<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
----------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended September 30, 1998
Commission file number 1-13879
OCTEL CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 98-0181725
----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
P.O. BOX 17,
OIL SITES ROAD,
ELLESMERE PORT,
SOUTH WIRRAL,
UNITED KINGDOM L65 4HF
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 011-44-151-355-3611
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X
-----
No _____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the close of the period covered by this report.
Class Outstanding as of October 31, 1998
Common Stock, par value $0.01 14,027,325 Shares
1
<PAGE>
PART I - FINANCIAL INFORMATION
- ------------------------------
ITEM 1 - FINANCIAL STATEMENTS
- -----------------------------
OCTEL CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
---------------------------
<TABLE>
<CAPTION>
September 30 December 31
1998 1997
(Unaudited)
--------------------- ---------------------
(millions of dollars)
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 49.6 $ 29.7
Accounts receivable, less allowance
of $0.9 (1997 - $0.9) 111.7 169.8
Inventories
Finished products 45.9 35.7
Work in progress 5.7 10.2
Raw materials and supplies 20.1 32.9
--------- ---------
Total inventories 71.7 78.8
Prepaid Expenses 6.3 4.4
--------- ---------
Total current assets 239.3 282.7
Property, plant and equipment 134.5 122.8
Less allowance for depreciation 22.9 16.8
--------- ---------
Net property, plant and equipment 111.6 106.0
Goodwill and other intangible assets 369.0 379.3
Other Assets 60.4 64.9
--------- ---------
$ 780.3 $ 832.9
========= =========
</TABLE>
The accompanying footnotes are an integral part of these unaudited condensed
financial statements.
2
<PAGE>
OCTEL CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONTINUED)
---------------------------------------
<TABLE>
<CAPTION>
September 30 December 31
1998 1997
(Unaudited)
-------------------- -----------
<S> <C> <C>
(millions of dollars)
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $ 31.1 $ 40.0
Accrued expenses 15.6 9.0
Accrued income taxes 29.4 53.8
Current portion of long term debt 80.0 -
----------- -----------
Total current liabilities 156.1 102.8
Other liabilities (plant closure provision) 52.1 57.2
Deferred income taxes 20.1 20.1
Long-term debt 258.4 -
Great Lakes investment - 652.8
Stockholders' equity
Common stock, $0.01 par value
authorised 40,000,000 shares,
issued 14,762,417 shares as of 9/30/98
(zero shares as of 12/31/97) 0.1 -
Additional paid-in capital 276.1 -
Treasury stock (530,662 shares at
cost) (9.2) -
Retained earnings 19.6 -
Cumulative translation adjustment 7.0 -
----------- -----------
Total stockholders' equity 293.6 -
----------- -----------
$ 780.3 $ 832.9
=========== ===========
</TABLE>
The accompanying footnotes are an integral part of these unaudited condensed
financial statements.
3
<PAGE>
OCTEL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
----------------------------- ----------------------------
1998 1997 1998 1997
---------- ---------- --------- ----------
(millions of dollars except per share data)
<S> <C> <C> <C> <C>
Net sales $ 113.4 $ 137.5 $ 352.2 $ 395.5
Cost of goods sold 62.6 67.2 186.2 200.5
----------- ----------- ---------- -----------
Gross profit 50.8 70.3 166.0 195.0
Operating expenses
Selling, general and admin. 10.1 9.4 27.9 29.3
Research and development 1.3 0.8 2.9 2.4
Amortization of intangible
assets 11.4 6.9 30.2 20.3
----------- ----------- ---------- -----------
22.8 17.1 61.0 52.0
----------- ----------- ---------- -----------
Income from operations 28.0 53.2 105.0 143.0
Interest expense 8.0 0.4 17.7 1.2
Interest income (0.7) (1.0) (2.0) (3.0)
Other expense (income) 2.9 2.8 4.1 (2.1)
----------- ----------- ---------- -----------
Income before income taxes
and minority interest 17.8 51.0 85.2 146.9
Minority interest - 6.8 - 20.3
----------- ----------- ---------- -----------
Income before income taxes 17.8 44.2 85.2 126.6
Income taxes 7.2 15.0 32.4 43.3
----------- ----------- ---------- -----------
Net income $ 10.6 $ 29.2 $ 52.8 $ 83.3
=========== =========== ========== ===========
Basic and diluted earnings per
share $ 0.73 $ 1.98 $ 3.59 $ 5.64
----------- ----------- ---------- -----------
Shares used to compute basic
earnings per share 14,538,430 14,762,417 14,687,755 14,762,417
----------- ----------- ---------- -----------
</TABLE>
The accompanying footnotes are an integral part of these unaudited condensed
financial statements.
4
<PAGE>
OCTEL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
-------------------------------------
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
-------------------------------
September 30
-------------------------------
1998 1997
------------ -------------
<S> <C> <C>
(millions of dollars)
OPERATING ACTIVITIES
Net income $ 52.8 $ 83.3
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 42.3 38.8
Changes in deferred and other items - 1.2
------------- -------------
Cash provided by operations excluding changes
in working capital 95.1 123.3
Changes in working capital other than debt 97.2 68.0
Other noncurrent liabilities (plant closure (7.2) (24.8)
provision)
------------- -------------
Net cash provided by operating activities 185.1 166.5
INVESTING ACTIVITIES
Plant and equipment additions (14.3) (5.3)
Business combinations - (15.8)
Other (7.3) 6.8
------------- -------------
Net cash used in investing activities (21.6) (14.3)
FINANCING ACTIVITIES
Net cash paid to Great Lakes (468.5) (156.9)
Receipt of long-term borrowings 430.0 -
Repayment of long-term borrowings (91.6) -
Fees relating to spin financing (11.0) -
Minority interest - 0.6
Repurchase of common stock (9.2) -
Other financing 2.9 -
------------- -------------
Net cash used in financing activities (147.4) (156.3)
Effect of exchange rate changes on cash and cash
equivalents 3.8 (9.8)
------------- -------------
Increase (decrease) in cash and cash equivalents 19.9 (13.9)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 29.7 54.9
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 49.6 $ 41.0
============= =============
</TABLE>
The accompanying footnotes are an integral part of these condensed unaudited
financial statements
5
<PAGE>
OCTEL CORP. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
NOTE 1 - BACKGROUND AND BASIS OF PRESENTATION
Octel Corp., a Delaware corporation (the "Company") is a major manufacturer and
distributor of fuel additives and other specialty performance chemicals. Its
primary manufacturing operation is located at Ellesmere Port, Cheshire, United
Kingdom. The Company's products are sold globally, primarily to oil refineries.
Principal product lines are lead alkyl antiknock compounds (TEL), other
petroleum additives and performance chemicals.
Until May 22, 1998, the Company was a wholly-owned subsidiary of Great Lakes
Chemical Corporation, a Delaware corporation ("Great Lakes"). On May 22, 1998,
Great Lakes consummated the spin off of its petroleum additives business by
distributing shares in the Company to the stockholders of Great Lakes in a ratio
of one Company share for every four Great Lakes shares held (the "Spin Off").
In connection with the Spin Off, the Company issued 14,762,417 shares of common
stock on May 26, 1998.
On April 27, 1998, the Company entered into a $300 million senior secured credit
facility (the "Credit Facility") and issued $150 million of Senior Notes due
2006 (the "Notes"). The Credit Facility consisted of a $280 million senior
secured term loan and a $20 million revolving credit facility. The Credit
Facility will mature on December 31, 2001, with the term loan amortizing in
quarterly instalments. Loans under the Credit Facility bear interest at LIBOR
plus 1.75%. The interest rate will reduce to LIBOR plus 1.25% when the
outstanding balance under the Credit Facility has reduced to $140 million. The
Notes mature in 2006. The Company is required to redeem $37.5 million principal
amount of Notes in each of the years 2003, 2004 and 2005. The Credit Facility
and the Notes contain substantial restrictions on the Company's operations,
including the ability to pay dividends. The proceeds of the borrowings, along
with available cash of $52.7 million, were used to repay a $116.8 million inter-
company loan used to purchase a 10.65% interest in subsidiaries of the Company
from Chevron Chemical Company and pay a special dividend to Great Lakes of
$350.9 million and other costs of $15 million related to the Spin Off. The $15
million costs, including $11 million fees relating to Spin financing, have been
capitalized as intangible assets and are being amortized over a period of eight
years.
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all the information and
footnotes necessary for a comprehensive presentation of financial position and
results of operations.
It is management's opinion, however, that all material adjustments (consisting
of normal recurring accruals) have been made which are necessary for a fair
financial statement presentation. These financial statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Form 10/A filed on May 6, 1998, in connection with the
Spin Off. The results for the interim period are not necessarily indicative of
the results to be expected for the year due to the level of borrowings incurred
by the Company on Spin Off.
6
<PAGE>
NOTE 2 - STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME
The following sets forth the Company's comprehensive income for the nine months
to September 30, 1998 together with an analysis of the movement in stockholders'
equity during the same period:
<TABLE>
<CAPTION>
(Millions)
<S> <C> <C>
Balance at December 31, 1997 $ 652.8
Comprehensive income:
Net income 52.8
Net change in cumulative translation account 14.4
---------
Total comprehensive income 67.2
Other movement in stockholders' equity
Transfer of income tax liabilities to Great Lakes 56.0
Net amount paid to Great Lakes including
exchange effect of $4.7 (473.2)
Repurchase of common stock (9.2)
-------
Balance at September 30, 1998 $ 293.6
=======
</TABLE>
NOTE 3 - INCOME TAXES
A reconciliation of the U.S. statutory income tax rate to the effective income
tax rate is as follows:
<TABLE>
<CAPTION>
EFFECTIVE INCOME TAX RATE RECONCILIATION: Nine Months Ended
September 30
1998 1997
---- ----
<S> <C> <C>
Statutory US Federal tax rate 35.0% 35.0%
Increase (decrease) resulting from:
Foreign tax rate differential (4.0) (3.5)
Amortization of goodwill 8.9 5.0
Other (1.8) (2.3)
---- ----
38.1% 34.2%
==== ====
</TABLE>
NOTE 4 - EARNINGS PER SHARE
Earnings per share is based on net income for each period and the weighted
average of shares in issue during the period. The weighted average is based on
shares issued on May 26, 1998 (see note 1) and movements thereafter.
