposes of this Agreement.<\/p>\n
Agent: Norwest Bank Minnesota, N.A., the distribution agent
\nappointed by 3M to distribute shares of Imation Common Stock pursuant to the
\nDistribution.<\/p>\n
Asset and Liability Transfer: shall have the meaning set forth
\nin Section 2.1(b) hereof.<\/p>\n
Assumed Liabilities: collectively, all of the Liabilities and
\nother obligations of 3M listed on Annex I hereto which are to be assumed by
\nImation or its Affiliates as part of the transaction.<\/p>\n
Bids, Quotations and Proposals: the bids, quotations or
\nproposals which have been submitted or made by the Transferred Businesses or 3M
\non behalf of the Transferred Businesses which are outstanding as of the
\nDistribution Date.<\/p>\n
Books and Records: the books and records of 3M (or true and
\ncomplete copies thereof), including all computerized books and records owned by
\n3M, which relate principally to the Transferred Businesses and are necessary for
\nImation to operate the Transferred Businesses, including, without limitation,
\nall such books and records relating to Transferred Employees, the purchase of
\nmaterials, supplies and services, the manufacture and sale of products by the
\nTransferred Businesses or dealings with customers of the Transferred Businesses
\nand all files relating to any Action being assumed by Imation as part of the
\nAssumed Liabilities.<\/p>\n
COBRA: shall have the meaning set forth in Section 8.4(a)(ii)
\nhereof.<\/p>\n
Code: the Internal Revenue Code of 1986, as amended.<\/p>\n
Contract Manufacturing Agreements: the Contract Manufacturing
\nAgreements, in the form of the agreements attached as Exhibit K hereto, pursuant
\nto which 3M will manufacture certain products for Imation and Imation will
\nmanufacture certain products for 3M.<\/p>\n
Conveyancing and Assumption Instruments: collectively, the
\nvarious agreements, instruments and other documents to be entered into in order
\nto effect the transfer to Imation of Transferred Assets, and the assumption by
\nImation of the Assumed Liabilities in the manner contemplated by this Agreement.<\/p>\n
Core Businesses: shall have the meaning set forth in the
\nsecond WHEREAS clause hereof.<\/p>\n
Corporate Services Transition Agreement: the Corporate
\nServices Transition Agreement, substantially in the form set forth as Exhibit A
\nhereto, pursuant to which 3M will provide to Imation certain corporate services
\nspecified therein.<\/p>\n
Debt Available for Foreign Purchase Transactions: shall have
\nthe meaning set forth in Section 2.3(xiii) hereof.<\/p>\n
Defend: address or respond in any manner to any Action
\nbrought, asserted, commenced or pursued by any person or entity that is not a
\nparty to this Agreement.<\/p>\n
Defense: the plan for or state of defending.<\/p>\n
Dispute: shall have the meaning set forth in Section 10.1
\nhereof.<\/p>\n
Distribution: the distribution as a dividend to holders of 3M
\nCommon Stock of Imation Common Stock on the basis provided in Section 4.1
\nhereof, which shall be effective on the date specified for the dividend by the
\n3M Board of Directors.<\/p>\n
Distribution Date: the date as of which the Distribution shall
\nbe effected as determined by the 3M Board of Directors.<\/p>\n
EBTA: shall have the meaning set forth in Section 8.3(a)(ii)
\nhereof.<\/p>\n
Enterprise Assets: collectively, all of the assets of 3M
\nidentified on Annex V hereto which are to be transferred to Imation Enterprises
\nin connection with the Distribution.<\/p>\n
Enterprise Liabilities: collectively, all of the Liabilities
\nand other obligations of 3M identified on Annex IV hereto which are to be
\nassumed by Imation Enterprises in connection with the Distribution.<\/p>\n
Enterprise Operations: collectively, the operations conducted
\nby 3M at the manufacturing facilities of 3M’s Imaging Systems Group or at the
\nmanufacturing facilities located at Weatherford, Oklahoma or Menomonie,
\nWisconsin, all sales and field logistic operations and the operations
\nconducted by 3M’s HESD Field Service and Customer Support department, in all
\ninstances to the extent part of the domestic operations of the Transferred
\nBusinesses.<\/p>\n
Environmental Matters Agreement: the agreement,
\nsubstantially in the form of Exhibit B hereto, pursuant to which 3M and Imation
\nhave provided for certain environmental matters.<\/p>\n
ERISA: the Employee Retirement Income Security Act of 1974, as
\namended.<\/p>\n
ESOP Transfer: shall have the meaning set forth in Section
\n8.2(b) hereof.<\/p>\n
ESOP Transfer Date: shall have the meaning set forth in
\nSection 8.2(b) hereof.<\/p>\n
Exchange Act: the Securities Exchange Act of 1934, as amended.<\/p>\n
First Party: shall have the meaning set forth in Section
\n7.5(b) hereof.<\/p>\n
Foreign Asset Transfer Agreements: the Foreign Asset Transfer
\nAgreements, substantially in the form of the agreements attached as Exhibit M
\nhereto, pursuant to which certain assets will be sold between respective
\nAffiliates of 3M and Imation.<\/p>\n
Form 10: the registration statement on Form 10 filed by
\nImation with the SEC to effect the registration of the Imation Common Stock
\npursuant to the Exchange Act.<\/p>\n
Grandfathered Employees: shall have the meaning set forth in
\nSection 8.2(h)(ii) hereof.<\/p>\n
Imaging Systems Group: shall have the meaning set forth in the
\nfirst WHEREAS clause hereof.<\/p>\n
Imation Common Stock: shall have the meaning set forth in the
\nthird WHEREAS clause hereof.<\/p>\n
Imation Defined Benefit Plans: shall have the meaning set
\nforth in Section 8.2(a)(i) hereof.<\/p>\n
Imation Defined Contribution Plan: shall have the meaning set
\nforth in Section 8.2(a)(i) hereof.<\/p>\n
Imation Employee Stock Incentive Plan: shall have the meaning
\nset forth in Section 8.8(c) hereof.<\/p>\n
Imation Enterprises: Imation Enterprises Corp., a Delaware
\ncorporation and, as of the date of this Agreement, a wholly owned subsidiary of
\n3M.<\/p>\n
Imation Flexible Benefits Program: shall have the meaning set
\nforth in Section 8.3(c)(ii) hereof.<\/p>\n
Imation Nonqualified Pension Plan: shall have the meaning set
\nforth in Section 8.2(a)(iii) hereof.<\/p>\n
Imation Party: shall have the meaning set forth in Section 5.4
\nhereof.<\/p>\n
Imation Pension Plans: shall have the meaning set forth in
\nSection 8.2(a)(i) hereof.<\/p>\n
Imation Shared Facilities: shall have the meaning set forth in
\nSection 6.12(a) hereof.<\/p>\n
Imation Stock Options: shall have the meaning set forth in
\nSection 8.8(c) hereof.<\/p>\n
Imation VEBA: shall have the meaning set forth in Section
\n8.3(a)(i) hereof.<\/p>\n
Indemnifiable Loss Deduction: shall have the meaning set forth
\nin Section 5.1(d)(i) hereof.<\/p>\n
Indemnifiable Losses: with respect to any claim by an
\nIndemnified Party for indemnification authorized pursuant to Article V hereof,
\nany and all losses, liabilities, claims, damages, obligations, payments, costs
\nand expenses (including, without limitation, the costs and expenses of any and
\nall Actions, demands, assessments, judgments, settlements and compromises
\nrelating thereto and reasonable attorneys’ fees and expenses in connection
\ntherewith) suffered by such Indemnified Party with respect to such claim.<\/p>\n
Indemnification Claimant: shall have the meaning set forth in
\nSection 5.2(c) hereof.<\/p>\n
Indemnified Party: any party who is entitled to receive
\npayment from an Indemnifying Party pursuant to Article V hereof.<\/p>\n
Indemnifying Party: any party who is required to pay any other
\nperson pursuant to Article V hereof.<\/p>\n
Indemnity Payment: the amount an Indemnifying Party is
\nrequired to pay an Indemnified Party pursuant to Article V hereof.<\/p>\n
Indemnity Return: shall have the meaning set forth in Section
\n5.1(d)(i) hereof.<\/p>\n
Information: shall have the meaning set forth in Section 7.2
\nhereof.<\/p>\n
Information Statement: the information statement to be sent
\nto the holders of 3M Common Stock in connection with the Distribution.<\/p>\n
Insurance Program: collectively, the series of policies
\npursuant to which various insurance carriers provide insurance coverage to 3M
\nand its Affiliates in respect of claims or occurrences relating to, without
\nlimitation, property damage, manufacturer’s output, business interruption,
\ntransit, fire, extended coverage, fiduciary, fidelity, environmental impairment,
\nemployee crime, general liability, products’ liability, automobile liability and
\nemployer’s liability, excluding risks assumed by Seaside without the benefit of
\nreinsurance.<\/p>\n
Intellectual Property Agreement: the Intellectual Property
\nRights Agreement, substantially in the form of Exhibit C hereto, pursuant to
\nwhich 3M and Imation are providing for certain matters involving intellectual
\nproperty.<\/p>\n
Joint Defense Agreement: any agreement, substantially in the
\nform of Exhibit D hereto, which may be entered into by 3M and Imation with
\nrespect to their defense of certain matters.<\/p>\n
Joint Representation and Defense Agreement: any agreement,
\nsubstantially in the form of Exhibit E hereto, which may be entered into by 3M
\nand Imation with respect to representation and defense of certain matters.<\/p>\n
Leased Employees: As provided in the Leased Employee
\nAgreement, all hourly and salaried employees of 3M at 3M’s Rochester, New York
\nfacility, all hourly employees in the CD Rom section of 3M’s Menomonie,
\nWisconsin facility, and all other 3M employees listed on attachments to the
\nLeased Employee Agreement who are leased to Imation and\/or its Affiliates for
\nvarious periods as provided in the Leased Employee Agreement.<\/p>\n
Leased Employee Agreement: The Leased Employee Agreement,
\nsubstantially in the form of Exhibit R hereto, pursuant to which Imation and\/or
\nImation Enterprises will lease the Leased Employees from 3M.<\/p>\n
Liabilities: any and all debts, liabilities and obligations,
\nwhether accrued, contingent (known or unknown) or reflected on a balance sheet,
\nincluding, without limitation, those arising under any law, rule, regulation,
\nAction, order or consent decree of any governmental entity or any judgment of
\nany court of any kind or any award of any arbitrator of any kind, and those
\narising under any contract, commitment or undertaking.<\/p>\n
Minnesota Research: shall have the meaning set forth in
\nSection 2.3(viii) hereof.<\/p>\n
1996 Grants: shall have the meaning set forth in Section
\n8.8(c) hereof.<\/p>\n
Non-Permitted Names: shall have the meaning set forth in
\nSection 6.9 hereof.<\/p>\n
Option: an option to purchase shares of 3M Common Stock under
\nany of the Stock Option Plans.<\/p>\n
O.U.S. Transferred Employees: shall have the meaning set forth
\nin Section 8.1 hereof.<\/p>\n
Parent Assets: shall have the meaning set forth in Section
\n2.1(a) hereof.<\/p>\n
Parent Liabilities: shall have the meaning set forth in
\nSection 2.1(a) hereof.<\/p>\n
Pilot Plant Assets: the assets utilized by the Transferred
\nBusinesses relating to the pilot plants located in buildings 235 and 236 of 3M
\nCenter which are set forth on Schedule 1.1D hereto.<\/p>\n
Privilege(s): shall have the meaning set forth in Section
\n7.6(a) hereof.<\/p>\n
Privileged Information: shall have the meaning set forth in
\nSection 7.6(a) hereof<\/p>\n
Progressive Stock Options: shall have the meaning set forth in
\nSection 8.8(a) hereof.<\/p>\n
PUP: shall have the meaning set forth in Section 8.4(a)(iv)
\nhereof.<\/p>\n
Record Date: the date determined by the Board of Directors of
\n3M as the record date for the Distribution.<\/p>\n
Recovery: the amount obtained pursuant to a claim under an
\ninsurance policy in the Insurance Program.<\/p>\n
Redistribution Agreement: the Redistribution Agreement, in the
\nform of Exhibit J hereto, pursuant to which 3M will distribute certain products
\non behalf of Imation.<\/p>\n
Related Agreements: the Conveyancing and Assumption
\nInstruments, Corporate Services Transition Agreement, Environmental Matters
\nAgreement, Intellectual Property Agreement, Tax Sharing Agreement, Services
\nAgreements, Supply Agreements, Sales Agency Agreements, Redistribution
\nAgreement, Contract Manufacturing Agreements, Shared Facility Agreements, the
\nLeased Employee Agreement, the foreign transfer agreements, and the various
\nservice, supply and other agreements to be entered into between 3M and its
\nsubsidiaries, on the one hand, and Imation and its subsidiaries on the other
\nhand in connection with the Distribution and the other transactions contemplated
\nhereby.<\/p>\n
Retained Liabilities: collectively, all of the Liabilities and
\nobligations of 3M listed on Annex II hereto.<\/p>\n
Sales Agency Agreements: the Sales Agency Agreements, in the
\nform of the agreements attached as Exhibit I hereto, pursuant to which 3M will
\nprovide certain sales services to Imation and Imation will provide certain sales
\nservices to 3M, as the case may be.<\/p>\n
SEC: the Securities and Exchange Commission.<\/p>\n
Services Agreements: the Services Agreements, in the form of
\nthe agreements attached as Exhibit G hereto, pursuant to which 3M will provide
\ncertain services to Imation or Imation will provide certain services to 3M, as
\nthe case may be.<\/p>\n
Shared Facility Agreements: the Shared Facilities Lease
\nAgreements, in the form of the agreements attached as Exhibit Q, pursuant to
\nwhich 3M or Imation will lease to the other a portion of a facility and provide
\ncertain services in connection therewith.<\/p>\n
Shared Facility Arrangements: shall have the meaning set forth
\nin Section 6.12(a)hereof.<\/p>\n
Shared Facility Term: with respect to a specific Shared
\nFacility Agreement, the term set forth in such agreement, as such term may be
\nextended or shortened in accordance with the terms of such agreement.<\/p>\n
Special Retirement Benefits: shall mean the 3M Special
\nRetirement Benefits and the Imation Special Retirement Benefits as defined in
\nSections 8.2(e)(iv) and 8.2(h)(ii) hereof.<\/p>\n
Stock Option Plans: 3M’s 1987 and 1992 Management Stock
\nOwnership Programs.<\/p>\n
Supply Agreements: the Supply Agreements, in the form of the
\nagreements attached as Exhibit H hereto, pursuant to which 3M and Imation will
\nprovide certain materials to each other.<\/p>\n
Tax Saving Amount: shall have the meaning set forth in Section
\n5.1(d)(ii) hereof.<\/p>\n
Tax Sharing Agreement: the Tax Sharing and Indemnification
\nAgreement, in the form of Exhibit F hereto, pursuant to which 3M and Imation
\nhave provided for certain tax matters.<\/p>\n
Third Party Claim: shall have the meaning set forth in Section
\n5.2(a) hereof.<\/p>\n
3M Center Assets: the assets located at 3M Center which are
\nprincipally utilized by the Transferred Businesses and are to be transferred to
\nImation or Imation Enterprises pursuant to Section 2.1 hereof, as identified on
\nSchedule 1.1E hereof.<\/p>\n
3M Common Stock: shall have the meaning set forth in the fifth
\nWHEREAS clause hereof.<\/p>\n
3M Defined Benefit Plans: shall have the meaning set forth
\nin Section 8.2(e) hereof.<\/p>\n
3M 401(K)\/ESOP: shall have the meaning set forth in Section
\n8.2(b) hereof.<\/p>\n
3M Nonqualified Pension Plans: shall have the meaning set
\nforth in Section 8.2(e) hereof.<\/p>\n
3M Options: shall have the meaning set forth in Section 8.8(a)
\nhereof.<\/p>\n
3M Party: shall have the meaning set forth in Section 5.4
\nhereof.<\/p>\n
3M Pension Plans: shall have the meaning set forth in Section
\n8.2(e) hereof.<\/p>\n
3M Post Retirement Medical Plans: shall have the meaning set
\nforth in Section 8.3(a)(iii) hereof.<\/p>\n
3M Qualified Pension Plans: shall have the meaning set forth
\nin Section 8.2(e) hereof.<\/p>\n
3M Shared Facility: shall have the meaning set forth in
\nSection 6.12(a) hereof.<\/p>\n
3M Survivor Program: shall have the meaning set forth in
\nSection 8.2(a) hereof.<\/p>\n
3M VEBA: shall have the meaning set forth in Section 8.3(a)(i)
\nhereof.<\/p>\n
Transaction Taxes: shall have the meaning set forth in Section
\n6.8 hereof.<\/p>\n
Transferred Assets: collectively, all of the assets and
\nproperties of 3M and its Affiliates identified on Annex III hereto.<\/p>\n
Transferred Businesses: the businesses referred to as such in
\nthe first WHEREAS clause of this Agreement, including any businesses (such as
\nDynacolor, the Data Cartridge Drive Business and Comtal) or products of 3M that
\nwere discontinued or otherwise terminated by 3M prior to the Distribution Date,
\nto the extent, but only to the extent, that such businesses were conducted or
\nproducts were sold as part of the business units (irrespective of the name of
\nany such unit at the time) referred to as part of the Transferred Businesses in
\nsuch WHEREAS clause.<\/p>\n
Transferred Employee: any employee of 3M who is employed by
\nthe business units, or at the plants listed on Schedule 1.1A, any 3M employee
\nfrom the 3M staff organizations, such as engineering, controllers, human
\nresources or Legal Affairs, who is assigned full-time to one of such business
\nunits or plants as of the Distribution Date or who is listed on Schedule 1.1C,
\ndomestic employees of 3M who are on the Distribution Date assigned Inactive
\nStatus Codes 20, 21, 22, 23, 24, 32 and 34, or Special Status Codes 30, 40 and
\n41 (a copy of 3M’s human resources codes is attached as Schedule 1.1F) and who
\nlast worked for the business units or at the plants listed on Schedule 1.1A, any
\nforeign employee identified on schedules to, or otherwise contemplated by, the
\nvarious foreign transfer agreements, and any employee of 3M who has volunteered
\nto be employed by Imation as of the Distribution Date, but excluding 3M
\nemployees who, as of the Distribution Date, are: Leased Employees, 3M employees
\non Pre-Retirement Leave Status, 3M employees on 3M’s Unassigned List or 3M
\nemployees in those portions of Imation’s facilities leased by 3M from Imation
\nand, further, excluding 3M employees who have accepted on or prior to the
\nDistribution Date voluntary separation plans offered prior to the Distribution
\nDate by the business units or at the plants listed on Schedule 1.1A.<\/p>\n
U.S. Transferred Employees: shall have the meaning set forth
\nin Section 8.1 hereof.<\/p>\n
WARN Act: shall have the meaning set forth in Section 6.10
\nhereof.<\/p>\n
ARTICLE II<\/p>\n
REORGANIZATION AND RELATED TRANSACTIONS<\/p>\n
Section 2.1 The Reorganization.<\/p>\n
(a) Subject to the terms and conditions of this Agreement, 3M
\nand Imation shall cause, on the Distribution Date, (i) all of 3M’s right, title
\nand interest in and to the Transferred Assets (other than the Enterprise Assets)
\n(the “Parent Assets”) to be conveyed, assigned, transferred and delivered to
\nImation (or the appropriate Imation Affiliate), free and clear of all liens or
\nencumbrances in favor of 3M, (ii) all of 3M’s duties, obligations and
\nresponsibilities under the Assumed Liabilities (other than the Enterprise
\nLiabilities) (the “Parent Liabilities”) to be assumed by Imation (or the
\nappropriate Imation Affiliate), and (iii) all of 3M’s right, title and interest
\nin and to all capital stock of Imation Enterprises to be conveyed, assigned,
\ntransferred and delivered to Imation, free and clear of all liens or
\nencumbrances in favor of 3M.<\/p>\n
(b) Subject to the terms and conditions of this Agreement, 3M
\nand Imation shall cause, immediately prior to the transfer and assumption
\ncontemplated by Section 2.1(a) hereof, (i) all of 3M’s right, title and interest
\nin and to the Enterprise Assets to be conveyed, assigned, transferred and
\ndelivered to Imation Enterprises, free and clear of all liens or encumbrances in
\nfavor of 3M, and (ii) all of 3M’s duties, obligations and responsibilities under
\nthe Enterprise Liabilities to be assumed by Imation Enterprises (the transfers
\nset forth in subsections (a) and (b) hereof, the “Asset and Liability
\nTransfer”).<\/p>\n
(c) Subject to Section 6.3 hereof, to the extent that any such
\nconveyances, assignments, transfers and deliveries shall not have been so
\nconsummated on the Distribution Date, 3M and Imation shall cooperate to effect
\nsuch consummation as promptly thereafter as shall be practicable, it nonetheless
\nbeing understood and agreed by 3M and Imation that neither shall be liable in
\nany manner to any person who is not a party to this Agreement for any failure of
\nany of the transfers contemplated by this Article II to be consummated on or
\nsubsequent to the Distribution Date. Whether or not all of the Parent Assets or
\nthe Parent Liabilities shall have been legally transferred to Imation or all of
\nthe Enterprise Assets or the Enterprise Liabilities shall have been legally
\ntransferred to Imation Enterprises as of the Distribution Date, 3M and Imation
\nagree that, as of the Distribution Date, Imation and Imation Enterprises shall
\nhave, and shall be deemed to have acquired, complete and sole beneficial
\nownership over all of the Parent Assets and Enterprise Assets, respectively,
\nexcept as described herein with respect to assets which are non-assignable,
\ntogether with all of 3M’s rights, powers and privileges (except as provided in
\nSection 7.6 hereto) incident thereto, and shall be deemed to have assumed in
\naccordance with the terms of this Agreement all of the Parent Liabilities and
\nEnterprise Liabilities, respectively, and all of 3M’s duties, obligations and
\nresponsibilities incident thereto.<\/p>\n
(d) In furtherance of the transfers and assumptions
\ncontemplated by the foregoing Sections 2.1(a) and (b), Imation and 3M, as
\nbetween the two of them, acknowledge and agree as follows: (a) 3M and its
\nAffiliates shall have no obligation or liability of any kind to Imation or its
\nAffiliates for any condition existing at or prior to the Distribution Date or
\nfor any conduct, act or omission by or on behalf of 3M, its Affiliates or any
\nother person on, or at any time prior, to the Distribution Date; and Imation and
\nits Affiliates shall have no claims, or right to bring a claim or Action,
\nagainst 3M or its Affiliates with respect thereto, including (without
\nlimitation) any claim or Action arising out of (i) the operation of the
\nTransferred Businesses on or before the Distribution Date, (ii) any advice,
\nrights, products or services made available to the Transferred Businesses, on or
\nbefore the Distribution Date, by 3M, its Affiliates or any other person, (iii)
\nthe Assumed Liabilities or (iv) the formation of Imation; except for, and to the
\nextent of, any responsibilities specifically retained by 3M or any of its
\nAffiliates pursuant to the terms of this Agreement or any of the Related
\nAgreements; and (b) Imation and its Affiliates shall have no obligation or
\nliability of any kind to 3M or its Affiliates for any condition existing at or
\nprior to the Distribution Date or for any conduct, act or omission by or on
\nbehalf of Imation, its Affiliates or any other person on, or at any time prior
\nto, the Distribution Date; and 3M and its Affiliates shall have no claims, or
\nright to bring a claim or Action, against Imation or its Affiliates with respect
\nthereof, including (without limitation) any claim or Action arising out of (i)
\nthe operations of 3M other than the Transferred Businesses on or before the
\nDistribution Date, (ii) any advice, rights, products or services made available
\nto 3M or its Affiliates, on or before the Distribution Date, by the Transferred
\nBusinesses or any other person or (iii) the Retained Liabilities; except for,
\nand to the extent of, any responsibilities specifically assumed by Imation or
\nany of its Affiliates pursuant to the terms of this Agreement or any of the
\nRelated Agreements.<\/p>\n
(e) Representatives of 3M and Imation have prepared schedules
\nto identify equipment located at various domestic manufacturing facilities which
\nis not to be retained by the party retaining the respective facilities. These
\nschedules, which have been initialled by the respective heads of manufacturing
\nfor 3M and Imation, shall be binding on the parties so as to resolve any
\nquestions as to the allocation of equipment at such facilities.<\/p>\n
Section 2.2 Assumption of Parent Liabilities. In consideration
\nfor the conveyance, assignment, transfer and delivery of the Parent Assets and
\nEnterprise Assets being made pursuant to Section 2.1 hereof, Imation agrees to
\nassume the Parent Liabilities and to issue and deliver to the Agent for delivery
\nto stockholders of 3M as of the Record Date certificates representing the number
\nof shares of Imation Common Stock provided for in Section 4.1 hereof and to
\ncause Imation Enterprises to assume, pay, perform and discharge in due course
\nany and all Enterprise Liabilities.<\/p>\n
Section 2.3 Foreign Transfers. The foregoing notwithstanding,
\n3M and Imation shall cause the assets and liabilities related to the Transferred
