Exhibit 2.1
Distribution
Agreement
Dated as of November 30,
2004
Between
Kimberly-Clark
Corporation
and
Neenah Paper, Inc.
Table of Contents
i
ii
|
Schedules:
|
|
Schedule 1.1B
|
Intellectual Property License
Agreements
|
|
Schedule 2.1(d)(i)
|
Owned Real Property
|
|
Schedule 2.1(d)(ii)
|
Real Estate Leases
|
|
Schedule 2.1(e)
|
Personal Property Leases
|
|
Schedule 2.1(g)
|
Transferred Intellectual Property
|
|
Schedule 2.1(h)(i)
|
Acquisition Contracts
|
|
Schedule 2.1(h)(ii)
|
Raw Material Contracts
|
|
Schedule 2.1(h)(iii)
|
Service Contracts
|
|
Schedule 2.1(h)(iv)
|
Transferred Shared Contracts
|
|
Schedule 2.1(h)(v)
|
Miscellaneous Contracts
|
iii
|
Schedule 2.1(m)
|
Transferred Trademarks
|
|
Schedule 2.2(k)
|
Other Retained Assets
|
|
Schedule 2.4(d)
|
Certain Retained Liabilities
|
|
Schedule 2.5(d)(i)(A)
|
Terrace Bay Owned Real Property
|
|
Schedule 2.5(d)(i)(B)
|
Pictou Owned Real Property
|
|
Schedule 2.5(d)(i)(C)
|
Neenah Woodlands
|
|
Schedule 2.6
|
Intercompany Agreements
|
|
Schedule 2.7
|
Shared Contracts
|
|
Schedule 6.8
|
Neenah Board of Directors
|
|
Schedule 6.12(a)
|
Certain Assumed Actions
|
|
Schedule 6.12(b)
|
Certain Transferred Actions
|
|
Schedule 8.3
|
Insurance Policies
|
|
Schedule 8.6
|
K-C Administered Claims
|
iv
DISTRIBUTION
AGREEMENT
THIS AGREEMENT is made as of
November 30, 2004 by and between Kimberly-Clark Corporation
(“ Kimberly-Clark ”), a Delaware
corporation, and Neenah Paper, Inc. (“ Neenah
”), a Delaware corporation, and, as of the date hereof, a
wholly-owned subsidiary of Kimberly-Clark.
WHEREAS, Kimberly-Clark, through its
pulp and paper division and certain foreign subsidiaries and
affiliates, is engaged in the business of (i) manufacturing and
selling fine paper and technical paper and (ii) producing and
selling pulp (the “ Neenah Business
”);
WHEREAS, the Board of Directors of
Kimberly-Clark has determined that it would be advisable and in the
best interests of Kimberly-Clark and its stockholders for
Kimberly-Clark to transfer and assign, or cause to be transferred
and assigned, to Neenah the business, operations, assets and
liabilities related to the Neenah Business;
WHEREAS, Kimberly-Clark has agreed
to transfer and assign, or cause to be transferred or assigned, to
the Neenah Parties (as hereinafter defined) substantially all of
the assets and properties of the Neenah Business and Neenah has
agreed to the transfer and assignment of such assets and to assume,
or cause to be assumed, substantially all of the liabilities and
obligations arising out of or relating to the Neenah Business (the
“ Contribution ”);
WHEREAS, the Board of Directors of
Kimberly-Clark has determined that it would be advisable and in the
best interests of Kimberly-Clark and its stockholders for
Kimberly-Clark to distribute on a pro rata basis to the holders of
Kimberly-Clark’s common stock, par value $1.25 per share
(“ Kimberly-Clark Common Stock ”),
without any consideration being paid by the holders of such
Kimberly-Clark Common Stock, all of the outstanding shares of
Neenah common stock, par value $0.01 per share (together with the
preferred share purchase rights associated therewith, the “
Neenah Common Stock ”), then owned by
Kimberly-Clark (the “ Distribution
”);
WHEREAS, for federal income tax
purposes, the Contribution and Distribution are intended to qualify
for tax-free treatment under Sections 355 and 368(a)(1)(D) of the
Internal Revenue Code of 1986, as amended (the “
Code ”); and
WHEREAS, it is appropriate and
desirable to set forth the principal transactions required to
effect the Contribution and Distribution and certain other
agreements that will govern the relationship of Kimberly-Clark and
Neenah following the Distribution.
NOW, THEREFORE, in consideration of
the mutual promises contained herein, the parties hereto hereby
agree as follows:
SECTION
1.1
Definitions . As used in this
Agreement, the following terms shall have the meanings set forth in
this Section 1.1 .
“ Actions
” means any action, claim, demand, suit, arbitration,
inquiry, subpoena, discovery request, proceeding or investigation
by or before any court or grand jury, any governmental or other
regulatory or administrative entity, agency or commission or any
arbitration tribunal, domestic or foreign.
“ Actual Neenah Capital
Expenditure Amount ” has the meaning set forth in Section 9.3
.
“ Affiliate
” means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by or is under
common control with such Person. For the purpose of this
definition, the term “control” means the power to
direct the management of an entity, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the term “controlled” has the meaning
correlative to the foregoing. After the Distribution, Neenah
and Kimberly-Clark shall not be deemed to be under common control
for purposes hereof due solely to the fact that Neenah and
Kimberly-Clark have common stockholders.
“ Agent ”
means EquiServe Trust Company, N.A., the distribution agent
appointed by Kimberly-Clark to distribute shares of Neenah Common
Stock pursuant to the Distribution.
“ Assumed
Actions ” has the meaning set forth in Section
6.12(a) .
“ Assumed
Liabilities ” has the meaning set forth in Section
2.3 .
“ Balance Sheet
” has the meaning set forth in Section 2.1(a)
.
“ Budget ”
has the meaning set forth in Section 9.1 .
“ Canadian Asset
Purchase Agreement ” means the Asset Purchase Agreement, dated the
date hereof, between KCI and NPCC.
“ Cash Reserve
” has the meaning
set forth in Section 6.1 .
“ Canso Chemical
” means Canso Chemical Limited, a Nova Scotia
corporation.
“ Code ”
has the meaning set forth in the Recitals.
“ Contracts
” has the meaning set forth in Section 2.1(h)
.
“ Contribution
” has the meaning set forth in the Recitals.
“ Conveyancing
Instruments ” has the meaning set forth in Section
4.1 .