7
<PAGE>
NOTE 5 - RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
The Company has adopted Statement of Financial Accounting Standard No. 128
"Earnings Per Share" for the first nine months of 1998. The Statement
establishes standards for computing and presenting earnings per share ("EPS") by
replacing the presentation of primary EPS with a presentation of basic EPS.
The Company intends to adopt Statement of Financial Accounting Standard No. 131
"Disclosures about Segments of an Enterprise and Related Information" for its
annual financial statements. The Statement establishes standards for reporting
information about operating segments including related disclosure about
products, geographic areas and major customers.
Statement of Financial Accounting Standard No. 132, "Employers' Disclosures
about Pensions and Other Post-retirement Benefits" was issued in December 1997
and is effective for the Company's 1998 fiscal year. The Statement revises
current disclosure requirements for employers' pension and other retiree
benefits.
Implementation of these standards will not affect the Company's financial
position or results of operations.
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standard ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities", which establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts (collectively referred to as derivatives), and for
hedging activities. This Statement is effective for all fiscal quarters of
fiscal years beginning after June 15, 1999. The Company is at present
evaluating the impact of SFAS 133 on its operations.
Statement of Financial Accounting Standard No. 134, "Accounting for Mortgage-
Backed Securities Retained after the Securitization of Mortgage Loans Held for
Sale by a Mortgage Banking Enterprise" was issued in October 1998. This
Statement relates to entities engaged in mortgage banking activities and so does
not affect the Company.
NOTE 6 - RELATED PARTY TRANSACTIONS
Prior to the Spin Off on May 22, 1998, sales of product between the Company and
Great Lakes were reported in the financial statements at estimated market value.
In the first nine months of 1998 and 1997, the value of sales from the Company
to Great Lakes amounted to $3.3 million and $5.8 million respectively and the
value of purchases by the Company from Great Lakes amounted to $7.1 million and
$13.5 million respectively.
Prior to the Spin Off, interest charges from Great Lakes, in respect of funding
provided primarily for acquisitions, amounted to $3.4 million and $1.1 million
in the first nine months of 1998 and 1997 respectively.
8
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
----------------------------------------------------------------
Some of the information presented in the following discussion constitutes
forward-looking comments within the meaning of the Private Litigation Reform Act
of 1995. Although the Company believes its expectations are based on reasonable
assumptions within the bounds of its knowledge of its business and operations,
there can be no assurance that actual results will not differ materially from
its expectations. Factors which could cause actual results to differ from
expectations include, without limitation, the timing of orders received from
customers, the gain or loss of significant customers, competition from other
manufacturers and changes in the demand for the Company's products, including
the rate of decline in demand for TEL. In addition, increases in the cost of
product, changes in the market in general and significant changes in new product
introduction could result in actual results varying from expectations.
RESULTS OF OPERATIONS
- ---------------------
Third quarter sales of $113.4 million were $24.1 million lower than the $137.5
million recorded in 1997.
Nine month sales of $352.2 million declined $43.3 million from the $395.5
million reported in 1997, a reduction of 11% due predominantly to the continued
decline in demand for tetraethyl lead (TEL). Net income for the period was $52.8
million, or $3.59 per share, down $30.5 million from 1997. Comparative sales by
business are shown in the following table (millions):
<TABLE>
<CAPTION>
Third Quarter Year to date
------------- ------------
1998 1997 Change 1998 1997 Change
---- ---- ------ ---- ---- ------
<S> <C> <C> <C> <C> <C> <C>
TEL $ 90.7 $113.5 (20)% $282.3 $321.4 (12)%
Petroleum Specialties 15.0 15.8 (5)% 46.8 48.0 (2)%
Performance Chemicals 7.7 8.2 (6)% 23.1 26.1 (11)%
------ ------ ------ ------
Total $113.4 $137.5 (18)% $352.2 $395.5 (11)%
------ ------ ------ ------
</TABLE>
TEL sales in the nine months ended September 30, 1998 decreased by $39.1 million
(12%) from the same period last year, attributable mainly to a reduction in
sales volumes of $41.0 million, offset by an increase in average prices of $1.0
million (due to the lower proportion of wholesale business compared with 1997)
and a foreign exchange gain of $0.9 million. Retail sales volumes in the nine
months decreased 7% to 37.8 thousand metric tons, with reduced sales in Europe
partly offset by increases in the Middle East and Africa. Average retail sales
prices of TEL reduced by 3% from last year, mainly as a result of market
pressure. Sales volumes of TEL on a wholesale basis at 13.3 thousand metric tons
for the nine months were 25% below 1997, due partly to reduced off-take by Ethyl
Corporation and also due to the phase-out of leaded gasoline in the Mexican
market in mid-1997, which Dupont had supplied with TEL purchased from the
Company.
Petroleum Specialties (non-lead fuel additives) net sales at $46.8 million for
the nine months to September and third quarter sales at $15.0 million are
consistent with 1997 levels, growth being hampered by the economic downturn in
South East Asia.
Performance Chemicals net sales of $23.1 million for the nine months were $3.0
million (11%) below 1997, mainly resulting from reduced demand for Octaquest(R)
and a shutdown of the plant in the second quarter for maintenance work prior to
expansion.
9
<PAGE>
Gross profit of $166.0 million for the nine months was $29.0 million (15%) below
the same period last year. This reduction reflects the decline in TEL volume
and average retail sales price. As a percentage of sales, gross profit in the
nine months was 47% compared with 49% in 1997. Both periods included a plant
closure charge of approximately $10.0 million.
Selling, general and administrative expenses were $27.9 million for the nine
months to September, a reduction of 5% from the same period in 1997. Research
expense was $2.9 million, an increase of 21% on the same period in 1997 when
expenditure was heaviest in the fourth quarter. Since the beginning of the
year, the Company has reduced headcount by 138, a 10% reduction of the
workforce, giving annual payroll savings of $7 million.
Amortization of intangible assets at $30.2 million for the nine months has
increased by $9.9 million due to an increase in goodwill following the
acquisition of the Chevron minority interest in the Company at the end of 1997.
Operating income for the nine months was $105.0 million, a return of 30% on
sales. Reduction in the rate of return for income from operations from 36% of
sales to 30% in 1998 is mainly the result of the higher amortization charge.
Interest expense at $17.7 million for the nine months to September is $16.5
million above the $1.2 million expense in 1997. Interest on the senior debt
and notes effectively commenced on May 1, resulting in a charge of $14 million
to date. The remainder of the interest pre-May 1 was paid to Great Lakes on an
intercompany loan to fund the acquisition of the Chevron minority interest.
Interest income in the nine months decreased to $2.0 million from $3.0 million
in 1997.
Other expense and income decreased from an income of $2.1 million in 1997 to an
expense of $4.1 million in the nine months to September 1998. This change was
mainly the result of the inclusion of $5.5 million gains on exchange in 1997 and
$3.1 million losses on exchange in 1998, both of which are due principally to
recording of unrealised gains and losses on period end currency balance
translation.
The minority interest in the Company was acquired from Chevron during fourth
quarter 1997, resulting in an improvement of $20.3 million in profit
attributable to the Company in the nine months to September 30, 1998.
LIQUIDITY AND FINANCIAL CONDITION
- ---------------------------------
Cash provided by operating activities during the nine months to September 30,
1998 amounted to $185.1 million, $18.6 million more than in 1997. A significant
proportion of this improvement was due to a lower level of cash spending on
rationalisation costs of $17.5 million in 1998 compared with $28.6 million
during the same period last year, due to both personnel and plant closure costs
being lower.
Working capital levels were reduced significantly in 1998, particularly accounts
receivable, which were $58.1 million lower than December 1997, reflecting both
reduced sales in the third quarter and a reduction in days sales outstanding
from 109 to 90. Total inventory levels were reduced by $7.1 million (9%) from
the position at December 1997, including a reduction of $12.8 million in raw
materials. Finished products inventory levels, which are affected by bulk ships'
sailing patterns and fluctuate accordingly, were higher than in December 1997.
10
<PAGE>
$51.6 million of senior loan (long-term debt) was repaid in the third quarter
1998, bringing repayments for the current year to $91.6 million (including early
payment of $11.6 million), and reducing outstanding debt from $430 million to
$338.4 million. A further debt repayment of $35.0 million is scheduled for the
fourth quarter, together with a further early payment of approximately $12.0
million due to the high third quarter cash flow.
Plant closure provisions at $52.1 million were $5.1 million lower than December
1997. The provision was increased by exchange variances of $2.4 million and by
the periodic charge of $10.0 million, but this was more than offset by
redundancy and remedial costs incurred of $17.5 million.
$9.2 million was spent in the third quarter on the repurchase of 530,662 shares
of Octel Corp. common stock.
RECENT DEVELOPMENTS
- -------------------
On September 29, 1998 the Company announced that its UK subsidiary The
Associated Octel Company Limited (Associated Octel) had signed an agreement with
Ethyl Corporation to market and sell tetraethyl lead (TEL) antiknock compounds
in areas of the world, excluding North America and European Union. The
agreement, which became effective October 1, 1998 finalized the memorandum of
understanding between the companies previously announced on July 27, 1998.