\nBusinesses which are located outside the United States to be transferred in
\naccordance with the following provisions:<\/p>\n
(i) Italy. On or prior to the Distribution Date,
\nthe operations of 3M in Italy shall be reorganized pursuant to the agreements
\nset forth as Exhibit L hereto, which reorganization shall effectively separate
\nthe respective operations of the Transferred Businesses and the Core Businesses
\nin Italy. As a result of the reorganization, the operations of the Transferred
\nBusinesses shall be conducted by Imation Finanziaria S.p.A. (including its
\ndirect and indirect subsidiaries), the stock of which will be transferred to
\nImation on or prior to the Distribution Date.<\/p>\n
(ii) France. On or prior to the Distribution Date,
\n(i) the assets and liabilities of 3M in France related to the Transferred
\nBusinesses (other than certain trade receivables and payables) will be
\ntransferred to a newly formed subsidiary of the 3M subsidiary incorporated under
\nthe laws of such country and (ii) the stock of such subsidiary will be
\ndistributed to 3M and, thereafter, contributed to the capital of Imation, all as
\nmore fully described in the contribution agreement attached as Exhibit N hereto
\n(the “French Contribution Agreement”).<\/p>\n
(iii) Argentina. On or prior to the Distribution
\nDate, (i) the assets and liabilities of 3M in Argentina related to the
\nTransferred Businesses will be transferred to a newly formed corporation
\nincorporated under the laws of such country and (ii) the stock of such
\ncorporation will be contributed by 3M to the capital of Imation, all as more
\nfully described in the minutes of a special shareholders meeting attached as
\nExhibit O hereto. Following the Distribution, Imation shall, or shall cause its
\nAffiliate in Argentina to, indemnify and hold harmless 3M and its Affiliates
\nagainst any and all liabilities arising as a result of any reduction in the
\nworkforce or closure of any facilities effected by Imation’s Affiliate in
\nArgentina following the Distribution Date.<\/p>\n
(iv) Brazil. On or prior to the Distribution Date,
\n(i) the assets and liabilities of 3M in Brazil related to the Transferred
\nBusinesses will be transferred to a newly formed corporation incorporated under
\nthe laws of such country and (ii) the stock of such corporation will be
\ncontributed by 3M to the capital of Imation, all as more fully described in the
\nminutes of a special quotaholders meeting attached as Exhibit P hereto.<\/p>\n
(v) India. Birla 3M Ltd. shall retain all assets and
\nliabilities (including those relating to the Transferred Businesses) owned by it
\nas of the Distribution Date. In addition, it is the present intention of the
\nparties that, following the Distribution Date and subject to the receipt of any
\nrequired approvals, Birla 3M Ltd. will act as a non-exclusive sales agent of
\nImation. At the time of the Distribution, Birla 3M Ltd. may transfer the
\ninventory related to the Transferred Businesses to distributors designated by
\nImation and, in such event, Imation will, if requested, guarantee the payments
\nto be made by the distributors.<\/p>\n
(vi) Netherlands. On or prior to the Distribution
\nDate, 3M shall cause to be assigned and transferred to Imation all of the
\noutstanding interests of CD-Rom Services C.V.<\/p>\n
(vii) Belgium. On or prior to the Distribution
\nDate, 3M shall cause to be assigned and transferred to Imation all of the
\noutstanding shares of CD-Rom Sales S.A.<\/p>\n
(viii) United Kingdom. The transfer of operations of
\nthe Transferred Businesses in the United Kingdom shall be effected as follows:<\/p>\n
* 3M agrees that if as at the date of this Agreement, 3M is
\n the beneficial owner of the building known as Building 2, 3M
\n House, Bracknell, England, it shall transfer the said Building
\n 2 to Imation in accordance with Section 2.1 hereof or if 3M
\n is not the beneficial owner of the said Building 2 as at the
\n date of this Agreement, 3M shall cause its Affiliate in the
\n United Kingdom to agree to sell to 3M the said Building 2
\n and 3M shall procure the transfer of the said Building 2 to
\n Imation in accordance with Section 2.1. Any such transfers
\n shall be subject to (and with the benefit of) any leases of
\n parts of the said Building 2 previously granted by any
\n Affiliate of 3M in the United Kingdom or otherwise agreed to
\n be granted to an Affiliate of 3M in the United Kingdom.<\/p>\n
* As of the Distribution Date, the outstanding stock of
\n Minnesota 3M Research Limited (“Minnesota Research”) shall be
\n transferred to Imation in the following manner: (a) the 80%
\n interest owned by 3M UK Holdings PLC and 3M (Holdings)
\n Limited shall be sold, assigned and transferred to 3M, and (b)
\n the 100% interest then owned by 3M shall be transferred to
\n Imation in accordance with the provisions of Section 2.1
\n hereof.<\/p>\n
* The other assets and\/or liabilities of the Transferred
\n Businesses owned by Affiliates of 3M in the United Kingdom
\n shall be transferred to an Affiliate(s) of Imation in a manner
\n consistent with subparagraph (xii) below.<\/p>\n
(ix) Japan. It is the intention of the parties,
\nsubject to the receipt of any required approvals, to transfer the Transferred
\nBusinesses in Japan to an Affiliate of Imation in Japan in a manner consistent
\nwith subparagraph (xii) below, although the parties recognize that the HESD
\nbusinesses relating to the Core Businesses will not be transferred and that
\ncertain fixed assets may be leased, rather than sold.<\/p>\n
(x) Korea. It is the intention of the parties,
\nsubject to the receipt of any required approvals, to transfer the Transferred
\nBusinesses in Korea to an Affiliate of Imation in Korea in a manner consistent
\nwith subparagraph (xii) below. Imation agrees that it will not establish for a
\nperiod commencing on the Distribution Date and ending on the earlier of (a)
\nconsummation of the transfer contemplated by the preceding sentence or (b) the
\nsix month anniversary of the Distribution Date any independent operations in
\nKorea.<\/p>\n
(xi) China. It is the intention of the parties to
\ntransfer the Transferred Businesses in China to an Affiliate of Imation in China
\nin a manner consistent with subparagraph (xii) below, although the parties
\nrecognize that the HESD businesses may not be transferred unless and until the
\nImation Affiliate in China obtains an appropriate license from the appropriate
\nauthorities in China.<\/p>\n
(xii) Other Countries. On or prior to the
\nDistribution Date, 3M shall use its best efforts to cause its Affiliate in each
\nother country located outside the United States (in addition to those countries
\nreferred to in subparagraphs (viii)-(xi) above, as described therein) to sell to
\nthe Affiliate of Imation designated by Imation, and Imation shall use its best
\nefforts to cause its respective Affiliate(s) to purchase from the appropriate 3M
\nAffiliate, the inventory, property, plant and equipment and other assets of the
\nTransferred Businesses owned by such 3M Affiliate, in consideration for a cash
\npayment by the respective Imation Affiliate(s) to the respective 3M Affiliate
\nequal to the value of the assets so transferred (net of assumed liabilities)
\nwhich is reflected on the books of 3M at the time of the transfer, all as more
\nfully set forth in the respective Foreign Asset Transfer Agreements (which shall
\nbe amended, as appropriate, to include deferred receivables under financing
\ncontracts). In the event that it is not feasible to effect the transfers
\ncontemplated by the preceding sentence on or prior to the Distribution Date in
\nany particular country, 3M and Imation will continue, following the Distribution
\nDate, their respective efforts to have such transfers and payments effected as
\npromptly as practicable following the Distribution Date or, if Imation and 3M
\ndetermine that such transfers are not capable of being effected on a timely
\nbasis (not to exceed 6 months), enter into such other arrangements as are
\nmutually agreed upon which are intended to enable Imation to operate in such
\ncountry on a basis similar to that being conducted by 3M with respect to the
\nTransferred Businesses. Pending consummation of any such transfers or the
\nentering into of other arrangements as contemplated by the preceding sentence,
\nImation and 3M shall enter into such arrangements as may be necessary to enable
\n3M and its Affiliates to continue to conduct the Transferred Businesses,
\nincluding with respect to the supply of inventory. Following completion of each
\nsuch transfer (or, if earlier, six months), either 3M shall pay to Imation an
\namount equal to any operating income after taxes and minority interests realized
\nby 3M after the Distribution Date with respect to these operations or Imation
\nshall pay to 3M an amount equal to any operating losses after taxes and minority
\ninterests realized by 3M after the Distribution Date with respect to these
\noperations, as the case may be.<\/p>\n
(xiii) Additional Cash Payments. (a) In connection
\nwith the Distribution, 3M shall contribute to the capital of Imation an amount
\nin cash equal to the total amount to be paid by the respective Imation
\nAffiliates pursuant to the preceding subparagraphs (viii)-(xii) (net of any
\nV.A.T. or other similar taxes which are recoverable by the respective Imation
\nAffiliates) less an amount equal to the Debt Available for Foreign Purchase
\nTransactions. For purposes of the preceding sentence, the Debt Available for
\nForeign Purchase Transactions shall be an amount equal to $200 million less the
\nsum, without duplication, of (x) any debt presently outstanding (including
\naccrued interest) to 3M from its Affiliates in Italy which is being assumed by
\nan Affiliate of Imation and repaid with funds advanced by Imation or one of its
\nAffiliates, (y) $23 million, and (z) an amount equal to the vacation pay of the
\nU. S. Transferred Employees, which is accrued on the books of 3M as of the
\nDistribution Date. 3M shall make an estimated payment at the time of the
\nDistribution (to reflect (x) payments actually made by Imation or its Affiliates
\nat the time of the Distribution with respect to foreign transfers consummated at
\nthe time of the Distribution and (y) the estimated amounts utilized to determine
\nthe Debt Available for Foreign Purchase Transactions), which payment shall be
\nadjusted from time to time by 3M and Imation to reflect (A) all payments
\ncontemplated by subparagraphs (viii) through (xii) above, including payments
\nmade with respect to delayed closings or as post-closing adjustments to the
\npurchase prices paid at the time of the Distribution for foreign transfers
\neffected as of t he Distribution Date, and (B) the final amounts utilized to
\ndetermine the Debt Available for Foreign Purchase Transactions. The amounts to
\nbe contributed by 3M pursuant to this Section 2.3(xiii)(a) shall be reduced by
\nthe amount of the cash balances, if any, as of the Distribution Date in the
\nImation Affiliates in Italy, France, Argentina and Brazil.<\/p>\n
(b) Unless specifically provided otherwise, it is the intent of the
\nparties that, for federal income tax purposes, all payments made pursuant to
\nthis Agreement shall be treated as adjustments (whether increases or decreases)
\nto the amount of cash contributed to the capital of Imation pursuant to Section
\n2.3(xiii)(a) hereof, and, to the extent any such payments decrease the amount of
\nsuch cash contributed (as adjusted by this Section 2.3(xiii)(b)) to zero, any
\nadditional payments shall be treated as otherwise relating back to the transfers
\nmade pursuant to Section 2.1(a) hereof.<\/p>\n
(xiv) Certain Foreign Receivables\/Payables.
\nNotwithstanding anything contained herein to the contrary, the respective
\nAffiliates of 3M in the countries a portion of whose businesses are being
\ntransferred in accordance with the provisions of subparagraphs (viii) through
\n(xii) above and in France shall retain all trade receivables and all trade
\npayables relating to the Transferred Businesses (except as otherwise provided in
\na specific Foreign Asset Transfer Agreement or the French Contribution
\nAgreement) and, in connection therewith, 3M agrees to remit to Imation an amount
\nequal to (a) such trade receivables (net of doubtful accounts determined in the
\nordinary course consistent with past practice) less trade payables, in each
\ninstance as reflected on the books of 3M as of Distribution Date, less (b) the
\namount by which intercompany trade receivables transferred to Affiliates of
\nImation exceed intercompany payables assumed by Affiliates of Imation. The
\namount payable pursuant to the preceding sentence shall be in U.S. dollars and
\npaid in the following installments: one-third within 30 days of the Distribution
\nDate, one-third within 60 days of the Distribution Date and the remainder within
\n90 days of the Distribution Date. Following the Distribution Date, the
\nresponsibility for such receivables and payables shall be entirely with 3M.<\/p>\n
(xv) Foreign Exchange Rates. Except as agreed upon by
\n3M and Imation or as otherwise provided in this Agreement, all payments to each
\nother shall be in U.S. dollars and all amounts represented on the books of 3M or
\nImation as a foreign currency obligation shall be converted into U.S. dollars
\nbased on the exchange rate quoted in The Wall Street Journal on the last
\nbusiness day preceding the Distribution Date (or as of such other day as may be
\nagreed to by Imation and 3M) or, with respect to payments to be made with
\nrespect to a date other than the Distribution Date, the last business day
\npreceding the respective applicable date (or as of such other day as may be
\nagreed to by Imation and 3M). 3M and Imation acknowledge that neither party is
\nintended to benefit from any changes in exchange rates following the
\nDistribution Date and that 3M and Imation will cooperate with each other to
\nfacilitate the prompt transfer of funds so as to minimize the potential effect
\nof any changes in exchange rates.<\/p>\n
(xvi) Structure. 3M and Imation recognize that the
\nform of the transaction to effect the transfer of assets and liabilities in a
\nparticular country may change between the date of this Agreement and the
\nDistribution Date, provided that any such change shall not adversely effect the
\nrights or obligations being transferred to, or assumed by, Imation and its
\nAffiliates. In such event, the provisions of this Section 2.3 shall be deemed to
\nbe amended appropriately to reflect the form of such transaction.<\/p>\n
(xvii) Delayed Spinoff Transactions. 3M and Imation
\nagree that the provisions set forth in the last three sentences of subparagraph
\n(xii) shall also apply to the transactions contemplated in subparagraphs (iii)
\nand (iv) should either of the transactions contemplated in such subparagraphs
\nnot be effected on the Distribution Date.<\/p>\n
Section 2.4 3M Approval. 3M shall cooperate with Imation in
\neffecting, and if so requested by Imation, 3M shall, as the sole stockholder of
\nImation and Imation Enterprises, ratify any actions which are reasonably
\nnecessary or desirable to be taken by Imation and Imation Enterprises to
\neffectuate the transactions contemplated by this Agreement in a manner
\nconsistent with the terms of this Agreement, including, without limitation, the
\nelection or appointment of directors and officers of Imation to serve in such
\ncapacities following the Distribution Date (if not so appointed by the Board of
\nDirectors of Imation).<\/p>\n
ARTICLE III<\/p>\n
ASSUMPTION AND RETENTION OF LIABILITIES<\/p>\n
Section 3.1 Assumed Liabilities. Upon the terms and subject to
\nthe conditions set forth in this Agreement and in addition to any other
\nLiabilities otherwise expressly assumed by Imation pursuant to this Agreement,
\nthe Related Agreements or any other agreement contemplated by this Agreement,
\nImation hereby agrees with 3M to assume, pay, perform and discharge (or to cause
\nthe appropriate Affiliate of Imation to pay, perform and discharge) in due
\ncourse any and all Assumed Liabilities (other than the Enterprise Liabilities)
\nand cause Imation Enterprises to assume, pay, perform and discharge in due
\ncourse any and all Enterprise Liabilities.<\/p>\n
Section 3.2 Retained Liabilities. Upon the terms and subject
\nto the conditions set forth in this Agreement and in addition to any other
\nLiabilities otherwise expressly retained by 3M pursuant to this Agreement, the
\nRelated Agreements or any other agreement contemplated by this Agreement, 3M
\nhereby agrees with Imation that 3M shall pay, perform and discharge in due
\ncourse any and all Retained Liabilities.<\/p>\n
ARTICLE IV<\/p>\n
THE DISTRIBUTION<\/p>\n
Section 4.1 The Distribution. On or prior to the Distribution
\nDate, 3M shall deliver to the Agent the certificate for 100 shares of Imation
\nCommon Stock which were owned by 3M prior to the Distribution. Upon receipt from
\n3M of a certificate as to the number of shares of 3M Common Stock outstanding on
\nthe Record Date, Imation shall deliver to the Agent, for the benefit of holders
\nof record of 3M Common Stock on the Record Date, a stock certificate
\nrepresenting, in the aggregate (and rounded down to the nearest whole share), a
\nnumber of shares representing one share of Imation Common Stock for every 10
\nshares of 3M Common Stock outstanding on the Record Date (less the 100 shares of
\nImation Common Stock owned prior to the Distribution by 3M), and shall instruct
\nthe Agent to distribute as promptly as practicable following the Distribution
\nDate to holders of record of 3M Common Stock on the Record Date one share of
\nImation Common Stock for every 10 shares of 3M Common Stock and cash in lieu of
\nfractional shares of Imation Common Stock obtained in the manner provided in
\nSection 4.2 hereof. Imation agrees to provide to the Agent sufficient
\ncertificates in such denominations as the Agent may request in order to effect
\nthe Distribution. All of the shares of Imation Common Stock issued in the
\nDistribution shall be fully paid, nonassessable and free of preemptive rights.<\/p>\n
Section 4.2 Fractional Shares. No certificate or scrip
\nrepresenting fractional shares of Imation Common Stock shall be issued as part
\nof the Distribution and in lieu of receiving fractional shares, each holder of
\n3M Common Stock who would otherwise be entitled to receive a fractional share of
\nImation Common Stock pursuant to the Distribution will receive cash for such
\nfractional share. 3M and Imation agree that 3M shall instruct the Agent to
\ndetermine the number of whole shares and fractional shares of Imation Common
\nStock allocable to each holder of record of 3M Common Stock as of the Record
\nDate, to aggregate all such fractional shares into whole shares and sell the
\nwhole shares obtained thereby in the open market at then prevailing prices on
\nbehalf of holders who otherwise would be entitled to receive fractional share
\ninterests and to distribute to each such holder such holder’s ratable share of
\nthe total proceeds of such sales (net of any commissions incurred in connection
\nwith such sales), net of any amount required to be withheld under applicable
\nlaw.<\/p>\n
Section 4.3 3M Board Action.<\/p>\n
(a) This Agreement and the Related Agreement have been
\napproved by the Board of Directors of 3M, subject to the declaration of the
\nDistribution by the Board of Directors of 3M, and the consummation of the
\ntransactions provided for herein or therein shall only be effected after the
\nDistribution has been declared by the Board of Directors of 3M.<\/p>\n
(b) The Board of Directors of 3M, in its discretion, shall
\nestablish the Record Date and the Distribution Date and all appropriate
\nprocedures in connection with the Distribution.<\/p>\n
ARTICLE V<\/p>\n
INDEMNIFICATION, CLAIMS
\n AND OTHER MATTERS<\/p>\n
Section 5.1 Indemnification.<\/p>\n
(a) 3M shall indemnify, defend and hold harmless Imation and
\neach of its directors, officers, employees, agents and Affiliates from and
\nagainst any and all Indemnifiable Losses of Imation or any of its Affiliates
\narising out of or due to, directly or indirectly, (i) any Third Party Claims (as
\ndefined in Section 5.2) in connection with any of the Retained Liabilities, (ii)
\nThird Party Claims that the information included in the Information Statement or
\nthe Form 10 under the captions set forth on Schedule 5.1(a) hereto is false or
\nmisleading with respect to any material fact or omits to state any material fact
\nrequired to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading, (iii) Third Party Claims that 3M or its Affiliates failed to
\nperform, or violated, any provision of this Agreement which is to be performed
\nor complied with by 3M or its Affiliates, (iv) breaches of this Agreement by 3M
\nor its Affiliates or (v) any guarantees which may be granted, either before or
\nafter the Distribution Date, by Imation or one of its Affiliates on behalf of 3M
\nor one of its Affiliates.<\/p>\n
(b) Imation shall indemnify, defend and hold harmless 3M and
\neach of its directors, officers, employees, agents and Affiliates from and
\nagainst any and all Indemnifiable Losses of 3M or any of its Affiliates arising
\nout of or due to, directly or indirectly, (i) Third Party Claims in connection
\nwith any of the Assumed Liabilities, (ii) Third Party Claims that the
\ninformation included in the Information Statement or the Form 10, other than
\nunder the captions set forth on Schedule 5.1(a) hereto, or the information
\nprovided, or statements made, in connection with the investor roadshow held in
\nconnection with the Distribution, is false or misleading with respect to any
\nmaterial fact or omits to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in light of the
\ncircumstances under which they were made, not misleading, (iii) Third Party
\nClaims that Imation or its Affiliates failed to perform, or violated, any
\nprovision of this Agreement which is to be performed or complied with by Imation
\nor its Affiliates or (iv) breaches of this Agreement by Imation or its
\nAffiliates or (v) any guarantees which may be granted, either before or after
\nthe Distribution Date, by 3M or one of its Affiliates on behalf of Imation or
\none of its Affiliates, including without limitation with respect to any third
\nparty leases assumed or undertaken by Imation or any of its Affiliates in
\nAustralia or otherwise.<\/p>\n
(c) Amounts required to be paid pursuant to this Article V are
\nhereafter sometimes collectively called “Indemnity Payments” and are
\nindividually called an “Indemnity Payment.” The amount which any party (an
\n“Indemnifying Party”) is required to pay to any other party (an “Indemnified
\nParty”) pursuant to Section 5.1(a) or Section 5.1(b) shall be reduced
\n(including, without limitation, retroactively) by any insurance proceeds and
\nother amounts actually recovered by such Indemnified Party in reduction of the
\nrelated Indemnifiable Loss. If an Indemnified Party shall have received an
\nIndemnity Payment in respect of an Indemnifiable Loss and shall subsequently
\nactually receive insurance proceeds or other amounts (such as settlement
\namounts) in respect of such Indemnifiable Loss, then such Indemnified Party
\nshall immediately pay to such Indemnifying Party a sum equal to the lesser of
\nthe amount of such insurance proceeds or other amounts actually received or the
\nnet amount of Indemnity Payments actually received previously. The foregoing
\nnotwithstanding, nothing in this Section 5.1(c) shall grant to Imation or its
\nAffiliates any direct or indirect rights or benefits to insurance coverage with
\nrespect to which Imation is not otherwise entitled under Article IX hereof nor
\nrequire 3M or its Affiliates to make any claim for insurance coverage unless and
\nto the extent that Imation would otherwise be entitled to have 3M make a claim
\nunder Article IX hereof.<\/p>\n
(d) (i) For purposes of this Section 5.1(d), an
\nIndemnified Party shall be deemed to have received a tax saving with respect to
\nan Indemnifiable Loss if, upon the filing of a Federal or foreign income tax
\nreturn for a taxable year ending on or after the Distribution Date (the
\n“Indemnity Return”), an amount attributable to an Indemnifiable Loss (the
\n“Indemnifiable Loss Deduction”) is deductible by the Indemnified Party or any of
\nits wholly owned subsidiaries and an amount attributable to the Indemnity
\nPayment is not includable in gross income by the Indemnified Party or any of its
\nwholly owned subsidiaries. The foregoing notwithstanding, if the Indemnifying
\nParty may deduct the amount attributable to the Indemnity Payment, the
\nIndemnified Party shall be deemed to have not received a tax saving with respect
\nto an Indemnifiable Loss.<\/p>\n
