Exhibit H
FACILITIES AND SERVICES AGREEMENT
dated as of May 28, 1999
between
The Xxxxxx-Xxxxx Corporation
and
EG&G, Inc.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Construction . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II. TERM OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 4
2.01 General . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.02 Particular Services . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III. NATURE OF SERVICES AND CHARGES; BILLING; RECORDS . . . . . . 5
3.01 Scope and Additional Services . . . . . . . . . . . . . . . 5
3.02 Provision of Services . . . . . . . . . . . . . . . . . . . 5
3.03 Compensation . . . . . . . . . . . . . . . . . . . . . . . 6
3.04 Terms of Payment . . . . . . . . . . . . . . . . . . . . . 6
3.05 Records . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV. RIGHTS IN, AND CONFIDENTIALITY OF, DATA . . . . . . . . . . . 7
4.01 General . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.02 Reservation of Rights; Access . . . . . . . . . . . . . . . 7
4.03 Duplication and Retention . . . . . . . . . . . . . . . . . 7
4.04 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VI. DISCLAIMER AND LIMITATION OF LIABILITY . . . . . . . . . . . . 9
6.01 DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . 9
6.02 Limitation of Liability . . . . . . . . . . . . . . . . . . 9
ARTICLE VII. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . 9
7.01 Negotiation . . . . . . . . . . . . . . . . . . . . . . . . 9
7.02 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . 10
7.03 Continuity of Services and Performance . . . . . . . . . . 11
ARTICLE VIII. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . 11
8.01 Representations . . . . . . . . . . . . . . . . . . . . . . 11
8.02 No Waivers . . . . . . . . . . . . . . . . . . . . . . . . 11
8.03 Consents, Approval and Requests . . . . . . . . . . . . . . 11
8.04 Severability . . . . . . . . . . . . . . . . . . . . . . . 11
8.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.06 Relationship . . . . . . . . . . . . . . . . . . . . . . . 12
8.07 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . 12
8.08 Covenant of Further Assurances . . . . . . . . . . . . . . 13
8.09 Assignability . . . . . . . . . . . . . . . . . . . . . . . 13
8.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 13
-2-
8.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . 13
8.12 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 13
8.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 13
8.15 Good Faith and Fair Dealing . . . . . . . . . . . . . . . . 13
8.17 Third Party Beneficiaries . . . . . . . . . . . . . . . . . 13
-3-
FACILITIES AND SERVICES AGREEMENT
FACILITIES AND SERVICES AGREEMENT (this "Agreement"), dated as of
May 28, 1999 (the "Agreement Date"), between The Xxxxxx-Xxxxx Corporation, a
New York corporation ("PE"), on behalf of itself and its subsidiaries listed
on Schedule A hereto (PE and such subsidiaries are collectively referred to
herein as the "PE Group"), and EG&G, Inc., a Massachusetts corporation
("EG&G"), on behalf of itself and its subsidiaries listed on Schedule B
hereto (EG&G and such subsidiaries are collectively referred to herein as the
"EG&G Group").
RECITALS
WHEREAS, PE and EG&G have entered into a Purchase Agreement dated
as of March 8, 1999 (the "Purchase Agreement"), pursuant to which EG&G is
acquiring the Analytical Instruments Business of PE; capitalized terms used
but not defined herein shall have the meaning set forth in the Purchase
Agreement;
WHEREAS, this Agreement is being executed simultaneously with the
Closing under the Purchase Agreement; and
WHEREAS, to facilitate the orderly continuation of business
following the Closing Date, PE and EG&G wish to set forth their agreement
with respect to the transitional provision (i) by the PE Group to the EG&G
Group and (ii) by the EG&G Group to the PE Group of certain facilities and
services currently shared by the Analytical Instruments Business and the
other business operations of PE, in each case as contemplated by the Purchase
Agreement;
WHEREAS, the services to be provided by the PE Group to EG&G Group
are set forth in Exhibit A attached hereto;
WHEREAS, the services to be provided by the EG&G Group to PE Group
are set forth in Exhibit A attached hereto; and
WHEREAS, to the extent that any Person in the PE Group or EG&G
Group is providing services hereunder, such Person is referred to herein as a
"Provider" and to the extent that any Person in the EG&G Group or PE Group is
receiving services hereunder, such Person is referred to herein as a
"Recipient".