Under the agreement, all marketing and sales efforts made to customers are made
in the name of Associated Octel. Ethyl will provide bulk transportation
services in support of the agreement while Octel will continue to produce all
TEL marketed under this agreement. Depending upon cost, performance and
flexibility, one or both companies will provide under the agreement other TEL
services. As countries move increasingly toward lead-free fuel and the demand
for TEL continues to decline, it becomes increasingly more expensive to market,
sell, manufacture and distribute a given quantity of TEL. The Company believes
that significant cost savings can be achieved under this agreement by permitting
more efficient marketing, sales and distribution of TEL products.
In order to diversify and expand its non-TEL product line, on June 30, 1998, the
Company entered into an agreement in principle with Veba Oel AG for the
acquisition of its petroleum specialties subsidiary, Chemische Betriebe Pluto
GmbH ("Pluto") for an undisclosed sum. Based in Herne, Germany, Pluto
manufactures and sells fuel additives mainly based on ferrocene, an iron-based
metal organic product used as a combustion improver and octane enhancer. Pluto
has annual sales of approximately $18 million. The Company and Pluto had
already entered into a joint marketing arrangement in 1997.
Octel Corp. continues to reduce TEL costs in line with the market decline and
the Company announced another voluntary severance program in September 1998
which is expected to be implemented in early 1999. The Company will close at
least one TEL building at the end of 1998 and has announced a formal review into
the economics of manufacturing raw materials currently produced to support the
manufacture of TEL.
The Company's Board of Directors has approved a stock buy back program,
authorizing the repurchase of up to $15 million of its stock, as allowed under
its debt covenants. At September 30, 1998 530,662 shares have been repurchased
at an aggregate cost of $9.2 million. $2.8 million has been spent to date in
the fourth quarter on repurchasing a further 204,430 shares of Octel Corp.
common stock.
11
<PAGE>
YEAR 2000
- ---------
Octel is implementing a programe of work whose objective is to ensure that the
company is not adversely affected by "Date Discontinuity" problems in computers,
software and embedded processors during the transition from 1999 to 2000 and as
a result of 2000 being a leap year.
Date discontinuity occurs when time as expressed by a system or its software
does not move forward successfully in line with true time. The most commonly
known manifestation of this occurs in systems that recognize years as two digits
and, when moving from '99' to '00', recognise '00' as 1900 or fail altogether.
Additionally, some systems fail to recognise 2000 as a leap year, so omitting
Feb 29th from their calendars.
Project Scope
- -------------
The project scope covers Information Technology (IT) systems, embedded
processors/plant control and supply chain.
IT systems include central and network hardware, business systems and desktop
hardware/software. Octel has very little bespoke software, the majority
being industry standard packages, customized only where necessary.
Embedded processors includes, for example, plant instruments, laboratory
equipment, control systems, data acquisition systems, vehicles and
telecommunications.
Supply Chain considerations include liaison with suppliers and customers about
our respective states of readiness for the Year 2000.
The project covers all Octel Corp. sites.
Programe
- ---------
Work is divided into the following key stages:-
1. Inventory of hardware, software and embedded systems
2. Analysis of compliance
3. Defining and planning of solutions
4. Implementation and testing of solutions
5. Confirmation of major suppliers' and customers' state of readiness
6. Contingency planning
Step 1 is substantially complete.
Step 2 is approximately 75% complete for embedded processors, substantially
complete for mission critical software and PC's and about 50% complete for
desktop software. Assessment of IT central hardware and infrastructure has been
initiated, but is less advanced. This is targeted to be complete by December
31, 1998.
Step 3 is progressing in all areas as compliance analysis information is
generated. This is being produced by business process reviews and impact
assessments.
12
<PAGE>
In Step 4, two key IT projects which impact on the Year 2000 program are in
progress:-
. Replacement of the existing purchasing and sales order processing system,
due for completion March 31, 1999. This is phase one of the introduction of
an Enterprise Resource Planning System.
. Conversion of UK sites to Windows NT environment, which will result in
substantial replacement of desktop hardware and software, due for
completion mid 1999.
Projects are also being initiated to replace a number of non-compliant data
loggers on plants. Modifications to the control system for the most automated
plant (Octaquest) have already been made to achieve compliance.
In Step 5, all current suppliers of goods and services have been approached and
replies have been received from approximately 50% to-date. Key suppliers will be
the subject of more detailed scrutiny to monitor the progress of their program.
We have not yet requested information from customers; this will be done before
December 31, 1998. We have, however, dealt with some 95 requests for
information about our program from our customer base of some 500 companies.
Contingency Planning for Year 2000 risks (Step 6) is at an early stage of
development.
Costs
- -----
It is estimated that the total cost of achieving Year 2000 compliance will be
approximately $8.0 million of which $6.5 million will be on IT systems and $1.5
million on embedded processors. This figure is subject to ongoing review.
Approximately $1.2 million has been spent to date.
Risks
- -----
Had no action been taken to identify and rectify Year 2000 problems, key
business and administrative systems would have failed, as would a number of
plant data loggers and instruments. The cost impact of such failures has not
been assessed.
Should the project or a supplier fail to identify or successfully rectify all
Year 2000 defects, there is potential for temporary, but in some cases
significant, interruption to production or deliveries. Work is in progress to
understand the risks and to develop plans to minimise the consequences of such
events to Octel. Particular attention will be paid to the dependence on the
supply of utilities from third parties, such as electricity, gas and water, to
the Ellesmere Port site.
Part II OTHER INFORMATION
- ---------------------------
(a) Exhibits
10.1 Antiknock Marketing and Sales Agreement
27 Financial Data Schedule
(b) Reports of Form 8-K
None
13
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorised.
Date: October 31, 1998 By /s/ Dennis J Kerrison
--------------------------- -----------------
Dennis J Kerrison
President and
Chief Executive Officer
Date: October 31, 1998 By /s/ Alan G Jarvis
--------------------------- -------------
Alan G Jarvis
Chief Financial Officer
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page No.
- ------- ----------- --------
<S> <C> <C>
10.1 Antiknock Marketing and Sales Agreement 15
27 Financial Data Schedule 59
</TABLE>
14
<PAGE>
ANTIKNOCK MARKETING AND SALES AGREEMENT
THIS AGREEMENT is made as of this 1/st/ day of October 1998, by and
between The Associated Octel Company Limited a corporation organized under the
laws of England, acting on behalf of itself and its Affiliates (collectively,
"Octel") and Ethyl Corporation, a corporation organized under the laws of the
Commonwealth of Virginia, USA, acting on behalf of itself and its Affiliates
(collectively, "Ethyl") and supercedes the Antiknock Marketing and Sales
Agreement between the aforementioned parties dated as of September 29, 1998.
WHEREAS, governmental authorities in countries around the world have
promulgated laws and regulations which have effectively banned or severely
limited the amount of lead antiknock compounds which can be used in motor fuels
for health, safety and environmental reasons.
WHEREAS, said governmental authorities have continued to take actions
and plan to take additional measures in the future to further reduce or
eliminate the amount of AK currently used in motor fuels.
WHEREAS, because these actions have accelerated the reduction of
demand for AK, the product life of AK has been significantly reduced as a useful
additive in motor fuel.
WHEREAS, as a result of these actions and other factors, it has and
will continue to become increasingly more expensive and inefficient to market
and to sell the ever decreasing amount of AK throughout the world as this
product reaches the end of its life cycle.
WHEREAS, because of these factors, Octel and Ethyl believe that
significant cost savings and efficiencies and health, safety and environmental
benefits can be realized by entering into this Agreement to market and promote
the sale and safe distribution of AK in certain areas of the world as the demand
for AK continues to decline.
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the
following meanings:
ADMINISTRATIVE, LOGISTICS AND ORDER PROCESSING SERVICES shall mean the
services provided by Octel as described in Paragraph 11 of this Agreement.
AFFILIATES shall mean any entity controlling, controlled by or under common
control with that Party and any entity which succeeds to that portion of
the business or ownership of the assets of that Party to which this
Agreement pertains.
AGREEMENT shall mean this Antiknock Marketing and Sales Agreement.
AGREEMENT ACTIVITIES shall mean all of the activities performed by the
Parties pursuant to the terms of this Agreement. It is specifically agreed
that manufacture of Product is not included in Agreement Activities.
AGREEMENT PROCEEDS shall mean the amount determined pursuant to Schedule C
of this Agreement.
BULK DISTRIBUTION AGREEMENT shall mean the Agreement for Bulk
Transportation between The Associated Octel Company Limited and Ethyl
Corporation dated March 25, 1994, as amended.
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BULK DISTRIBUTION SERVICES shall mean bulk distribution services provided
by Ethyl described in Paragraph 9 of this Agreement.
CHANGE OF CONTROL shall mean:
(i) the acquisition by an independent third party(ies) of more than
fifty percent (50%) of the outstanding voting stock of Octel
Corp, the Associated Octel Company Limited or Ethyl Corporation
but excluding the formation of a holding company so long as
there is no change in the ultimate control of the applicable
company listed above; or
(ii) the acquisition by an independent third party(ies) of
substantially all the AK business assets of Octel Corp., the
Associated Octel Company Limited or Ethyl Corporation; or
(iii) the assignment to an independent third party(ies) by either
Party of substantially all of their rights or obligations under
this Agreement.
Notwithstanding the above, Change of Control shall not mean any internal
reorganization of Octel Corp., The Associated Octel Company Limited or
Ethyl Corporation and/or any of their respective Affiliates including any
spin off or split off of assets or businesses to the shareholders of any of
the aforementioned companies or the purchase of stock, assets or businesses
conducted by any of the aforementioned companies by any person or group who
owns twenty percent (20%) of the voting stock of the company as the date of
this Agreement.