(ii) In the event that an Indemnified Party is deemed
\nto have received a tax saving by reason of an Indemnifiable Loss, such
\nIndemnified Party shall pay the Indemnifying Party within thirty (30) days after
\nthe filing of an Indemnity Return by an Indemnified Party which results in a
\nreduction in the tax liability of the Indemnified Party that is attributable to
\nsuch Indemnifiable Loss, a sum equal to the Indemnifiable Loss Deduction
\nmultiplied by an amount equal to A + ((l – A) x .06), where A equals the highest
\nmarginal corporate Federal income tax rate applicable to corporations taxable
\nunder Subchapter C of the Code on the date the Indemnity Return is filed (the
\n“Tax Saving Amount”).<\/p>\n
(iii) In the event that any such Indemnifiable Loss
\nis deductible outside the United States, the provisions of Section 5.1(d)(ii)
\nshall be appropriately adjusted to reflect the tax structure of the appropriate
\nforeign jurisdiction.<\/p>\n
(iv) Any payment made pursuant to this Section 5.1(d)
\nshall be treated as a reduction of the Indemnity Payment to which it relates.<\/p>\n
(e) 3M’S AND IMATION’S RESPECTIVE OBLIGATIONS PURSUANT TO
\nSECTION 5.1(A)(IV) AND (B)(IV) SHALL BE LIMITED TO DIRECT AND ACTUAL DAMAGES, TO
\nTHE EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. PARAGRAPH 5.1(E)
\nSHALL NOT APPLY TO (I) ANY FAILURE BY IMATION OR ITS AFFILIATES TO ASSUME, PAY,
\nPERFORM AND DISCHARGE (OR CAUSE THE APPROPRIATE AFFILIATE OF IMATION TO ASSUME,
\nPAY, PERFORM AND DISCHARGE) ANY AND ALL ASSUMED LIABILITIES, OR (II) ANY FAILURE
\nBY 3M OR ITS AFFILIATES TO ASSUME, PAY, PERFORM AND DISCHARGE (OR CAUSE THE
\nAPPROPRIATE AFFILIATE OF 3M TO ASSUME, PAY, PERFORM AND DISCHARGE) ANY AND ALL
\nRETAINED LIABILITIES, OR (III) EXCEPT AS PROVIDED IN SECTION 6.18, ANY BREACH BY
\n3M OR IMATION OF THEIR RESPECTIVE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT,
\nINCLUDING THE INDEMNITY OBLIGATIONS SET FORTH IN ARTICLE V.<\/p>\n
(f) Indemnification obligations contained elsewhere in this
\nAgreement shall be subject to the provisions of this Article V.<\/p>\n
Section 5.2 Procedure for Indemnification.<\/p>\n
(a) If either party shall receive notice of any claim or
\nAction brought, asserted, commenced or pursued by any person or entity not a
\nparty to this Agreement (hereinafter a “Third Party Claim”), with respect to
\nwhich the other Party is or may be obligated to make an Indemnity Payment, it
\nshall give such other Party prompt notice thereof (including any pleadings
\nrelating thereto) after becoming aware of such Third Party Claim, specifying in
\nsuch reasonable detail as is known to it, the nature of such Third Party Claim
\nand the amount or estimated amount thereof to the extent then feasible (which
\nestimate shall not be conclusive of the final amount of such claim); provided,
\nhowever, that the failure of a Party to give notice as provided in this Section
\n5.2 shall not relieve the other Party of its indemnification obligations under
\nthis Article V, except to the extent that such other Party is actually
\nprejudiced by such failure to give notice.<\/p>\n
(b) For any Third Party Claim concerning which notice is
\nrequired to be given, and, in fact, given, under subparagraph (a) of this
\nSection 5.2, the Indemnifying Party shall defend in a timely manner, to the
\nextent permitted by law, such Third Party Claim through counsel appointed by the
\nIndemnifying Party and reasonably acceptable to the Indemnified Party. Once an
\nIndemnifying Party has commenced its defense of an Indemnified Party, it cannot
\nwithdraw from such defense until conclusion of the matter, unless the
\nIndemnified Party agrees to the withdrawal or the Indemnified Party is also
\ndefending the claim. The Indemnified Party shall have the right to participate
\nin the defense of the Third Party Claim by employing separate counsel at its own
\nexpense, provided that the parties enter into a Joint Defense Agreement or Joint
\nRepresentation and Defense Agreement, substantially in the form of Exhibit D or
\nE to this Agreement, as appropriate.<\/p>\n
(c) If a party responds to a notice of a Third Party Claim by
\ndenying its obligation to indemnify the person or entity claiming a right of
\ndefense and indemnification under this Agreement (“Indemnification Claimant”),
\nor if the Indemnifying Party fails to defend in a timely manner, the Indemnified
\nParty shall be entitled to defend such Third Party Claim through counsel
\nappointed by it. In addition, if it is later determined, through procedures
\nreferenced in Article X of this Agreement, or agreement of the parties, that
\nsaid party wrongfully denied such claim, or the Indemnifying Party failed to
\ntimely defend, then the Indemnifying Party shall (1) reimburse the Indemnified
\nParty for all costs and expenses (other than salaries of officers and employees)
\nincurred reasonably by the Indemnified Party in connection with its defense of
\nsuch Third Party Claim and (2) be estopped from challenging a judgment, order,
\nsettlement, compromise, or consent judgment resolving the Third Party Claim
\nentered into in good faith by the Indemnified Party (if such claim has been
\nresolved prior to the conclusion of the proceeding between the Indemnified Party
\nand Indemnifying Party). An Indemnifying Party, after initially rejecting a
\nclaim for defense or indemnification by an Indemnification Claimant, may defend
\nand indemnify the Indemnification Claimant, at any time prior to the resolution
\nof said Third Party Claim, for such claim, provided that (x) the Indemnifying
\nParty reimburses the Indemnified Party for all costs and expenses (other than
\nsalaries of officers and employees) incurred reasonably by the Indemnified Party
\nin connection with its defense of such Third Party Claim up to the time the
\nIndemnifying Party assumes control of the defense of such claim (including costs
\nincurred in the transition of the defense from the Indemnified Party to the
\nIndemnifying Party) and (y) the assumption of the defense of the Third Party
\nClaim will not prejudice or cause harm to the Indemnified Party.<\/p>\n
(d) With respect to any Third Party Claim relating to any
\nmatter subject to a claim for indemnification hereunder, no party shall enter
\ninto any compromise or settlement or consent to the entry of any judgment which
\n(i) does not include as a term thereof the giving by the third party of a
\nrelease to the Indemnified Party from all further liability concerning such
\nThird Party Claim on terms no less favorable than those obtained by the party
\nentering into such compromise, settlement or consent or (ii) imposes any
\nobligation on the Indemnified Party without said Indemnified Party’s written
\nconsent (such consent not to be unreasonably withheld), except an obligation to
\npay money which the Indemnifying Party has agreed to pay on behalf of the
\nIndemnified Party. In the event that an Indemnified Party enters into any such
\ncompromise, settlement or consent without the written consent of the
\nIndemnifying Party (other than as contemplated by Section 5.2(c)), the entry of
\nsuch compromise, settlement or consent shall relieve the Indemnifying Party of
\nits indemnification obligation related to the claims underlying such compromise,
\nsettlement or consent.<\/p>\n
(e) Upon final judgment, determination, settlement or
\ncompromise of any Third Party Claim, and unless otherwise agreed by the parties
\nin writing, the Indemnifying Party shall pay promptly on behalf of the
\nIndemnified Party, or to the Indemnified Party in reimbursement of any amount
\ntheretofore required to be paid by it, the amount so determined by final
\njudgment, determination, settlement or compromise. Upon the payment in full by
\nthe Indemnifying Party of such amount, the Indemnifying Party shall succeed to
\nthe rights of such Indemnified Party to the extent not waived in settlement,
\nagainst the third party who made such Third Party Claim and any other person who
\nmay have been liable to the Indemnified Party with respect to the indemnified
\nmatter.<\/p>\n
(f) In connection with defending against Third Party Claims,
\nthe parties shall cooperate with and assist each other by making available all
\nemployees, books, records, communications, documents, items and matters within
\ntheir knowledge, possession or control that are necessary, appropriate or
\nreasonably deemed relevant with respect to defense of such claims; provided,
\nhowever, that nothing in this subparagraph (f) shall be deemed to require the
\nwaiver of any privilege, including the attorney-client privilege, or protection
\nafforded by the attorney work product doctrine. In addition, regardless of the
\nparty actually defending a Third Party Claim for which there is an indemnity
\nobligation under Section 5.1 of this Agreement, the parties shall give each
\nother regular status reports relating to such action with detail sufficient to
\npermit the other party to assert and protect its rights and obligations under
\nthis Agreement.<\/p>\n
(g) The provisions of this Section 5.2 shall survive in
\nperpetuity and shall be the exclusive procedures for any claims subject to the
\nprovisions of Section 5.1(a) or (b) hereof.<\/p>\n
Section 5.3 Other Claims by Indemnified Parties Against
\nIndemnifying Parties. Any claim on account of an Indemnifiable Loss which does
\nnot result from a Third Party Claim shall be asserted by written notice from the
\nIndemnified Party to the Indemnifying Party within sixty (60) days of first
\nlearning of the breach under Section 5.1(a)(iv) or 5.1(b)(iv). All such claims
\nthat are not timely asserted pursuant to this Section shall be deemed to be
\nforever waived. The Indemnified Party’s written notice shall contain such
\ninformation as the Indemnified Party has regarding the alleged breach. Such
\nIndemnifying Party shall have a period of sixty (60) days (or such shorter time
\nperiod as may be required by law as indicated by the Indemnified Party in the
\nwritten notice) within which to respond thereto. If such Indemnifying Party does
\nnot respond within such 60-day (or lesser period) such Indemnifying Party shall
\nbe deemed to have accepted responsibility to make payment for the amount of the
\nIndemnifiable Loss and shall have no further right to contest the validity of
\nsuch claim. If such Indemnifying Party does respond within such 60-day (or
\nlesser) period and rejects such claim in whole or in part, such Indemnified
\nParty shall be free to pursue resolution as provided in Article X hereof.<\/p>\n
Section 5.4 Indemnifiable Losses under Sections 5.1(a)(ii) and
\n5.1(b)(ii). If the indemnification provided for in this Article V is unavailable
\nto an Indemnified Party in respect of any Indemnifiable Loss arising out of or
\nrelated to information contained in the Information Statement the Form 10 or the
\nroadshow, then the Indemnifying Party, in lieu of indemnifying such Indemnified
\nParty, shall contribute to the amount paid or payable by such Indemnified Party
\nas a result of such Indemnifiable Loss, in such proportion as is appropriate to
\nreflect the relative fault of Imation, each of its directors, each of its
\nofficers who has signed any registration statement and each Affiliate of Imation
\n(an “Imation Party”) on the one hand and 3M and each Affiliate of 3M (a “3M
\nParty”) on the other hand in connection with the statements or omissions which
\nresulted in such Indemnifiable Loss. The relative fault of an Imation Party on
\nthe one hand and of a 3M Party on the other hand shall be determined by
\nreference to, among other things, whether the untrue or alleged untrue statement
\nof a material fact or the omission or alleged omission to state a material fact
\nrelates to information supplied by an Imation Party on the one hand or a 3M
\nParty on the other hand.<\/p>\n
Section 5.5 No Beneficiaries. Except to the extent expressly
\nprovided otherwise in this Article V, the indemnification provided for by this
\nArticle V shall not inure to the benefit of any third party or parties and shall
\nnot relieve any insurer who would otherwise be obligated to pay any claim of the
\nresponsibility with respect thereto or, solely by virtue of the indemnification
\nprovisions hereof, provide any subrogation rights with respect thereto and each
\nparty agrees to waive such rights against the other to the fullest extent
\npermitted.<\/p>\n
Section 5.6 Special Provision Relating to Nishika Case. 3M
\nagrees to accept as Retained Liabilities the obligations relating to or arising
\nfrom the lawsuit entitled Minnesota Mining and Manufacturing Company v. Nishika,
\nLtd., et al. (Supreme Court of Texas; Case No. 94-1124). In return, Imation
\nagrees that in the event the case is retried, it will use its best efforts to
\nmake available on a priority basis, and for as long as is needed by 3M, any
\nImation employee witnesses requested by 3M. In such connection, it is
\nanticipated that 3M will need, and Imation agrees to use its best efforts to
\nmake available, Roger Lorenzini, for as long as he is an Imation employee or
\nunder contract to provide any service to Imation, for extended periods prior to
\nany retrial in connection with this case and, if requested by 3M, for the entire
\nduration of any retrial. 3M shall reimburse Imation’s out-of-pocket expenses,
\nbut not salaries, in connection with any such employee witnesses.
\nNotwithstanding any other provisions of this Agreement, in the event Imation
\nfails to use its best efforts to provide such witnesses, and if such failure has
\na material adverse impact on the outcome of the retrial, then all Liabilities
\nand obligations relating to such case will be deemed to be Assumed Liabilities
\nunder this Agreement and Imation shall indemnify, defend and hold harmless 3M
\nfrom and against all Indemnifiable Losses arising out of or due to, directly or
\nindirectly, such case, whether incurred prior to the Distribution Date or
\nincurred on or after the Distribution Date. For purposes of this Section 5.6,
\nImation shall be deemed to have satisfied its best efforts obligations to the
\nextent, but only to the extent, that it exercises a degree of care and effort
\nwhich is no less diligent than that which Imation would be expected to exercise
\nhad it retained responsibility for the foregoing lawsuit.<\/p>\n
Section 5.7 Named Parties. The parties hereto acknowledge that
\nit may not be feasible to substitute Imation (or one of its Affiliates) for 3M
\n(or one of its Affiliates) as a named party in Actions, whether domestic or
\nforeign, constituting Assumed Liabilities. In such event, 3M (or one of its
\nAffiliates) shall remain as a named party, but, following the Distribution Date,
\nImation (or one of its Affiliates) shall assume the defense of any such Action
\nin accordance with the provisions of Section 5.2 hereof and 3M and its
\nAffiliates shall cooperate with Imation as contemplated by such Section 5.2 and
\nArticle VII hereof.<\/p>\n
ARTICLE VI<\/p>\n
CERTAIN ADDITIONAL MATTERS<\/p>\n
Section 6.1 Conveyancing and Assumption Instruments. In
\nconnection with the transfer, conveyance, assignment and delivery of the
\nTransferred Assets and the assumption of Assumed Liabilities contemplated by
\nthis Agreement, 3M and Imation agree to execute or cause to be executed by the
\nappropriate parties and to deliver to each other, as appropriate, the
\nConveyancing and Assumption Instruments.<\/p>\n
Section 6.2 No Representations or Warranties; Exceptions.
\nExcept as provided in Section 2.1 hereof, Imation understands and agrees that 3M
\nis not in this Agreement or in any other agreement or document contemplated by
\nthis Agreement, representing or warranting in any way (a) as to the value or
\nfreedom from encumbrance of, or any other matter concerning, any Transferred
\nAssets or (b) as to the legal sufficiency to convey title to any Transferred
\nAssets of the execution, delivery and filing of the Conveyancing Instruments, IT
\nBEING AGREED AND UNDERSTOOD THAT ALL SUCH ASSETS AND THE ASSUMED LIABILITIES ARE
\nBEING TRANSFERRED “AS IS, WHERE IS” and without any representation or warranty
\nof any kind (express or implied) and that Imation shall bear the economic and
\nlegal risk that any conveyances of such assets shall prove to be insufficient or
\nthat Imation’s title to any such assets shall be other than good and marketable
\nand free from encumbrances. Similarly, Imation understands and agrees that 3M is
\nnot in this Agreement or in any other agreement or document contemplated by this
\nAgreement, representing or warranting in any way that the obtaining of the
\nconsents or approvals, the execution and delivery of any amendatory agreements
\nand the making of the filings and applications contemplated by this Agreement
\nshall satisfy the provisions of all applicable agreements or the requirements of
\nall applicable laws or judgments, it being understood and agreed that, subject
\nto Section 6.3 hereof, Imation shall bear the economic and legal risk that any
\nnecessary consents or approvals are not obtained or that any requirements of law
\nor judgments are not complied with. The foregoing, however, shall not limit any
\nresponsibilities which 3M may have to use its commercially reasonable efforts to
\neffect transfers under the other provisions of this Agreement.<\/p>\n
Section 6.3 Further Assurances; Subsequent Transfers.<\/p>\n
(a) Each of 3M and Imation will execute and deliver such
\nfurther instruments of conveyance, transfer and assignment and will take such
\nother actions as each of them may reasonably request of the other in order to
\neffectuate the purposes of this Agreement and to carry out the terms hereof.
\nWithout limiting the generality of the foregoing, at any time and from time to
\ntime after the Distribution Date, at the request of Imation and without further
\nconsideration, 3M will execute and deliver to Imation such other instruments of
\ntransfer, conveyance, assignment and confirmation and take such action as
\nImation may reasonably deem necessary or desirable in order to more effectively
\ntransfer, convey and assign to Imation and to confirm Imation’s title to all of
\nthe Transferred Assets, to put Imation in actual possession and operating
\ncontrol thereof and to permit Imation to exercise all rights with respect
\nthereto (including, without limitation, rights under contracts and other
\narrangements as to which the consent of any third party to the transfer thereof
\nshall not have previously been obtained) and Imation will execute and deliver to
\n3M all instruments, undertakings or other documents and take such other action
\nas 3M may reasonably deem necessary or desirable in order to have Imation fully
\nassume and discharge the Assumed Liabilities and relieve 3M of any Liability or
\nobligations with respect thereto and evidence the same to third parties.
\nNotwithstanding the foregoing, 3M and Imation shall not be obligated, in
\nconnection with the foregoing, to expend monies other than reasonable
\nout-of-pocket expenses and attorneys’ fees.<\/p>\n
(b) 3M and Imation will use their commercially reasonable
\nefforts to obtain any consent, approval or amendment required to novate and\/or
\nassign all agreements, leases, licenses and other rights of any nature
\nwhatsoever relating to the Transferred Assets to Imation or Affiliates of
\nImation; provided, however, that 3M and its Affiliates shall not be obligated to
\npay any consideration therefor (except for filing fees and other administrative
\ncharges and except as otherwise specifically provided herein) to the third party
\nfrom whom such consents, approvals and amendments are requested. In the event
\nand to the extent that 3M is unable to obtain any such required consent,
\napproval or amendment (i) 3M shall continue to be bound thereby and (ii) unless
\nnot permitted by law or the terms thereof, Imation shall pay, perform and
\ndischarge fully all the obligations of 3M thereunder from and after the
\nDistribution Date and indemnify 3M for all Indemnifiable Losses arising out of
\nsuch performance by Imation or any claims by third parties thereunder. 3M shall,
\nwithout further consideration therefor, pay and remit to Imation promptly all
\nmonies, rights and other considerations received in respect of such performance.
\n3M shall exercise or exploit its rights and options under all such agreements,
\nleases, licenses and other rights and commitments referred to in this Section
\n6.3(b) only as reasonably directed by Imation and at Imation’s expense. If and
\nwhen any such consent shall be obtained or such agreement, lease, license or
\nother right shall otherwise become assignable or able to be novated, 3M shall
\npromptly assign and novate all its rights and obligations thereunder to Imation
\nwithout payment of further consideration and Imation shall, without the payment
\nof any further consideration therefor, assume such rights and obligations. To
\nthe extent that the assignment of any contract or agreement (or their proceeds)
\npursuant to this Section 6.3 is prohibited by law, the assignment provisions of
\nthis Section shall operate to create a subcontract with Imation to perform each
\nrelevant unassignable 3M contract or agreement at a subcontract price equal to
\nthe monies, rights and other considerations received by 3M with respect to the
\nperformance by Imation under such subcontract.<\/p>\n
(c) All Bids, Quotations and Proposals included in the
\nTransferred Assets shall be transferred to Imation or Imation Enterprises to the
\nextent permitted by law. 3M and Imation shall work together and use their best
\nefforts to preserve such Bids, Quotations and Proposals and facilitate the award
\nof contracts pursuant thereto consistent with applicable laws and regulations.
\nAny contracts awarded pursuant to an outstanding Bid, Quotation or Proposal
\nshall be considered an agreement and treated in the same manner as provided for
\nin the last two sentences of Section 6.3(b) hereof.<\/p>\n
(d) 3M and Imation acknowledge that the following governmental
\nprograms shall remain with 3M through their respective terms: the Advanced Tape
\nSystems Program, the Optical Storage Program, the National Media Lab Program and
\nthe Factory Support Program. With respect to the Advanced Tape Systems Program
\nand the Optical Storage Program, 3M shall use its commercially reasonable
\nefforts to have Imation added as another consortium member. With respect to the
\nother programs and subject to the receipt of any required governmental
\napprovals, 3M and Imation shall enter into a subcontracting agreement (as
\ncontemplated by subsection (b) above) to the extent necessary to allow Imation
\nto perform any services required to be performed by it and to enable Imation to
\nreceive any benefits of the particular program relating to those services. 3M
\nand Imation further acknowledge that the Mapping Contract shall remain with 3M,
\nwhich shall have the sole responsibility of performing thereunder.<\/p>\n
(e) With respect to any governmental commercial supply
\ncontracts relating to the Transferred Businesses, 3M and Imation shall use their
\nrespective commercially reasonable efforts to execute one or more novation
\nagreements with the appropriate governmental authority so as to effectively
\nsubstitute Imation for 3M under all such contracts.<\/p>\n
(f) From and after the Distribution Date, 3M shall have no
\nresponsibility to take any action with respect to any UCC filings made prior to
\nthe Distribution Date relating to equipment sold by, or on behalf of, the
\nTransferred Businesses, including, without limitation, any action which may be
\nnecessary to renew any such filings. The foregoing notwithstanding, at the
\nrequest of Imation, 3M shall assist Imation in effecting the transfer of any
\nsuch filings into the name of Imation.<\/p>\n
(g) All references in this Section 6.3 to Imation shall
\ninclude Imation Enterprises as and to the extent appropriate.<\/p>\n
Section 6.4 Imation Officers and Directors. Imation and 3M
\nshall take all actions which may be required to elect or otherwise appoint, as
\nof the Distribution Date, those individuals designated in the Information
\nStatement to be directors or officers of Imation.<\/p>\n
Section 6.5 Resignations. On or prior to the Distribution
\nDate, 3M shall cause all directors and officers of 3M who are not designated in
\nthe Information Statement to be directors and officers of Imation following the
\nDistribution Date to resign from their positions as directors or officers of
\nImation.<\/p>\n
Section 6.6 Certain Intercompany Arrangements.<\/p>\n
(a) Following the Distribution Date, the parties shall discuss
\nin good faith the provision of any services and products to be provided by the
\nother, but which inadvertently were not the subject of a written agreement.
