for, by or related to, employees of
the Davis-Standard Business (as defined in the Contribution Agreement),
including when the business of Davis-Standard was
11
operated as a division of Crompton Corporation (as defined in the Contribution
Agreement), together with any liability under United States workers'
compensation laws or comparable foreign laws assumed by
Davis-Standard and/or Crompton Corporation as a result of an acquisition of a
business or manufacturing facility that is now operated by the Company.
SECTION 1.2
CONSTRUCTION.
(A)
WHENEVER THE CONTEXT REQUIRES, THE MEANINGS
OF THE TERMS SET FORTH IN ARTICLE 1.1 SHALL BE EQUALLY APPLICABLE TO THE
SINGULAR AND PLURAL FORMS THEREOF, AND THE GENDER OF ALL WORDS USED IN THIS
AGREEMENT SHALL INCLUDE THE MASCULINE, FEMININE AND NEUTER.
ALL REFERENCES TO
ARTICLES REFER TO ARTICLES OF THIS AGREEMENT, AND ALL REFERENCES TO SCHEDULES
AND EXHIBITS ARE TO SCHEDULES AND EXHIBITS ATTACHED TO THIS AGREEMENT, EACH OF
WHICH IS MADE A PART OF THIS AGREEMENT FOR ALL PURPOSES.
(B)
NO PROVISION OF THIS AGREEMENT WILL BE INTERPRETED IN FAVOR OF, OR
AGAINST, ANY OF THE PARTIES HERETO BY REASON OF THE EXTENT TO WHICH ANY SUCH
PARTY OR ITS COUNSEL PARTICIPATED IN THE DRAFTING THEREOF OR BY REASON OF THE
EXTENT TO WHICH ANY SUCH PROVISION IS INCONSISTENT WITH ANY PRIOR DRAFT HEREOF
OR THEREOF.
ARTICLE II
MERGER
SECTION 2.1
THE MERGER.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF
THIS AGREEMENT, AND IN ACCORDANCE WITH THE DGCL, AT THE EFFECTIVE TIME THE
PURCHASER SHALL BE MERGED WITH AND INTO BCCM.
AS A RESULT OF THE MERGER, THE
SEPARATE CORPORATE EXISTENCE OF THE PURCHASER SHALL CEASE, AND BCCM SHALL
CONTINUE AS THE SURVIVING COMPANY OF THE MERGER (BCCM FROM AND AFTER THE
EFFECTIVE TIME HEREINAFTER REFERRED TO AS THE "SURVIVING COMPANY").
SECTION 2.2
EFFECTIVE TIME.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF
THIS AGREEMENT, ON THE CLOSING DATE, BCCM AND THE PURCHASER SHALL CAUSE THE
MERGER TO BE CONSUMMATED BY FILING THE CERTIFICATE OF MERGER (THE "CERTIFICATE
OF MERGER") SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT E WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, IN SUCH FORM AS IS REQUIRED BY, AND
EXECUTED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF, THE DGCL (THE DATE AND
TIME OF SUCH FILING BEING HEREINAFTER REFERRED TO AS THE "EFFECTIVE TIME").
NOTWITHSTANDING THE FOREGOING, THE PARTIES HERETO SHALL BE UNDER NO OBLIGATION
TO EFFECT THE MERGER HEREUNDER UNLESS CROMPTON, THE MANAGEMENT MEMBERS, AND THE
CARRYHOLDERS, AS A GROUP, SELL TO PURCHASER ALL OF THEIR RESPECTIVE INTERESTS
PURSUANT TO ARTICLE III.
SECTION 2.3
EFFECT OF THE MERGER.
AT THE EFFECTIVE TIME, THE EFFECT OF THE
MERGER SHALL BE AS PROVIDED IN THIS AGREEMENT AND THE APPLICABLE PROVISIONS OF
THE DGCL.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND SUBJECT
THERETO, AT THE EFFECTIVE TIME ALL THE PROPERTY, RIGHTS, PRIVILEGES, POWERS AND
FRANCHISES OF THE PURCHASER AND BCCM SHALL VEST IN THE SURVIVING COMPANY, AND
ALL DEBTS, LIABILITIES, OBLIGATIONS AND DUTIES OF THE PURCHASER AND