CONTRACT YEAR shall mean the period beginning on October 1, 1998 and ending
on December 31, 1998 and each calendar year thereafter during the term of
this Agreement and any extension thereof. COUNCIL shall mean Strategic
Council. EFFECTIVE DATE shall be October 1, 1998.
3
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EMBARGOED COUNTRIES shall mean any country or countries that is subject to
sanctions imposed by the United States government pursuant to the Trading
With the Enemy Act (50 App. U.S.C.A. (S)1) or The International Emergency
Economic Powers Act (50 U.S.C.A. (S)1701).
ETHYL shall mean Ethyl Corporation and its Affiliates.
EUROPEAN ECONOMIC AREA shall mean those countries that are from time to
time members of the European Economic Area.
NORTH AMERICA shall mean the countries of Canada and the United States.
OCTEL shall mean The Associated Octel Company Limited and its Affiliates.
PARTIES shall mean Ethyl & Octel.
PARTY SERVICES shall mean all of the services performed by the Parties
pursuant to the terms of this Agreement.
PRODUCT shall mean lead alkyl antiknock compounds ("AK") made available for
sale, marketed and/or sold, directly or indirectly, to customers for use in
the Territory by Octel, Octel Corp. or its Affiliates which shall include
all of the AK compounds currently made available for sale by Octel and any
new or modified AK products made available for sale, marketed and/or sold,
directly or indirectly, by Octel, Octel Corp. or its Affiliates during the
term of this Agreement or any extensions thereof.
SERVICE AGREEMENT shall mean the Service Agreement set forth in Schedule D
of this Agreement.
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SLUDGE SERVICES AGREEMENT shall mean the Services Agreement between The
Associated Octel Company Limited and Ethyl Corporation dated June 28, 1995,
as amended.
SUPPLY CONTRACT shall mean the Supply of Lead Antiknock Compounds Agreement
between The Associated Octel Company Limited and Ethyl dated December 22,
1993, as subsequently amended by the Supply of Lead Antiknock Compounds
Agreement for the U.S. dated as of January 1, 1998, and the letter
agreement between Ethyl Corporation and The Associated Octel Company
Limited dated December 22, 1997.
TECHNICAL SUPPORT, PROFESSIONAL SERVICES AND RESIDUE PROCESSING AND
DISPOSAL SERVICES shall mean the services provided by the Parties as
described in Paragraph 12 of this Agreement.
TERRITORY shall mean all of the countries and regions of the world, other
than, and specifically excluding North America, the European Economic Area
and Embargoed Countries.
UNITED STATES shall mean the fifty states of the United States of America,
the District of Columbia and all possessions and territories of the United
States including Puerto Rico and the U.S. Virgin Islands.
WHOLESALE PRICE shall mean * . The Parties
acknowledge that the price formula * was
negotiated at arms length and continues to represent the wholesale fair
market value of the Product.
WORKING CAPITAL shall mean the working capital as determined in accordance
with Schedule G.
* This information omitted pursuant to a Confidential Treatment Request
6
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2. PURPOSE OF THE AGREEMENT
------------------------
The purpose of this Agreement is to establish a marketing arrangement
for sales of Product by the Parties to customers in the Territory. Octel
and Ethyl each agree, and shall cause each of their Affiliates to agree, to
exclusively market and sell Product to customers for use in the Territory
pursuant to the terms of this Agreement. To support this marketing
arrangement, both Ethyl and Octel will provide various goods and services
to the other as more specifically set forth in this Agreement and the
Service Agreement. The rights conferred by this Agreement are strictly
contractual in nature, it being expressly understood and agreed that
neither Party shall by reason of this Agreement be deemed to have entered a
partnership or to have acquired directly or indirectly any stock, share
capital, equity or other interest in the other Party. It is further
understood and agreed that the Agreement Activities are limited strictly
and exclusively to the Territory and shall not extend beyond the Territory.
Unless earlier terminated pursuant to this Agreement, this arrangement
shall continue so long as sales of Product in the Territory remain
economically feasible. Notwithstanding the above, should existing supply
contracts with customers for delivery of Product in the Territory prohibit
or restrict the ability of either of the Parties to perform the obligations
contained herein, each Party agrees to meet the terms of such contracts and
perform such contractual obligations until said contracts are terminated or
expire. The proceeds generated from the sale of Product under these
contracts resulting from deliveries made to customers in the Territory on
or after the Effective Date of this Agreement shall be calculated and
accounted for using the same basis as set forth in Schedule C and shall be
included in determining Agreement Proceeds pursuant to Schedule C of this
Agreement and the deliveries of Product in the Territory shall be treated
as if made pursuant to the terms of this Agreement.
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3. TERRITORY
---------
This Agreement and its terms shall only apply to activities within the
Territory. Neither Party shall have any rights, responsibilities or obligations
to the other Party under this Agreement for activities relating to the
manufacture, distribution, marketing and sale of AK compounds to:
(i) customers outside the Territory;
(ii) customers inside the Territory prior to the Effective Date of
this Agreement.
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4. OPERATIONS
-----------
Each party shall independently provide its Party Services and be solely
responsible for the manner in which they are carried out.
5. THE STRATEGIC COUNCIL
---------------------
The Party Services will be overseen by a Strategic Council composed of six
members. Three members shall be appointed at the sole discretion of each Party.
The actions of the Council shall be governed as provided in Schedule A of this
Agreement. *
6. PARTY SERVICES
--------------
Party Services provided by each Party hereunder shall be directed by a
Manager who will be subject to oversight by the Strategic Council. The initial
Manager shall be Errol Martin. Subsequent Managers shall be selected by Octel.
Octel will consult with the Strategic Council about the selection of subsequent
Managers but shall retain the ultimate right to make such selection. The Manager
and the organization reporting to this position as initially set forth in
Schedule B shall be responsible for directing the performance of Party Services.
The staff working under the direction of the Manager shall be initially
organized according to the function chart set forth in Schedule B. The employees
dedicated to providing services under this paragraph of the Agreement shall
remain employees of the respective Parties. The Parties shall be reimbursed in
accordance with the Service Agreement for the cost associated with the
compensation of such employees, including salaries, benefits, costs, expenses
and, if appropriate, recruitment and severance payments for new employees
specifically hired after the Effective Date to fill the vacant positions set
forth in Schedule B. In addition to providing services through the employees set
forth in Schedule B, the Parties shall provide upon request from the Manager and
approval by the Strategic Council, consulting and other services in support of
this Agreement. Octel shall also
* This information omitted pursuant to a Confidential Treatment Request
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provide office facilities in the UK.
7. PRODUCT
-------
Except as otherwise provided herein or approved by the Council, all Product
marketed pursuant to this Agreement shall be provided by Octel, which Product
shall be of merchantable quality and meet the Product specifications set forth
in the Supply Contract. Other than inventory referred to in Paragraph 8, Octel
shall supply all of the Product requirements for sale to customers for use in
the Territory during the term of or any extension of the Agreement. The Product
cost shall be the applicable Wholesale Price as of the date of timely invoice to
customers.
8. ETHYL PRODUCT INVENTORY
-----------------------
Ethyl will make available for purposes of conducting marketing activities
under this Agreement * of Product inventory. Ethyl
warrants that such Product inventory is of merchantable quality and meets the
Product specifications set forth in the Supply Contract. The quantities, grades
and locations of such Product inventories are described in Schedule F to this
Agreement. The Parties agree that the * will be used to
supply customers under this Marketing Agreement within *
after the Effective Date. It is agreed that title to the Ethyl inventory and
the risk of loss will remain with Ethyl until delivery to customers in the
Territory. The cost to Octel shall be the applicable Wholesale Price as of the
invoice date.
9. DISTRIBUTION SERVICES
---------------------
Ethyl and Octel shall jointly review the costs of distribution by bulk and
non bulk with the
* This information omitted pursuant to a Confidential Treatment Request
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objective of minimizing overall distribution costs within the Territory, and
shall cooperate with each other to reduce the costs of bulk and non-bulk
distribution (including maintenance, decontamination and disposal of
distribution equipment).
a. BULK DISTRIBUTION. Octel and Ethyl agree that the Bulk Distribution
-----------------
Services required to deliver Product to customers in the Territory
shall be provided under the Agreement for Bulk Transportation for as
long as such bulk distribution services are utilized. Except as
otherwise provided in the aforementioned agreement, all equipment used
to provide these services shall remain the property of Ethyl and Ethyl
shall be responsible for properly maintaining such equipment as well
as decontaminating and disposing of such equipment as required by law
when no longer suitable for use.
b. NON BULK DISTRIBUTION SERVICES. Octel and Ethyl agree that the Non
------------------------------
Bulk Distribution Services required to deliver Product to customers in
the Territory shall be provided on terms set forth in the Service
Agreement. All equipment and facilities used to provide these
services shall remain the property of the Party owning the equipment.
Each Party shall be responsible for decontaminating and disposing of
such equipment as required by law when no longer suitable for use,
except where such equipment is purchased or leased after the Effective
Date for exclusive use in the Territory, in which case any required
decontamination and disposal thereof shall be provided by Octel under
Schedule A, Section I, Part 2 to the Service Agreement provided such
services are cost competitive with other decontamination services
available at that time and meet the environmental and responsible care
standards of both Parties. All equipment shall be in good operating
condition, fit for the purposes intended and duly certified.
Maintenance services for non bulk distribution equipment and
acquisition or lease of new equipment for such use shall be pursuant
to Schedules A and B to the Service
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Agreement. Ethyl shall maintain the terminals at Houston, Dordrecht
and Singapore for as long as the Ethyl Product Inventory is stored in
such terminals and during such period shall provide terminaling
services at these locations to Octel in support of Product sales upon
the terms and compensation set forth in the Service Agreement the
amount of such compensation to be pre-notified upon request by Octel.