2
“ Copyrights
” means United States and foreign copyrights, both registered
and unregistered, along with the registrations and applications to
register any such copyrights.
“ Corporate Services
Agreement ” means the Corporate Services Agreement,
dated the date hereof, between Kimberly-Clark and
Neenah.
“ Credit
Facility ” means a $150 million senior secured
revolving credit facility to be entered into by Neenah.
“ Debt ”
means the Credit Facility and the notes issued by Neenah pursuant
to the Note Offering.
“ Debt Issuance
Costs ” means the fees and expenses incurred in
connection with negotiating, documenting and closing the Debt,
including the underwriting fees for the Debt, the fees of
Moody’s Investor Services and Standard & Poor for
establishing an initial debt rating for the Debt, the legal fees of
counsel for the lenders under the Credit Facility, the legal fees
of counsel for Neenah in connection with the issuance of the Debt,
pre-Distribution expenses incurred by Neenah in connection with
meeting with prospective purchasers of the notes to be issued in
the Note Offering, the fees and expenses of the trustee and its
counsel under the Note Offering, printing, reproduction and
delivery expenses relating to the Note Offering (including postage,
air freight charges and charges for counting and packaging),
authentication, stamp or transfer taxes and related expenses for
the Note Offering, any federal or state “blue sky”
securities registration fees and expenses (including SEC and state
filing fees and the reasonable fees and expenses of counsel
relating to such registration) in connection with the Note
Offering, cost of surveys conducted at the lenders request in the
United States in connection with the Credit Facility, costs of
appraisals and field exams conducted by or at the request of the
lenders in connection with the Credit Facility, mortgagee title
insurance for the benefit of the lenders under the Credit Facility
and fees relating to the filing and recordation of security
interests and mortgages under the Credit Facility.
“ Distribution
” has the meaning set forth in the Recitals.
“ Distribution
Date ” means the date determined by the Board of
Directors of Kimberly-Clark as the date on which the Distribution
is payable to holders of Kimberly-Clark Common Stock on the Record
Date.
“ Effective Time
” means midnight (i.e., end of day) on November 30,
2004.
“ Employee Matters
Agreement ” means the Employee Matters Agreement,
dated the date hereof, between Kimberly-Clark and
Neenah.
“ Escalation
Notice ” has the meaning set forth in Section
11.1(a).
“ Excess
Expenses ” has the meaning set forth in Section
9.1.
“ Expenses
” means any and all expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified
3
against hereunder (including court
filing fees, court costs, arbitration fees or costs, witness fees,
and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals).
“ Foreign Exchange
Rate ” means, with respect to any currency other than
United States dollars, as of any date of determination, the rate
set forth in the exchange rate section of the Wall Street
Journal or, if not published in the Wall Street Journal
, then the average of the opening bid and asked rates on such date
at which such currency may be exchanged for United States dollars
as quoted by JPMorgan Chase Bank (or any successor thereto or other
major money center commercial bank agreed to by the
Parties).
“ Governmental
Authority ” means any foreign, federal, state, local
or other government, governmental, statutory or administrative
authority, regulatory body or commission or any court, tribunal or
judicial or arbitral body.
“ Incremental Debt
Issuance Costs ” means any increase in Debt Issuance
Costs arising out of increasing the Note Offering from $200 million
to $225 million.
“ Indemnified Party
” has the meaning
set forth in Section 10.5(a) .
“ Indemnifying Party
” has the meaning
set forth in Section 10.5(a) .
“ Indemnity Payment
” has the meaning
set forth in Section 10.5(a) .
“ Information
” has the meaning
set forth in Section 12.1(a) .
“ Information
Statement ” has the meaning set forth in Section
6.10 .
“ Insurance
Charges ” has the meaning set forth in Section
8.6(d) .
“ Intellectual Property
License Agreements ” means licenses relating to the Patents and
patent disclosures set forth on Schedule 1.1B .
“ Intercompany
Agreements ” means any Contract between
Kimberly-Clark or one of its Subsidiaries and Neenah or one of its
Subsidiaries entered into prior to the Distribution excluding this
Agreement and the Operating Agreements.
“ Intercompany Note
” has the meaning
set forth in Section 2.5(c)(i) .
“ IP Assumed
Liabilities ” has the meaning set forth in Section
2.5(e)(ii) .
“ IRS
” means the
Internal Revenue Service.
“ K-C Administered
Claims ” has the meaning set forth in Section
8.6(a) .
“ KCGS ”
has the meaning set forth in Section 2.5(a)(i) .
“ KCI ”
has the meaning set forth in Section 2.5(d)(i) .
4
“ KCW ”
has the meaning set forth in Section 2.5(c)(i) .
“ Kimberly-Clark
” has the meaning set forth in the first paragraph of this
Agreement.
“ Kimberly-Clark Common
Stock ” has the
meaning set forth in the Recitals.
“ Kimberly-Clark
Parties ” means Kimberly-Clark and its Subsidiaries
(including those formed or acquired after the date hereof), other
than the Neenah Parties.
“ Kimberly-Clark
Policies ” has the meaning set forth in Section
8.2 .
“ Kimberly-Clark
Indemnified Parties ” has the meaning set forth in
Section 10.2 .
“ Liability
” means any and all debts, liabilities and obligations,
absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever
arising (unless otherwise specified in this Agreement), including
all costs and expenses relating thereto, and including, without
limitation, those debts, liabilities and obligations arising under
any law, rule, regulation, Action, threatened Action, order or
consent decree of any Governmental Authority or any award of any
arbitrator of any kind, and those arising under any contract,
commitment or undertaking.
“ Losses ”
means any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages,
fees, expenses, deficiencies, claims or other charges, absolute or
contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown (including, without
limitation, the costs and expenses of any and all Actions,
threatened Actions, demands, assessments, judgments, settlements
and compromises relating thereto and attorneys’ fees and any
and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any such Actions or threatened
Actions).
“ Manufacturing
Assets ” has the meaning set forth in Section
2.5(g)(i) .
“ Manufacturing Assumed
Liabilities ” has the meaning set forth in Section
2.5(g)(ii) .
“ Material Governmental
Approvals and Consents ” means any material notices,
reports or other filings to be made with or to, or any material
consents, registrations, approvals, permits, clearances or
authorizations to be obtained from, any Governmental
Authority.
“ Neenah ”
has the meaning set forth in the first paragraph of this
Agreement.