\nNothing in this Section 6.6, however, shall require or authorize 3M or Imation
\nto provide and charge each other for any services other than on the terms and
\nconditions specified in the Corporate Services Transition Agreement or the other
\nRelated Agreements.<\/p>\n
(b) In connection with the Distribution, 3M and Imation shall
\neffect the transfer of intercompany receivables and payables relating to
\nproducts of the Transferred Businesses which are in-transit as of the
\nDistribution Date to achieve an appropriate matching of such receivables and
\npayables (i.e., both the receivables and payables relating to a product
\nin-transit shall be held by one party and its Affiliate following the
\nDistribution).<\/p>\n
Section 6.7 Related Agreements. As of the Distribution Date,
\n3M and Imation shall enter, and shall cause Imation Enterprises and their
\nrespective Affiliates to enter (if applicable), into the Related Agreements.<\/p>\n
Section 6.8 Sales and Transfer Taxes. Imation and 3M agree to
\ncooperate to determine the amount of sales, transfer or other taxes or fees
\n(including, without limitation, all real estate, patent, copyright and trademark
\ntransfer taxes and recording fees) payable in connection with the transactions
\ncontemplated by this Agreement (the “Transaction Taxes”). 3M agrees to file
\npromptly and timely the returns for such Transaction Taxes with the appropriate
\ntaxing authorities and remit payment of the Transaction Taxes and Imation will
\njoin in the execution of any such tax returns or other documentation. Payment of
\nall such Transaction Taxes shall be the responsibility of 3M, except as
\notherwise provided in Section 11.2 hereof, the foreign transfer agreements or
\nthe Tax Sharing Agreement. The foregoing notwithstanding, Imation shall be
\nresponsible for sales taxes payable upon the transfer of motor vehicles and for
\nmortgage recording taxes which by statute are the primary responsibility of
\nImation.<\/p>\n
Section 6.9 Signs; Use of 3M Name. Within 90 days after the
\nDistribution Date, Imation, at its own expense, shall remove (or, if necessary,
\ncover up) any and all exterior and interior signs and identifiers which refer or
\npertain to 3M at the Transferred Businesses. After such 90-day period, Imation
\nshall not use or display the name “3M” or other trademarks, trade names or their
\nidentifiers owned by or licensed to 3M except to the extent such marks, names
\nand identifiers have been assigned or licensed to Imation or Imation Enterprises
\npursuant to the Intellectual Property Agreement (“NonPermitted Names”), without
\nthe prior written consent of 3M.<\/p>\n
Section 6.10 Supplies and Documents. For a period of time
\nfollowing the Distribution Date (as contemplated in the Intellectual Property
\nAgreement), Imation shall have the right to use existing supplies and documents
\n(including, but not limited to forms, labels, shipping materials, packaging
\nmaterials, catalogues, sales brochures, operating manuals, instructional
\ndocuments and similar materials, and advertising material) being transferred to
\nit pursuant to this Agreement which have imprinted thereon the name “3M” or
\ntrademarks, logotypes or variations comprising the name “3M” as and to the
\nextent contemplated by the Intellectual Property Agreement. At the end of such
\ntime period, Imation shall destroy all such remaining supplies and documents. In
\naddition, Imation will cause the name of any of its subsidiaries or Affiliates
\ncontaining the phrase “3M” to be changed to delete any such reference.<\/p>\n
Section 6.11 Plant Closings and Layoffs. Imation agrees that
\nit shall not, at any time during the 90-day period following the Distribution
\nDate, effectuate (i) a “plant closing” as defined in the Worker Adjustment and
\nRetraining Notification Act of 1988 (the “WARN Act”) affecting any site of
\nemployment or operating units within any site of employment of the Transferred
\nBusinesses or (ii) take any action to precipitate a “mass layoff” as defined in
\nthe WARN Act affecting any site of employment of the Transferred Businesses,
\nexcept, in either case, after complying fully with the notice and other
\nrequirements of the WARN Act. Imation agrees to indemnify 3M and to defend and
\nhold 3M harmless from and against any and all claims, losses, damages, expenses,
\nobligations and liabilities (including attorney’s fees and other costs of
\ndefense) which 3M may incur in connection with any suit or claim of violation
\nbrought against 3M under the WARN Act, which relate, in whole or in part, to
\nactions taken by Imation with regard to any site of employment of Imation or
\noperating units within any site of employment of the Transferred Businesses.<\/p>\n
Section 6.12 Shared Facility Arrangements.<\/p>\n
(a) 3M and Imation agree that, subsequent to the Distribution
\nDate, the facilities located in Menomonie, Wisconsin and at 3M Center (the “3M
\nShared Facility”) shall be owned by 3M, but shared by the parties for the
\nconcurrent operations of certain of the Core Businesses and Transferred
\nBusinesses in accordance with the terms set forth in this Section 6.12. 3M and
\nImation further agree that subsequent to the Distribution Date, the facilities
\nlocated in Middleway, West Virginia, Vadnais Heights, Minnesota, Camarillo,
\nCalifornia and Pine City, Minnesota (the “Imation Shared Facilities”) shall be
\nowned by Imation (or Imation Enterprises) or leased by Imation (or Imation
\nEnterprises) from third parties (as the case may be), but shared by the parties
\nfor the concurrent operations of certain of the Core Businesses and Transferred
\nBusinesses in accordance with the terms set forth in this Section 6.12. (All
\nsuch arrangements are collectively referred to as the “Shared Facility
\nArrangements” and are more fully described on Schedule 6.12(a)).<\/p>\n
(b) During the applicable Shared Facility Term, the parties
\nagree that Imation shall lease from 3M a portion of the 3M Shared Facility for
\nthe purpose of conducting operations relating to the Transferred Businesses to
\nthe extent and in a manner substantially consistent with the operations
\nconducted at such facilities in connection with the Transferred Businesses
\nimmediately prior to the Distribution Date. In furtherance thereof, 3M and
\nImation shall, on or prior to the Distribution Date, enter into a Shared
\nFacility Agreement, with respect to each such facility, which shall set forth
\n(i) the portion of the building to be made available and the services to be
\nprovided by 3M to Imation at each of the 3M Shared Facilities, (ii) the payments
\nto be paid by Imation to 3M in consideration therefor and (iii) such further
\narrangements as the parties deem appropriate with respect to the 3M Shared
\nFacilities. In addition, Affiliates of Imation shall continue following the
\nDistribution Date to lease from Affiliates of 3M (x) a portion of 3M’s facility
\nat Breda, Netherlands pursuant to the lease which is in effect on the
\nDistribution Date and (y) a portion of 3M’s facility in London, Ontario, Canada
\npursuant to the terms of the Transition Agreement being entered into between 3M
\nCanada, Inc. and Imation Canada, Inc.<\/p>\n
(c) During the applicable Shared Facility Term, the parties
\nagree that 3M shall lease (or sublease, as the case may be) from Imation a
\nportion of each of the Imation Shared Facilities for the purpose of conducting
\noperations relating to the Core Businesses to the extent and in a manner
\nsubstantially consistent with the operations conducted at such facilities in
\nconnection with the Core Businesses immediately prior to the Distribution Date.
\nIn furtherance thereof, 3M and Imation shall, on or prior to the Distribution
\nDate, enter into a Shared Facility Agreement with respect to each such facility,
\nwhich shall set forth (i) the portion of the building to be made available and
\nservices to be provided by Imation to 3M at each of the Imation Shared
\nFacilities, (ii) the payments to be made by 3M to Imation in consideration
\ntherefor and (iii) such further arrangements as the parties deem appropriate
\nwith respect to the Imation Shared Facilities.<\/p>\n
(d) Upon the termination by either party of any of the Shared
\nFacility Arrangements with respect to a particular facility in accordance with
\nthe respective Shared Facility Agreement, Imation or 3M, as the case may be,
\nshall promptly remove all of its personnel, equipment, materials and other
\nproperty from such facility.<\/p>\n
Section 6.13 Leased Employees. Following the Distribution
\nDate, Imation shall lease from 3M the Leased Employees in accordance with the
\nterms of the Leased Employee Agreement.<\/p>\n
Section 6.14 Other Leased\/Shared Properties.<\/p>\n
(a) In connection with the Distribution, 3M shall assign to
\nImation or Imation Enterprises (as the case may be), and Imation or Imation
\nEnterprises (as the case may be) shall accept responsibility for the third party
\nleases relating to real property and\/or the facilities set forth on Schedule
\n6.14(a).<\/p>\n
(b) In connection with the Distribution, Imation or Imation
\nEnterprises (as the case may be) shall assume responsibility with respect to
\ncertain lease agreements relating to the Transferred Businesses, including those
\nwhich are set forth on Schedule 6.14(b), pursuant to which 3M presently leases a
\nportion of its facilities to unaffiliated third parties.<\/p>\n
(c) 3M shall retain all distribution centers. Any distribution
\ncenter services to be provided by 3M to Imation shall be provided pursuant to
\nthe terms of the Corporate Services Agreement.<\/p>\n
Section 6.15 Domestic Receivables and Payables.<\/p>\n
(a) Following the Distribution Date and through December 31,
\n1996 (or such earlier date as 3M and Imation shall mutually agree), 3M, on
\nbehalf of Imation and Imation Enterprises, shall collect all domestic trade
\nreceivables of the Transferred Businesses outstanding as of the Distribution
\nDate which constitute shared accounts (i.e., a portion of such receivables
\nrelate to each of the Core Businesses and the Transferred Businesses,
\nrespectively) and pay all domestic payables of the Transferred Businesses
\noutstanding as of such date (irrespective of whether such payables constitute
\nshared payables or are payables solely for the account of the Transferred
\nBusinesses). 3M will diligently pursue the collection of such receivables and
\nthe payment of payables, with the same degree of care and effort as 3M performs
\nsuch services with respect to its own receivables and payables; it being
\nunderstood, however, that subject to the provisions of this sentence, any risk
\nof non-collection of Imation’s portion of the shared receivables shall remain
\nwith Imation. Pending a final reconciliation, 3M will remit to Imation, per a
\nmutually agreed schedule which is set forth on Schedule 6.15(a), an estimate of
\nthe amount, if any, by which collections with respect to shared and non-shared
\n(net of the items specified on Schedule 6.15(a)) are expected to exceed
\npayments, and Imation will remit to 3M the amount, if any, by which payments are
\nexpected to exceed collections (net of the items specified on Schedule 6.15(a)).
\nThe remittances schedule shall be reviewed on a monthly basis by 3M and Imation
\nand shall be adjusted in good faith by mutual agreement of the parties to the
\nextent necessary to reflect more accurately the actual schedule of collections
\nand payments. If 3M receives a payment with respect to a receivable of which a
\nportion relates to the Transferred Businesses and a portion relates to the Core
\nBusinesses, 3M shall allocate the payments as directed by the customer and, in
\nthe absence of any such direction, in a manner corresponding to the relative
\namounts of the specific invoices in question outstanding with respect to the
\nTransferred Businesses and the Core Businesses.<\/p>\n
(b) Promptly following December 31, 1996 (or such earlier date
\nas 3M and Imation shall mutually agree upon), 3M shall prepare a final
\nreconciliation of cash collected from domestic trade receivables (net of the
\nitems specified on Schedule 6.15(a)) and cash paid for all domestic payables, in
\neither instance relating to the Transferred Businesses and outstanding on the
\nDistribution Date. Upon completion of the final reconciliation, 3M shall remit
\nto Imation, or Imation shall remit to 3M, as the case may be, any funds required
\nso that the total amount of funds remitted by 3M to Imation (net of any funds
\nremitted by Imation to 3M) pursuant to Sections 6.15(a) and (b) shall equal the
\nactual amount by which collections (net of the items set forth on Schedule
\n6.15(a)) exceed payments.<\/p>\n
(c) The foregoing notwithstanding, commencing with the
\nDistribution Date, Imation shall assume responsibility for the collection of all
\ntrade receivables of the Transferred Businesses which are not “shared” accounts,
\nand be entitled to any amounts so collected; although the funds relating to
\npre-Distribution Date receivables may be deposited in 3M lock boxes and remitted
\nto Imation in accordance with Schedule 6.15(a). The risk of non-collection of
\nthe trade receivables referred to in the preceding sentence shall remain with
\nImation. In addition, after December 31, 1996 (or such earlier date as 3M and
\nImation shall mutually agree upon), Imation shall assume responsibility for the
\ncollection of all domestic trade receivables and the payment of all trade
\npayables, in either instance relating to the Transferred Businesses; although 3M
\nmay continue to provide services with respect to trade payables in accordance
\nwith the terms of the Corporate Services Transition Agreement. Accordingly,
\nshould 3M or Imation inadvertently receive payment with respect to any trade
\nreceivables the collection of which is the responsibility of the other party, it
\nwill remit payment to the appropriate party of any amounts so received at the
\ntime of the final reconciliation or at such other time as the improper payment
\nis identified.<\/p>\n
Section 6.16 Diskette Anti-Dumping Duty Exemption. 3M is
\npresently entitled to certain exemptions from anti-dumping duties which respect
\nto the importation of diskettes into the European Union. 3M and Imation shall
\nuse their respective commercially reasonable efforts to have Imation substituted
\nfor 3M with respect to such exemption with an effective date of July 1, 1996 or
\nas soon as possible thereafter. 3M and Imation agree to cooperate with each
\nother in good faith to minimize any obligation to pay anti-dumping duties should
\nthe parties be unable to effect such substitution and\/or have such substitution
\neffective as of July 1, 1996, including to the extent permitted by applicable
\nlaw by having 3M import on behalf of Imation (it being understood that Imation
\nwould reimburse 3M for all its costs and expenses so involved). In the event
\nthat Affiliates of 3M in Europe shall receive diskettes following the foregoing
\nsubstitution of Imation, 3M and Imation shall cooperate with each other in good
\nfaith to minimize any obligation to pay anti-dumping duties with respect to such
\ndiskettes; it being understood, however, that Imation shall be responsible for
\nany duties which may be payable and any other costs which may be incurred in
\nhandling such diskettes.<\/p>\n
Section 6.17 Repayment of Italian Debt. In connection with the
\nDistribution, Imation shall, or shall cause one of its Affiliates, to repay
\ncertain indebtedness which is presently outstanding and owing to 3M from its
\nAffiliates in Italy and which is being assumed by an Affiliate of Imation
\npursuant to Section 2.3 hereof.<\/p>\n
Section 6.18 GECC Financing Agreements. The respective rights
\nand obligations of 3M and Imation under the Portfolio Purchase Agreement and the
\nOperating Agreement entered into by 3M with GECC in December 1995 with respect
\nto financing transactions entered into with customers to enable those customers
\nto purchase equipment sold by the Transferred Businesses or used in connection
\nwith products of the Transferred Businesses are as set forth below:<\/p>\n
(a) respective rights and obligations of 3M and Imation under
\nthe Portfolio Purchase Agreement and the Operating Agreement entered into by 3M
\nwith respect to the Imation Contracts and other obligations described therein
\nshall be as follows:<\/p>\n
(i) With respect to the Portfolio Purchase Agreement:<\/p>\n
(1) So long as Imation is not in material default of its obligations
\n pursuant to this Section 6.18 and to the extent 3M is entitled to
\n certain rights with respect to Imation Contracts pursuant to the
\n Portfolio Purchase Agreement, including without limitation, the right
\n to receive notice in certain cases, the right to make cure payments on
\n behalf of customers, and the right to remarket Property, Imation shall
\n have all such rights from and after the Distribution Date and, subject
\n to GECC’s consent, shall have the right to exercise such rights
\n directly to GECC;<\/p>\n
(2) To the extent amounts are owed or become due to GECC resulting from
\n the breach of a representation or warranty relating to Lease Contracts
\n or the Property related thereto which are Imation Contracts pursuant to
\n Section 3.4, 3.7, 3.8, 3.10 or 3.11 thereof, Imation shall pay those
\n amounts to GECC;<\/p>\n
(3) To the extent amounts are owed or become due to GECC pursuant to
\n Article V thereof, Imation shall pay those amounts to GECC which result
\n from Lease Contract Defaults that are related to Imation Contracts;<\/p>\n
(4) To the extent any Recoveries or Remarketing Proceeds are owed or
\n become due to GECC pursuant to Section 5.5 or Section 6.7 thereof,
\n Imation shall pay those amounts to GECC which relate to any Property
\n that is subject to Imation Contracts and if Imation pays any such
\n amounts to GECC then 3M shall direct that GECC transfer such Imation
\n Contracts directly to Imation;<\/p>\n
(5) To the extent that any Recoveries or Remarketing Proceeds have been
\n paid to 3M pursuant to Section 5.5 or Section 6.7 thereof, 3M shall pay
\n to Imation any portion of such amounts attributable to Imation
\n Contracts (except to the extent 3M has previously paid to GECC any
\n amounts with respect to such Imation Contracts);<\/p>\n
(6) On the Distribution Date, 3M shall transfer to Imation all of its
\n rights and interests in and to all Administered Accounts that relate to
\n Imation Contracts; and, to the extent that any Recoveries or
\n Remarketing Proceeds are paid to 3M with respect to any Administered
\n Account, 3M shall promptly pay to Imation any portion of such amounts
\n to Imation which result from those Administered Accounts relating to
\n Imation Contracts and any amounts paid from GECC to 3M on each such
\n Imation Contract will be promptly paid to Imation;<\/p>\n
(7) To the extent amounts are owed or become due to GECC with respect
\n to any Administered Account pursuant to Section 7.4 thereof, Imation
\n shall pay those amounts to GECC which result from those Administered
\n Accounts relating to Imation Contracts;<\/p>\n
(8) To the extent amounts are owed or become due to GECC under any
\n Service and Maintenance Contract pursuant to Article VIII thereof,
\n Imation shall pay those amounts to GECC which result from those Service
\n and Maintenance Contracts relating to Property that is subject to
\n Imation Contracts and if Imation pays any such amounts to GECC then 3M
\n shall direct GECC to transfer such Imation Contracts directly to
\n Imation;<\/p>\n
(9) To the extent amounts are owed or become due to GECC under any
\n Dealer Enhancement pursuant to Article VIII thereof, Imation shall
\n pay those amounts to GECC which result from those Dealer Enhancements
\n relating to Imation Contracts and if Imation pays any such amounts to
\n GECC then 3M shall direct GECC to transfer such Imation Contracts
\n directly to Imation;<\/p>\n
(10) To the extent that remarketing obligations are required to be
\n performed pursuant to Section 8.3 thereof with respect to Imation
\n Contracts, Imation shall perform such obligations;<\/p>\n
(11) To the extent amounts are owed or become due to GECC under any
\n Recourse Contract pursuant to Article VIII thereof, Imation shall pay
\n those amounts to GECC which result from those Recourse Contracts
\n relating to Imation Contracts and if Imation pays any such amounts to
\n GECC then 3M shall direct GECC to transfer such Imation Contracts
\n directly to Imation;<\/p>\n
(12) To the extent any Damages are owed or become due to GECC pursuant
\n to Section 9.2(a)(other than clause (iii) therein) or 9.2(b) thereof,
\n Imation shall pay those amounts to GECC which are attributable to, or
\n arise out of, Imation’s actions or failure to act, or relate to Imation
\n Contracts or the Property related thereto;<\/p>\n
(13) 3M shall endeavor in good faith to enter into an amendment thereto
\n with GECC which provides that, with respect to Imation Contracts,
\n Imation shall be entitled to all rights of 3M pursuant to the Portfolio
\n Purchase Agreement and, subject to GECC’s consent, GECC shall
\n thereafter fulfill its obligations relating to Imation Contracts
\n directly to Imation and 3M shall, upon request, be entitled to receive
\n copies of all such reports relating to Imation Contracts, and all
\n notices, letters and other forms of communication provided by GECC to
\n Imation pursuant to the Portfolio Purchase Agreement from time to time
\n during the term of such Agreement; and<\/p>\n
(14) On the Distribution Date, 3M shall transfer to Imation a non-cash
\n accrual in the amount of sixty percent (60%) of the remaining balance
\n in 3M’s General Ledger Account 9030 Project DIVESTGECC as of the
\n Distribution Date as a reserve against future liabilities relating to
\n Imation Contracts. This is a transfer of the asset reserve account only
\n and does not include any current or future transfer of cash from 3M to
\n Imation.<\/p>\n
(ii) With respect to the Operating Agreement:<\/p>\n
(1) 3M shall transfer to Imation the right to receive all amounts to be
\n received from GECC, if any, for funding Imation Contracts which have
\n not been funded as of the Distribution Date;<\/p>\n
(2) 3M and Imation shall use all reasonable efforts to enter into an
\n assignment and assumption agreement with GECC pursuant to which 3M
\n shall assign its rights and obligations under the Operating Agreement
\n with respect to Imation Contracts to Imation. Imation shall assume such
\n rights and obligations, and GECC shall consent to such assignment and
\n assumption.<\/p>\n
(3) In the event the parties do not enter into such an assignment and
\n assumption agreement, the following provisions shall apply:<\/p>\n
(A) To the extent amounts are owed or become due to GECC
\n resulting from the breach of a representation, warranty or
\n covenant in Section 12 thereof, Imation shall pay those
\n amounts to GECC that relate to any such breach that is
\n attributable to Imation Contracts or the Equipment related
\n thereto and will perform the covenants shown in such Section
\n 12 to the extent that such covenants relate to Imation
\n Contracts or the Equipment related thereto;<\/p>\n
(B) To the extent amounts are owed or become due to GECC
\n pursuant to Section 15 thereof, Imation shall pay those
\n amounts to GECC which result from Lease Contract Defaults that
\n relate to Imation Contracts;<\/p>\n
(C) To the extent any Recoveries or Remarketing Proceeds are
\n owed or become due to GECC pursuant to Section 15(d) or
\n Section 16(g) thereof, Imation shall pay those amounts to GECC
\n which relate to Property that is subject to Imation Contracts;<\/p>\n
(D) To the extent that any Recoveries or Remarketing Proceeds
\n are paid to 3M pursuant to Section 15(d) or Section 16(g)
\n thereof, 3M shall pay to Imation the portion of such amounts
\n attributable to Imation Contracts;<\/p>\n
(E) To the extent amounts are owed or become due to GECC under
\n any Service Transaction pursuant to Section 17 thereof,
\n Imation shall pay those amounts to GECC which result from
\n those Service Transactions relating to any Property that is
\n subject to Imation Contracts and if Imation pays any such
\n amounts to GECC then 3M shall direct GECC to transfer such
\n Imation Contracts directly to Imation;<\/p>\n
(F) To the extent amounts are owed or become due to GECC under
\n any Recourse Transactions pursuant to Section 17 thereof,
\n Imation shall pay those amounts to GECC which result from
\n those Recourse Transactions that are related to Imation
\n Contracts and if Imation pays any such amounts to GECC then 3M
\n shall direct GECC to transfer such Imation Contracts directly
\n to Imation;<\/p>\n
(G) To the extent amounts are owed or become due to GECC
\n resulting from municipal contract terminations for
\n non-appropriation pursuant to Section 18 thereof, Imation
\n shall pay those amounts to GECC which are related to Imation
\n Contracts;<\/p>\n
(H) To the extent that obligations are required to be
\n performed or amounts are owed or become due to GECC pursuant
\n to Section 18 with respect to Imation Contracts, Imation shall
\n perform such obligations or pay such amounts;<\/p>\n
(I) To the extent any Damages are owed or become due to GECC
\n pursuant to Section 22(a) thereof, Imation shall pay those
\n amounts to GECC which are attributable to Imation, or arise
\n out of, Imation’s actions or failure to act, or relate to
\n Imation Contracts or the Equipment related thereto;<\/p>\n
(J) To the extent amounts are owed or become due to GECC
\n pursuant to Section 26 thereof and Imation has not generated
\n Transaction volume in an amount at least equal to $90,000,000
\n during the Term of the Program, then Imation shall pay to GECC
\n $10,000 for each $1,000,000 of Transaction volume (or portion
\n thereof) less than $90,000,000 generated during such Term (but
\n not more than $900,000).<\/p>\n
(b) For the purposes of this Section 6.18, all capitalized
\nterms used herein shall have their respective meanings in the Portfolio Purchase
\nAgreement or the Operating Agreement, as the context requires, except that the
\nfollowing terms shall have the following definitions:<\/p>\n
3M Contracts: shall mean those Lease Contracts that are not Imation Contracts.<\/p>\n
GECC: General Electric Capital Corporation, a corporation organized under the
\nlaws of the State of Connecticut.<\/p>\n
Imation Contracts: shall mean those Lease Contracts that were originated by the
\nTransferred Businesses in existence as of the Distribution Date.<\/p>\n
Operating Agreement: shall mean that certain Operating Agreement by and between
\nGECC and 3M dated as of December 6, 1995.<\/p>\n
Portfolio Purchase Agreement: shall mean that certain Portfolio Purchase
\nAgreement by and between GECC and 3M dated as of December 6, 1995.<\/p>\n
All capitalized terms used in this Section 6.18 but not otherwise defined in
\nthis Section 6.18(a) shall have the meanings set forth in this Agreement.<\/p>\n
(c) Imation shall, from and after the Distribution Date,
\nindemnify and hold harmless 3M and each of its directors, officers, employees
\nand agents from and against any and all liabilities owed to GECC arising out
\nof or based upon or with respect to any (i) breach under this Section 6.18 or
\n(ii) any failure to perform any covenant, agreement or undertaking on the part
\nof Imation contained in this Section 6.18.<\/p>\n
(d) 3M shall, from and after the Distribution Date, indemnify
\nand hold harmless Imation and each of its directors, officers, employees and
\nagents from and against any and all liabilities owed to GECC arising out of or
\nbased upon or with respect to any (i) breach under this Section 6.18; (ii) any
\nfailure to perform any covenant, agreement or undertaking on the part of 3M
\ncontained in this Section 6.18; or (iii) any breach or failure by 3M to perform
\nany covenant, agreement or undertaking on the part of 3M contained in the
\nPortfolio Purchase Agreement and the Operating Agreement other than as a result
\nof any action or inaction by Imation.<\/p>\n
(e) 3M’S AND IMATION’S RESPECTIVE OBLIGATIONS PURSUANT TO
\nSECTION 6.18(C) AND (D) SHALL BE LIMITED TO DIRECT AND ACTUAL DAMAGES, TO THE
\nEXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES.<\/p>\n
Section 6.19 Letters of Credit. Imation shall use its
\ncommercially reasonable efforts to substitute Imation letters of credit for any
\n3M letters of credit outstanding on the Distribution Date with respect to
\nobligations of the Transferred Businesses. In addition, Imation shall reimburse
\n3M for any costs incurred or funds advanced by 3M following the Distribution
\nDate with respect to any such letters of credit.<\/p>\n
Section 6.20 Industrial Revenue Bonds. 3M shall repay on or
\nprior to the Distribution Date certain industrial revenue bonds presently
\noutstanding with respect to the White City, Oregon facility. In connection
\nwith the Distribution, Imation shall assume responsibility for all other
\nindustrial revenue bonds presently outstanding with respect to the White City,
\nOregon facility.<\/p>\n
ARTICLE VII<\/p>\n
ACCESS TO INFORMATION AND SERVICES<\/p>\n
Section 7.1 Provision of Corporate Records. As soon as
\npracticable after the Distribution Date, 3M shall deliver to Imation all Books
\nand Records. Such Books and Records shall be the property of Imation, but shall
\nbe retained and made available (upon reasonable notice during normal business
\nhours) to 3M for review and duplication until the earlier of (i) notice from 3M
\nthat such records are no longer needed by 3M or (ii) the end of the customary
\nretention period under 3M’s document retention policies as in effect at the
\nDistribution Date. The foregoing notwithstanding, technical notebooks and other
\nBooks and Records subject to the Intellectual Property Agreement shall be
\ngoverned by the terms of such agreement.<\/p>\n
Section 7.2 Access to Information. From and after the
\nDistribution Date, 3M and Imation shall afford to each other and to each other’s
\nauthorized accountants, counsel and other designated representatives reasonable
\naccess and duplicating rights (with copying costs to be borne by the requesting
\nparty) during normal business hours to all Books and Records and documents,
\ncommunications, items and matters (collectively, “Information”) within each
\nother’s knowledge, possession or control relating to the Transferred Assets, the
\nTransferred Businesses, the Assumed Liabilities, the Retained Liabilities and
\nthe Transferred Employees, insofar as such access is reasonably required by 3M
\nor Imation, as the case may be (and shall use reasonable efforts to cause
\npersons or firms possessing relevant Information to give similar access).