Thereafter, Ethyl shall provide Octel with the option of purchasing of
terminaling services at such locations upon the terms and compensation
set forth in the Service Agreement, the amount of such compensation to
be pre-notified upon request by Octel, and if Octel declines such
services at any location, then Ethyl shall have the option of closing
the said terminal. Notwithstanding the above, once the Ethyl Inventory
is removed from an Ethyl storage location, upon ninety (90) days prior
written notice to Octel Ethyl may discontinue providing terminaling
services to Octel at that location.
10. MARKETING AND SALES SERVICES
----------------------------
All marketing and sales to customers in the Territory pursuant to this
Agreement shall be by and in the name of Octel. Except as otherwise provided in
this Agreement, all orders shall be placed with Octel and Octel shall collect
all proceeds from such sales.
11. ADMINISTRATIVE, LOGISTICS AND ORDER PROCESSING SERVICES
-------------------------------------------------------
Octel and Ethyl agree that the Administrative, Logistics and Order
Processing Services required to market and sell Product pursuant to this
Agreement shall be provided by Octel on terms set forth in the Service
Agreement.
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12. TECHNICAL SUPPORT, PROFESSIONAL SERVICES AND RESIDUE PROCESSING AND
-------------------------------------------------------------------
DISPOSAL SERVICES
-----------------
Technical support, professional services and residue processing and
disposal services required to support the activities under this Agreement shall
be provided by Octel and Ethyl utilizing where appropriate Octel and Ethyl
personnel on terms set forth in the Service Agreement. The Parties will
investigate alternative arrangements to optimize the cost-effectiveness of
residue processing requirements consistent with environmental acceptability.
Octel shall be responsible for providing legal and accounting services.
13. AGREEMENT PROCEEDS CALCULATION
------------------------------
*
14. PAYMENTS
--------
The Parties agree that cash distributions relating to Party Services shall
be made within 15 days following the end of the month to which they relate and
shall be calculated as provided in Schedule G.
Ethyl agrees to submit itself to UK tax jurisdiction and pay applicable UK
tax attributable to funds received pursuant to this Agreement as reportable
earnings of its UK subsidiary. Ethyl will furnish Octel with written
confirmation when such return is filed and payments are made. Ethyl shall also
provide Octel with not less than ninety (90) days advance notice of any actions
or circumstances which may have the effect of removing Ethyl from UK tax
jurisdiction or which may result in an obligation on behalf of Octel to withhold
taxes on behalf of Ethyl.
Octel and Ethyl believe that under current UK law Octel is not required to
withhold taxes
* This information omitted pursuant to a Confidential Treatment Request.
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from any amounts payable to Ethyl under this Agreement and accordingly, that all
such payments should be made gross of tax. However, if in the future Octel
should reasonably determine that tax withholding on amounts to be paid to Ethyl
is required, then Octel may, after advising Ethyl of the basis for its
determination, effect withholding as appropriate. If, based on Octel's
conclusion that withholding is not legally required, Octel makes payments to
Ethyl without withholding taxes and it is later determined that withholding was
required, Ethyl shall indemnify Octel for any liability Octel suffers from
having failed to withhold such taxes.
Ethyl shall have the right, in good faith, by appropriate proceedings to
contest in Octel's name any withholding taxes which Octel has reasonably
determined are required by law to be made. Octel agrees to cooperate fully with
Ethyl in any way Ethyl may reasonably request in connection with such contest.
Any contest conducted by Ethyl shall be conducted at Ethyl's expense and in
the event of any penalties, interest or late charge with respect to taxes as a
result of such taxes become payable, Ethyl shall reimburse Octel for the same.
15. AUDIT AND INVESTIGATION RIGHTS
------------------------------
Each Party providing services and/or providing Product pursuant to this
Agreement shall prepare and maintain the necessary books and accounting records
as required by good and prudent business practice and generally accepted
accounting principles. Such records shall accurately reflect the cost of the
services and Product provided by the Party. Octel shall cause an annual audit of
the financial reports under this Agreement to be conducted and the cost of such
audit shall be covered under the Service Agreement.
In addition, each Party shall have the right to have an independent auditor
conduct a special
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examination of, or perform an agreed upon procedures review ("Audit") in
connection with, such records to determine if such records accurately reflect
the financial results of the activities conducted pursuant to this Agreement
(including the Agreement Proceeds Calculation) and that services and Product
provided by the Parties were accurately recorded and the charges for such
services and Product were correct. Such Audit shall be conducted under the terms
of a Confidentiality Agreement and shall be used for the sole purpose of
determining whether an overcharge or undercharge has occurred. Such Audit will
be conducted during normal business hours and shall be at the expense of the
Party requesting the Audit. Only the final report of the auditor's conclusions
will be provided to both Parties. If such Audit reveals a discrepancy in favor
of the Party requesting said Audit, and upon agreement of the other Party, said
discrepancy shall be promptly reimbursed. If the Parties cannot reach agreement
regarding the auditor's report, either Party may exercise its rights under
Paragraph 19 of this Agreement which shall constitute the sole remedy of the
Parties to resolve the matter. Upon resolution of the matter, the successful
Party shall be entitled to interest on the amount owed from the date such sum
was due to the date such sum was paid. Interest shall be calculated at the rate
of LIBOR plus three percent per annum. If the Audit determines that an
overcharge of less than US$100,000 has occurred, the Parties shall divide the
cost of the Audit equally between them. If, pursuant to such an Audit, it is
determined that an overcharge in excess of US$100,000 has occurred to the
detriment of the Party requesting the Audit, then the cost of the Audit shall be
paid by the other Party.
The Parties shall cause an investigation and procedures review of the
Agreement Proceeds and cash distributions for the first three (3) months after
the Effective Date. This shall be conducted by PriceWaterhouseCoopers, with the
cost divided equally between the Parties. If such investigation reveals that the
Agreement Proceeds and payments have not been appropriately calculated and made
in accordance with the terms of the Agreement, then such defects shall be
immediately remedied without penalty to either Party.
16. TERM OF THE AGREEMENT
---------------------
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This Agreement shall become effective as of the Effective Date and shall
continue for an initial term of twelve Contract Years and successive Contract
Years thereafter for so long as Octel, Octel Corp. or its Affiliates continues
to make Product available for sale whether directly or indirectly provided
neither Party invokes its rights under Paragraph 18 of this Agreement.
17. INSURANCE AND LIABILITIES
-------------------------
a. Each Party shall obtain and maintain during the term of this Agreement
with insurers reasonably acceptable to the other insurance coverage of
the types and minimum limits as set forth in Schedule H with regard to
supplying Product and performing Party Services pursuant to this
Agreement.
b. Each party shall be solely responsible for all costs and liabilities
associated with the termination of existing agency or distributor
relationships in the Territory that are not to be utilized for the
marketing of Product under this Agreement.
c. As to claims between the Parties:
(i) In the event Product supplied by either Octel or Ethyl for sale
to customers within the Territory fails to be of merchantable
quality and meet the Product specifications set forth in the
Supply Contract, the supplier shall be responsible at its sole
expense for the costs of returning, reprocessing (including
disposal, if necessary) and/or replacement of such material with
Product which is merchantable and meets the Product
specifications of the Supply Contract at its sole expense.
(ii) Each Party shall perform Party Services in a safe, professional,
cost-
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effective manner in accordance with industry standards and the
requirements of the Strategic Council. In the event a Party
performs services and such services are improperly or
negligently performed, the supplier of the services as its sole
liability in respect of such failure shall not be entitled to
the relevant service fee as set forth in Section I of Schedules
A and B of the Service Agreement in respect of such
unsatisfactory services.
(iii) Without prejudice to subparagraphs (c)(i) and (c)(ii) above,
there shall be no claims made by either Party against the other
in providing Product and/or rendering Party Services pursuant to
this Agreement for any direct, indirect or consequential loss
(including lost profits) as a result of noncompliance
irrespective of the cause or reason unless such loss or damage
arises as a direct result of a deliberate act or omission of a
Party with the intent of causing economic loss to the other
Party, a material breach of or a willful refusal of a Party to
comply with the terms of this Agreement.
d. *
18. TERMINATION
-----------
This Agreement is terminable under the following circumstances:
a. The Agreement is terminable at any time by mutual agreement in writing
of the parties.
b. Provided such information is not confidential, each Party shall give
not less than thirty (30) days notice of a possible Change of Control.
In any event, each Party shall notify the other immediately following
a Change of Control. Upon a Change
* This information omitted pursuant to a Confidential Treatment Request.
17
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of Control, the other Party may terminate this Agreement by giving
written notice and by tendering the Termination Fee in cash within
thirty (30) days of the determination of Termination Fee.
c. Either Party may terminate this Agreement upon the expiration of the
twelfth (12th) Contract Year by providing written notice (180) days
prior to expiration of the twelfth (12th) Contract Year, or successive
Contract Years, and making a payment to the non-terminating party in
an amount equal to the Termination Fee within thirty (30) days of
determination of the Termination Fee. Giving notice and then failing
to make the Termination Fee payment to the other Party under 18(c)
herein shall preclude the Party giving notice from serving another
notice of Termination within two (2) years from the date of the
original notice.
d. Upon termination of this Agreement pursuant to (b) and (c) above, the
Party receiving the Termination Fee shall not within a period of three
(3) years engage in the sale of Product in the Territory.
e. In the event of termination of this Agreement under (b) or (c) above
by reason of the purchase by Octel of Ethyl's interest in this
Agreement, Octel shall only have an obligation under the Supply
Contract to supply such quantities of Product as Ethyl shall require
for the servicing of the European Economic Area.
f. If neither Party terminates this Agreement pursuant to this provision
as provided in the provisions of (b) and (c) above, the Agreement
shall continue in full force and effect for successive Contract Years
thereafter as provided in Paragraph 16.
g. The Termination Fee shall be determined as follows: *
* This information omitted pursuant to a Confidential Treatment Request.