NOW, THEREFORE, the parties hereto agree as follows:
-1-
ARTICLE I. DEFINITIONS AND CONSTRUCTION
1.1 Definitions. The following defined terms shall have the
meanings specified below:
"Accounting and Finance Services" includes: the maintenance of
general ledgers, subsidiary ledgers and journals; the reconciliation of
accounts; assistance to permit each Recipient to prepare tax returns,
consolidated financial statements and reports to outside parties, including
lenders and governmental agencies; and the maintenance of fixed asset ledgers
for financial statements and tax purposes. It shall also include the
processing of accounts payable from vouchers forwarded from field locations
and the provision of deposit verification and cash receipt recording
services, the processing of payroll time records from field locations, the
issuance of payroll checks, the payment of payroll taxes, the maintenance of
payroll ledgers and the monitoring of funds transfers.
"Administrative Services" means travel services and the
administration of an automobile leasing program.
"Affiliate" of a specified Person means a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Agreement Date" has the meaning set forth in the first paragraph
hereof.
"Agreement Disputes" has the meaning set forth in Section 7.01(a).
"Alternate Provider" means any alternate provider (including any
Affiliate) selected by any Recipient for the provision of services similar to
any of the Services following the expiration or termination of the Term.
"Contact Person" has the meaning set forth in Section 3.02.
"Credit Collection Services" means services performed by any
Provider to obtain payment or liquidation of a debt or claim.
"Distribution Services" means services that facilitate the
distribution of products of the Analytical Instruments Business, including
but not limited to order entry, invoicing, warehouse space, transportation
services, packaging services and the processing of documentation and other
information required for the importation and exportation of products.
-2-
"EG&G" has the meaning set forth in the Preamble.
"EG&G Group" has the meaning set forth in the Preamble.
"Facilities" means the premises set forth in Exhibit A as
"Facilities".
"Facilities Services" means the provision of physical space at the
Facilities, together with related utilities, maintenance, supplies, mail
room, conference and meeting room, telephone (including switchboard),
security, cafeteria, copying and receptionist services.
"Governmental Authorities" has the meaning set forth in Section
4.04.
"Indemnified Person" has the meaning set forth in Article V.
"Indemnifying Party" has the meaning set forth in Article V.
"International Rules" has the meaning set forth in Section 7.02.
"IT Services" means information technology services, and shall
include the managing, operating and maintaining of: all physical
technological devices (including processor, input and output devices, storage
devices, networks, communications devices and media); all logical
technological components (including operating systems, control programs,
schedules, measurement systems, report generators and interface software);
all application specific logic components; and all data assets pertaining to
products used by the Analytical Instruments Business or otherwise required to
provide Services. It also shall include consulting services and coordination
with outside providers consistent with services currently provided, and
assistance in the implementation and maintenance of the SAP program.
"Manufacturing Services" means the management of the procurement of
component parts for the Analytical Instruments Business products of EG&G
Singapore PTE Ltd. or its designee, and the management of the assembly,
testing, quality control and inspection of such products, in accordance with
instructions and specifications in effect on the date hereof or hereafter
otherwise agreed to by the relevant Provider and such Recipient.
"PE" has the meaning set forth in the Preamble.
"PE Group" has the meaning set forth in the Preamble.
"Person" has the meaning set forth in the Purchase Agreement.
-3-
"Personnel Services" shall include the administration of employee
benefit programs other than insurance, the processing of payroll changes, the
maintenance of personnel files, assistance with collective bargaining and
similar negotiations, assistance to permit each Recipient to prepare and file
governmental reports and the maintenance of records required by governmental
programs with respect to employees.
"Provider" has the meaning set forth in the first Recitals.
"Purchase Agreement" has the meaning set forth in the Recitals.
"Recipient" has the meaning set forth in the Recitals.
"Service Location" means any location from which any Provider
provides or performs any of the Services including but not limited to the
locations set forth in Exhibit A.
"Services" means, collectively, any Accounting and Finance
Services, Administrative Services, Credit Collection Services, Distribution
Services, Facilities Services, IT Services, Manufacturing Services, Personnel
Services and any other services set forth on Exhibit A to be performed by any
Provider to any Recipient pursuant to this Agreement.