\nInformation may be requested under this Article VII for, without limitation,
\naudit, accounting, claims, Actions and tax purposes, as well as for purposes of
\nfulfilling disclosure and reporting obligations, but not for competitive
\npurposes.<\/p>\n
Section 7.3 Production of Witnesses and Individuals. From and
\nafter the Distribution Date, 3M and Imation shall use reasonable efforts to make
\navailable to each other, upon written request, its officers, directors,
\nemployees and agents for fact finding, consultation and interviews and as
\nwitnesses to the extent that any such person may reasonably be required in
\nconnection with any Actions in which the requesting party may from time to time
\nbe involved relating to the conduct of the Transferred Businesses or the Core
\nBusinesses (as the case may be) prior to the Distribution Date. Except as
\notherwise agreed between the parties or pursuant to a Joint Representation and
\nDefense Agreement or Joint Defense Agreement, 3M and Imation agree to reimburse
\neach other for reasonable out-of-pocket expenses (but not labor charges or
\nsalary payments) incurred by the other in connection with providing individuals
\nand witnesses pursuant to this Section 7.3.<\/p>\n
Section 7.4 Retention of Records. Except when a longer
\nretention period is otherwise required by law or agreed to in writing, 3M and
\nImation shall retain, for their retention periods customary under existing 3M
\npolicies, all material Information relating to the Transferred Businesses.
\nNotwithstanding the foregoing, in lieu of retaining any specific Information, 3M
\nor Imation may offer in writing to deliver such Information to the other and, if
\nsuch offer is not accepted within 90 days, the offered Information may be
\ndestroyed or otherwise disposed of at any time. If a recipient of such offer
\nshall request in writing prior to the scheduled date for such destruction or
\ndisposal that any of the Information proposed to be destroyed or disposed of be
\ndelivered to such requesting party, the party proposing the destruction or
\ndisposal shall promptly arrange for the delivery of such of the Information as
\nwas requested (at the cost of the requesting party).<\/p>\n
Section 7.5 Confidentiality.<\/p>\n
(a) Each of 3M and Imation shall, and shall cause its
\nofficers, employees, agents, consultants, advisors and Affiliates to, hold, in
\nstrict confidence and not disclose to another, except as provided herein or
\ncompelled to disclose by judicial or administrative process or, in the opinion
\nof its independent legal counsel, by other requirements of law, confidential
\ninformation concerning the other party.<\/p>\n
(b) For purposes of this Section 7.5, confidential information
\nabout a particular party (referred to herein as the “first party”) shall mean
\ninformation known by the other party on the Distribution Date and reasonably
\nunderstood by the other party to be confidential and related to the first
\nparty’s business interests, or disclosed confidentially by the first party to
\nthe other party after the Distribution Date under the terms and for purposes of
\nthis Agreement or any of the Related Agreements except for:<\/p>\n
(i) information learned by the other party for the first
\n time after the Distribution Date, but prior to any
\n disclosure by the first party;<\/p>\n
(ii) information which is or becomes publicly available
\n through no act of the other party, from and after the
\n date of public availability;<\/p>\n
(iii) information disclosed to the other party by a third
\n party, provided (a) under the circumstances of
\n disclosure the other party does not have a duty of
\n non-disclosure owed to such third party, (b) the
\n third party’s disclosure is not violative of a duty
\n of non-disclosure owed to another, including the
\n first party, and (c) the disclosure by the third
\n party is not otherwise unlawful;<\/p>\n
(iv) information developed by the other party independent
\n of any confidential information of the first party
\n which is known by the other party on the Distribution
\n Date and\/or disclosed by the first party thereafter;<\/p>\n
(v) information which pursuant to the terms of the
\n Intellectual Property Agreement or any of the other
\n Related Agreements is specifically excluded from the
\n definition of confidential information; and<\/p>\n
(vi) information which the other party can demonstrate was
\n disclosed by a business of the other party to a third
\n party prior to November 14, 1995, and for which any
\n obligation of confidentiality by that third party
\n has expired, from and after the date such third party
\n obligation of confidentiality expires, and provided
\n that disclosure of an item of information to one
\n third party and a different item of information to
\n another third party shall not be viewed as disclosure
\n of information which can only be drawn from those
\n items of information collectively.<\/p>\n
(c) The foregoing restrictions shall expire with respect to
\nbusiness information which is confidential information five (5) years after the
\ndate of disclosure of such information, unless and to the extent 3M and Imation
\nagree to a longer period for the foregoing restrictions with respect to specific
\ncategories of business information which is confidential information of Imation
\nand\/or 3M, in which case the foregoing restrictions shall expire with respect to
\nsuch information on the expiration of such longer period. The date of disclosure
\nin the case of business information which is either confidential information of
\n3M known by Imation or confidential information of Imation known by 3M on the
\nDistribution Date shall be considered to be the Distribution Date. 3M and
\nImation each shall not disclose to another or use except for purposes of
\nfulfilling its obligations under this Agreement or the relevant Related
\nAgreements any business information which is confidential information of Imation
\nor confidential information of 3M, respectively. In addition, 3M and Imation
\neach shall not disclose to another or use except for purposes of fulfilling its
\nobligations under this Agreement or the relevant Related Agreement any technical
\ninformation which is confidential information of Imation or confidential
\ninformation of 3M, respectively. The foregoing restrictions shall not expire
\nuntil such time and to the extent that such information ceases to be
\nconfidential information.<\/p>\n
(d) Each party shall protect confidential information of the
\nother party by using the same degree of care, but no less than a reasonable
\ndegree of care, to prevent the unauthorized disclosure of the other party’s
\nconfidential information as the party uses to protect its own confidential
\ninformation of a like nature.<\/p>\n
(e) Each party shall insure that its Affiliates, sublicensees
\nand other transferees (such as advisors, attorneys and other consultants) agree
\nto be bound by the same restrictions on use and disclosure of confidential
\ninformation as bind the party in advance of the disclosure of confidential
\ninformation to them.<\/p>\n
(f) The parties recognize that confidential information
\ndisclosed hereunder or under the Related Agreements may relate to an
\nExtraordinary Sensitive Technology as defined in, and contemplated by, the
\nIntellectual Property Agreement. Any such confidential information shall be
\nsubject to the special treatment provided for in Paragraph 15.3 of the
\nIntellectual Property Agreement.<\/p>\n
Section 7.6 Privileged Matters.<\/p>\n
(a) Imation and 3M agree to maintain, preserve and assert all
\nprivileges that either party may have, including without limitation, any
\nprivilege or protection arising under or relating to any attorney-client
\nrelationship that existed prior to the Distribution Date (“Privilege” or
\n“Privileges”). 3M and Imation shall be entitled in perpetuity to require the
\nassertion or decide whether to consent to the waiver of any and all Privileges
\nwhich, in the case of Imation, relate to the Transferred Assets and\/or
\nTransferred Liabilities and, in the case of 3M, relate to the assets and\/or
\nliabilities not transferred to Imation. Imation and 3M shall each use the same
\ndegree of care as it would with respect to itself so as not to waive any
\nPrivilege which could be asserted under applicable law without the prior written
\nconsent of the other party. The rights and obligations created by this Section
\n7.6 shall apply to all Information as to which, but for the Distribution, 3M or
\nImation would have been entitled to assert or did assert the protection of a
\nPrivilege (“Privileged Information”), including but not limited to (i) all
\nInformation generated prior to the Distribution Date but which, after the
\nDistribution, is in the possession of the other party or its Affiliates; (ii)
\nall communications subject to a Privilege occurring prior to the Distribution
\nDate between counsel for 3M and any person who, at the time of the
\ncommunication, was an employee of 3M, regardless of whether such employee is or
\nbecomes an Imation employee or an employee of an Imation Affiliate; and (iii)
\nall Information generated, received or arising after the Distribution Date that
\nrefers or relates to Privileged Information generated, received or arising prior
\nto the Distribution Date but which, after the Distribution Date, is in the
\npossession of the other party or its Affiliates.<\/p>\n
(b) Upon receipt by any party or its Affiliates of any
\nsubpoena, discovery or other request which arguably calls for the production or
\ndisclosure of Privileged Information of the other party and whenever any party
\nobtains knowledge that any current or former employee of such party or its
\nAffiliates has received any subpoena, discovery or other request which arguably
\ncalls for the production or disclosure of Privileged Information, such party
\nshall promptly notify the other party of the existence of the request and shall
\nprovide the other party a reasonable opportunity to review the Information and
\nto assert any rights it may have under this Section 7.6 or otherwise to prevent
\nthe production or disclosure of Privileged Information. Each party and its
\nAffiliates will not produce or disclose any Information covered by a Privilege
\nof the other party under this Section 7.6 unless (a) the other party has
\nprovided its express written consent to such production or disclosure, or (b) a
\ncourt of competent jurisdiction has entered a final, non-appealable order
\nfinding that the Information is not entitled to protection under any applicable
\nPrivilege.<\/p>\n
(c) 3M’s transfer of Books and Records and any other
\nInformation to Imation, and 3M’s agreement to permit Imation to possess
\nPrivileged Information occurring or generated prior to the Distribution Date,
\nare made in reliance on Imation’s agreement, as set forth in this Section 7.6,
\nto maintain the confidentiality of Privileged Information and to maintain,
\npreserve and assert all applicable Privileges. The access to information granted
\nor permitted by this Agreement, the agreement to provide witnesses and
\nindividuals pursuant to Section 7.3 hereof and transfer of Privileged
\nInformation to Imation pursuant to this Agreement shall not be deemed a waiver
\nof any Privilege that has been or may be asserted under this Section 7.6 or
\notherwise. Nothing in this Agreement shall operate to reduce, minimize or
\ncondition the rights granted to either party in, or the obligations imposed upon
\neither party by, this Section 7.6.<\/p>\n
Section 7.7 Mail and Other Communications. Each of 3M and
\nImation agrees to forward or direct (as appropriate) to the other party any mail
\nor other communications of such other party which is received by it.<\/p>\n
ARTICLE VIII<\/p>\n
EMPLOYEE MATTERS AND BENEFITS<\/p>\n
Section 8.1 Employment. At the Distribution Date, Imation
\nshall employ each Transferred Employee at an annual compensation rate no less
\nthan such Transferred Employee’s current annual compensation rate with 3M.