“ Neenah Business
” has the meaning
set forth in the recitals.
“ Neenah Common
Stock ” has the
meaning set forth in the recitals.
“ Neenah Distributable
Share ” means, for each holder of record of
Kimberly-Clark Common Stock as of the close of business on the
Record Date, one share of Neenah Common Stock for every 33 shares
of Kimberly-Clark Common Stock outstanding and held of record by
such holder at such time.
5
“ Neenah Indemnified
Parties ” has the meaning set forth in Section
10.3 .
“ Neenah Menasha Water
Company ” means
Neenah and Menasha Water Power Company, a Wisconsin
corporation.
“ Neenah Michigan
” means Neenah
Michigan, Inc., a Delaware corporation.
“ Neenah Paper
Products ” means the fine paper manufactured by the Neenah
Business.
“ Neenah Parties
” means Neenah, NP Sales, NPCC, Neenah Michigan and any
Subsidiaries of Neenah formed or acquired after the date
hereof.
“ Neenah
Share(s) ” mean(s) each share of Neenah Common
Stock.
“ Neenah
Woodlands ” has the meaning set forth in Section
2.5(d)(i) .
“ Non-Permitted
Names ” has the meaning set forth in Section
6.13 .
“ Note Offering
” means the
offering by Neenah pursuant to Rule 144A and Regulation S under the
Securities Act of 1933, as amended, of senior unsecured notes of
Neenah in the aggregate principal amount of up to $225 million (the
“Original Notes”) and: (a) the filing of a registration
statement with the SEC with respect to a registered offer to
exchange the Original Notes for new notes of Neenah having terms
substantially identical in all material respects to the Original
Notes and the offering of such new notes in exchange for surrender
of the Original Notes, or (b) the filing of a “shelf”
registration statement covering resales of the Original
Notes.
“ NPCC ”
has the meaning set forth in Section 2.5(c)(iii)
.
“ NPCC Assumed
Liabilities ” has the meaning set forth in Section
2.5(d)(ii) .
“ NPCC Transferred
Assets ” has the meaning set forth in Section
2.5(d)(i) .
“ NP Sales
” has the meaning set forth in Section 2.5(a)(i)
.
“ NP Sales Assumed
Liabilities ” has the meaning set forth in Section
2.5(a)(ii) .
“ NP Sales Transferred
Assets ” has the meaning set forth in Section
2.5(a)(i) .
“ NYSE
” means the New
York Stock Exchange, Inc.
“ Operating
Agreements ” means the Pulp Supply Agreement, the
Canadian Asset Purchase Agreement, the Intellectual Property
License Agreements, the Corporate Services Agreement, the Employee
Matters Agreement, the Tax Sharing Agreement and any other
agreement entered into on or before the Distribution Date regarding
the ongoing business and service relationships between the
Kimberly-Clark Parties and Neenah Parties.
“ Ordinary Course
” has the meaning
set forth in Section 6.15 .
“ Owned Real
Property ” has the meaning set forth in Section
2.1(d)(i) .
6
“ Paper Products
” means the fine paper and technical paper manufactured by
the Neenah Business.
“ Party ”
means the Kimberly-Clark Parties or the Neenah Parties.
“ Patents
” means United States and foreign patents and applications
for patents, including any continuations, continuations-in-part,
divisions, renewals, reissues and extensions thereof.
“ Person ”
means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization or Governmental Authority.
“ Personal Property
Leases ” has the meaning set forth in Section
2.1(e) .
“ Pictou Mill
” means the pulp manufacturing mill located on the Owned Real
Property set forth on Schedule 2.5(d)(i)(B) .
“ Pictou Transferred
Assets ” has the meaning set forth in Section
2.5(d)(i) .
“ Prime Rate
” means the rate that JP Morgan Chase Bank (or any successor
thereto or other major money center commercial bank agreed to by
the Parties) announces from time to time as its prime lending rate,
as in effect from time to time.
“ Privilege
” has the meaning set forth in Section 12.8(a)
.
“ Privileged
Information ” has the meaning set forth in Section
12.8(a) .
“ Pro-Rata Neenah
Capital Expenditure Budget ” means $17,233,333.
“ Pulp Supply
Agreement ” means the Pulp Supply Agreement, dated
the date hereof, between Kimberly-Clark and Neenah.
“ Real Estate
Leases ” has the meaning set forth in Section
2.1(d)(ii) .
“ Receivables
” has the meaning set forth in Section 2.1(b)(i)
.
“ Record Date
” means the date determined by the Board of Directors of
Kimberly-Clark as the record date for the Distribution.
“ Registration
Statement ” has the meaning set forth in Section
6.10 .
“ Repairs
” has the meaning
set forth in Section 6.1 .
“ Retained
Assets ” has the meaning set forth in Section
2.2 .
“ Retained Busines
s ” means the business of Kimberly-Clark and its
Subsidiaries other than the Neenah Business.
“ Retained
Liabilities ” has the meaning set forth in Section
2.4 .
7
“ SEC ”
means the United States Securities and Exchange
Commission.
“ Shared
Contract ” means a Contract with a third Person that
directly benefits both the Kimberly-Clark Parties and the Neenah
Parties.
“ Software
” means computer software programs, in source code and object
code form, including, without limitation, all related source
diagrams, flow charts, specifications, documentation and all other
materials and documentation necessary to allow a reasonably skilled
third party programmer or technician to maintain, support or
enhance the Software.
“ Startup Costs
” has the meaning set forth in Section 9.1
.
“ Subsidiary
” means, when used with reference to any Person, any
corporation or other organization whether incorporated or
unincorporated of which at least a majority of the securities or
interests having by the terms thereof ordinary voting power to
elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or
other organization is directly or indirectly owned or controlled by
such Person or by any one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries; provided ,
however , that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such
other Person unless such other Person controls, or has the right,
power or ability to control, that Person. After the
Distribution, Neenah and Kimberly-Clark shall not be deemed to be
under common control for purposes hereof due solely to the fact
that Neenah and Kimberly-Clark have common stockholders.
“ Targeted Debt Issuance
Costs ” means $11,984,327.
“ Tax Sharing
Agreement ” means the Tax Sharing Agreement, dated
the date hereof, between Kimberly-Clark and Neenah.
“ Terrace Bay
Mill ” means the dual-line pulp manufacturing mill
located on the Owned Real Property set forth in Schedule
2.5(d)(i)(A) .