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19. DISPUTES
--------
Except as otherwise provided herein, any dispute between the Parties with
respect to this Agreement or matters upon which the Strategic Council cannot
agree and an impasse is reached shall be resolved in accordance with the dispute
resolution procedure set forth in Schedule E.
20. CONTINGENCIES
-------------
Neither Octel nor Ethyl shall be liable for failure to perform its
obligations as required under this Agreement where such failure to perform is
caused by an event or circumstance beyond the reasonable control of the Party
affected thereby ("Force Majeure Event"). Without limiting the generality of the
forgoing, a Force Majeure Event may include fire, storm, flood, act of God, war,
explosion, sabotage, strike or other labor trouble, shortage of fuel and or raw
material, embargo, car/wagon shortages, accident, expropriation of plant or
equipment, shortage of Product and or raw materials caused in whole or in part
by any governmental authority, inability to secure machinery and or other
equipment or energy or raw materials for the manufacture, transport or
distribution of Products, inability to obtain vessel or cargo insurance at
reasonable cost due to war, revolution or civil interest, or acts or threats of
action by any government or any agency thereof or any other event or
circumstance beyond the reasonable control of either Party. No event or
circumstance shall serve to excuse an obligation to perform hereunder if such
event could have been prevented through exercise of reasonable diligence. A
Party claiming the benefit of this provision shall provide written notice of the
Force Majeure Event to the other and take all reasonable steps to cure the
problem causing the inability to perform such required service.
21. WAIVER
------
Failure of either party to insist in any instance on the strict performance
of any term, provision or condition of this Agreement or to exercise any option
herein contained shall not be
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construed as a waiver of such term, provision, condition or option in any other
instance.
22. ASSIGNMENT
----------
The rights and obligations of the Parties hereunder shall not be assigned
or transferred without the prior written consent of the other, such consent not
to be unreasonably withheld. The foregoing notwithstanding, either Party may,
without the consent of the other, assign all or part of its rights under this
Agreement to an Affiliate of the assignor or to another party in connection with
its merger or transfer to such other party of substantially all of its assets or
of the business or assets to which this Agreement pertains. Nothing herein shall
restrict any corporate reorganization by a Party that does not constitute a
Change of Control.
23. NOTICES
-------
Notice to either Party under any provision of this Agreement shall be
deemed good and sufficient if (i) delivered in writing in person, (ii) sent by
facsimile to the other Party with confirmation of receipt of transmission and
promptly confirmed by air mail or (iii) delivered by commercial courier to the
address of such party noted below or such other address as such Party has
directed in a signed writing. Notice shall be effective on the date delivered in
person, sent by facsimile or delivered by commercial courier, whichever is
applicable.
Address for notices:
If to Octel:
The Associated Octel Company Limited
P.O. Box 17
Oil Sites Road
Ellesmere Port
South Wirral, L65 4HF United Kingdom
Attn: Dennis Kerrison, Managing Director
Copy to: Graham Leathes, Corporate Secretary and General
Counsel
Facsimile: 0151-350-6976
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If to Ethyl:
Ethyl Corporation
330 South Fourth Street
Richmond, Virginia 23219
Attn: Newton A. Perry
Senior Vice President
Refinery Chemicals
Copy to: Vice President & General Counsel
Facsimile: (804) 788-5519
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24. MISCELLANEOUS
-------------
a. This Agreement constitutes the entire agreement of the Parties. No
change or modification shall be effected except by a writing agreeing
to the modification or change executed by a duly authorized officer of
each Party.
b. Upon the Effective Date of this Agreement, the Supply Contract shall
be amended and modified in accordance with the terms of this Agreement
to the extent of the obligations of each Party relating to Product
sold and or delivered to customers in the Territory as provided for in
this Agreement, except for any payments for services or products
delivered under such agreements prior to the date of this Agreement
for which payments have not been made. The Bulk Distribution
Agreement and the Sludge Services Agreement shall remain in full force
and effect without modification. If terms of this Agreement and/or
the Service Agreement are found by a court of competent jurisdiction
to be unlawful, unenforceable and/or legally nonbinding on either
Party, the Parties agree that such terms shall not affect the validity
of the remainder of these agreements and the Parties agree to
substitute terms in these agreements as near to the intent of the
invalid or unenforceable provision as is legally permissible. The
Parties shall negotiate in good faith to make such changes in the
agreements as shall most nearly preserve the overall commercial
intention of the Parties in entering into these agreements. If either
of the aforesaid agreements are found to be totally invalid or
unenforceable, or this Agreement or the Service Agreement is
materially breached by either Party and such breach is not resolved as
provided by the terms of this Agreement, then the provisions of the
above described agreement which by this paragraph have been amended
shall be reinstated and said agreement shall continue in full force
and effect until expiration or termination in accordance with the
specific terms of the agreement. *
The rights described above are in addition to any rights the Parties
may
* This information omitted pursuant to a Confidential Treatment Request.
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have relative to each other or any third party.
c. Recognizing that Octel and Ethyl shall continue to compete vigorously
in the marketing and sale of Product in North America and the European
Economic Area under no circumstances shall the Parties discuss with
one another (or provide one another with any information) concerning
prices to customers, terms of supply, and other competitive
information of the lead antiknock compound market in such areas.
d. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Virginia, U.S.A.
without regard to the conflict of laws and principles thereof.
e. The terms of this Agreement shall be regarded by the Parties as
confidential and shall not be disclosed by either Party publicly or to
third parties without the written consent of the other Party, provided
however that disclosure may be made if required by law or compliance
with regulatory requirements.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the date first above written by their duly authorized
representatives.
THE ASSOCIATED OCTEL COMPANY LIMITED
By: ______________________________________
Title: ____________________________________
ETHYL CORPORATION
By: ______________________________________
Title: ____________________________________
23
<PAGE>
SCHEDULE A
----------
STRATEGIC COUNCIL RULES AND PROCEDURES
--------------------------------------
COUNCIL MEMBERSHIP - The Council shall be composed of six (6) members. Each
- ------------------
Party shall in its sole discretion appoint three (3) members to serve as its
representatives on the Council. Each party shall have the right to appoint a
new representative to replace a position on the Council previously appointed by
that Party which becomes vacant for any reason. Each Party may in its sole
discretion remove and/or appoint a substitute representative to a Council
position appointed by that Party. The appointment shall be effective upon
delivery of written notice to the other Party and members of the Council of such
appointment.
<PAGE>
SCHEDULE B
----------
FUNCTION CHART
--------------
PERSONNEL FUNCTION
- --------- --------
Octel Assigned
- --------------
W E Martin Lead Alkyl Sales & Marketing Director
J P D Walker Regional Director - Far East
J Grafstrom Lead Alkyls Personnel Assistant
J R Bain Distribution Projects Manager
A M Bilimoria Business Accountant
J T Braconnier Planning Coordinator
A A Thompson Refinery Economist
M J Lee Secretary
Management Accountant (EP) Management Accountant
Credit Controller (EP) Credit Controller
Ethyl Assigned
- --------------
A Conn Marketing Director
P Stephanides Regional Director - Middle East/West Africa
R Martinez Regional Director - South America
Octel Allocated
- ---------------
A Pacquement Regional Director - North Africa/Eastern Europe
<PAGE>
SCHEDULE C
----------
AGREEMENT PROCEEDS CALCULATION
------------------------------
*
* This information omitted pursuant to a Confidential Treatment Request.
<PAGE>
SCHEDULE D
----------
SERVICE AGREEMENT
This Service Agreement, made as of this 1st day of October 1998, by and
between The Associated Octel Company Limited, a corporation organized under the
laws of England, on behalf of itself and its Affiliates (collectively, "Octel"),
and Ethyl Corporation, a corporation organized under the laws of the
Commonwealth of Virginia USA, on behalf of itself and its Affiliates
(collectively, "Ethyl"), is entered into in connection with the Antiknock
Marketing and Sales Agreement dated as of October 1, 1998, between the
aforementioned parties. The Services Agreement dated the 29/th/ day of
September between the aforementioned parties is superceded by this Service
Agreement.
WHEREAS, governmental authorities in countries around the world have
promulgated laws and regulations which have effectively banned or severely
limited the amount of lead antiknock compounds ("AK") which can be used in motor
oils;
WHEREAS, said governmental authorities have continued to take actions and
plan to take additional measures in the future to further reduce the amount of
AK currently used in motor fuels;
WHEREAS, because these actions have accelerated the reduction of demand for
AK, the product life has been significantly reduced as a useful additive in
motor fuel;
WHEREAS, as a result of these actions and other factors, it has and will
continue to become increasingly more expensive and inefficient to safely market,
sell and distribute the ever-decreasing amount of AK throughout the world as
this product reaches the end of its life cycle;
WHEREAS, because of these factors, Octel and Ethyl have entered into a
Marketing Agreement in order to capture significant cost savings and
efficiencies in marketing and selling AK in certain areas of the world as the
demand for AK continues to decline;
WHEREAS, in order to reduce duplicative and redundant service capability
and to capture resultant cost synergies and benefits, it is necessary for Octel
and Ethyl to provide certain services in support of activities described in the
Marketing Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows.
<PAGE>
1. DEFINITIONS
-----------
Administrative, Logistics and Order Processing Services shall mean the
services set forth in Section I of Schedule A.