"Supervisory Contact Person" has the meaning set forth in Section
7.01(b).
"Term" has the meaning set forth in Section 2.01.
1.2 Construction. With respect to this Agreement and the Exhibits
hereto:
(a) the Exhibits to this Agreement shall be incorporated in and
deemed part of this Agreement and all references to this Agreement shall
include such Exhibits;
(b) all references to "Exhibit H" contained in the Exhibits to
this Agreement shall be deemed to be references to this Agreement;
(c) references to the word "including" shall mean "including,
without limitation";
(d) article and section headings and the table of contents are
included for reference and convenience only and shall not be considered
in the interpretation of this Agreement;
(e) unless the context otherwise requires, words of any gender
will be deemed to include each other gender;
-4-
(f) unless the context otherwise requires, words using the
singular or plural number will also include the plural or singular
number, respectively;
(g) in the event of any conflict between this Agreement and the
terms of any Exhibits, the terms of this Agreement shall prevail; and
(h) all accounting terms and calculations shall be defined and
determined in accordance with generally accepted accounting principles
in the United States of America.
ARTICLE II. TERM OF AGREEMENT
2.1 General. The term of this Agreement shall commence on the
Closing Date and shall continue until 12:00 midnight (Eastern time) on the
last date that any Services are to be provided hereunder as detailed in
Exhibit A (the "Term").
2.2 Particular Services. Services shall be provided throughout
the Term by each Provider to each Recipient as specified in Exhibit A.
ARTICLE III. NATURE OF SERVICES AND CHARGES; BILLING; RECORDS
3.1 Scope and Additional Services. It is the intent of the parties
that the Services represent a continuation of the services provided to the
Analytical Instruments Business conducted by the PE Group(or its
predecessors) prior to the Closing Date, except to the extent the parties
otherwise have agreed. If, following the Agreement Date, the parties
determine that a service provided to the Analytical Instruments Business
conducted by the PE Group(or its predecessors) prior to the Closing Date was
inadvertently omitted from the Services hereunder, then, at EG&G's request,
the parties shall negotiate in good faith to attempt to agree to the terms
and conditions upon which such services can be added to this Agreement, it
being agreed that the charges for such services should be determined on a
basis consistent with the methodology for determining the initial charges for
Services hereunder (such methodology consisting of the allocation of direct
and indirect costs, without provision for profit, on a basis consistent with
the methodology used in the preparation of the 1999 Budget (as defined in the
Purchase Agreement).
3.2 Provision of Services. (a) Each Provider and each Recipient
shall appoint a representative to act as its initial primary contact person
(the "Contact Person") for the provision of all Services. On or promptly
after the date hereof, PE will provide EG&G with a list of the Contact Person
for each Provider or Recipient in the PE Group, and EG&G will provide PE with
a list of the Contact Person for each Provider or Recipient in the EG&G
-5-
Group. Each Provider shall promptly advise any Recipient to which such
Provider provides Services of any change in the identity of its Contact
Person. Each party may treat an act of the other party's Contact Person as
being authorized by such other party without further inquiry.
(b) Except to the extent, if any, otherwise expressly provided
herein or in the Exhibits, each Provider shall provide the Services in
substantially the same manner, at substantially the same utilization levels
and with the same degree of care, diligence and priority as existed with
respect to the provision of such Services prior to the Closing Date.
(c) No Provider shall be required to provide any Recipient with
extraordinary levels of Services, special studies, training or the like or
the advantage of systems, equipment, facilities, training or improvements
procured, obtained or made after the Closing Date. Notwithstanding the
foregoing, each Provider shall use reasonable efforts to cooperate with and
assist, at such Recipient's expense, any Alternate Provider or any Recipient
in connection with the transfer of any Services from such Provider to such
Alternate Provider or such Recipient (as requested by such Recipient).
(d) In connection with the provision of Services by any Provider,
each Recipient to which such Services are being provided shall (i) maintain
all equipment, software and operational features in such fashion as is
adequate to permit the provision of Services by such Provider, (ii) comply
with any reasonable instructions of such Provider that are necessary or
appropriate for such Provider to adequately provide the Services, including
instructions regarding any contractual maintenance obligations, (iii) comply
with all applicable standards and procedures applicable to the Facilities and
any Service Location and (iv) promptly report any operational or system
problems to such Provider.