“ Terrace Bay
Transferred Assets ” has the meaning set forth in
Section 2.5(d)(i) .
“ Third Party
Claim ” has the meaning set forth in Section
10.6(a) .
“ Third Party
Consents ” has the meaning set forth in Section
6.14 .
“ Trademarks
” means all United
States, state and foreign trademarks, service marks, logos, trade
dress and trade names, whether registered or unregistered,
including all goodwill associated with the foregoing, and all
registrations and pending applications to register the
foregoing.
“ Transferred
Actions ” has the meaning set forth in Section
6.12(b) .
“ Transferred
Assets ” has the meaning set forth in Section
2.1 .
“ Transferred
Intellectual Property ” has the meaning set forth in
Section 2.1(g) .
8
“ Uninsured
Claim ” has the meaning set forth in Section
8.6(c) .
SECTION
1.2
Interpretation . (a) In this
Agreement, unless the context clearly indicates
otherwise:
(i)
words used in the singular include the plural and words used in the
plural include the singular;
(ii)
reference to any Person includes such Person’s successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement;
(iii)
reference to any gender includes the other gender;
(iv)
the word “including” means “including but not
limited to”;
(v)
reference to any Article, Section, Exhibit or Schedule means such
Article or Section of, or such Exhibit or Schedule to, this
Agreement, as the case may be, and references in any Section or
definition to any clause means such clause of such Section or
definition;
(vi)
the words “herein,” “hereunder,”
“hereof,” “hereto” and words of similar
import shall be deemed references to this Agreement as a whole and
not to any particular Section or other provision
hereof;
(vii)
reference to any agreement, instrument or other document means such
agreement, instrument or other document as amended, supplemented
and modified from time to time to the extent permitted by the
provisions thereof and by this Agreement;
(viii)
reference to any law (including statutes and ordinances) means such
law (including all rules and regulations promulgated thereunder) as
amended, modified, codified or reenacted, in whole or in part, and
in effect at the time of determining compliance or
applicability;
(ix)
relative to the determination of any period of time,
“from” means “from and including,”
“to” means “to but excluding” and
“through” means “through and
including”;
(x)
accounting terms used herein shall have the meanings historically
ascribed to them by Kimberly-Clark and its Subsidiaries based upon
Kimberly-Clark’s internal financial policies and procedures
in effect prior to the date of this Agreement;
(xi)
if there is any conflict between the provisions of the body of this
Agreement and the Exhibits or Schedules hereto, the provisions of
the body of this Agreement shall control unless explicitly stated
otherwise in such Exhibit or Schedule;
(xii)
the titles to Articles and headings of Sections contained in this
Agreement have been inserted for convenience of reference only and
shall not be deemed to be a part of or to affect the meaning or
interpretation of this Agreement;
9
(xiii)
any portion of this Agreement obligating a Party to take any action
or refrain from taking any action, as the case may be, shall mean
that such Party shall also be obligated to cause its relevant
Subsidiaries to take such action or refrain from taking such
action, as the case may be; and
(xiv)
unless otherwise specified in this Agreement, all references to
dollar amounts herein shall be in respect of lawful currency of the
United States.
(b)
This Agreement was negotiated by the Parties with the benefit of
legal representation, and any rule of construction or
interpretation otherwise requiring this Agreement to be construed
or interpreted against either Party shall not apply to any
construction or interpretation hereof.
SECTION
2.1 Transfer of
Neenah Business . As more fully set
forth in this Article II and subject to the terms and
conditions of this Agreement and the Operating Agreements, prior to
the Distribution, Kimberly-Clark shall, and shall cause its
Subsidiaries to, convey, assign, transfer, contribute and set over,
or cause to be conveyed, assigned, transferred, contributed and set
over, to the Neenah Parties, and Neenah shall cause the Neenah
Parties to accept and receive, all right, title and interest of
Kimberly-Clark and its Subsidiaries in and to the tangible and
intangible assets used primarily in the Neenah Business (all of
such assets being hereinafter referred to as the “
Transferred Assets
”),
including the following:
(a)
Balance Sheet Assets . all assets reflected or
disclosed on the unaudited balance sheet of the Neenah Business as
of September 30, 2004 attached as Exhibit A hereto (the
“ Balance
Sheet ”), including all
machinery, equipment, furniture and other tangible personal
property, whether owned or leased, used primarily in the Neenah
Business, subject to acquisitions, dispositions and adjustments in
the ordinary course of the Neenah Business, consistent with past
practice, after such date;
(b)
Receivables .
(i)
all accounts receivable, notes receivable, lease receivables,
prepayments (other than prepaid insurance), advances and other
receivables arising out of or produced by the Neenah Business and
owing by any Persons (the “ Receivables ”);
(ii)
all cash payments received after the Distribution Date on account
of the Receivables;
(iii)
all manufacturers’ warranties or guarantees related primarily
to the Transferred Assets; and
(iv)
any and all manufacturers’ or third party service or
replacement programs related primarily to the Transferred
Assets;
10
(c)
Inventories . all supplies, packaging and other
inventories used primarily in the Neenah Business;
(d)
Owned Real Property and Real Estate Leases .
