This Amendment to Separation Agreement ('Amendment) is made and entered into as of the _________,_________,_________(M,D,Y), by and among AAA, Inc., a _________ corporation ('AAA'), BBB, Inc. (formerly, EEE Inc.), a _________ corporation ('Level 3'), CCC, Inc., a _________ corporation ('CCC') and DDD Inc., a _________ corporation ('DDD,' and together with AAA, Level 3, and CCC, collectively the 'Parties' or individually a 'Party').
Preliminary Statement.
The Parties have previously entered into a Separation Agreement dated as of _________,_________,_________(M,D,Y) (the 'Separation Agreement'), with respect to a series of transactions (collectively, the 'Transaction') intended to separate the construction businesses of AAA and the diversified businesses of AAA into two separate and independent companies. The Parties desire to amend the Separation Agreement to provide for the modification of certain cost allocation provisions thereof, in the event of the occurrence of certain specified events.
Now, therefore, in consideration of the premises, the Parties hereby agree as follows:
1. Section 1.01 of the Separation Agreement is hereby amended by adding the following definitions:
'Conversion Event: the issuance of shares of Class D Stock in exchange for all of the outstanding shares of Class R Stock pursuant to the approval by the AAA Board, or any successor, of a 'Forced Conversion' ( as defined in the AAA Certificate).'
'Forced Conversion Date: the date of issuance of shares of Class D Stock pursuant to the Conversion Event.'
2. Section 3.06(b) of the Separation Agreement is hereby amended in its entirety to read as follows:
'(b) AAA will record the Class R Distribution, and register all persons entitled to the Class R Distribution as holders of Class R Stock, on the books and records maintained by or on behalf of AAA for the registration of ownership of the capital stock of AAA, effective as of the Class R Distribution Record Date. AAA will not issue certificates or other instruments to evidence Class R Stock unless and until the Share Exchange is consummated, and in any event, no sooner than _________, _________, _________(M,D,Y). If the Share Exchange is consummated, AAA will issue and distribute certificates evidencing the Class R Stock. If the Class R Distribution is consummated, but the Transaction is later abandoned, AAA will exercise its rights to repurchase all of the Class R Stock under Section IX.M of the Initial Certificate Amendment as promptly as practicable after abandonment of the Transaction.'
3. Section 7.01 of the Separation Agreement is amended in its entirety to read as follows:
'7.01 General. The Parties have agreed to allocate the financial burden of Covered Expenses 82.5% to the Diversified Group and 17.5% to the Construction Group (the 'Expense Sharing Ratio'), whether the Transaction is consummated or abandoned; provided, however, that in the event that the Forced Conversion Date occurs on or before _________, _________,_________(M,D,Y), the Expense Sharing Ratio shall be modified so that the Construction Group incurs 100% of the Covered Expenses. In such event, the Construction Group will reimburse the Diversified Group for any Covered Expenses paid by the Diversified Group prior to the Forced Conversion Date. All other costs or expenses incurred by any Party in connection with the Transaction will be borne by the Party incurring the cost or expense.'
4. A paragraph shall be added as Section 7.02 (c)of the Separation Agreement and shall read in its entirety as follows:
'(d) The Parties acknowledge that in the event the Forced Conversion Date occurs on or before _________,_________,_________(M,D,Y), and the Expense Sharing Ratio is modified as provided in Section 7.01 above, any success fees, mark-ups, bonuses, equity participation or amounts in excess of regularly billable hours, payable to the advisors described in (i), (ii), (iii) and (iv) of Section 7.02(a), shall be incurred solely for the account of the Diversified Group, and shall not be considered to be Covered Expenses.
5. Section 7.04 of the Separation Agreement is amended in its entirety to read as follows:
'7.04 Covered Expense True-Up. FFF will prepare and submit to DDD, within 120 calendar days after the date of abandonment of the Transaction or the Exchange Date, as the case may be, a schedule of the Other Covered Expenses, together with such supporting documentation with respect to the Other Covered Expenses as DDD reasonably requests. Within five calendar days after the submission of that schedule, FFF or DDD, as the case may be, will pay DDD or FFF, as the case may be, in cash, an amount sufficient to ensure that the financial burden of the Covered Expenses has been allocated between DDD and FFF in proportion to the Expense Sharing Ratio.'
6. Unless otherwise specified, capitalized terms used herein shall have the meanings specified in the Separation Agreement.
7. Any other changes or modifications to the Separation Agreement necessary to conform such agreement to this Amendment are hereby deemed to be made. In all other respects, not inconsistent with this Amendment, the terms of the Separation Agreement, not specifically or by necessary implication amended or modified hereby, shall be and remain in full force and effect as modified hereby.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed as of the date first above written.
AAA, INC.
By: ________
Title: _____
BBB, INC.
By: ________
Title: _____
CCC, INC.
By: ________
Title: _____
DDD INC.
By: ________
Title: _____