(e) No Provider shall be in default of its obligations hereunder
for any delays or failure in performance resulting from any cause or
circumstance beyond the reasonable control of such Provider, provided that
such Provider exercises commercially reasonable efforts to perform its
obligations in a timely manner. If any such occurrence prevents any Provider
from providing any of the Services, such Provider shall cooperate with the
Recipient to which such Services are being provided in obtaining, at such
Recipient's sole expense, an alternative source for the affected Services,
and such Recipient shall be released from any payment obligation to such
Provider in respect of such Services (other than payments with respect to
obligations of such Provider to unaffiliated third parties) during the period
of such force majeure.
3.3 Compensation. (a) The compensation for each Service provided
hereunder during the Term shall be as set forth in Exhibit A.
-6-
(b) Each Recipient shall pay any value-added tax and any tariff,
duty, export or import fee, sales tax, use tax, service tax or other tax or
charge imposed by any government or government authority on any Provider or
and Recipient with respect to the Services provided by such Recipient to such
Provider or the performance of this Agreement.
(c) Amounts payable pursuant to paragraph (a) of this Section 3.03
in respect of out of pocket costs incurred by any Provider in the performance
of Services hereunder shall be periodically adjusted for variances from the
amounts therefor reflected in Exhibit A, as well as out of pocket costs for
which no provision is made in Exhibit A.
(d) In addition to any amounts payable pursuant to the foregoing
provisions of this Section 3.03, each Recipient shall be solely responsible
for any increased costs arising in connection with obtaining any consents of
third parties required for the provision of Services hereunder.
3.4 Terms of Payment. (a) Each Provider shall invoice the each
Recipient to which it provides Services monthly in arrears for the Services
provided under this Agreement, in such detail as the recipient may reasonably
request. Payment shall be made by each Recipient with respect to all
uncontested amounts within 30 days following receipt of any invoice. Any
payments not made within such 30-day period which are later determined to be
due and payable thereafter shall bear interest at a rate equal to the 30-day
commercial paper rate for high-grade unsecured notes sold through dealers in
the United States of America by major corporations as listed from time to
time in the Money Rates table of The Wall Street Journal, but in no event to
exceed the highest rate of interest permitted by applicable law, calculated
from the date such payment was due until the date payment is received by the
such Provider.
(b) All amounts for Services rendered pursuant to this Agreement
shall be billed and paid in the currency in which the rate for such Services
is quoted herein or in the Exhibits.
3.5 Records. Each Provider will preserve all records supporting
the amounts charged to any Recipient pursuant to this Agreement for a period
of 6 years following the invoicing of such amounts. Thereafter, no Provider
shall not destroy or dispose of such records without giving notice to the
Recipient to which such records relate of such pending disposal and offering
such Recipient the right to obtain and retain such records at its own
expense. In the event such Recipient has not obtained such records within 30
days following the receipt of notice from any Provider, such Provider may
proceed to destroy or dispose of such records without any liability. Subject
to any disclosure, copying or other limitations imposed by applicable law and
to any privileges (including the attorney-client privilege), each Provider
shall (a) at its own expense afford any Recipient to which such records
relate and its representatives reasonable access during normal business hours
-7-
upon reasonable prior notice to all such records and (b) at such Recipient's
expense provide copies of such records as such Recipient reasonably may
request for any proper purpose (including in connection with any judicial,
administrative, tax, audit or arbitration proceeding).
ARTICLE IV. RIGHTS IN, AND CONFIDENTIALITY OF, DATA
4.1 General. Each party acknowledges that all information in any
form and of whatever nature, whether written, oral or otherwise, and all data
and systems that are employed in the provision of any Services hereunder are
confidential and proprietary. The provisions of this Article IV are subject
to and governed by the provisions of the Confidentiality Agreement dated as
of May 28, 1999 between EG&G and PE.