\nTransferred Employees employed in the United States or employed outside the
\nUnited States on temporary foreign assignments (including foreign service
\nemployees, as described in Schedule 8.11 attached hereto) are referred to herein
\nas the “U.S. Transferred Employees;” all other Transferred Employees are
\nreferred to herein as the “O.U.S. Transferred Employees.” Imation shall continue
\nthe status of a Transferred Employee on leave of absence or shortor long-term
\ndisability absence, other than the leave of absence status of a Transferred
\nEmployee on preretirement leave, and shall recall, reinstate, and\/or terminate
\nthe employment of such Transferred Employees in accordance with the leave of
\nabsence policy applicable to the Transferred Employee that was in effect when
\nthe Transferred Employee’s leave of absence began. Notwithstanding anything to
\nthe contrary in this Section 8.1, Imation shall not be obligated to employ any
\nperson who declines employment with Imation and such person shall not be
\nconsidered a Transferred Employee.<\/p>\n
Section 8.2 Qualified and NonQualified Retirement and Benefit
\nPlans.<\/p>\n
(a) On or before the Distribution Date, Imation shall (i)
\nestablish, effective as of the Distribution Date, a defined benefit plan (the
\n“Imation Defined Benefit Plan”) and a defined contribution plan (the “Imation
\nDefined Contribution Plan”), in each case, intended to qualify under Section
\n401(a) of the Code (the Imation Defined Benefit Plan and the Imation Defined
\nContribution Plan being collectively referred to as the “Imation Pension
\nPlans”), (ii) establish, on or before the Distribution Date, trusts under the
\nImation Pension Plans intended to qualify under Section 501(a) of the Code,
\n(iii) establish, effective as of the Distribution Date, a nonqualified pension
\nbenefit plan (the “Imation Nonqualified Pension Plan” and together with the
\nImation Defined Benefit Plan, the “Imation Defined Benefit Plans”), and (iv)
\nestablish, effective as of the Distribution Date, a plan similar to the 3M
\nSenior Executive Split Dollar Plan (the “3M Survivor Program”). The Imation
\nDefined Contribution Plan shall relate and apply to compensation paid on or
\nafter the Distribution Date, and shall be (or shall have a component thereof
\nthat consists of) an employee stock ownership plan within the meaning of
\nSections 409 and 4975(e)(7) of the Code (the “Imation ESOP”).<\/p>\n
(b) On or before the Distribution Date, 3M shall direct the
\nTrustee of the 3M Voluntary Investment Plan and Employee Stock Ownership Plan
\n(the “3M 401(k)\/ESOP”) to transfer (the “ESOP Transfer”) from the trusts
\nestablished thereunder to the trust under the Imation Defined Contribution Plan,
\nan amount (in the form determined by 3M unless otherwise provided herein) equal
\nto the sum of the account balances (including liabilities associated with
\noutstanding participant loans) of each Transferred Employee as of the date of
\ntransfer (the “ESOP Transfer Date”); provided, however, that all shares of 3M
\nCommon Stock and Imation Common Stock represented by units allocated to the
\naccounts of Transferred Employees shall be transferred, in kind, to the Imation
\nDefined Contribution Plan. Notwithstanding anything contained herein to the
\ncontrary, no such transfer shall take place until the 31st day following the
\nfiling of all required Forms 5310-A in connection therewith.<\/p>\n
(c) Effective as of the ESOP Transfer Date, Imation and the
\nImation Defined Contribution Plan shall assume and become solely responsible for
\nthe satisfaction of all liabilities under the 3M 401(k)\/ESOP in respect of the
\nTransferred Employees, and 3M and the 3M 401(k)\/ESOP shall be relieved of and
\nshall cease to have any responsibility for the satisfaction of such liabilities,
\nother than for any reconciliations required after the ESOP Transfer Date.<\/p>\n
(d) Effective as of the Distribution Date, 3M shall assign to
\nImation all insurance policies assigned to 3M with respect to Transferred
\nEmployees under the 3M Survivor Program, and all company owned life insurance
\npolicies related thereto with respect to Transferred Employees.<\/p>\n
(e) Effective as of the Distribution Date, 3M shall amend the
\n3M 401(k)\/ESOP, the Employee Retirement Income Plan of Minnesota Mining and
\nManufacturing Company (the “3M Defined Benefit Plan,” and together with the 3M
\n401(k)\/ESOP, the “3M Qualified Pension Plans”), the Nonqualified Pension Plan I
\nfor Minnesota Mining and Manufacturing Company and the Nonqualified Pension Plan
\nII for Minnesota Mining and Manufacturing Company (collectively the “3M
\nNonqualified Pension Plans,” and together with the 3M Qualified Pension Plans,
\nthe “3M Pension Plans”) as follows: (i) each of the 3M Pension Plans shall be
\namended to provide that no benefits shall accrue (except as provided otherwise
\nin this Agreement) and no contributions shall be allocated with respect to a
\nTransferred Employee under the 3M Pension Plans with respect to any period
\ncommencing on or after the Distribution Date, and no forfeitures shall be
\nallocated after the Distribution Date with respect to a Transferred Employee
\nunder the 3M 401(k)\/ESOP; (ii) the 3M Defined Benefit Plan and the 3M
\nNonqualified Pension Plans (collectively, the “3M Defined Benefit Plans”) shall
\nbe amended to provide that the accrued benefits of Transferred Employees under
\nthe 3M Defined Benefit Plans as of the Distribution Date (the “Accrued
\nBenefits”) shall be fully vested, and the 3M 401(k)\/ESOP shall be amended to
\nprovide that the account balances of each Transferred Employee thereunder as of
\nthe Distribution Date shall be fully vested; (iii) the 3M Defined Benefit Plans
\nshall be amended to provide that, for purposes of eligibility for early
\nretirement subsidies attributable to each Transferred Employee’s Accrued
\nBenefit, each such Transferred Employee’s years of service with Imation shall be
\nrecognized; and (iv) the 3M Defined Benefit Plans shall be amended to provide
\nthe following Special Retirement Benefits (the “3M Special Retirement Benefits”)
\nfor each Grandfathered Employee (as defined in Section 8.2 (h)(ii)): For each
\nyear of service with Imation, each Grandfathered Employee will be credited with
\na benefit equal to one-half of (A) plus (B), where (A) is 4% of such
\nGrandfathered Employee’s Accrued Benefit and (B) is 4% of any benefits
\npreviously accrued on behalf of such Grandfathered Employee pursuant to Sections
\n8.2(e)(iv) and 8.2(h)(ii) hereof. 3M and the 3M Defined Benefit Plans shall
\nremain solely responsible for all liabilities with respect to the Accrued
\nBenefits and the 3M Special Retirement Benefits and Imation and the Imation
\nPension Plans shall have no liability or responsibility therefor. 3M and Imation
\nagree that the transfer of the Transferred Employees to Imation shall not
\nconstitute an event entitling any such Transferred Employee to a distribution
\nfrom the 3M Pension Plans.<\/p>\n
(f) Effective as of the Distribution Date, 3M shall amend 3M’s
\nDeferred Compensation Plan to provide that all U.S. Transferred Employees shall
\nno longer be eligible to make deferrals thereto. 3M shall retain sole
\nresponsibility for, and all liabilities relating to, 3M’s Deferred Compensation
\nPlan, and Imation shall have no liability or responsibility therefor.<\/p>\n
(g) Imation agrees to indemnify and hold harmless 3M, its
\nofficers, directors, employees, employee benefit plans and trusts, employee
\nbenefit plan trustees, agents and affiliates from and against any and all costs,
\ndamages, losses, expenses (including reasonable attorneys’ fees and costs), or
\nother liabilities arising out of or related to the Imation Pension Plans, other
\nthan any such costs, damages, losses, expenses or other liabilities relating to
\nthe ESOP Transfer that are directly attributable to the acts or omissions of any
\nsuch parties prior to or on the Distribution Date, and 3M agrees to indemnify
\nand hold harmless Imation, its officers, directors, employees, employee benefit
\nplans and trusts, employee benefit plan trustees, agents and affiliates from and
\nagainst any and all costs, damages, losses, expenses (including reasonable
\nattorneys’ fees and costs), or other liabilities relating to the ESOP Transfer
\nwhich are directly attributable to such acts or omissions.<\/p>\n
(h) (i) The Imation Pension Plans shall provide, effective as
\nof the Distribution Date, that U.S. Transferred Employees shall (A) immediately
\nupon their becoming employees of Imation, become eligible to participate in the
\nImation Pension Plans, (B) with respect to the Imation Defined Contribution
\nPlan, for all purposes (including vesting, eligibility for benefits and benefit
\ndetermination) receive credit for all service credited for such purposes under
\nthe 3M 401(k)\/ESOP as of the Distribution Date as if the service had been
\nrendered to Imation, and (C) with respect to the Imation Defined Benefit Plans,
\nfor all purposes other than for purposes of benefit accrual, including
\nparticipation, eligibility and vesting, receive credit for all service credited
\nfor such purposes under the 3M Defined Benefit Plans as of the Distribution Date
\nas if the service had been rendered to Imation.<\/p>\n
(ii) In addition to other retirement benefits accrued
\nthereunder, the Imation Defined Benefit Plans shall provide the following
\nspecial retirement benefits (the “Imation Special Retirement Benefits”) for each
\nU.S. Transferred Employee who has at least 10 years of 3M service as of the
\nDistribution Date, and whose combined age and years of 3M service equal 50 or
\nmore as of the Distribution Date (the “Grandfathered Employees”). For each year
\nof service with Imation, each Grandfathered Employee will be credited with a
\nbenefit equal to one-half of (A) plus (B), where (A) is 4% of such Grandfathered
\nEmployee’s Accrued Benefit and (B) is 4% of any benefits previously accrued on
\nbehalf of such Grandfathered Employee pursuant to Sections 8.2(e)(iv) and
\n8.2(h)(ii). The Imation Special Retirement Benefits shall be payable in the same
\nform that each Grandfathered Employee’s Accrued Benefits are paid under the 3M
\nDefined Benefit Plans, and Imation’s Defined Benefit Plans shall provide that
\nGrandfathered Employees shall be eligible for the same subsidies for early
\nretirement as are applied to each Grandfathered Employee’s Accrued Benefits
\nunder the 3M Defined Benefit Plans.<\/p>\n
(i) 3M and Imation shall provide each other such records and
\ninformation as may be necessary or appropriate to carry out their obligations
\nunder this Section 8.2 or for the purposes of administration of the 3M Pension
\nPlans and the Imation Pension Plans, and they shall cooperate in the filing of
\ndocuments required by the transfer of assets and liabilities described herein.<\/p>\n
(j) 3M shall retain sole responsibility for, and all
\nliabilities relating to, the 3M Nonqualified Pension Plans, and Imation shall
\nhave no liability or responsibility therefor.<\/p>\n
(k) Imation acknowledges that 3M, following discussions with
\nthe management of Imation, has represented to the Internal Revenue Service in
\nconnection with 3M’s request for a private letter ruling as to the federal
\nincome tax consequences of the Distribution, and, to effect such
\nrepresentations, Imation agrees that (i) Imation will establish an employee
\nstock ownership plan (the “Imation ESOP”) that satisfies the requirements of
\nSections 401(a) and 4975(e)(7) of the Code, in which non-union domestic
\nemployees of Imation and Imation Enterprises shall be eligible to participate,
\nand (ii) within five years after the Distribution a minimum of 4% of the Imation
\nCommon Stock then outstanding will be held by the Imation ESOP for the benefit
\nof Imation Employees.<\/p>\n
Section 8.3 Welfare Plans.<\/p>\n
(a) 3M agrees that it shall take or cause to be taken all
\naction necessary and appropriate to:<\/p>\n
(i) direct the trustees of each trust created under
\nSection 501(c)(9) of the Code for the purpose of funding the payment of benefits
\nunder certain of the employee welfare benefit plans of 3M (individually, a “3M
\nVEBA”), other than the EBTA, as defined in clause (ii) below, to transfer, as
\nsoon as practicable following the date that the required data is available, to
\nthe trust or trusts established by Imation, which are intended to constitute
\n“voluntary employees’ beneficiary associations” within the meaning of Section
\n501(c)(9) of the Code (individually an “Imation VEBA”), the actuarially
\ndetermined portion of the assets of such 3M VEBAs (as determined by the
\ncertified actuary engaged by 3M for this purpose under generally accepted
\nactuarial principles) attributable to the Transferred Employees for such
\nbenefits as are being offered by Imation under the corresponding Imation VEBA,
\nincluding assets attributable to Transferred Employees relating to employee
\nmedical and dental benefits, and long-term disability benefits, but excluding,
\nfor this purpose, post-retirement medical, dental and life insurance benefits;<\/p>\n
(ii) in the case of the trust created under Section
\n501(c)(9) of the Code by the 3M Employees’ Benefits Trust Association (the
\n“EBTA”), request the Board of Directors of the EBTA to direct, after the
\nDistribution Date, and as soon as practicable following the date that the
\nrequired data is available, the trustee of such EBTA and its insurers to
\ntransfer to the corresponding Imation VEBA the actuarially determined portion
\n(as determined by such EBTA’s actuary under generally accepted actuarial
\nprinciples) of the assets and premium stabilization reserve of such EBTA
\nattributable to the Transferred Employees;<\/p>\n
(iii) amend its post-retirement medical benefit plans
\n(the “3M Post-Retirement Medical Plans”) to cover each U.S. Transferred Employee
\nwhose combined age and years of 3M service as of the Distribution Date equals 60
\nor more (with a minimum of 5 years of 3M service and a minimum age of 50 as of
\nthe Distribution Date) and who retires from employment with Imation, the
\nbenefits (if any) payable to such U.S. Transferred Employee to be based on the
\nprovisions of the 3M Post-Retirement Medical Plans as in effect at the time such
\nU.S. Transferred Employee retires from employment with Imation, and as such
\nplans may be amended thereafter;<\/p>\n
(iv) provide or arrange for the provision
\nof benefits administration services for a period of up to 24 months following
\nthe Distribution Date, as described in the Corporate Services Transition
\nAgreement, with respect to the employee welfare benefit plans to be adopted by
\nImation in accordance with Section 8.3(c) hereof; and<\/p>\n
(v) pay (A) the severance costs of employees who
\nhave accepted, on or prior to the Distribution Date, the terms of a voluntary
\nseparation plan offered prior to the Distribution Date by any of the business
\nunits or at the plants listed on Schedule 1.1A, (B) the severance costs, if any,
\nrelating to Leased Employees, (C) the severance costs relating to employees at
\nthe Beauchamp, France facility of 3M who will be performing contract
\nmanufacturing services for Imation (except that Imation shall be responsible for
\nseverance costs associated with up to 20% of such employees up to an aggregate
\ncost to Imation not to exceed $1 million) and (D) the severance and indemnity
\ncosts incurred as a result of the transfer of O.U.S. Transferred Employees, but
\nonly if, and to the extent that, such severance and indemnity costs are imposed
\npursuant to applicable foreign law (it being understood, however, that 3M shall
\nnot be responsible for any severance costs payable after the Distribution
\nDate with respect to employees at the Imation facilities in Harlow,
\nEngland; Ferrania, Italy; Sulmona, Italy; London, Ontario; and Florida,
\nArgentina).<\/p>\n
(b) Imation agrees that:<\/p>\n
(i) it shall assume and be solely responsible for
\nall liabilities and obligations whatsoever of 3M in connection with claims for
\nbenefits incurred on or after the Distribution Date by or in respect of
\nTransferred Employees under the welfare benefit plans maintained by 3M for
\nemployees and the workers’ compensation, unemployment compensation and other
\nlegally required employee benefits programs maintained by 3M, and 3M shall cease
\nto have any such liability or obligation. For purposes of this Section 8.3,
\n“incurred” shall mean (A) with respect to medical and dental benefits, the date
\nthat services are performed; and (B) with respect to survivor benefits, the date
\nof death. With respect to disability benefits, Imation shall assume and be
\nsolely responsible for all disability payments with respect to Transferred
\nEmployees (including Transferred Employees who are on shortor long-term
\ndisability absences on or prior to the Distribution Date) payable on or after
\nthe Distribution Date;<\/p>\n
(ii) it shall assume and be solely responsible for
\nall liabilities and obligations whatsoever of 3M in connection with 3M’s
\nvacation plan for the unused vacation benefits of all Transferred Employees as
\nof the Distribution Date, and shall adopt a vacation plan which, among other
\nthings, pays Transferred Employees the value of such Transferred Employees’
\nunused vacation benefits earned under 3M’s vacation plan as of the Distribution
\nDate; and<\/p>\n
(iii) it shall reimburse 3M on at least a quarterly
\nbasis for 3M’s and its Affiliates’ net costs (excluding internal administration
\ncosts) arising from their payments of workers’ compensation benefits and
\nliabilities on or after the Distribution Date payable to or with respect to
\nTransferred Employees for whom 3M or its Affiliates have an obligation to make
\nsuch payments after the Distribution Date and for which 3M or its Affiliates
\nhave not received any reimbursement either from Imation or from insurance.<\/p>\n
(c) Imation further agrees that it shall take, or cause to be
\ntaken all action necessary and appropriate:<\/p>\n
(i) to establish, effective as of the Distribution
\nDate for a period of not less than 18 months, for the benefit of U.S.
\nTransferred Employees while such employees are employed by Imation, employee
\nwelfare benefit plans (other than vacation plans) substantially similar to
\nthose employee welfare benefit plans covering employees of the U.S. Transferred
\nBusinesses immediately prior to the Distribution Date. Imation shall recognize
\nall employment service and earnings of a U.S. Transferred Employee recognized by
\n3M as employment service and earnings of Imation for purposes of applying the
\nprovisions of any Imation welfare benefit plan or similar program, including any
\nvacation plan or program, where the U.S. Transferred Employee’s benefits
\nthereunder are a function of the employee’s employment service or earnings or a
\ncombination thereof;<\/p>\n
(ii) on or before the Distribution Date, to adopt as
\na successor employer, on a retroactive basis from January 1, 1996, the 3M
\nFlexible Benefits Program, including the health care reimbursement account and
\ndependent daycare reimbursement account covering the Transferred Employees, as
\nif such Transferred Employees’ employment with Imation was a continuation of
\ntheir employment with 3M (the “Imation Flexible Benefits Program”). At the same
\ntime that Imation adopts its Flexible Benefits Program, it shall amend such
\nProgram to provide that any unused flexible benefit credits shall be paid in
\ncash to the respective employees, and not invested in employer common stock, as
\ncurrently provided under the 3M Flexible Benefits Program. Imation shall effect
\npayment of all wage and salary deductions of participating Transferred Employees
\nrequired under such plans to 3M as Imation’s agent, pursuant to the Corporate
\nServices Transition Agreement through December 31, 1997, for application by 3M
\ntoward the disbursement of reimbursement benefits and medical, dental and life
\ninsurance premium amounts to, or with respect to, such Transferred Employees on
\nImation’s behalf, with a final accounting of all such receipts and disbursements
\nby 3M on or before July 31, 1998. All liabilities relating to the Transferred
\nEmployees’ rights and benefits described in this clause (ii) shall be assumed by
\nImation as of the Distribution Date, and 3M shall cease to have any such
\nliability or obligation therefor. As soon as practicable following the date that
\nthe required data is available, 3M shall reduce the amount that Imation is
\nrequired to reimburse it for Imation’s Flexible Benefits Program benefit
\npayments in accordance with the Corporate Services Transition Agreement by the
\naggregate net amounts credited to the health care reimbursement accounts and the
\ndependent daycare reimbursement accounts of the Transferred Employees under such
\nProgram as of June 30, 1996. Thereafter, through June 30, 1998, Imation shall
\nperiodically, but in no event less frequently than monthly, reimburse 3M for
\nclaims paid by 3M thereunder;<\/p>\n
(iii) to provide the benefit coverage otherwise
\nnecessary to assume the liabilities and obligations that are or shall become the
\nresponsibility of Imation under this Section 8.3; and<\/p>\n
(iv) to make legally required contributions or
\npayments pursuant to any law providing for workers’ compensation, unemployment
\ncompensation, disability benefits or other legally required employee benefit
\nprograms with respect to Transferred Employees, and to retain any accounts or
\nreserves relative to such benefits held solely by Imation for such Transferred
\nEmployees.<\/p>\n
In connection with the foregoing, 3M agrees to provide Imation
\nor its designated insurance representative with such information as may be
\nreasonably requested by Imation and necessary for Imation to assume, establish
\nor maintain such plans, funding arrangements, and benefit coverage.<\/p>\n
Section 8.4 Assumption of Certain Employee Related
\nObligations.<\/p>\n
(a) Effective as of the Distribution Date, Imation shall
\nassume and 3M shall have no further obligation or liability for:<\/p>\n
(i) all incentives, bonus and deferred compensation
\n(including profit sharing and commissions, but excluding all obligations and
\nliabilities with respect to 3M’s Deferred Compensation Plan) earned by
\nTransferred Employees but not paid on or before the Distribution Date, except as
\notherwise provided in paragraph (b) below;<\/p>\n
(ii) any requirements under the Consolidated
\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) to provide continuation of
\nhealth care coverage to any Transferred Employee or “qualified beneficiary”, as
\ndefined in COBRA, of a Transferred Employee who loses coverage as a result of a
\n“qualifying event”, as defined in COBRA, that occurs after the Distribution
\nDate;<\/p>\n
(iii) any and all obligations to make premium
\npayments due on or after the Distribution Date with respect to Transferred
\nEmployees who participate in the Imation successor program to the 3M Survivor
\nProgram; and<\/p>\n
(iv) all liability under the Performance Unit Plan of
\n3M (the “PUP”) with respect to Transferred Employees that are attributable to
\nthe 1996 award, other than that portion of the 1996 award that was earned during
\n1996.<\/p>\n
(b) 3M shall retain all liability with respect to Transferred
\nEmployees under the PUP for all awards made prior to 1996 and that portion of
\nthe 1996 award that was earned during 1996.<\/p>\n
Section 8.5 Other Liabilities and Obligations. As of the
\nDistribution Date, Imation shall assume and be solely responsible for all
\nliabilities and obligations whatsoever of the Transferred Businesses with
\nrespect to claims made by or with respect to Transferred Employees, relating to
\ntheir employment with or termination from the Transferred Businesses or 3M not
\notherwise provided for in this Agreement, including, without limitation, earned
\nsalary, wages or other compensation and accrued holidays and other termination
\nbenefits.<\/p>\n
Section 8.6 Preservation of Rights to Amend or Terminate
\nPlans. No provisions of this Agreement, including, without limitation, the
\nagreement of 3M or Imation that it will make a contribution or payment to or
\nunder any plan referred to herein for any period, shall be construed as a
\nlimitation on the right of 3M or Imation to amend such plan or terminate its
\nparticipation therein which 3M or Imation would otherwise have under the terms
\nof such plan or otherwise; provided, however, that no amendment shall reduce or
\neliminate (i) the Transferred Employees’ unused account balances under the
\nFlexible Benefits Program required to be adopted pursuant to Section 8.3(c)(ii)
\nhereof; or (ii) the Transferred Employees’ unused vacation benefits as of the
\nDistribution Date.<\/p>\n
Section 8.7 Reimbursement; Indemnification. Imation and 3M
\nacknowledge that each may incur costs and expenses (including, without
\nlimitation, contributions to plans and the payment of insurance premiums)
\npursuant to any of the employee benefit or compensation plans, program or
\narrangements, which are, as set forth in this Agreement, the responsibility of
\nthe other party. Accordingly, 3M and Imation agree to reimburse each other, as
\nsoon as practicable but in any event within 30 days of receipt from the other
\nparty of appropriate verification, for all such costs and expenses, as the case
\nmay be, as an indemnitee in respect of the corresponding payment made by it, as
\ndetermined pursuant to Section 5.2(d) hereof, except to the extent that any such
\npayment or reimbursement would be duplicative.<\/p>\n
Section 8.8 Stock Plans.<\/p>\n
(a) 3M Stock Option Plans. 3M shall be solely responsible for
\nsatisfying all option exercises by Transferred Employees under the Stock Option
\nPlans with respect to options to acquire shares of 3M Common Stock which are
\noutstanding as of the Distribution Date. 3M shall cause such Stock Option Plans
\nto be interpreted so that employment of the Transferred Employees with Imation
\nshall be treated as employment with 3M for purposes of the Stock Option Plans’
\nprovisions causing outstanding stock options to expire upon the termination of
\nemployment of the option holder. Notwithstanding the foregoing, no options
\n(including Progressive Stock Options, as defined in the Stock Option Plans)
\nshall be granted to Transferred Employees under the Stock Option Plans after the
\nDistribution Date. As soon as reasonably possible following the Distribution
\nDate, Options that are outstanding and unexercised under the Stock Option Plans
\nimmediately prior to the Distribution Date (the “3M Options”), shall be adjusted
\nas follows:<\/p>\n
(i) if there is an ex-dividend market for 3M Common
\nStock prior to the Distribution Date, then (A) the shares subject to the 3M
\nOptions shall be multiplied by a fraction, the numerator of which is the closing
\nper share price of 3M Common Stock on the last trading day immediately preceding
\nthe ex-dividend date, and the denominator of which is the closing price per
\nshare of 3M Common Stock on the ex-dividend date, with the resulting number of
\nshares rounded downward to the nearest share, and (B) the exercise price of each
\nsuch share shall be divided by the fraction set forth in clause (A) above, with
\nthe resulting price rounded upward to the nearest cent; and<\/p>\n
(ii) if there is no ex-dividend market for 3M Common
\nStock prior to the Distribution Date, then (A) the shares subject to the 3M
\nOptions shall be multiplied by a fraction, the numerator of which is the closing
\nprice per share of 3M Common Stock on the last trading day immediately preceding
\nthe date on which 3M Common Stock begins trading without the Imation dividend
\n(i.e., without due bills) and the denominator of which is the closing price per
\nshare of 3M Common Stock on the first trading day that 3M Common Stock begins
\ntrading without the Imation dividend (i.e., without due bills), with the
\nresulting number of shares rounded downward to the nearest share, and (B) the
\nexercise price of each such share shall be divided by the fraction set forth in
\nclause (A) above, with the resulting price rounded upward to the nearest cent.<\/p>\n
Imation agrees to promptly notify 3M of the death or
\ntermination of employment for any reason of each Transferred Employee for 3M’s
\nuse in administering its Stock Option Plans with respect to outstanding stock
\noptions held by such Transferred Employees.<\/p>\n
This Section 8.8(a) shall be interpreted and applied in the
\ndiscretion of the 3M Compensation Committee, whose interpretation and
\napplication shall be binding upon all optionees under the Stock Option Plans.<\/p>\n
(b) 3M Stock Purchase Plan. As soon as possible following the
\nDistribution Date, each option to purchase 3M Common Stock that is outstanding
\nand unexercised under the 3M 1992 General Employees Stock Purchase Plan shall be
\nadjusted in a manner similar to the manner that the 3M Options are adjusted
\npursuant to paragraph (a) above.<\/p>\n
(c) Imation Stock Options. On or prior to the Distribution
\nDate, Imation shall adopt a stock option plan (the “Imation Employee Stock
\nIncentive Plan”) enabling Imation to grant options to Transferred Employees, and
\n3M, as the sole stockholder of Imation, shall approve the Imation Employee Stock
\nIncentive Plan. Imation agrees to take all actions necessary or appropriate to
\ngrant, effective as of a date not later than 60 days following the Distribution
\nDate, stock options to purchase Imation Common Stock (the “Imation Stock
\nOptions”) under the Imation Employee Stock Incentive Plan. The Imation Stock
\nOptions shall have an exercise price equal to the fair market value of Imation