<PAGE>
Affiliates shall mean any entity controlling, controlled by or under common
control with that Party and any entity which succeeds to that portion of
the business or ownership of the assets of that Party to which this
Agreement pertains.
Agreement shall mean this Service Agreement.
Contract Year shall mean the period beginning on the Effective Date and
ending December 31, 1998, and each calendar year thereafter during the term
of this Agreement.
Embargoed Countries shall mean any country or countries that is subject to
sanctions imposed by the United States government pursuant to the Trading
With the Enemy Act (50 App. U.S.C.A. (S)1) or The International Emergency
Economic Powers Act (50 U.S.C.A. (S)1701).
Ethyl shall mean Ethyl Corporation and its Affiliates.
Ethyl Services shall mean the services provided by Ethyl set forth in
Schedule B.
European Economic Area shall mean those countries that are members of the
European Economic Area.
Marketing Agreement shall mean Antiknock Marketing and Sales Agreement on
even date between Octel and Ethyl.
Non-Bulk Distribution Services shall mean the services set forth in Section
I of Schedule A and Schedule B.
North America shall mean the countries of Canada and the United States of
America.
Octel shall mean The Associated Octel Company Limited and its Affiliates.
Octel Services shall mean the services provided by Octel as set forth in
Schedule A.
Parties shall mean Ethyl and Octel.
Product shall mean AK compound(s) made available for sale, marketed and/or
sold, directly or indirectly, to customers for use in the Territory by
Octel, Octel Corp. or its Affiliates which shall include all of the AK
compounds currently made available for sale by Octel and any new or
modified products made available for sale, marketed and/or sold, directly
or indirectly, by Octel, Octel Corp. or its Affiliates during the term of
this Agreement or any extensions thereof.
Residue Processing and Disposal Services shall mean the services provided
by Octel as set
<PAGE>
forth in Section I of Schedule A and the services provided by Ethyl as set
forth in Section I of Schedule B as applicable.
Service(s) shall mean the service(s) set forth in Schedules A and B
attached hereto.
Technical Support and Professional Services shall mean the services
provided by Octel and/or Ethyl as set forth in Section I of Schedule A and
Schedule B.
Territory shall mean all of the countries and regions of the world, other
than, and specifically excluding North America, the European Economic Area
and Embargoed Counties.
United States shall mean the 50 states of the United States of America and
all possessions and territories of the United States including Puerto Rico
and the U.S. Virgin Islands.
2. SERVICES
--------
The Parties agree that in order to capture the cost synergies and
efficiencies that will be generated by implementing the Marketing Agreement
that the Services provided by the Parties pursuant to this Agreement be
rendered in an efficient and cost-effective manner. Each Party agrees that
it will continue to examine and implement methods of reducing cost in
providing these Services during the term of this Agreement.
a. Octel Services. The description of the Services to be rendered by
--------------
Octel pursuant to this Agreement are set forth in Schedule A attached
hereto and made a part hereof. Each of the Octel Services shall be
rendered by Octel or by an Affiliate of Octel.
b. Ethyl Services. The description of the Services to be rendered by
--------------
Ethyl pursuant to this Agreement are set forth in Schedule B attached
hereto and made a part hereof. Each of the Ethyl Services shall be
rendered by Ethyl or by an Affiliate of Ethyl.
3. SERVICE FEES
------------
Ethyl and Octel agree that out of proceeds collected by Octel pursuant to
the Marketing Agreement that Octel and Ethyl shall be compensated for Octel
Services and Ethyl Services rendered by each Party in accordance with the
Service Fees set forth in Schedules A and B attached hereto.
4. PAYMENT OF SERVICE FEES
-----------------------
Each Party shall invoice monthly for Services rendered pursuant to this
Agreement and payment shall be made to Ethyl in accordance with Paragraph
14 of the Marketing
<PAGE>
Agreement.
5. CONTINGENCIES
-------------
Paragraph 20 of the Marketing Agreement is hereby incorporated by
reference.
6. AUDIT RIGHTS
------------
Paragraph 15 of the Marketing Agreement is hereby incorporated by
reference.
<PAGE>
7. DISPUTES
--------
Any dispute between the Parties regarding the performance of the Services
provided under the terms of this Agreement shall be resolved as set forth
in Schedule E of the Marketing Agreement.
8. TERM OF AGREEMENT
-----------------
This Agreement shall become effective as of the date of the Marketing
Agreement and shall remain in effect for the duration of the Marketing
Agreement. Upon termination or expiration of the Marketing Agreement, this
Agreement shall automatically terminate on the effective date of such
termination or expiration. Any payments that are due to each Party for
services rendered prior to the termination date shall be promptly paid.
9. WAIVER
------
Failure of either party to insist in any instance on the strict performance
of any term, provision or condition of this Agreement or to exercise any
option herein contained shall not be construed as a waiver of such term,
provision, condition or option in any other instance.
10. ASSIGNMENT
----------
The rights and obligations of the Parties hereunder shall not be assigned
or transferred without the prior written consent of the other, such consent
not to be unreasonably withheld. The foregoing notwithstanding, either
Party may, without the consent of the other, assign all or part of its
rights under this Agreement to an Affiliate of the assignor or to another
party in connection with its merger or transfer to such other party of
substantially all of its assets or of the business or assets to which this
Agreement pertains. Subcontracting of health, safety or environmental
issues shall be in accordance with the policy agreed upon by the Strategic
Council.
11. NOTICES
-------
Notice to either Party under any provision of this Agreement shall be
deemed good and sufficient if (i) delivered in writing in person, (ii) sent
by facsimile to the other Party with confirmation of receipt of
transmission and promptly confirmed by air mail or (iii) delivered by
commercial courier to the address of such party noted below or such other
address as such Party has directed in a signed writing. Notice shall be
effective on the date delivered in person, sent by facsimile or delivered
by commercial courier whichever is applicable.
<PAGE>
Address for notices:
If to Octel:
The Associated Octel Company Limited
P.O. Box 17
Oil Sites Road
Ellesmere Port
South Wirral, United Kingdom L65 4HF
Attn: Dennis Kerrison, Managing Director
Fax No.: 44-151-350-6976
Copy to: Corporate Secretary & General Counsel
If to Ethyl:
Ethyl Corporation
330 South Fourth Street
Richmond, Virginia 23219
Attn: Newton A. Perry
Senior Vice President
Refinery Chemicals
Fax No.: 804-788-5109
Copy to: Vice President & General Counsel
12. CONFIDENTIALITY
---------------
Except as to information required to be disclosed to (i) comply with law or
(ii) effectively perform the Services required by this Agreement, the
Parties agree that all information regarding such services shall remain
confidential and shall not be disclosed to third parties without the prior
written consent of the other Party.
13. MISCELLANEOUS
-------------
a. This Agreement constitutes the entire agreement of the Parties
concerning the Services provided pursuant to this Agreement. No
change or modification shall be effected except by a writing executed
by a duly authorized officer of each Party.
b. Recognizing that Octel and Ethyl shall continue to compete vigorously
in the marketing and sale of Product in North America and the European
Economic Area, under no circumstances shall the Parties discuss with
one another (or provide one another with any information) concerning
any aspect of the lead antiknock compound market in these areas
including, without limitation, market prices or customers in these
markets.
<PAGE>
c. In providing the Services, Ethyl and Octel are each operating in the
capacity of an independent contractor and not the agent, employee,
partner or representative of the other.
d. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Virginia, U.S.A.
without regard to the conflict of laws and principles thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the date set forth in the first paragraph of this Agreement.
THE ASSOCIATED OCTEL COMPANY LIMITED
By: ______________________________________
Title: __________________________________
ETHYL CORPORATION
By: ______________________________________
Title: __________________________________
<PAGE>
SCHEDULE A TO THE SERVICE AGREEMENT
-----------------------------------
OCTEL SERVICES
--------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
SCHEDULE B TO THE SERVICE AGREEMENT
ETHYL SERVICES
--------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
SCHEDULE E
----------
DISPUTE RESOLUTION PROCEDURE
----------------------------
1. RESOLUTION OF LEGAL DISPUTES.
With the exception of disputes arising out of a deadlock in the vote of the
Strategic Council concerning a business issue within the Council's authority,
any dispute, controversy or claim arising out of or relating to this Agreement,
shall be finally determined by arbitration in accordance with the Rules of
Arbitration of the London Court of International Arbitration (LCIA), in London
England, provided that the Parties have been unable to reach a satisfactory
resolution through negotiation and mediation under the procedures set forth
below.
1.1 Negotiation.
Before proceeding to mediation or arbitration, the Parties shall
attempt in good faith to resolve any such dispute promptly by negotiation
between senior executives of the respective Parties. Within 25 days of the
delivery by one Party to the other of a written notice of a dispute,
controversy or claim, the receiving Party shall submit to the claiming
Party a written response. The notice and response shall include: (1) a
short statement of each Party's position and a summary of reasons
supporting that position, and (2) the name and position of the executive
who will represent the Party and any other person who will accompany the
executive in negotiations and include a schedule of the availability of
said executive. Within 45 days after delivery of the notice of dispute,
the senior executives of both Parties shall meet at a mutually agreeable
time and place, and thereafter for so long as they mutually agree, for
negotiations in an attempt to resolve the dispute through agreement. All
negotiations pursuant to this clause will be treated as confidential and
shall be treated as compromise and settlement discussions for purposes of
applicable rules of confidentiality, evidence and professional secrecy.
1.2 Mediation.
Either Party may request the services of a mediator to aid the senior
executives in resolving the dispute. Unless the Parties otherwise agree,
the selection of a mediator shall be made by the Centre for Dispute
Resolution (CEDR) in London, England and CEDR procedures shall govern the
mediation. The Parties and the mediator shall meet within 20 days after
the date that the mediator is appointed to begin settlement discussions
with the assistance of the mediator. The mediation process shall continue
thereafter as long as both Parties agree.