4.2 Reservation of Rights; Access. All rights to confidential,
proprietary and trade-sensitive information communicated hereunder by one
party or its Affiliates to the other party or its Affiliates are reserved by
the disclosing party and its Affiliates. The party receiving such disclosure
will not (and will cause its Affiliates not to) use or disclose such
information to benefit itself or its Affiliates or to damage the disclosing
party or its Affiliates unless and until expressly authorized in writing to
do so by the disclosing party, or unless otherwise expressly permitted
hereunder. Notwithstanding the foregoing, subject to the following sentence
and any required consents of third parties, each party hereby grants a right
to the other party, solely in connection with the provision of Services
hereunder, to have access to and use any hardware, software and documentation
owned by, leased by or licensed to such party that is necessary for the
provision of such Services. Each party shall use all reasonable efforts, at
such Recipient's sole expense, to obtain all consents or approvals necessary
in connection with such access and use.
4.3 Duplication and Retention. All written data disclosed
hereunder is the property of the disclosing party and is not to be copied or
reproduced without the express written consent of the disclosing party except
as may be required for the performance of this Agreement; copies so made,
however, shall carry appropriate proprietary and ownership notations. The
receiving party may keep such written data for the duration of the Term.
After such time, the originals and all copies of such written data will be
returned to the disclosing party, or destroyed by the receiving party at the
disclosing party's election, except for copies that the receiving party is
required to retain to comply with its legal obligations. At the sole option
of the disclosing party, the receiving party shall provide the disclosing
party with a written statement duly signed by an authorized officer of the
receiving party to the effect that it has not retained in its possession or
under its control (or the possession or control of any of its Affiliates),
either directly or indirectly, any confidential information or copies
thereof, and has returned or destroyed the same.
-8-
4.4 Disclosure. Notwithstanding the preceding provisions of this
Article IV, neither party shall be liable for any disclosure or use of any
knowledge contained in any information or data disclosed or communicated by
the other party hereunder:
(a) if such knowledge is publicly available or becomes publicly
available other than as a result of a breach of this Agreement;
(b) if such knowledge is thereafter lawfully obtained by the
receiving party from a third party without an obligation of
confidentiality to the disclosing party;
(c) if such knowledge is known to the receiving party prior to
such disclosure or is independently developed by the receiving party
subsequent to its disclosure; or
(d) if it is required to be disclosed pursuant to legal demand,
order or process of a competent court of law, governmental body,
self-regulatory organization, regulated securities exchange or any body
that is responsible for establishing and enforcing professional codes
and standards ("Governmental Authorities"); provided that in these
circumstances the receiving party shall have first provided the
disclosing party with prompt written notice of such required disclosure
and the receiving party shall cooperate with and assist the disclosing
party, at the disclosing party's expense, in seeking a protective order
or other similar assurance from such Governmental Authorities with
respect to the confidentiality of the information required to be
disclosed.
ARTICLE V. INDEMNIFICATION
Each party (an "Indemnifying Party") agrees to indemnify the other
party and such other party's officers, directors, employees, shareholders and
Affiliates (the "Indemnified Persons") in respect of all claims, costs,
expenses, damages and liabilities (including, without liability, attorney's
fees and expenses) arising from the gross negligence or willful misconduct of
the Indemnifying Party or its employees, agents or other representatives
after the Closing Date or from the breach by the Indemnifying Party of its
obligations hereunder. In no event shall either party have any liability to
the other party for any claims, losses, damages, judgments, costs or expenses
that the other party may suffer or incur as a result of injuries to personnel
of such other party or loss or theft or damage to any property of such other
party at the Service Locations, except as provided in the preceding sentence.
-9-
ARTICLE VI. DISCLAIMER AND LIMITATION OF LIABILITY
6.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
6.2 Limitation of Liability. Each Recipient acknowledges that the
Services are provided by each Provider (a) at the request of such Recipient
in order to accommodate the transactions contemplated by the Purchase
Agreement, (b) at such Provider's cost, without profit, and (c) with the
expectation that no Provider is assuming any financial or operational risks
other than as expressly set forth herein, including any such risks that
customarily would be assumed by an unaffiliated third party. Accordingly,
each Recipient agrees that no Provider shall be liable for any direct,
indirect, special, incidental or consequential damages, including lost
profits or savings, whether or not such damages are foreseeable, or for any
third party claims relating to the Services or such Provider's performance
under this Agreement, unless due to willful misconduct or gross negligence.