(i)
those certain parcels of land described on Schedule
2.1(d)(i) (the “ Owned Real Property ”) and any and all
improvements, fixtures, machinery, equipment and other property
located on the premises demised under such Owned Real Property;
and
(ii)
those certain real estate leases set forth on Schedule
2.1(d)(ii) (the “ Real Estate Leases ”) and any and all
improvements, fixtures, machinery, equipment and other property
located on the premises demised under such Real Estate
Leases;
(e)
Personal Property Leases . those certain machinery,
equipment or other tangible personal property leases (the
“ Personal Property
Leases ”) set forth on
Schedule 2.1(e) ;
(f)
Equipment . all manufacturing plants, fixtures,
machinery, installations, equipment, computers, furniture, tools,
spare parts, supplies, automobiles, trucks, materials, and other
personal property used primarily in the Neenah
Business;
(g)
Intellectual Property . (i) all Copyrights, Patents
and Software set forth on Schedule 2.1(g) ; (ii) all
business and technical information, nonpatented inventions, and
patent disclosures set forth on Schedule 2.1(g) , (iii) all
discoveries, processes, formulations, trade secrets, know-how and
technical data used primarily in the Neenah Business made or
conceived by employees, consultants or contractors of
Kimberly-Clark or its Subsidiaries as to which Kimberly-Clark or
its Subsidiaries have rights under any agreement or otherwise
relating to the foregoing; (iv) all business and technical
information, nonpatented inventions, discoveries, processes,
formulations, trade secrets, know-how and technical data used
primarily in the Neenah Business made or conceived by third parties
as to which Kimberly-Clark or its Subsidiaries have rights pursuant
to executory agreements with said third parties relating to the
foregoing; (v) all permits, grants, contracts, agreements and
licenses running to or from Kimberly-Clark or its
Subsidiaries relating to the foregoing; and (vi) all rights that
are associated with the foregoing (collectively, the “
Transferred Intellectual
Property ”);
(h)
Contracts . all contracts, agreements, arrangements,
leases, manufacturers’ warranties, memoranda, understandings
and offers open for acceptance of any nature, whether written or
oral (the “ Contracts ”) set forth below
(other than Real Estate Leases and Personal Property
Leases):
(i)
all Contracts related to acquisitions or divestitures of assets or
stock related primarily to the Neenah Business, including Contracts
related to the transactions set forth on Schedule 2.1(h)(i)
, except to the extent any such Contracts relate to the Retained
Business and except to the extent indicated on Schedule
2.1(h)(i) ;
(ii)
all supplier Contracts related primarily to the Neenah Business
relating either to raw materials or distributed products, including
those set forth on Schedule 2.1(h)(ii) ;
11
(iii)
all Contracts with third-parties related primarily to the Neenah
Business relating to services provided to, or for the benefit of,
Neenah, including those set forth on Schedule 2.1(h)(iii)
;
(iv)
the Shared Contracts set forth on Schedule 2.1(h)(iv) ;
and
(v)
all other Contracts related primarily to the Neenah Business,
including those set forth on Schedule 2.1(h)(v)
.
(i)
Permits and Licenses . all permits, approvals,
licenses, franchises, authorizations or other rights granted by any
Governmental Authority held or applied for by Kimberly-Clark and
its Subsidiaries and that are used primarily in the Neenah Business
or that relate primarily to the Transferred Assets, and all other
consents, grants and other rights that are used primarily for the
lawful ownership of the Transferred Assets or the operation of the
Neenah Business and that are legally transferable to
Neenah;
(j)
Claims and Indemnities . all rights, claims, demands,
causes of action, judgments, decrees and rights to indemnity or
contribution, whether absolute or contingent, contractual or
otherwise, in favor of Kimberly-Clark or any of its Subsidiaries
relating primarily to the Neenah Business, including the right to
sue, recover and retain such recoveries and the right to continue
in the name of Kimberly-Clark and its Subsidiaries any pending
actions relating to the foregoing, and to recover and retain any
damages therefrom;
(k)
Books and Records . all books and records (including
all records pertaining to customers, suppliers and personnel),
wherever located, that are related primarily to the Neenah
Business;
(l)
Supplies . all office supplies, production supplies,
spare parts, purchase orders, forms, labels, shipping material, art
work, catalogues, sales brochures, operating manuals and
advertising and promotional material and all other printed or
written material used primarily in the Neenah Business;
(m)
Trademarks . all Trademarks and domain names set forth
on Schedule 2.1(m) ;
(n)
Tax Credits . any right, title or interest in any tax
refund, credit or benefit to which any of the Neenah Parties is
entitled in accordance with the terms of the Tax Sharing
Agreement;
(o)
Neenah Menasha Water Company and Canso Chemical . all
of Kimberly-Clark’s right, title and interest in 1,761 shares
of common stock of Neenah Menasha Water Company representing 80.4%
of its issued and outstanding shares of common stock, and all of
KCW’s right, title and interest in 11,140 shares of common
stock of Canso Chemical representing one-third of its issued and
outstanding shares of common stock;
(p)
Neenah Michigan . All of Kimberly-Clark’s right,
title and interest in and to its ownership interest in Neenah
Michigan; and
12
(q)
Other Assets . all other assets, tangible or
intangible, including all goodwill, that are used primarily in the
Neenah Business, including, without limitation, domain names and
websites, other than email addresses.
SECTION
2.2 Retained
Assets . Notwithstanding
anything to the contrary herein, the following assets (the
“ Retained
Assets ”) are not, and shall
not be deemed to be, Transferred Assets:
(a)
cash and cash equivalents, any cash on hand or in bank accounts,
certificates of deposit, commercial paper and similar securities,
except for (i) deposits securing bonds, letters of credit, leases
and all other obligations related primarily to the Neenah Business,
(ii) petty cash and impressed funds related primarily to the Neenah
Business, and (iii) cash, cash equivalents, certificates of
deposit, commercial paper and similar securities held in bank
accounts of Neenah or any of its Subsidiaries;
(b)
any right, title or interest in and to any tax refund, credit or
benefit to which any of the Kimberly-Clark Parties is entitled in
accordance with the terms of the Tax Sharing Agreement;
(c)
any amounts accrued on the books and records of Kimberly-Clark or
its Subsidiaries with respect to any Retained
Liabilities;
(d)
except as provided in the Employee Matters Agreement, assets
relating primarily to the provision of benefits to present or
former employees of the Neenah Business;
(e)
any right, title or interest in and to any prepaid insurance
premiums for the Kimberly-Clark Policies existing immediately prior
to the Distribution;
(f)
all other assets of Kimberly-Clark and its Subsidiaries other than
the Transferred Assets;
(g)
all Trademarks and domain names other than the Trademarks and
domain names set forth on Schedule 2.1(m) ;
(h)
all Copyrights, Patents and Software other than the Copyrights,
Patents and Software set forth on Schedule 2.1(g)
;
(i)
all Patents and patent disclosures covered by the Intellectual
Property License Agreements;
(j)
all Shared Contracts not set forth on Schedule 2.1(h)(iv) ;
and
(k)
all other assets set forth on Schedule 2.2(k) .