\nCommon Stock as of the date of grant and shall be granted to those Transferred
\nEmployees designated by 3M, who would otherwise have been granted options in May
\n1996, to purchase shares of 3M Common Stock under the 3M Stock Option Plans (the
\n“1996 Grants”). The aggregate number of shares for which Imation Stock Options
\nshall be granted pursuant to this Section 8.8(c) shall be equal to the product
\nof (A) multiplied by (B), where (A) is the aggregate number of shares of 3M
\nCommon Stock for which options would have been granted to such Transferred
\nEmployees in May, 1996, but for the Distribution (as disclosed to Imation by 3M)
\nand (B) is 1.5. The Imation Stock Options shall be granted to the Transferred
\nEmployees in the same proportion as the 1996 Grants would have been granted to
\nsuch Transferred Employees. The vesting schedule and other material terms and
\nconditions of such Imation Stock Options shall be no less favorable to the
\napplicable Transferred Employees than the vesting schedule and other terms and
\nconditions that would have been provided under the 1996 Grants.<\/p>\n
Section 8.9 Limitation on Enforcement. This Article VIII is an
\nagreement solely between 3M and Imation. Nothing in this Agreement or any
\nRelated Agreement, whether express or implied, confers upon any employee of
\n3M or Imation, any Transferred Employee, any former employee of 3M, any
\nbeneficiary of a Transferred Employee or former employee of 3M or any other
\nperson, any rights or remedies, including, but not limited to (i) any right to
\nemployment or recall, (ii) any right to continued employment for any specified
\nperiod or (iii) any right to claim any particular compensation, benefit or
\naggregation of benefits, of any kind or nature whatsoever, as a result of this
\nArticle VIII.<\/p>\n
Section 8.10 Employment Following the Distribution Date. For a
\nperiod of 24 months following the Distribution Date, 3M shall not employ any
\nTransferred Employee without the consent of Imation’s Chief Executive Officer
\nand 3M’s Vice President, Human Resources. For a period of 60 months following
\nthe Distribution Date, Imation shall not hire any employee of 3M who is on
\npreretirement leave from 3M. For a period of 36 months following their last day
\nof employment with 3M, Imation shall not hire any former employee of 3M who has
\nsigned a release which includes an agreement not to apply for employment with 3M
\nor Imation.<\/p>\n
Section 8.11 Foreign Service Employee and O.U.S. Transferred
\nEmployee Obligations.<\/p>\n
(a) Imation shall assume all obligations of 3M with respect to
\nany U.S. Transferred Employee who immediately prior to the Distribution Date
\nserved as a foreign service employee, including the obligations described in
\nSchedule 8.11 attached hereto.<\/p>\n
(b) All rights, obligations, terms and conditions relating to
\nO.U.S. Transferred Employees shall be subject to, and governed by, the terms of
\nthe Foreign Asset Transfer Agreements.<\/p>\n
ARTICLE IX<\/p>\n
INSURANCE<\/p>\n
Section 9.1 General. Except as provided in this Article, 3M
\nshall keep in effect all policies under its Insurance Program in effect as of
\nthe date hereof insuring the Transferred Assets and operations of the
\nTransferred Businesses until 12:00 midnight on the Distribution Date, unless
\nImation shall have earlier obtained appropriate coverage and notified 3M in
\nwriting to that effect. Beginning at 12:01 a.m. on the day following the
\nDistribution Date, Imation will cease to be a named insured on a world-wide
\nbasis under all policies in 3M’s Insurance Program. Imation understands that the
\neffect of these actions will be to eliminate insurance coverage not only for
\nfuture occurrences but also for prior occurrences which might have given or may
\ngive rise to liabilities for which Imation and its Affiliates would be
\nresponsible.<\/p>\n
Section 9.2 Imation’s Insurance.<\/p>\n
(a) Imation will purchase and pay for the types and amounts of
\ninsurance coverage that it deems appropriate for the period beginning on and
\ncontinuing after May 1, 1986, including Broad Form Contractual Liability
\ninsurance coverage as to Imation’s indemnity obligations set forth in the
\nDistribution Agreement and in the Related Agreements.<\/p>\n
(b) 3M, for and on behalf of Imation, will purchase and pay
\nfor on a one-time basis certain Products and Completed Operations Insurance
\nCoverage covering certain periods prior to the Distribution Date and with such
\nlimits as shall be determined by 3M.<\/p>\n
(c) Imation agrees that 3M has made no warranty, expressed or
\nimplied, and no representation that the insurance described in Section 9.1,
\n9.2(a) or (b) above is or will be adequate or sufficient to meet Imation’s
\ncurrent or future insurance needs.<\/p>\n
Section 9.3 Access to 3M’s Insurance Program.<\/p>\n
(a) Except as provided in Section 9.3(b) hereof, Imation and
\nits Affiliates shall have access through 3M after the Distribution Date to such
\ncoverages and limits as may be available under 3M’s pre-Distribution Date
\nInsurance Program for covered claims occurring prior to the Distribution Date
\nand listed on Schedule 9.3. Imation understands that no coverage will be
\navailable under 3M’s Insurance Program unless the claim is listed on Schedule
\n9.3. Such access shall be subject to available coverage and to all of the terms,
\nconditions, exclusions, retentions and limits of such policies.<\/p>\n
(b) Imation’s and its Affiliates’ access to 3M’s Insurance
\nProgram as provided in Section 9.3(a) hereof shall be limited as described in
\nthis Section 9.3(b):<\/p>\n
(i) Product Liability Insurance. Imation, for itself
\nand its Affiliates, understands and agrees that it will have no access to any
\ninsurance provided by 3M’s “Products and Completed Operations Insurance
\nCoverage” policies for all years prior to May 1, 1986. Imation and its
\nAffiliates will have access to 3M’s claims made products liability coverage for
\nthe period May 1, 1986 to the Distribution Date, but such access shall be
\nlimited to covered claims 3M has reported to its carriers or underwriters as of
\nthe Distribution Date, as listed on Schedule 9.3.<\/p>\n
(ii) Environmental Pollution Insurance. Imation
\nunderstands and agrees that 3M has made no warranty or representation of any
\ninsurance recovery or insurance coverage from 3M’s Insurance Program with
\nrespect to Imation’s Assumed Environmental Liabilities. If, in the future, 3M
\nshould receive an insurance recovery relating to an Imation Assumed
\nEnvironmental Liability, 3M shall follow the procedures set forth in Section 9.4
\nhereof.<\/p>\n
(iii) All Other Insurance. Imation, for itself and
\nits Affiliates, understands and agrees that they will have no access to other
\ninsurance coverage in 3M’s Insurance Program other than as provided in Section
\n9.3(b)(i) and (ii) above, unless the claim arose prior to the Distribution Date
\nand, in the case of product liability claims, unless the claims are listed on
\nSchedule 9.3.<\/p>\n
Section 9.4 Insurance Recoveries. Subject to Sections 9.1 and
\n9.3 hereof, 3M shall use its reasonable efforts to obtain recoveries for Imation
\nand its Affiliates from 3M’s insurance carriers for coverage available under
\nSection 9.3 hereof and will keep Imation reasonably informed of 3M’s efforts
\nunder this Section 9.4. 3M will reimburse Imation for any recovery obtained by
\nit pursuant to such claims; provided, however, that notwithstanding the
\nforegoing, if 3M has made a claim or claims under an insurance policy which is
\nnot to be paid to Imation pursuant to Section 9.3 and a claim or claims which
\nare to be paid to Imation pursuant to this Article and the amount of the
\nRecovery for such claims is limited by the amount of coverage provided by such
\npolicy, 3M may use its reasonable discretion in resolving and allocating the
\nRecovery between it and Imation for such claims. Imation shall pay all costs
\nincurred by 3M after the Distribution Date in making any claim pursuant to this
\nSection 9.4, including the salaries of 3M’s officers and employees based on the
\nportion of time spent on such claims and such costs incurred in pursuing a claim
\nmay be deducted from any Recovery for such claim. Imation agrees to make
\navailable to 3M such of its employees as 3M may reasonably request as witnesses
\nor deponents in connection with 3M’s management of claims, at Imation’s sole
\ncost and expense. Imation agrees that, if 3M has paid a Recovery to it for such
\na claim and Imation receives proceeds from any other person with respect to such
\nclaim, it will pay over to 3M the amount of proceeds it has received.<\/p>\n
Section 9.5 Assignment. Nothing in this Agreement shall be
\ndeemed to constitute (or to reflect) an assignment of any insurance policy or
\ninsurance benefit.<\/p>\n
Section 9.6 Conflicts Between Article IX and 3M’s Insurance
\nProgram. Any provision of this Agreement that conflicts with any term or
\nprovision of applicable 3M insurance policies shall be void.<\/p>\n
ARTICLE X<\/p>\n
DISPUTE RESOLUTION<\/p>\n
Section 10.1 Mediation and Binding Arbitration. Except with
\nrespect to matters involving Section 7.6 hereof (Privileged Matters) and except
\nas may be expressly provided in any other agreement between the parties entered
\ninto pursuant hereto, if a dispute, controversy or claim (collectively, a
\n“Dispute”) between 3M and Imation or any of their respective Affiliates arises
\nout of or relates to this Agreement, the Related Agreements or any other
\nagreement entered into pursuant hereto or thereto, including, without
\nlimitation, the breach, interpretation or validity of any such agreement or any
\nmatter involving an Indemnifiable Loss, 3M and Imation agree to use the
\nfollowing procedures, in lieu of either party pursuing other available remedies
\nand as the sole remedy (except as provided in Section 10.5(b) below), to resolve
\nthe Dispute.<\/p>\n
Section 10.2 Initiation. A party seeking to initiate the
\nprocedures shall give written notice to the other party, describing briefly the
\nnature of the Dispute. A meeting shall be held between the parties within 10
\ndays of the receipt of such notice, attended by individuals with decision-making
\nauthority regarding the Dispute, to attempt in good faith to negotiate a
\nresolution of the Dispute.<\/p>\n
Section 10.3 Submission to Mediation. If, within 30 days after
\nsuch meeting, the parties have not succeeded in negotiating a resolution of the
\nDispute, they agree to submit the Dispute at the earliest possible date to
\nmediation in accordance with the Center for Public Resources Model ADR Procedure
\n– – Mediation of Business Disputes, as modified herein, and to bear equally the
\ncosts of the mediation.<\/p>\n
Section 10.4 Selection of Mediator. The parties will jointly
\nappoint a mutually acceptable mediator. If they are unable to agree upon such
\nappointment within 20 days from the conclusion of the negotiation period, either
\nparty may request the Center for Public Resources or another mutually
\nagreed-upon organization to appoint the mediator.<\/p>\n
Section 10.5 Mediation and Arbitration.<\/p>\n
(a) The parties agree to participate in good faith in the
\nmediation and negotiations related thereto for a period of 30 days or such
\nlonger period as they may mutually agree following the initial mediation
\nsession, provided, however, that in the event that one party fails to
\nparticipate in mediation, the Dispute may be referred immediately to arbitration
\nand the time of such failure shall constitute the end of the mediation period.
\nIf the parties are not successful in resolving the Dispute through mediation by
\nthe end of such period, then the parties agree to submit the matter to binding
\narbitration in accordance with the Center for Public Resources Rules for
\nNon-Administered Arbitration of Business Disputes, as modified herein, by a sole
\narbitrator selected in accordance with the provisions of Section 10.6 hereof.
\nThe arbitration shall be in Minnesota and governed by the Minnesota equivalent
\nof the Federal Arbitration Act, 9 U.S.C. ss. 1-16, and judgment upon the award
\nrendered by the arbitrator may be entered by any court having jurisdiction
\nthereof.<\/p>\n
(b) Except as may be expressly provided in any other agreement
\nbetween the parties, the parties obligation under this Article X to submit
\ndisputes to binding arbitration in lieu of seeking judicial resolution of their
\ndisputes shall expire on July 1, 2001 with respect to disputes of which the
\nparty seeking to be indemnified first becomes aware of after such date.<\/p>\n
Section 10.6 Selection of Arbitrator. The parties shall have
\n10 days from the end of the mediation period to agree upon a mutually acceptable
\nperson to act as arbitrator. The arbitrator shall be a neutral person (i.e., a
\nperson not affiliated with either of the parties). If no arbitrator has been
\nselected within such time, the parties agree jointly to request the Center for
\nPublic Resources or another mutually agreed-upon organization to supply within
\n10 days of such request a list of potential arbitrators with qualifications as
\nspecified by the parties in the joint request. Within five days of receipt of
\nthe list, the parties shall independently rank the proposed candidates, shall
\nsimultaneously exchange rankings, and shall be deemed to have selected as the
\narbitrator the individual receiving the highest combined ranking who is
\navailable to serve. If there is a tie, then the tie shall be broken by putting
\nthe names on slips of paper, mixing them up and having one party draw one slip
\nof paper. If one party shall not cooperate in the selection of the arbitrator,
\nthe other party may solely select the arbitrator utilizing the procedures set
\nforth in this Section 10.6.<\/p>\n
Section 10.7 Cost of Arbitration. The costs of arbitration
\nshall be apportioned between 3M and Imation as determined by the arbitrator in
\nsuch manner as the arbitrator deems reasonable taking into account the
\ncircumstances of the case, the conduct of the parties during the proceeding, and
\nthe result of the arbitration.<\/p>\n
Section 10.8 Arbitration Period. Any arbitration proceeding
\nshall be concluded in a maximum of one (1) year from written notice from one
\nparty to the other party initiating the procedures under this Article X and
\nrequesting arbitration after having participated, to the extent contemplated
\nherein, in negotiation and mediation under this Article X.<\/p>\n
Section 10.9 Treatment of Negotiation and Mediation. All
\nnegotiations and mediations pursuant to this Article X shall be treated as
\ncompromise and settlement negotiations for purposes of Rule 408 of the Federal
\nRules of Evidence and comparable Minnesota Rules of Evidence.<\/p>\n
Section 10.10 Confidentiality. All negotiation, mediation and
\narbitration proceedings under this Article X shall be treated as confidential
\ninformation in accordance with the provisions of Section 7.5 hereof. Any
\nmediator or arbitrator shall be bound by an agreement containing confidentiality
\nprovisions at least as restrictive as those contained in Section 7.5 hereof.<\/p>\n
Section 10.11 Equitable Relief. Nothing herein shall preclude
\neither party from seeking equitable relief to prevent any immediate, irreparable
\nharm to its interests, including multiple breaches of this Agreement or the
\nrelevant Related Agreement by the other party. Otherwise, these procedures are
\nexclusive and shall be fully exhausted prior to the initiation of any
\nlitigation. Either party may seek specific enforcement of any arbitrator’s
\ndecision under this Article X. The other party’s only defense to such a request
\nfor specific enforcement shall be fraud by or on the arbitrator.<\/p>\n
Section 10.12 Notices. All notices by one party to the other
\nparty in connection with the dispute resolution provisions set forth in this
\nArticle X shall be in accordance with the provisions of Section 11.4 hereof
\n[except that no notice may be transmitted by facsimile].<\/p>\n
Section 10.13 Consolidation. The arbitrator may consolidate an
\narbitration under this Agreement with any arbitration arising under or relating
\nto the Related Agreements or any other agreement between the parties entered
\ninto pursuant hereto, as the case may be, if the subject of the Disputes
\nthereunder arise out of or relate essentially to the same set of facts or
\ntransactions. Such consolidated arbitration shall be determined by the
\narbitrator appointed for the arbitration proceeding that was commenced first in
\ntime.<\/p>\n
ARTICLE XI<\/p>\n
MISCELLANEOUS<\/p>\n
Section 11.1 Complete Agreement. This Agreement, including the
\nSchedules, Annexes and Exhibits and the agreements and other documents referred
\nto herein, shall constitute the entire agreement between 3M and Imation with
\nrespect to the subject matter hereof and shall supersede all previous
\nnegotiations, commitments and writings with respect to such subject matter.<\/p>\n
Section 11.2 Expenses. Except as otherwise provided in this
\nAgreement, any Related Agreement or any other agreement being entered into by 3M
\nand Imation pursuant to this Agreement, 3M or Imation shall each pay its own
\ncosts and expenses incurred in connection with the Distribution (whether or not
\npayable as of the Distribution Date) and with the consummation of the
\ntransactions contemplated by this Agreement. In furtherance of the foregoing, it
\nis agreed and acknowledged that 3M will be responsible for all fees of Skadden,
\nArps, Slate, Meagher & Flom and Morgan Stanley & Co., Incorporated and the costs
\nof printing and mailing the Information Statement and the Imation stock
\ncertificates, and Imation shall be responsible for all costs and fees relating
\nto the credit facility being established by Imation at the time of the
\nDistribution and the registration and transfer of intellectual property and
\nregulatory permits.<\/p>\n
Section 11.3 Governing Law. This Agreement, the Related
\nAgreements and any other agreement entered into in connection with this
\ntransaction and any questions, claims, disputes, remedies or procedural matters
\nshall be governed exclusively by the laws of the State of Minnesota, without
\nregard to the principles of conflicts of law, as to all matters, including,
\nwithout limitation, matters of validity, construction, effect, performance and
\nremedies. The parties agree that Minnesota has a substantial relationship to
\nthis transaction, and each Party consents to personal jurisdiction in the courts
\nof Minnesota and further agrees that all such matters shall be heard in the
\nfederal and state courts in Minnesota.<\/p>\n
Section 11.4 Notices. All notices, requests, demands and other
\ncommunications under this Agreement shall be in writing and shall be deemed to
\nhave been duly given (i) on the date of service if served personally on the
\nparty to whom notice is given, (ii) on the day of transmission if sent via
\nfacsimile transmission to the facsimile number given below, provided telephonic
\nconfirmation of receipt is obtained promptly after completion of transmission,
\n(iii) on the business day after delivery to an overnight courier service or the
\nExpress mail service maintained by the United States Postal Service, provided
\nreceipt of delivery has been confirmed, or (iv) on the fifth day after mailing,
\nprovided receipt of delivery is confirmed, if mailed to the party to whom notice
\nis to be given, by first class mail, registered or certified, postage prepaid,
\nproperly addressed and return-receipt requested, to the party as follows:<\/p>\n
If to 3M: Minnesota Mining and
\n Manufacturing Company
\n 3M Center
\n St. Paul, Minnesota 55144
\n Attn: General Counsel
\n Telecopy: (612) 736-7859<\/p>\n
If to Imation: Imation Corp.
\n 1 Imation Place
\n Oakdale, Minnesota 55128
\n Attn: General Counsel
\n Telecopy: (612) 736-2185<\/p>\n
Any party may change its address by giving the other party written notice of its
\nnew address in the manner set forth above.<\/p>\n
Section 11.5 Amendment and Modification. This Agreement may be
\namended, modified or supplemented only by written agreement of the parties.<\/p>\n
Section 11.6 Termination. This Agreement may be terminated and
\nthe Distribution abandoned at any time prior to the Distribution Date by and in
\nthe sole discretion of 3M without the approval of Imation. In the event of such
\ntermination, no party shall have any liability of any kind to any other party.<\/p>\n
Section 11.7 Successors and Assigns. This Agreement and all of
\nthe provisions hereof shall be binding upon and inure to the benefit of the
\nparties and their respective successors and permitted assigns, but neither this
\nAgreement nor any of the rights, interests or obligations hereunder shall be
\nassigned by either party without the prior written consent of the other party.<\/p>\n
The obligations under Articles V, VI and VII of this Agreement
\nof Imation and 3M shall survive the sale or other transfer by either of them of
\nany assets or businesses or the assignment by either of them of any Liabilities.
\nTo the extent that 3M transfers to a party other than a subsidiary of 3M any of
\nits Retained Liabilities (except for such amounts of Retained Liabilities which
\nare not material individually or in the aggregate), 3M will cause the transferee
\nof such Retained Liabilities to assume specifically its obligations with respect
\nthereto under this Agreement and will cause such transferee to fulfill its
\nobligations related to such Retained Liabilities. To the extent Imation or
\nImation Enterprises transfers to another party other than a subsidiary of
\nImation any of the Assumed Liabilities (except for such amounts of Assumed
\nLiabilities which are not material individually or in the aggregate), Imation
\nwill cause the transferee of such Assumed Liabilities to assume specifically its
\nobligations with respect thereto under this Agreement and will cause such
\ntransferee to fulfill its obligations related to such Assumed Liabilities. In
\nthe event the transferee of the Retained Liabilities or Assumed Liabilities does
\nnot fulfill its obligations with respect thereto, 3M and Imation, respectively,
\nshall fulfill their obligations with respect thereto.<\/p>\n
Section 11.8 No Third Party Beneficiaries. Except as provided
\nin Section 5.1(a) and 5.1((b), this Agreement is solely for the benefit of the
\nparties hereto and is not intended to confer upon any other person except the
\nparties hereto any rights or remedies hereunder.<\/p>\n
Section 11.9 Counterparts. This Agreement may be executed in
\ntwo or more counterparts, each of which shall be deemed an original, but all of
\nwhich together shall constitute one and the same instrument.<\/p>\n
Section 11.10 Interpretation. The Article, Section and
\nsubparagraph headings contained in this Agreement are solely for the purpose of
\nreference, are not part of the agreement of the parties and shall not in any way
\naffect the meaning or interpretation of this Agreement. As used in this
\nAgreement, the term “person” shall mean and include an individual, a
\npartnership, a joint venture, a corporation, a trust, an unincorporated
\norganization and a government or any department or agency thereof. Whenever any
\nwords are used herein in the masculine gender, they shall be construed as though
\nthey were also used in the feminine gender in all cases where they would so
\napply.<\/p>\n
Section 11.11 Annexes, Etc. The Annexes, Schedules and
\nExhibits shall be construed with and as an integral part of this Agreement to
\nthe same extent as if the same had been set forth verbatim herein.<\/p>\n
Section 11.12 Construction of Agreements. Notwithstanding any
\nother provisions in this Agreement to the contrary, in the event and to the
\nextent that there shall be a conflict between the provisions of this Agreement
\n(or any Conveyancing and Assumption Instrument or other instrument of
\nassumption) and the provisions of any other agreement entered into by 3M or
\nImation pursuant to this Agreement (including, without limitation, the Related
\nAgreements), the provisions of such other agreement shall control (unless such
\nother agreement provides otherwise).<\/p>\n
Section 11.13 Legal Enforceability. Any provision of this
\nAgreement which is prohibited or unenforceable in any jurisdiction shall, as to
\nsuch jurisdiction, be ineffective to the extent of such prohibition or
\nunenforceability without invalidating the remaining provisions hereof. Any such
\nprohibition or unenforceability in any jurisdiction shall not invalidate or
\nrender unenforceable such provision in any other jurisdiction.<\/p>\n
Section 11.14 Survival. All covenants and agreements of the
\nparties contained in this Agreement shall survive the Distribution Date.<\/p>\n
Section 11.15 Guaranty. Each Party guarantees the performance
\nof all obligations of its Affiliates under this Agreement, all Related
\nAgreements and all other agreements to be entered into in connection with this
\ntransaction.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be executed and delivered as of the day and year first above
\nwritten.<\/p>\n
MINNESOTA MINING AND
\n MANUFACTURING COMPANY<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
IMATION CORP.<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
ANNEX I
\n ASSUMED LIABILITIES<\/p>\n
Assumed Liabilities: all Liabilities and obligations
\nrelating to or arising from the operation of the Transferred Businesses (other
\nthan Retained Liabilities), whether before or after the Distribution Date,
\nincluding but not limited to:<\/p>\n
(a) all Liabilities and obligations which should be
\nset forth, reflected, disclosed or reserved for on a balance sheet for Imation
\nas of the Distribution Date prepared in the same manner as the March 31, 1996
\nbalance sheet of Imation included in the Information Statement (after giving
\neffect to any pro forma adjustments reflected in the Information Statement);<\/p>\n
(b) all Liabilities and obligations of 3M pursuant
\nto, under or relating to all agreements, contracts and leases, whether written
\nor oral, of 3M relating to, but only to the extent that they relate to, the
\nTransferred Businesses, including, without limitation, the leases set forth on
\nSchedule 6.14(a) to the Agreement and acquisition or divestiture agreements
\nentered into on behalf of the Transferred Businesses on or prior to the
\nDistribution Date;<\/p>\n
(c) outstanding Bids, Quotations and Proposals
\npertaining to the Transferred Businesses to the extent that such Bids,
\nQuotations and Proposals can be transferred or assigned without extinguishment;
\nand all contracts awarded to 3M before or after the Distribution Date pertaining
\nto the Transferred Businesses, as (i) assignee if those contracts are assignable
\nand assigned or transferred by operation of law, or (ii) subcontractor if
\nassignment of those contracts and\/or the proceeds therefrom is prohibited by
\nlaw;<\/p>\n
(d) all warranty, performance and similar obligations
\nentered into or made in the course of business of the Transferred Businesses
\nwith respect to its products;<\/p>\n
(e) all Liabilities and obligations to or with
\nrespect to Transferred Employees not specifically retained by 3M pursuant to the
\nAgreement or the Related Agreements, including but not limited to withholding,
\npayroll and employment taxes pursuant to Article VIII of the Agreement;<\/p>\n
(f) the Liabilities and obligations being assumed by
\nor agreed to be performed by Imation pursuant to any other agreement being
\nentered into in connection with the Agreement, including, without limitation,
\nthe Related Agreements;<\/p>\n
(g) all Liabilities and obligations relating to all
\nActions related to or arising out of the operations of the Transferred
\nBusinesses, other than those specified as Retained Liabilities;<\/p>\n
(h) all Liabilities and obligations arising with
\nrespect to the Transferred Businesses under laws, rules or regulations relating
\nto the registration or regulation of the sale or use of products in commerce,
\nincluding, but not limited to, the Federal Food, Drug and Cosmetic Act, 21
\nU.S.C. ss. 301 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act,
\n7 U.S.C. ss. 136 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601
\net seq. (except that provisions of the Toxic Substances Control Act and the
\nregulations promulgated thereunder related to the regulation of polychlorinated
\nbiphenyls shall be deemed to be Environmental Laws for purposes of the
\nEnvironmental Matters Agreement, and Liabilities related to the management,
\ntransportation, disposal and remediation of polychlorinated biphenyls shall be
\ngoverned by the terms of the Environmental Matters Agreement); and similar state
\nand local laws; and<\/p>\n
(i) all Liabilities and obligations under corporate
\ncredit cards which had been issued by 3M to Transferred Employees.<\/p>\n
ANNEX II
\n RETAINED LIABILITIES<\/p>\n
Retained Liabilities: the following Liabilities and
\nobligations as of the Distribution Date:<\/p>\n
(a) all Liabilities and obligations with respect to
\nTransferred Employees provided in Article VIII of the Agreement as being
\nLiabilities and obligations of 3M;<\/p>\n
(b) all Liabilities and obligations under the Related
\nAgreements which are Liabilities or obligations of 3M;<\/p>\n
(c) all Liabilities related to non-United States
\noperations which pursuant to Section 2.3 of this Agreement or the agreements
\ncontemplated thereby are not to be assumed by Imation or its Affiliates;<\/p>\n
(d) subject to the provisions of Section 5.6 of this
\nAgreement, all Liabilities and obligations arising out of the litigation
\nentitled Minnesota Mining & Manufacturing Company v. Nishika, Ltd., et al.