ARTICLE VII. DISPUTE RESOLUTION
7.1 Negotiation. (a) In the event of a controversy, dispute or
claim arising out of, or in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this
Agreement or the transactions contemplated hereby, including any claim based
on contract, tort, statute or constitution (collectively, "Agreement
Disputes"), the Contact Persons of the parties shall negotiate in good faith
for 30 days to settle such Agreement Dispute, provided such reasonable period
shall not, unless otherwise agreed by the parties in writing, exceed 30 days
from the time the parties began such negotiations.
(b) Each Provider and each Recipient shall appoint a person (a
"Supervisory Contact Person") to act as its representative to attempt to
resolve, prior to arbitration in accordance with Section 7.02, any Agreement
Dispute that has not been resolved by the Contact Persons as provided in
paragraph (a) above. On or promptly after the date hereof, PE will provide
EG&G with a list of the Supervisory Contact Person for each Provider or
Recipient in the PE Group, and EG&G will provide PE with a list of the
Supervisory Contact Person for each Provider or Recipient in the EG&G Group.
Each Provider and each Recipient shall promptly advise the other of any
change in the identity of its Supervisory Contact Person. In the event that
any Agreement Dispute has not been resolved by the Contact Persons as
provided in paragraph (a) above, such Agreement Dispute shall be referred
promptly to the Supervisory Contact Persons, who shall negotiate in good
-10-
faith for a reasonable period of time to settle such Agreement Dispute,
provided such reasonable period shall not, unless otherwise agreed by the
parties in writing, exceed 20 days from the time of referral of such
Agreement Dispute to the Supervisory Contact Persons.
(c) In the event of any arbitration in accordance with Section
7.02, the parties shall not assert the defenses of statute of limitations and
laches arising for the period beginning after the date the parties began
negotiations hereunder, and any contractual time period or deadline under
this Agreement to which such Agreement Dispute relates shall not be deemed to
have passed until such Agreement Dispute has been resolved.
7.2 Arbitration. If the Supervisory Contact Persons are unable to
settle an Agreement Dispute (and, in any event, unless otherwise agreed in
writing by the parties, after 60 days have elapsed from the time the parties
began negotiations), such Agreement Dispute shall be determined, at the
request of a party, by arbitration conducted in a jurisdiction consistent
with Section 9.18 of the Purchase Agreement, before and in accordance with
the then-existing Rules of Arbitration of the International Chamber of
Commerce (the "International Rules"). In any dispute between the parties,
the number of arbitrators shall be three. Any judgment or award rendered by
the arbitrators shall be final, binding and non-appealable (except on grounds
specified in 9 U.S.C. Section 10(a), as in effect on the Agreement Date). If
the parties are unable to agree on the arbitrators, the arbitrators shall be
selected in accordance with the International Rules. Any controversy
concerning whether an Agreement Dispute is an arbitrable Agreement Dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation or enforceability of this
Article VII shall be determined by the arbitrators. In resolving any
dispute, the parties intend that the arbitrators apply the substantive laws
of the State of New York. The parties intend that the provisions to
arbitrate set forth in this Section 7.02 be valid, enforceable and
irrevocable. The undersigned agree to comply with any award in any such
arbitration proceedings that has become final in accordance with the
International Rules and agree to enforcement of or entry of judgment upon
such award, by any court of competent jurisdiction. The arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including
monetary damages, specific performance and all other forms of legal and
equitable relief; provided, however, the arbitrators shall not be entitled to
award punitive damages. Without limiting the provisions of the International
Rules, unless otherwise agreed in writing by the parties or as permitted by
this Agreement, the undersigned shall keep confidential all matters relating
to the arbitration or the award, provided such matters may be disclosed (a)
to the extent reasonably necessary in any proceeding brought to enforce the
award or for entry of a judgment upon the award and (b) to the extent
otherwise required by law. Notwithstanding any contrary provision of the
International Rules, the losing party in the arbitration shall be responsible
-11-
for all of the costs of the arbitration, including legal fees and other
costs. Nothing contained in this Section 7.02 is intended to or shall be
construed to prevent either party from applying to any court of competent
jurisdiction for interim measures or other provisional relief in connection
with the subject matter of any Agreement Disputes.