SECTION
2.3 Assumption
of Liabilities . In connection with
the transactions contemplated by Section 2.1 , and except as
set forth in Section 2.4 , Neenah shall, and shall cause the
Neenah Parties to assume, on a joint and several basis with Neenah,
and to pay, comply with and discharge all contractual and other
Liabilities in accordance with their terms of Kimberly-
13
Clark or its
Subsidiaries arising out of the ownership or use of the Transferred
Assets or the operation of the Neenah Business, whether due or to
become due, including:
(a)
all Liabilities of Kimberly-Clark and its Subsidiaries that are
reflected, disclosed or reserved for on the Balance Sheet, as such
Liabilities may be increased or decreased in the operation of the
Neenah Business from the date of the Balance Sheet through the
Distribution Date;
(b)
all Liabilities of Kimberly-Clark and its Subsidiaries under or
related to the Real Estate Leases, the Personal Property Leases and
the Contracts, such assumption to occur as (i) assignee if such
Real Estate Leases, Personal Property Leases and Contracts are
assignable and are assigned or otherwise transferred to the Neenah
Parties, or (ii) subcontractor, sublessee or sublicensee as
provided in Section 6.3 if such assignment of such Real
Estate Leases, Personal Property Leases and Contracts and/or
proceeds thereof is prohibited by law, by the terms thereof or not
permitted by the other contracting party;
(c)
all Liabilities of Kimberly-Clark and its Subsidiaries in
connection with claims of past or current employees of the Neenah
Business, except as otherwise expressly provided in this Agreement
or the Employee Matters Agreement;
(d)
all Liabilities of Kimberly-Clark and its Subsidiaries related to
any and all Actions asserting a violation of any law, rule or
regulation arising out of the operations of the Neenah Business or
the ownership or use of the Transferred Assets, whether before or
after the Distribution Date and all Liabilities relating to Assumed
Actions;
(e)
all Liabilities for which Neenah is liable in accordance with the
terms of the Tax Sharing Agreement;
(f)
all Liabilities of Neenah Michigan; and
(g)
all other Liabilities of Kimberly-Clark and its Subsidiaries
arising out of the ownership or use of the Transferred Assets or
the operation of the Neenah Business, whether existing on the date
hereof or arising at any time or from time to time after the date
hereof, and whether based on circumstances, events or actions
arising heretofore or hereafter, whether or not such Liabilities
shall have been disclosed herein, and whether or not reflected on
the books and records of Kimberly-Clark and its Subsidiaries or
Neenah and its Subsidiaries or the Balance Sheet.
The Liabilities described in this
Section 2.3 are referred to in this Agreement collectively
as the “ Assumed Liabilities
.”
SECTION
2.4 Retained
Liabilities . Notwithstanding
anything to the contrary in this Agreement, neither Neenah nor any
of the other Neenah Parties shall assume any of the following
Liabilities of the Kimberly-Clark Parties (the “
Retained Liabilities
”):
(a)
except as provided in the Employee Matters Agreement, the
Liabilities under the Kimberly-Clark employee benefit
plans;
14
(b)
all Liabilities for which Kimberly-Clark is liable in accordance
with the terms of the Tax Sharing Agreement;
(c)
all Liabilities arising out of the ownership or use of the Retained
Assets or the operation of the Retained Business; and
(d)
the Liabilities set forth on Schedule 2.4(d) .
SECTION
2.5 Sequencing
of Transfers and Assumptions . The conveyance of the
Transferred Assets and the assumption of the Assumed Liabilities
described in Sections 2.1 and 2.3 , respectively,
shall be effected as follows:
(a)
First Contribution . (i) Kimberly-Clark shall cause
Kimberly-Clark Global Sales, Inc., a Delaware corporation
(“ KCGS
”), to
contribute to Neenah Paper Sales, Inc., a Delaware corporation
(“ NP
Sales ”), as an additional
contribution to capital without the issuance of additional shares
of capital stock, all of KCGS’ right, title and interest in
and to the Transferred Assets used primarily in the sale and
marketing of the Paper Products (the “ NP Sales Transferred Assets
”).
(ii)
In consideration for and simultaneous with the consummation of the
transactions described in Section 2.5(a)(i) , Neenah shall
cause NP Sales to assume on a joint and several basis with Neenah,
and to discharge in accordance with their respective terms, all of
the Assumed Liabilities arising out of the ownership or use of the
NP Sales Transferred Assets (the “ NP Sales Assumed Liabilities
”).
(b)
First Distribution . Immediately following the
consummation of the transactions described in Section 2.5(a)
, Kimberly-Clark shall cause KCGS to transfer to Kimberly-Clark, as
a dividend, all of KCGS’ right, title and interest in and to
the capital stock of NP Sales.
(c)
Capitalization of Neenah Paper . (i) Immediately
following the consummation of the transactions described in
Section 2.5(b) , Kimberly-Clark shall cause Kimberly-Clark
Worldwide, Inc., a Delaware corporation (“
KCW ”), to contribute to
Neenah as an additional contribution to capital without the
issuance of additional shares of capital stock, $55,604,215 and to
loan Neenah $213,395,785 in exchange for a promissory note (the
“ Intercompany
Note ”), which shall be due
and payable immediately following the consummation of the
transactions described in Section 2.8(a) .
(ii)
Immediately following the consummation of the transactions
described in Section 2.5(c)(i) , Neenah shall contribute to
Neenah Paper Company of Canada, a Nova Scotia unlimited liability
company (“ NPCC ”), $269 million as a
contribution to capital in exchange for 1,000 additional shares of
capital stock of NPCC.
(d)
Acquisition of Mills and Woodlands . (i) Immediately
following the consummation of the transactions described in
Section 2.5(c)(ii) and pursuant to the Canadian Asset
Purchase Agreement, Kimberly-Clark shall cause Kimberly-Clark,
Inc., an Ontario corporation (“ KCI ”), to sell, transfer,
assign and convey to NPCC, and Neenah shall cause NPCC to purchase
for $269 million, all of KCI’s right, title and interest in
and to (A) the Owned Real Property set forth on Schedule
2.5(d)(i)(A) and all other Transferred Assets used
primarily
15
in the operation
of the Terrace Bay Mill (the “ Terrace Bay Transferred Assets
”), (B)
the Owned Real Property set forth on Schedule 2.5(d)(i)(B)
and all other Transferred Assets used primarily in the operation of
the Pictou Mill (the “ Pictou Transferred Assets ”) and (C) all of the
Owned Real Property set forth on Schedule 2.5(d)(i)(C) (the
“ Neenah
Woodlands ”). The Terrace
Bay Transferred Assets, Pictou Transferred Assets and Neenah
Woodlands all collectively referred to as the “
NPCC Transferred
Assets. ”
(ii)
In consideration for and simultaneous with the consummation of the
transactions described in Section 2.5(d)(i) , Neenah shall
cause NPCC to assume on a joint and several basis with Neenah, and
to discharge in accordance with their respective terms, all of the
Assumed Liabilities arising out of the ownership or use of the NPCC
Transferred Assets (the “ NPCC Assumed Liabilities ”).