<PAGE>
1.3 Arbitration.
If the Parties have been unsuccessful in resolving a dispute under
this section through negotiation, either Party may commence binding
arbitration of such dispute in accordance with the Rules of the London
Court of International Arbitration ("LCIA") as follows:
1.3.1 Unless the Parties agree on a single arbitrator, the arbitral
tribunal shall consist of three members, each Party shall select one
arbitrator and the LCIA shall select the third arbitrator who shall be
knowledgeable concerning the subject matter of the dispute. Each
Party may submit to the LCIA for its consideration in making the
selection of the third arbitrator the qualifications, knowledge and
experience that the Party requests to be considered in said
appointment.
1.3.2 The place of the arbitration shall be London England.
1.3.3 The language of the arbitration shall be English.
1.3.4 The arbitral tribunal shall have the authority to award all
forms of relief determined to be just and equitable; provided,
however, that the tribunal shall have no authority to award punitive
or exemplary damages, or any other damages not measured by the
prevailing Party's actual damages.
1.3.5 Any arbitral award entered by the tribunal shall be final and
binding on the Parties and may be enforced in any court of competent
jurisdiction.
2. RESOLUTION OF STRATEGIC COUNCIL DEADLOCK.
Where there is a deadlock in the vote of the Strategic Council by reason of
a tie vote among its members concerning a business issue within its authority,
any member of the Council who has voted on the issue may initiate the following
dispute resolution procedures:
2.1 Unless otherwise agreed by a majority of the Council, the deadlocked
issue shall be first be raised and discussed at a special meeting of the
Council called within thirty (30) days in an attempt to resolve the
deadlock through negotiation satisfactory to a majority of all of the
members of the Council.
2.2 If the Council vote on the issue remains deadlocked after discussion
and negotiation at the second meeting of the Strategic Council, either
Party may request the services of a mediator to aid the Parties in
resolving the deadlocked issue. Should there be no agreement on the
identification of a suitable mediator, the appointing authority for
selection of a mediator shall be made by the Centre for Dispute Resolution
(CEDR) after consultation
<PAGE>
with each Party as to the qualifications, knowledge and experience that a
mediator should have. Within forty-five (45) days from the second Council
meeting, the members of the Strategic Council shall meet with the
assistance of the mediator and, under CEDR procedures, seek to resolve the
dispute in a way which is satisfactory to a majority of all the members of
the Council. These mediation meetings shall be confidential and shall last
for so long as a majority of the Council determines that such meetings are
be helpful in resolving the business dispute.
2.3 If such issue remains deadlocked after undergoing the mediation
process described in 2.2 above, the issue shall be finally resolved by
binding arbitration as follows:
2.3.1 Resolution of such issue shall be referred to arbitration in
London England under the Rules of Arbitration of the LCIA.
2.3.2 Unless the Parties agree on a single arbitrator, the arbitral
tribunal shall consist of three members, each Party to select one
arbitrator and the two arbitrators to select the third arbitrator who
will serve as Chairman. In the event that the two arbitrators are
unable to agree on the appointment of the third arbitrator, the
appointment shall be made in accordance with the LCIA Rules. The
Chairman need not be a lawyer but should be knowledgeable concerning
the business issue which has resulted in a deadlock. Each Party may
submit to the LCIA for its consideration in making the selection of
the third arbitrator the qualifications, knowledge and experience that
the Party requests to be considered in said appointment.
2.3.3 As part of its final submission to the arbitral tribunal, each
Party shall make a specific proposal to resolve the business issue
that is the subject of the arbitration. The power of the arbitral
tribunal to render an award shall be limited to adopting one of the
specific proposals submitted by the Parties.
2.3.4 The position adopted by the arbitral tribunal shall be accepted
as the action of the Strategic Council under the Agreement.
2.3.5 In arriving at its award the arbitral tribunal shall take into
account the following factors:
2.3.5.1 [*]
2.3.5.2 The ultimate goal of the Parties is to operate under
this Agreement in a way which maximizes long-term profitability
for both Parties in marketing Product to customers in the
Territory.
2.3.5.3 The goal of the Parties is to reduce the overall
costs of providing services under this Agreement in safely and
efficiently marketing and
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
distributing Product in the Territory.
3. TIME IS OF THE ESSENCE
Each Party agrees that time is of the essence in resolving legal disputes
and Strategic Council deadlocks. Each Party shall fully cooperate to avoid
unnecessary delay in reaching resolution of these matters. Neither Party shall
be required to post security by way of a bank guarantee or other collateral to
initiate a resolution of a dispute under the provisions of this Dispute
Resolution Procedure other than for the administrative costs of proceeding with
the dispute resolution process.
<PAGE>
SCHEDULE F
----------
ETHYL AVAILABLE INVENTORY
-------------------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
SCHEDULE G
----------
WORKING CAPITAL
---------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
SCHEDULE H
----------
INSURANCE
---------
1. Insurance of Employees and Facilities
-------------------------------------
a. Octel will effect, and at all times maintain during the term of this
Agreement and for so long as any Liabilities may arise thereunder,
Employers Liability Insurance to a minimum level required by
applicable law, and in any event in an amount of not less than [*]
per occurrence and where applicable Workmans Compensation Act
Insurance in respect of each employee provided by Octel who performs
any duties in connection with this Agreement.
b. Ethyl will effect, and at all times maintain during the term of this
Agreement and for so long as any Liabilities may arise thereunder,
Employers Liability Insurance to a minimum level required by
applicable law, and in any event in an amount of not less than [*]
per occurrence and where applicable Workmans Compensation Act
Insurance in respect of each employee provided by Ethyl who performs
any duties in connection with this Agreement.
c. Octel will effect and at all times maintain during the term of this
Agreement All Risks (including Flood, Quake and Engineering Risks)
Property Damage Coverage with the property valued at Full Replacement
Cost on the Product manufacturing and related facilities at Ellesmere
Port.
d. Ethyl will effect and at all times maintain during the term of this
Agreement All Risks (including Flood, Quake and Engineering Risks)
Property Damage Coverage with the property valued at Full Replacement
Cost on the Houston, Texas, Dordrecht, Netherlands and Singapore AK
Terminal Facilities.
2. Public and Product Liability
----------------------------
Octel and Ethyl will each effect and at all times maintain during the
term of this Agreement, Public and Product Liability insurance in an
aggregate amount of [*] (with a deductible amount as agreed between
the Parties from time to time) with respect to any Liabilities for
which the Parties are responsible as provided in Paragraph 17(d)(i),
(ii), (iii), (iv) and (v) of this Agreement. Each Party shall name the
other Party as an additional insured under such insurance.
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
3. Cargo Insurance
---------------
Octel shall effect in the joint names of Octel and Ethyl, and at all times
maintain during the term of this Agreement on mutually agreed terms and
conditions, Bulk and Non-Bulk Cargo Insurance to cover shipments of Product
to customers in the Territory pursuant to this Agreement. Non-Bulk
insurance shall be placed on a CIF plus 10% plus value of containers basis.
Bulk insurance shall be placed on a FOB value plus10%, plus value of
containers where applicable. Any deductible under such policies shall be
borne by the Parties in the proportions set forth in Section II, Part 1 of
Schedules A and B to the Service Agreement (irrespective of the cause or
reason that the Losses may have arisen and the fault of either Party in
relation thereto).
4. Contingent Non-Bulk Marine Cargo Liability
------------------------------------------
Octel shall effect in the joint names of Octel and Ethyl, and at all times
maintain during the term of this Agreement on mutually agreed terms and
conditions, Contingent Non-Bulk Marine Cargo Insurance to cover Non-Bulk
shipments of AK to customers in the Territory pursuant to this Agreement to
an amount on conditions to be determined by Octel. Any deductible under
such policy shall be borne by the Parties in the proportions set forth in
Section II, Part 1 of Schedules A and B to the Service Agreement
(irrespective of the cause or reason that the Losses may have arisen and
the fault of either Party in relation thereto).
5. Insurance Costs
---------------
The portion of the cost of all insurance relating to Agreement Activities
pursuant to Paragraphs 3 and 4 of this Schedule shall be included as an
expense under Section 1, Part 2 of Schedule A of the Services Agreement
[*].
6. Additional Insurance
--------------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<PAGE>
SCHEDULE I
----------
METHODS AND PRINCIPLES FOR CALCULATION
--------------------------------------
OF THE TERMINATION FEE
----------------------
[*]
* This information omitted pursuant to a Confidential
Treatment Request.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE COMBINED
BALANCE SHEETS, STATEMENTS OF INCOME, AND STATEMENTS OF CASH FLOWS AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 49,600
<SECURITIES> 0
<RECEIVABLES> 111,700
<ALLOWANCES> 900
<INVENTORY> 71,700
<CURRENT-ASSETS> 239,300
<PP&E> 134,500
<DEPRECIATION> 22,900
<TOTAL-ASSETS> 780,300
<CURRENT-LIABILITIES> 156,100
<BONDS> 258,400
0
0
<COMMON> 100
<OTHER-SE> 293,500
<TOTAL-LIABILITY-AND-EQUITY> 780,300
<SALES> 352,200
<TOTAL-REVENUES> 354,800
<CGS> 186,200
<TOTAL-COSTS> 247,200
<OTHER-EXPENSES> 4,600
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,700
<INCOME-PRETAX> 85,200
<INCOME-TAX> 32,400
<INCOME-CONTINUING> 52,800
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 52,800
<EPS-PRIMARY> 3.59
<EPS-DILUTED> 3.59
</TABLE>