\n(Supreme Court of Texas; Case No. 94-1124);<\/p>\n
(e) all Liabilities and obligations arising out of
\nchecks which have been mailed, but not presented for payment, prior to the
\nDistribution Date; and<\/p>\n
(f) all Liabilities with respect to trade payables
\nrelating to the operations of the Transferred Businesses outside the United
\nStates which are being retained by 3M or its Affiliates pursuant to the terms of
\nthis Agreement.<\/p>\n
ANNEX III
\n TRANSFERRED ASSETS<\/p>\n
Transferred Assets: All assets and properties of 3M used
\nprincipally in the Transferred Businesses as of the Distribution Date (other
\nthan Excluded Assets), including but not limited to:<\/p>\n
(a) All assets and properties which should be set
\nforth or reflected on a balance sheet for Imation as of the Distribution Date
\nprepared in the same manner as the March 31, 1996 balance sheet of Imation
\nincluded in the Information Statement (after giving effect to any pro forma
\nadjustments reflected in the Information Statement)<\/p>\n
(b) the real properties owned by 3M and used in the
\nTransferred Businesses which are set forth on Exhibit A hereto, including
\nbuildings, structures and improvements (including construction in progress)
\nlocated thereon, fixtures contained therein and appurtenances thereto;<\/p>\n
(c) all of 3M’s right and interest in, to and under
\nall leases for real property relating to the Transferred Businesses, which are
\nset forth on Exhibit B hereto;<\/p>\n
(d) all of 3M’s right and interest in, to and under
\nall outstanding Bids, Quotations and Proposals pertaining to the Transferred
\nBusinesses to the extent that such Bids, Quotations and Proposals can be
\ntransferred or assigned without extinguishment; all of 3M’s right and interest
\nin, to and under all contracts and agreements awarded to 3M before or after the
\nDistribution Date pertaining to the Transferred Businesses, as assignee if those
\ncontracts are assignable and assigned or transferred by operation of law;
\npayment of a subcontract price equal to the monies, rights and other
\nconsiderations received by 3M under contracts and agreements awarded to 3M
\nbefore or after the Distribution Date pertaining to the Transferred Businesses
\nif assignment of those contracts and\/or agreement and\/or the proceeds therefrom
\nis prohibited by law;<\/p>\n
(e) all machinery, equipment and other items of
\ntangible personal property (including construction in progress) owned by 3M
\nwhich are utilized principally in the Transferred Businesses (including any such
\nassets located at the 3M facilities in Menomonie, Wisconsin, or Breda,
\nNetherlands);<\/p>\n
(f) all of 3M’s rights with respect to trade
\nreceivables relating to the Transferred Businesses, except as otherwise provided
\nin Section 2.3 of this Agreement or the foreign transfer agreements entered into
\nby Affiliates of 3M and Imation pursuant to such Section 2.3;<\/p>\n
(g) all rights and interests of 3M in, to and with
\nrespect to the intellectual property rights concerning the Transferred
\nBusinesses to the extent, but only to the extent, such rights are being licensed
\nand assigned to Imation pursuant to, and in accordance with, the Intellectual
\nProperty Agreement;<\/p>\n
(h) all of the Books and Records (except as otherwise
\nprovided in the Intellectual Property Agreement);<\/p>\n
(i) inventories of raw materials, work-in-process,
\nfinished products, supplies and spare parts which at the Distribution Date are
\nowned by 3M and relate principally to the Transferred Businesses and any
\nproperty under bailment relating to the Transferred Businesses;<\/p>\n
(j) all permits and licenses held by 3M which are
\ntransferable and which relate principally to the Transferred Businesses;<\/p>\n
(k) all intangible assets, other than intellectual
\nproperty rights, of 3M used solely in the Transferred Businesses;<\/p>\n
(l) employee receivables, temporary and permanent
\ntravel advances and funds advanced for travel not yet taken relating to
\nTransferred Employees and all petty cash funds in the possession of Transferred
\nBusinesses and all prepayments and deposits;<\/p>\n
(m) all supplies, forms, labels, shipping material,
\ncatalogues, sales brochures, operating manuals, instructional documents and
\nadvertising material held for use by the Transferred Businesses;<\/p>\n
(n) all shares of capital stock of Imation
\nEnterprises, CD-Rom B.V.\/C.V., CD-Rom Services (A), Inc., CD-Rom Services (B),
\nInc., Imation Finanziaria S.p.A., Minnesota 3M Research, Limited, Imation France
\nS.A., Imation Argentina S.A. and Imation do Brasil Ltda. owned by 3M immediately
\nprior to the Distribution;<\/p>\n
(o) all of 3M’s rights with respect to the following
\ninvestments: CEMEX\/ICON, Inc., Printware, Inc., Software Architects, Inc.,
\nHummer Winblad Equity Partners, L.P., and Hummer Winblad Equity Partners II
\nL.P.;<\/p>\n
(p) all trucks, automobiles and other vehicles which
\nare owned by 3M and used principally in the Transferred Businesses;<\/p>\n
(q) all of 3M’s right relating to all Actions related
\nto or arising out of the Transferred Business (other than with respect to
\nActions specifically retained by 3M pursuant to this Agreement), including,
\nwithout limitation, the Action entitled Minnesota Mining & Manufacturing Company
\nv. Appleton Papers, Inc. (U.S.D.C., District of Minnesota; Civil File No. 4-95-
\n786);<\/p>\n
(r) the Pilot Plant Assets; and<\/p>\n
(s) duty drawbacks relating to the Transferred
\nBusinesses which were filed by 3M on or prior to the Distribution Date.<\/p>\n
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ANNEX II OR THE
\nAGREEMENT, TRANSFERRED ASSETS SHALL NOT INCLUDE THE FOLLOWING ASSETS AND
\nPROPERTIES (THE “EXCLUDED ASSETS”), WHICH SHALL BE RETAINED BY 3M:<\/p>\n
(a) cash and cash equivalents, including cash on hand
\nor in bank accounts, certificates of deposit, commercial paper and other similar
\nsecurities in the possession of the Transferred Businesses, except (i) petty
\ncash funds in the possession of the Transferred Businesses, (ii) any cash to be
\ncontributed to the capital of Imation pursuant to the terms of this Agreement,
\nand (iii) any cash advanced by 3M prior to the Distribution Date to capitalize
\nforeign corporations being formed by Imation to facilitate the Distribution;<\/p>\n
(b) any Books and Records which 3M is required by
\nlaw to retain in its possession;<\/p>\n
(c) except as may otherwise be provided in the Tax
\nSharing Agreement, any right, title or interest of 3M in any Federal, state or
\nlocal tax refund (including any income with respect thereto) relating to the
\noperations of the Transferred Businesses prior to the Distribution Date;<\/p>\n
(d) all machinery and equipment at the 3M facility in
\nNew Ulm, Minnesota, other than laboratory test equipment utilized by the
\nTransferred Businesses prior to the Distribution Date;<\/p>\n
(e) all machinery, equipment and other items of
\npersonal property, including construction in process, which are located at the
\nPine City, Minnesota facility relating to 3M’s Traffic Control Materials and
\nCommercial Office Supply Divisions, the White City, Oregon facility relating to
\n3M’s Electrical Specialties Division, the Middleway, West Virginia facility
\nrelating to 3M’s Metalmatrix Program, the Vadnais Heights, Minnesota facility
\nrelating to 3M’s Corporate Metrology Laboratory, the Wahpeton, North Dakota
\nfacility relating to 3M’s Medical Device Division, OH&ES Division and
\nProfessional Video and Audio Products Division, and the Camarillo, California
\nfacility relating to 3M’s Telecom Systems Division;<\/p>\n
(f) all assets located outside the United States
\nwhich pursuant to Section 2.3 of this Agreement or the agreements contemplated
\nthereby are not to be transferred to Imation or one of its Affiliates; and<\/p>\n
(g) all rights with respect to trade receivables
\nrelating to the operations of the Transferred Businesses outside the United
\nStates which are being retained by 3M or its Affiliates pursuant to the terms of
\nthis Agreement.<\/p>\n
ANNEX IV
\n ENTERPRISE LIABILITIES<\/p>\n
Enterprise Liabilities: all Assumed Liabilities and
\nobligations relating to or arising from the Enterprise Operations, whether
\nbefore or after the Distribution Date, including but not limited to:<\/p>\n
(a) all Liabilities and obligations of 3M pursuant
\nto, under or relating to, but only to the extent that they relate to, all
\nagreements, contracts and leases of 3M relating to the Enterprise Operations;<\/p>\n
(b) outstanding Bids, Quotations and Proposals
\npertaining to the Enterprise Operations to the extent that such Bids, Quotations
\nand Proposals can be transferred or assigned without extinguishment; and all
\ncontracts awarded to 3M before or after the Distribution Date pertaining to the
\nEnterprise Operations, as (i) assignee if those contracts are assignable and
\nassigned or transferred by operation of law, or (ii) subcontractor if assignment
\nof those contracts and\/or the proceeds therefrom is prohibited by law;<\/p>\n
(c) all warranty, performance and similar obligations
\nentered into or made in the course of business of the Enterprise Operations with
\nrespect to their products and services;<\/p>\n
(d) the Liabilities and obligations to or with
\nrespect to Transferred Employees of the Enterprise Operations being assumed by
\nImation, including but not limited to withholding, payroll and employment taxes
\npursuant to Article VIII of the Agreement;<\/p>\n
(e) the Liabilities and obligations relating to the
\nEnterprise Operations being assumed by or agreed to be performed by Imation
\nEnterprises pursuant to any other agreement being entered into in connection
\nwith the Agreement, including, without limitation, the Related Agreements;<\/p>\n
(f) the Liabilities and obligations relating to all
\nActions related to or arising out of the Enterprise Operations, other than those
\nspecified as Retained Liabilities;<\/p>\n
(g) all Liabilities and obligations under any
\nindustrial development bond relating to the facility located in White City,
\nOregon which is outstanding as of the Distribution Date; and<\/p>\n
(h) all Liabilities and obligations under corporate
\ncredit cards which had been issued by 3M to Transferred Employees employed by
\nthe Enterprise Operations.<\/p>\n
ANNEX V
\n ENTERPRISE ASSETS<\/p>\n
Enterprise Assets: All Transferred Assets used principally in
\nthe Enterprise Operations as of the Distribution Date, including but not
\nlimited to:<\/p>\n
(a) the real properties owned by 3M and identified on
\nExhibit A hereto as being transferred to Imation Enterprises, including
\nbuildings, structures and improvements (including construction in progress)
\nlocated thereon, fixtures contained therein and appurtenances thereto;<\/p>\n
(b) all of 3M’s right and interest in, to and under
\nall leases for real property relating to the Enterprise Operations, which are
\nidentified on Exhibit B hereto as being assigned to Imation Enterprises;<\/p>\n
(c) all of 3M’s right and interest in, to and under
\nall outstanding Bids, Quotations and Proposals pertaining to the Enterprise
\nOperations, to the extent that such Bids, Quotations and Proposals can be
\ntransferred or assigned without extinguishment; all of 3M’s right and interest
\nin, to and under all contracts and agreements awarded to 3M before or after the
\nDistribution Date pertaining to the Enterprise Operations, as assignee if those
\ncontracts are assignable and assigned or transferred by operation of law;
\npayment of a subcontract price equal to the monies, rights and other
\nconsiderations received by 3M under contracts and agreements awarded to 3M
\nbefore or after the Distribution Date pertaining to the Enterprise Operations,
\nif assignment of those contracts and\/or agreement and\/or the proceeds therefrom
\nis prohibited by law;<\/p>\n
(d) all machinery, equipment and other items of
\ntangible personal property (including construction in progress) owned by 3M
\nwhich are utilized principally in the Enterprise Operations;<\/p>\n
(e) all of 3M’s rights with respect to domestic trade
\nreceivables relating to the Transferred Businesses;<\/p>\n
(f) all of the Books and Records relating to the
\nEnterprise Operations (except as otherwise provided in the Intellectual
\nProperty Agreement);<\/p>\n
(g) inventories of raw materials, work-in-process,
\nfinished products, supplies and spare parts which at the Distribution Date are
\nowned by 3M and relate principally to the Enterprise Operations and any property
\nunder bailment relating to the Enterprise Operations;<\/p>\n
(h) all permits and licenses held by 3M which are
\ntransferable and which relate principally to the Enterprise Operations;<\/p>\n
(i) all intangible assets, other than intellectual
\nproperty rights, of 3M used solely in the Enterprise Operations;<\/p>\n
(j) employee receivables, temporary and permanent
\ntravel advances and funds advanced for travel not yet taken relating to
\nTransferred Employees of the Enterprise Operations and all petty cash funds in
\nthe possession of the Enterprise Operations and all prepayments and deposits;<\/p>\n
(k) all supplies, forms, labels, shipping material,
\ncatalogues, sales brochures, operating manuals, instructional documents and
\nadvertising material held for use by the Enterprise Operations;<\/p>\n
(l) all trucks, automobiles and other vehicles which
\nare owned by 3M and used principally in the Enterprise Operations; and<\/p>\n
(m) the Pilot Plants Assets.<\/p>\n
Exhibit A
\n to ANNEX III and ANNEX V<\/p>\n
Owned Properties to be Transferred<\/p>\n
United States<\/p>\n
Properties of Imation<\/p>\n
Camarillo, California
\n Wahpeton, North Dakota
\n Tucson, Arizona
\n Oakdale, Minnesota*<\/p>\n
Properties of Imation Enterprises<\/p>\n
Weatherford, Oklahoma
\n Pine City, Minnesota
\n Rochester, New York
\n White City, Oregon
\n Middleway, W. Virginia
\n Nekoosa, Wisconsin<\/p>\n
Outside the United States<\/p>\n
Ferrania, Italy
\n Harlow, England**
\n Sulmona, Italy
\n Florida, Argentina
\n Bracknell, England***
\n London, Ontario, Canada****<\/p>\n
– ——–
\n* Includes Lot 1 and 2, Block 1; and Outlot A, all a part of “Oakdale
\n Farm” Plat, Washington County, Minnesota.
\n** Includes an indirect transfer of facility owned by
\n Minnesota 3M Research Limited.
\n*** Includes Building #2 only.
\n**** Includes Service Support Centre only.<\/p>\n
Exhibit B
\n to ANNEX III and ANNEX V<\/p>\n
Leased Properties to be Transferred<\/p>\n
I Manufacturing Facilities in United States<\/p>\n
Leased Properties of Imation<\/p>\n
Fremont, California (two locations)
\n Vadnais Heights, Minnesota<\/p>\n
Leased Properties of Imation Enterprises<\/p>\n
None<\/p>\n
II Other Leases<\/p>\n
The leases set forth on Schedule 6.14(a) of the Agreement or identified
\nin connection with the various foreign transfer agreements are incorporated
\nherein by reference.<\/p>\n
Schedule 1.1A<\/p>\n
Transferred Businesses<\/p>\n
Imation Business Units:<\/p>\n
Data Storage Diskette Technology Division
\nData Storage Markets Division
\nData Storage Optical Technology Division
\nData Storage Tape Technology Division
\nMedical Imaging Systems Division
\nPhoto Color Systems Division
\nPrinting and Publishing Systems Division
\nHardgoods and Electronic Support Department
\nHESD Field Service and Customer Support
\nDry Silver Technology Center
\nGraphic Research Lab(1)
\nAurora Project of HESD
\nHarlow Laboratory
\nStorage Laboratory Lab of Advanced Technology Lab
\nElectronic Imaging Center(1)
\nEuropean Business Centers corresponding to the
\n businesses above<\/p>\n
Imation Plants:<\/p>\n
Camarillo, California
\nWahpeton, North Dakota
\nWeatherford, Oklahoma
\nTucson, Arizona
\nFremont, California
\nPine City, Minnesota
\nVadnais Heights, Minnesota
\nRochester, New York
\nWhite City, Oregon
\nMiddleway, W. Virginia
\nNekoosa, Wisconsin
\nFerrania, Italy
\nSulmona, Italy
\nFlorida, Argentina<\/p>\n
– ——–
\n(1) Other than as related to certain projects the employees responsible
\n for which are not Transferred Employees.<\/p>\n
Schedule 1.1B<\/p>\n
Business Units Excluded from Transferred Businesses<\/p>\n
Audio and Video Products Division
\nHESD Laboratory
\nHESD Manufacturing-New Ulm
\nHESD Product Information Center
\nHESD Incompany Service
\nNational Media Lab
\nPhotogard
\nAny Part of the Advanced Technology Lab not relating
\nto Imaging or Memory Technology<\/p>\n
Schedule 1.1C<\/p>\n
Imation Employees(2)<\/p>\n
– ——–
\n(2) To be updated by mutual agreement of 3M and Imation.<\/p>\n
Schedule 1.1D<\/p>\n
Pilot Plant Assets(3)<\/p>\n
– ——–
\n(3) To be updated by mutual agreement of 3M and Imation.<\/p>\n
Schedule 1.1E<\/p>\n
3M Center Assets(4)<\/p>\n
– ——–
\n(4) To be updated by mutual agreement of 3M and Imation.<\/p>\n
Schedule 1.1F<\/p>\n
Human Resources Codes<\/p>\n
Schedule 5.1(a)<\/p>\n
3M Information in Information Statement<\/p>\n
“Summary – Distributing Corporation,”
\n“Summary – Principal Businesses to be Retained by
\n 3M,”
\n“Summary – Primary Purpose of the Distribution,”
\n“Introduction,”
\n“The Distribution – Reasons for the Distribution,”
\n“The Distribution – Opinion of Financial Advisor,”
\n“The Distribution – Manner of Effecting the
\n Distribution,”
\n“The Distribution – Certain Federal Income Tax
\n Consequences,” and
\n“Security Ownership of Certain Beneficial Owners”.<\/p>\n
Schedule 6.12(a)<\/p>\n
Domestic Shared Facilities<\/p>\n
3M WILL LEASE SPACE IN IMATION CORP. FACILITIES AT:<\/p>\n
Camarillo, CA
\nVadnais Heights, MN (Sublease)<\/p>\n
3M WILL LEASE SPACE IN IMATION ENTERPRISES FACILITIES AT:<\/p>\n
Middleway, WV
\nPine City, MN<\/p>\n
IMATION CORP. WILL LEASE SPACE IN 3M FACILITIES AT:<\/p>\n
3M Center, Buildings 201, 209, 223, 235, 236 and 302 (Currell Blvd.)<\/p>\n
IMATION ENTERPRISES WILL LEASE (OR SUBLEASE) SPACE IN 3M FACILITIES AT:<\/p>\n
3M Center, Building 42 (Bush Avenue)
\nMenomonie, WI<\/p>\n
1927 Case Avenue
\nSt. Paul, MN<\/p>\n
Schedule 6.14(a)<\/p>\n
Assigned Third Party Leases<\/p>\n
To Imation<\/p>\n
Tucson, AZ – 7900 E. Tanque Verde
\nTucson, AZ – Rita Rd. (Not a lease, but an agreement
\nfor payment of zoning fee)
\nFremont, CA – 2933 Bayview Dr.
\nFremont, CA – Bayside Business Park (Pending new lease)<\/p>\n
To Imation Enterprises<\/p>\n
Pine City, MN – 230 E. Third Ave.
\nVadnais Heights, MN – 1185 Wolters Blvd.
\nWoodbury, MN – 6043 Hudson Road – Suites 105D, 201,
\n230, 245, 295, 300, 360
\nWoodbury, MN – 6053 Hudson Road – Suites 199, 210,
\n255, 265, 275, 295
\nWoodbury, MN – 6063 Hudson Road
\nWoodbury, MN – 1687 Century Circle
\nRochester, NY – 1545 Mount Read Blvd.
\nWeatherford, OK – 217 S. Eighth St. (mini-storage)
\nWhite City, OR – 675 Antelope Road<\/p>\n
To Imation Affiliates — O.U.S.<\/p>\n
As provided in various foreign transfer agreements.<\/p>\n
Schedule 6.14(b)<\/p>\n
Assigned Properties Leased To Third Parties<\/p>\n
Imation<\/p>\n
Camarillo, CA – Lease to Michael Brucker
\nWahpeton, ND – Lease to Barry Pausch<\/p>\n
Imation Enterprises<\/p>\n
Woodbury, MN – Sublease to Century Design, 6063
\nHudson Road
\nWeatherford, OK – Oil and Gas lease to Arkansas Lousiana Gas Co.
\nWeatherford, OK – Lease to James L. Tanner
\nWeatherford, OK – License to Deer Creek Conservation Dist.
\nWhite City, OR – Sublease to Sterling Business Forms
\nMiddleway, WV – Lease to Jesse E. Frye
\nMiddleway, WV – Lease to William S. Friend<\/p>\n
Schedule 6.15(a)<\/p>\n
Trade Receivables\/Payables Settlement Schedule<\/p>\n
Schedule 8.11<\/p>\n
Foreign Service Employee Obligations<\/p>\n
Schedule 9.3<\/p>\n
Pre-Distribution Date Insurance Claims(5)<\/p>\n
– ——–
\n(5) To be updated to reflect additional claims reported prior to the
\n Distribution Date.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7832],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9628],"class_list":["post-43771","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imation-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43771","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43771"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43771"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43771"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43771"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}