CORPORATE SERVICES AGREEMENT
THIS IS AN AGREEMENT dated as of November 26, 1996 between Thermo Electron
Corporation, a Delaware corporation ("Thermo"), and Metrika Systems Corporation,
a Delaware corporation ("Subsidiary").
Subsidiary desires to obtain administrative and other services from Thermo
and Thermo is willing to furnish or make such services available to Subsidiary.
By this Agreement, Thermo and Subsidiary desire to set forth the basis for
Thermo's providing services of the type referred to herein.
IT IS MUTUALLY agreed by the parties hereto as follows:
1.1 Beginning on the date of this Agreement, Thermo, through its corporate
staff, will provide or otherwise make available to Subsidiary certain general
corporate services, including but not limited to accounting, tax, corporate
communications, legal, financial and other administrative staff functions, and
arrange for administration of insurance and employee benefit programs. The
services will include the following:
(a) ACCOUNTING AND SECURITIES COMPLIANCE RELATED SERVICES. Maintenance of
corporate records, assistance, if and when necessary, in preparation of
Securities and Exchange Commission filings, including without limitation
registration statements, Forms 10-K, 10-Q and 8-K, assistance in the preparation
of Proxies and Proxy Statements and the solicitation of Proxies, and assistance
in the preparation of the Annual and Quarterly Reports to Stockholders,
maintenance of internal audit support services and review of compliance with
financial and accounting procedures.
(b) TAX RELATED SERVICES. Preparation of Federal tax returns, preparation
of state and local tax returns (including income tax returns), tax research and
planning and assistance on tax audits (Federal, state and local).
(c) INSURANCE AND EMPLOYEE BENEFIT RELATED SERVICES. Arranging for
liability, property and casualty, and other normal business insurance coverage.
Support for product, worker safety and environmental programs (Subsidiary
acknowledges that principal responsibility for compliance rests with the
Subsidiary). Administration of Subsidiary's employee participation in employee
benefit plans sponsored by Thermo and insurance programs such as the following:
401(k) plan, group medical insurance, group life insurance, employee stock
purchase plan and various stock options plans. Filing of all required reports
under ERISA for employee benefit plans sponsored by Thermo.
(d) CORPORATE RECORD KEEPING SERVICES. Maintenance of corporate records,
including without limitation, maintenance of minutes of meetings of the Boards
of Directors and Stockholders, supervision of transfer agent and registration
functions, coordination of stock repurchase programs, and tracking of stock
issuances and reserved shares.
(e) Services in addition to those enumerated in subsections 1.1(a) through
1.1(d) above including, but not limited to, routine legal and other
administrative activities, Corporate information and treasury and other
financial services as reasonably requested by Subsidiary.
1.2 For performing general services of the types described above in
Paragraph 1.1, Thermo will initially charge Subsidiary an annual fixed fee equal
to 1.0% of the gross revenues of Subsidiary for the fiscal year in which such
services are performed (such amount to be prorated on a daily basis for any
partial year), which fee is intended to compensate Thermo for Subsidiary's pro
rata share of the aggregate costs actually incurred by Thermo in connection with
the provision of such services to all recipients thereof. The fee set forth in
the preceding sentence may be adjusted from time to time by mutual agreement of
Thermo and Subsidiary.
1.3 In addition to the foregoing services, certain specific services are
made available to Subsidiary by Thermo on an as-requested basis. These may
include, but are not limited to, services specifically requested by Subsidiary
or services which, in Thermo's judgment, are not routine administrative services
or create unusual burdens or demands on Thermo's resources, such as litigation
support, acquisition and offering support services (including legal services),
corporate development, tax audit support or public or investor relations
services other than routine shareholder communications. Thermo will charge
Subsidiary the costs actually incurred (including overhead and general
administrative expenses) for such services that are requested by Subsidiary and
supplied by Thermo.
1.4 The charges for services pursuant to Subsections 1.2 and 1.3 above will
be determined and payable no less frequently than on a quarterly basis. The
charges will be due when billed and shall be paid no later than 30 days from the
date of billing.
1.5 When services of the type described above in this Section 1 are
provided by outside providers to Subsidiary or, in connection with the provision
of such services out-of-pocket costs are incurred such as travel, the cost
thereof will be paid by Subsidiary. To the extent that Subsidiary is billed by
the provider directly, Subsidiary shall pay the bill directly. If Thermo is
billed for such services, Thermo may pay the bill and charge Subsidiary the
amount of the bill or forward the bill to Subsidiary for payment by Subsidiary.