7.3 Continuity of Services and Performance. Unless otherwise
agreed in writing, the parties shall continue to provide the Services and
honor all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article VII with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
8.1 Representations. Each party hereby represents and warrants to
the other party that: (a) such party is duly organized and validly existing
under the laws of the jurisdiction of its organization and has the requisite
power and authority to own, lease and operate its property and to conduct its
business as now conducted by it; (b) such party has all requisite power and
authority to enter into this Agreement and to perform its obligations
hereunder; (c) the execution, delivery and performance by such party of this
Agreement and the consummation by such party of the transactions contemplated
hereby have been duly authorized by all requisite action on the part of such
party; and (d) this Agreement has been duly executed and delivered by such
party and constitutes a valid and legally binding obligation of such party,
enforceable against it in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
8.2 No Waivers. No waiver by either party of any of the
provisions hereof shall be effective unless explicitly set forth in writing
and executed by the party so waiving. Except as provided in the preceding
sentence, no action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be deemed
to constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained herein. The
waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach.
8.3 Consents, Approval and Requests. Unless otherwise specified
in this Agreement, all consents and approvals, acceptances or similar actions
to be given by either party under this Agreement shall not be unreasonably
-12-
withheld or delayed and each party shall make only reasonable requests under
this Agreement.
8.4 Severability. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of the Agreement shall not be affected
and shall remain in full force and effect.
8.5 Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall
be in writing and shall be deemed to have been duly given if delivered
personally, if telecopied or mailed, first class mail, postage prepaid,
return receipt requested, or by overnight courier as follows:
If to any Provider:
The Xxxxxx-Xxxxx Corporation
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Secretary
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to any Recipient:
EG&G, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Director, Real Estate
Fax: (000) 000-0000
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on the date of personal
delivery or telecopy, on the third business day after the mailing thereof or
on the first day after delivery by overnight courier.
-13-
8.6 Relationship. (a) The performance by each Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the parties.
(b) The performance by the parties of their respective obligations
hereunder shall in no way impair the absolute control of such parties'
businesses and operations by their respective managements.
8.7 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
8.8 Covenant of Further Assurances. The parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the parties will execute and
deliver any further legal instruments and perform any acts which are or may
become reasonably necessary to effectuate this Agreement.
8.9 Assignability. This Agreement shall not be assignable by PE
(or any other Provider) without the prior written consent of EG&G or by EG&G
(or any other Recipient) without the prior written consent of PE; provided,
that PE may assign the rights and obligations of any Provider other than PE,
in whole or in part, to any wholly owned subsidiary of PE so long as PE
remains bound by all the terms of this Agreement;
8.10 Entire Agreement. This Agreement, together with the Purchase
Agreement (including the Exhibits and Schedules thereto), constitutes the
entire agreement between the parties hereto and supercedes all prior
agreements and understandings, oral and written, between the parties hereto
with respect to the subject matter hereof.
8.11 Successors. Subject to the restrictions on assignment set
forth in Section 8.09, this Agreement shall be binding upon and inure to the
benefit of and be enforceable against the Parties hereto and their respective
successors and assigns.
8.12 Amendments. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed by the parties
hereto.
8.13 Survival. The provisions of Section 3.05, Articles IV
through VII, Sections 8.01 and 8.07 and this Section 8.13 shall survive the
expiration or termination of this Agreement.
-14-
8.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall be deemed to be one and the same instrument.
8.15 Good Faith and Fair Dealing. Each party hereby agrees that
its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and
fair dealing.
8.16 Guarantees. PE hereby agrees to guarantee the performance of
all obligations of each Provider hereunder and EG&G hereby agrees to
guarantee the performance of all obligations each Recipient hereunder.
8.17 Third Party Beneficiaries. Each party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than each Recipient and each Provider.
IN WITNESS WHEREOF, the parties herein have caused this Agreement
to be executed by their duly authorized officers as of the day and year first
above written.
THE XXXXXX-XXXXX CORPORATION
By: ________________________________________
Name:
Title:
EG&G, INC.
By: ________________________________________
Name:
Title:
-15-