(e)
Third Contribution . (i) Immediately following the
consummation of the transactions described in Section 2.5(d)
, Kimberly-Clark shall cause KCW to contribute to Neenah as an
additional contribution to capital without the issuance of
additional shares of capital stock, all of KCW’s right, title
and interest in and to the Transferred Intellectual Property, the
Trademarks and domain names set forth in Schedule 2.1(m) and
the common shares of Canso Chemical.
(ii)
In consideration for and simultaneous with the consummation of the
transactions described in Section 2.5(e)(i) , Neenah shall
assume and discharge in accordance with their respective terms all
of the Assumed Liabilities arising out of the ownership or use of
the Transferred Intellectual Property and Trademarks set forth in
Schedule 2.1(m) (the “ IP Assumed Liabilities ”).
(f)
Second Distribution . Immediately following the
consummation of the transactions described in Section 2.8(b)
, Kimberly-Clark shall cause KCW to transfer to Kimberly-Clark, as
a dividend, all of its right, title and interest in and to the
capital stock of Neenah.
(g)
Fourth Contribution . (i) Immediately following the
consummation of the transactions described in Section 2.5(f)
, Kimberly-Clark shall contribute to Neenah as an additional
contribution to capital without the issuance of additional shares
or capital stock, all of Kimberly-Clark’s right, title and
interest in and to the Transferred Assets used primarily in the
manufacturing of the Paper Products (the “
Manufacturing Assets
”).
(ii)
In consideration for and simultaneous with the consummation of the
transactions described in Section 2.5(g)(i) , Neenah shall
assume and discharge in accordance with their respective terms all
of the Assumed Liabilities arising out of the ownership or use of
the Manufacturing Assets (the “ Manufacturing Assumed Liabilities
”).
(h)
Fifth Contribution . Immediately following the
consummation of the transactions described in Section 2.5(g)
, Kimberly-Clark shall contribute to Neenah as an additional
contribution to capital without the issuance of additional shares
of capital stock, all of Kimberly-Clark’s right, title and
interest in and to the capital stock of Neenah
Michigan.
16
(i)
Sixth Contribution . Immediately following the
consummation of the transactions described in Section 2.5(h)
, Kimberly-Clark shall contribute to Neenah as an additional
contribution to capital without the issuance of additional shares
or capital stock all of Kimberly-Clark’s right, title and
interest in and to the capital stock of NP Sales and Neenah Menasha
Water Company.
(j)
Other Transferred Assets and Assumed Liabilities . (i)
Immediately following the consummation of the transactions
described in Section 2.5(i) , Kimberly-Clark shall, and
shall cause the other Kimberly-Clark Parties to, contribute to
Neenah all of their right, title and interest in and to any
Transferred Assets not transferred to one of the Neenah Parties
pursuant to the transactions described in Sections 2.5(a)
through 2.5(i) .
(ii)
In consideration for and simultaneous with the consummation of the
transactions described in S ection 2.5(j)(i) , Neenah shall
assume and discharge in accordance with their respective terms any
and all Assumed Liabilities not assumed by one of the Neenah
Parties pursuant to the transactions described in Sections
2.5(a) through 2.5(j) .
Notwithstanding the foregoing,
Kimberly-Clark may elect in its sole discretion at any time prior
to the Distribution to omit or modify any of the transactions set
forth in Sections 2.1 through 2.5 or to include
additional transactions.
SECTION
2.6 Termination
of Existing Intercompany Agreements . Except as otherwise
expressly provided in this Agreement, the Operating Agreements or
as set forth on Schedule 2.6 and except for the Intercompany
Note and all receivables accrued in the ordinary course of business
of the Kimberly-Clark Parties and the Neenah Parties, all
Intercompany Agreements and all other intercompany arrangements and
course of dealings, whether or not in writing and whether or not
binding, in effect immediately prior to the Distribution Date,
shall be terminated and be of no further force and effect from and
after the Distribution Date.
SECTION
2.7 Shared
Contracts . (a) With
respect to Liabilities pursuant to, arising under or relating to
any Shared Contract, including those set forth in Schedule
2.7 , such Liabilities shall be allocated between the
Kimberly-Clark Parties, on the one hand, and the Neenah Parties on
the other hand, as follows:
(i)
first, if a Liability is incurred exclusively in respect of a
benefit received by one Party, the Party receiving such benefit
shall be responsible for such Liability; and
(ii)
second, if a Liability cannot be so allocated under clause
(i) , such Liability shall be allocated between the Parties
based on the relative proportions of total benefit received (over
the term of the Shared Contract, measured as of the date of the
allocation) under the relevant Shared Contract.
Notwithstanding the foregoing, each Party shall be responsible for
any and all Liabilities arising out of or resulting from its breach
of the relevant Shared Contract.
(b)
If any of the Kimberly-Clark Parties, on the one hand, or any of
the Neenah Parties, on the other hand, receive any benefit or
payment under any Shared Contract that was intended for the other
Party, the Party receiving such benefit or payment will use
commercially reasonable efforts to deliver, transfer or otherwise
afford such benefit or payment to the other Party.
17
SECTION
2.8 Related
Transactions . (a) Immediately after
the consummation of the transactions described in Section
2.5(e) , Neenah shall and shall cause the other Neenah Parties
to (i) enter into the Credit Facility and related agreements, (ii)
consummate the Note Offering and (iii) borrow under the Credit
Facility such amount, if any, as may be necessary in order to
enable Neenah to make the payment described in Section
2.8(b) .
(b)
Upon Neenah’s receipt of the proceeds of the borrowings
described in Section 2.8(a) and prior to the consummation of
the transactions described in Section 2.5(f) , Neenah will
pay $213,395,785 to KCW by wire transfer of immediately available
funds to an account specified by Kimberly-Clark and the
Intercompany Note shall then be deemed paid and
discharged.
SECTION
3.1 Issuance
and Delivery of Neenah Shares . Neenah shall issue to
Kimberly-Clark the number of Neenah Shares required so that the
total number of Neenah Shares held by Kimberly-Clark immediately
prior to the Distribution is equal to the total number of Neenah
Shares distributable pursuant to Section 3.2 .
