TO HAVE EQUALED TWO HUNDRED MILLION DOLLARS ($200
MILLION) ON THE MEASUREMENT DATE AND TO HAVE BEEN REDUCED ON THE LAST DAY OF
EACH CALENDAR MONTH AFTER THE MEASUREMENT DATE BY NET CASH PROVIDED BY OPERATING
ACTIVITIES, AND INCREASED BY NET CASH USED IN INVESTING ACTIVITIES, IN EACH CASE
IN ACCORDANCE WITH GAAP; PLUS
(X)
$1.6 MILLION PER MONTH (PRORATED FOR ANY
PARTIAL MONTH) FOR GENERAL AND ADMINISTRATIVE EXPENSES, PLUS ANY RETENTION
BENEFITS PAID TO SPINCO EMPLOYEES DURING THE MEASUREMENT PERIOD PURSUANT TO
SECTION 6.8(G) OF THE MERGER AGREEMENT; PLUS
(XI)
A CASH AMOUNT FOR COSTS AND EXPENSES
INCURRED BY FOREST OR SPINCO IN CONNECTION WITH THE TRANSACTION AGREEMENTS AND
THE TRANSACTIONS CONTEMPLATED THEREBY (INCLUDING, WITHOUT LIMITATION, FEES AND
EXPENSES OF LEGAL AND FINANCIAL ADVISORS), SUCH COSTS AND EXPENSES NOT TO EXCEED
SEVEN MILLION DOLLARS ($7 MILLION); PLUS OR MINUS, AS DETERMINED BELOW,
(XII)
AN AMOUNT EQUAL TO THE CHANGE IN WORKING
CAPITAL ACCOUNTS, OTHER THAN CASH (ACCOUNTS RECEIVABLE PLUS INVENTORIES PLUS
OTHER CURRENT ASSETS LESS ACCOUNTS PAYABLE AND OTHER CURRENT LIABILITIES, BUT
EXCLUDING GAS IMBALANCES), EXCLUDING THE EFFECTS OF FAS 143 AND FAS 133, RELATED
TO THE SPINCO ASSETS DURING THE MEASUREMENT PERIOD (IT BEING UNDERSTOOD AND
AGREED THAT WORKING CAPITAL RELATED TO THE SPINCO ASSETS AT THE MEASUREMENT DATE
SHALL BE ASSUMED TO BE ZERO AND THAT IF THE NET AMOUNT IS POSITIVE, SUCH AMOUNT
SHALL BE ADDED TO THE CASH AMOUNT, AND IF NEGATIVE, SHALL BE DEDUCTED FROM THE
CASH AMOUNT).
4
"Claims Administration" shall mean the processing of claims made under the
Policies, including the reporting of claims to the insurance carrier, management
and defense of claims, and providing for appropriate releases upon settlement of
claims.
"Claims Made Policies" shall have the meaning specified in Section 6.6(a).
"Code" shall have the meaning specified in the Recitals hereof.
"Company" shall have the meaning specified in the Recitals hereof.
"Company Common Stock" shall have the meaning specified in the Merger Agreement.
"Company Consent" shall have the meaning specified in the Merger Agreement.
"Contribution" shall have the meaning specified in the Recitals hereof.
"Disclosure Schedule" shall mean the schedule prepared and delivered by Forest
to Spinco as of the date of this Agreement.
"Dispute Notification" shall have the meaning specified in Section 4.4.
"Distribution" shall have the meaning specified in the Recitals hereof.
"Distribution Date" shall mean the date and time that the Distribution shall
become effective.
"Easement" shall mean any easement, right of way, servitude, permit, license,
franchise, right of ingress or egress, property use agreement or other estate or
similar right or privilege.
"Effective Time" shall have the meaning specified in the Merger Agreement.
"Employee Benefits Agreement" shall mean the Employee Benefits Agreement of even
date herewith between Forest and Spinco.
"Environmental Condition" shall mean soil or water contamination, other types of
environmental damage or contamination, or other consequences of releases of
Hazardous Materials in, on, under or migrating from the Spinco Assets, in each
case in violation of Environmental Law.
"Environmental Law" shall have the