2. SUBSIDIARY'S DIRECTORS AND OFFICERS. Nothing contained herein will be
construed to relieve the directors or officers of Subsidiary from the
performance of their respective duties or to limit the exercise of their powers
in accordance with the charter or By-Laws of Subsidiary or in accordance with
any applicable statute or regulation.
3. LIABILITIES. In furnishing Subsidiary with management advice and other
services as herein provided, neither Thermo nor any of its officers, directors
or agents shall be liable to Subsidiary or its creditors or shareholders for
errors of judgment or for anything except willful malfeasance, bad faith or
gross negligence in the performance of their duties or reckless disregard of
their obligations and duties under the terms of this Agreement. The provisions
of this Agreement are for the sole benefit of Thermo and Subsidiary and will
not, except to the extent otherwise expressly stated herein, inure to the
benefit of any third party.
(a) TERM. The initial term of this Agreement shall begin on the date of
this Agreement and continue through the end of the current fiscal year. This
Agreement shall automatically renew at the end of the initial term for
successive one-year terms until terminated in accordance with Subsection (b)
(b) TERMINATION. This Agreement may be terminated by Subsidiary at any time
on thirty days prior notice to Thermo. In addition, this Agreement shall
automatically terminate without any further action by either party on the date
the Subsidiary ceases to be a member of the Thermo Group or a participant in the
Thermo Electron Corporate Charter.
(c) TERMINATION FEE. In the event of a termination of this Agreement,
Subsidiary shall pay to Thermo its pro rata fee pursuant to Section 1.2 for the
year in which the termination takes effect plus a termination fee equal to the
fee payable under Section 1.2 for the most recent nine consecutive months.
(d) POST-TERMINATION SERVICES. Following a termination of this Agreement,
corporate administrative services of the kind provided under the Agreement may
continue to be provided to Subsidiary on an as-requested basis by the Subsidiary
or as required in the event it is not practicable for the Subsidiary to provide
such services or it is otherwise unable to identify another source to provide
such services (as would be the case of administration of employee benefit plans
and insurance programs sponsored by Thermo and in which Subsidiary's employees
participate) or as otherwise required by Thermo acting in its capacity as
majority stockholder of Subsidiary. In the even such services are provided by
Thermo to Subsidiary, Subsidiary shall be charged by Thermo a fee equal to the
market rate for comparable services charged by third-party vendors. Such fee
will be charged monthly and payable by Subsidiary within thirty days. The
obligations of Subsidiary set forth in this Section 4(d) shall survive the
termination of this Agreement.
5. STATUS. Thermo shall be deemed to be an independent contractor and,
except as expressly provided or authorized in this Agreement, shall have no
authority to act for or represent Subsidiary.
6. OTHER ACTIVITIES OF THERMO. Subsidiary recognizes that Thermo now
renders and may continue to render management and other services to other
companies that may or may not have policies and conduct activities similar to
those of Subsidiary. Thermo shall be free to render such advice and other
services, and Subsidiary hereby consents thereto. Thermo shall not be
required to devote full time and attention to the performance of its duties
under this Agreement, but shall devote only so much of its time and attention as
it deems reasonable or necessary to perform the services required hereunder.
7. NOTICES. All notices, billings, requests, demands, approvals, consents,
and other communications which are required or may be given under this Agreement
shall be in writing and will be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid to the parties at their respective addresses set forth below:
IF TO SUBSIDIARY: IF TO THERMO:
Metrika Systems Corporation Thermo Electron Corporation
5788 Pacific Center Boulevard 81 Wyman Street
San Diego, California 92121 Waltham, Massachusetts 02254
Attention: President Attention: Chief Executive Officer
8. NO ASSIGNMENT. This Agreement shall not be assignable except with the
prior written consent of the other party to this Agreement.
9. APPLICABLE LAW. This Agreement shall be governed by and construed under
the laws of the Commonwealth of Massachusetts applicable to contracts made and
to be performed therein.
10. PARAGRAPH TITLES. The paragraph titles used in this Agreement are for
convenience of reference only and will not be considered in the interpretation
or construction of any of the provisions thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as a sealed instrument by their duly authorized offices as of the date first
THERMO ELECTRON CORPORATION
METRIKA SYSTEMS CORPORATION