Kimberly-Clark shall deliver to the Agent one or more stock
certificates representing all Neenah Shares then issued and
outstanding, together with one or more stock power(s) endorsed in
blank and, with respect to any uncertificated shares to be
distributed pursuant to Section 3.2 , shall take such steps
as are necessary to permit such shares to be distributed in the
manner described in Section 3.2 . In its capacity as
Neenah’s transfer agent, the Agent will distribute such
shares in the manner described in Section 3.2 .
SECTION
3.2
Distribution of Neenah Shares . Kimberly-Clark shall
instruct the Agent to (i) distribute the Neenah Distributable Share
to each holder of record of Kimberly-Clark Common Stock at the
close of business on the Record Date, and (ii) after completing the
transactions described in Section 3.3 , deliver to Neenah as
a contribution to Neenah, all remaining Neenah Shares, if any, then
held by the Agent. Any such returned Neenah Shares shall be
immediately cancelled by Neenah and shall not constitute treasury
shares. Each distributed Neenah Share shall be validly
issued, fully paid and nonassessable and free of preemptive
rights. The shares of Neenah Common Stock distributed shall
be distributed as uncertificated shares registered in book-entry
form through the direct registration system. Except as
required by applicable law, no certificates therefor shall be
distributed. The Agent shall deliver an account statement to
each holder of Neenah Common Stock reflecting such holder’s
ownership interest in shares of Neenah Common Stock.
SECTION
3.3 Treatment
of Fractional Shares . No certificates or
scrip representing fractional Neenah Shares shall be issued in the
Distribution. In lieu of receiving fractional shares, each
holder of Kimberly-Clark Common Stock who would otherwise be
entitled to receive a fractional Neenah Share pursuant to the
Distribution will receive cash for such fractional share.
Kimberly-Clark and Neenah shall instruct the Agent to determine the
number of whole Neenah Shares and fractional Neenah Shares
allocable to each holder of record of Kimberly-Clark Common Stock
as of the close of business on Record Date, to aggregate all
such
18
fractional shares
into whole shares and sell the whole shares obtained thereby in the
open market at the then prevailing prices on behalf of holders who
would otherwise be entitled to receive fractional share interests,
and to distribute to each such holder such holder’s ratable
share of the total proceeds of such sale after making appropriate
deductions of any amounts required for U.S. federal tax withholding
purposes and after deducting any taxes attributable to the sale of
such fractional share interests.
SECTION
3.4
Kimberly-Clark Board Action . The Kimberly-Clark
Board of Directors shall, in its discretion, establish the Record
Date and the Distribution Date and all appropriate procedures in
connection with the Distribution. The Board of Directors of
Kimberly-Clark also shall have the right to adjust the Neenah
Distributable Share at any time prior to the Distribution.
The consummation of the transactions provided for in this
Article III shall only be effected after the Distribution
has been declared by the Kimberly-Clark Board of
Directors.
SECTION
3.5 Additional
Approvals . Kimberly-Clark shall
cooperate with Neenah in effecting, and if so requested by Neenah,
Kimberly-Clark shall, as the sole stockholder of Neenah prior to
the Distribution, ratify any actions which are reasonably necessary
or desirable to be taken by Neenah to effectuate the transactions
referenced in or contemplated by this Agreement in a manner
consistent with the terms hereof, including the preparation and
implementation of appropriate plans, agreements and arrangements
for employees of the Neenah Business and non-employee members of
Neenah’s Board of Directors.
SECTION
4.1 Delivery of
Instruments of Conveyance . In order to
effectuate the transactions contemplated by Article II , the
Parties shall execute and deliver, or cause to be executed and
delivered, prior to or as of the Distribution such deeds, bills of
sale, instruments of assumption, instruments of assignment, stock
powers, certificates of title and other instruments of assignment,
transfer, assumption and conveyance (collectively, the
“ Conveyancing
Instruments ”) as the Parties shall
reasonably deem necessary or appropriate to effect such
transactions.
SECTION
4.2 Delivery of
Other Agreements . Prior to or as of the
Distribution, the Parties shall execute and deliver, or shall cause
to be executed and delivered, each of the Operating
Agreements.
SECTION
4.3 Provision
of Corporate Records . Prior to or as
promptly as practicable after the Distribution, Kimberly-Clark
shall deliver to Neenah all corporate books and records of Neenah
Parties and copies of all corporate books and records of the
Kimberly-Clark Parties relating to the Neenah Business, including
in each case all active agreements, litigation files and government
filings.
19
SECTION
5.1 No
Kimberly-Clark Representations or Warranties
. Except
as expressly set forth herein or in any Operating Agreement,
Kimberly-Clark does not represent or warrant in any way (i) as to
the value or freedom from encumbrance of, or any other matter
concerning, any of the Transferred Assets or Assumed Liabilities or
(ii) as to the legal sufficiency to convey title to any of the
Transferred Assets on the execution, delivery and filing of the
Conveyancing Instruments. ALL SUCH ASSETS ARE BEING
TRANSFERRED ON AN “AS IS, WHERE IS” BASIS WITHOUT ANY
REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, MARKETABILITY, TITLE, VALUE, FREEDOM FROM
ENCUMBRANCE OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, and the Neenah Parties shall bear the economic and legal
risks that any conveyances of such assets shall prove to be
insufficient or that the Neenah Parties’ title to any such
assets shall be other than good and marketable and free of
encumbrances. Except as expressly set forth in this Agreement
or in any Operating Agreement, Kimberly-Clark does not represent or
warrant that the obtaining of the consents or approvals, the
execution and delivery of any amendatory agreements and the making
of the filings and applications contemplated by this Agreement
shall satisfy the provisions of all applicable agreements or the
requirements of all applicable laws or judgments, and, subject to
Section 6.4 , the Neenah Parties shall bear the economic and
legal risk that any necessary consents or approvals are not
obtained or that any requirements of law or judgments are not
complied with. Notwithstanding the foregoing, the Parties
shall fully cooperate and use commercially reasonable efforts to
obtain all consents and approvals, to enter into all amendatory
agreements and to make all filings and applications that may be
required for the consummation of the transactions contemplated by
this Agreement.
SECTION
6.1 Neenah
Menasha Water Company Payment . No later than 10 days
after the Distribution Date, Kimberly-Clark and Neenah shall
certify, based on Kimberly-Clark’s accounts and records and
the accounts and reco
