Contract
Exhibit
10.54
Execution
Copy
TRANSITION
SERVICES AGREEMENT (this “Agreement”),
dated November 28, 2005, among Xxxx-XxXxx Corporation, a Delaware
corporation (the “Parent”),
Xxxx-XxXxx Worldwide Corporation, a Delaware corporation (“Worldwide”),
and Tronox Incorporated, a Delaware corporation (the “Tronox”).
INTRODUCTION
The
Board of Directors of Parent (the “Board”)
has determined that it is in the best interests of Parent and its stockholders
to transfer certain existing businesses of Parent and its subsidiaries to
Tronox.
In
order to ensure an orderly transition of the such businesses to Tronox, as
described in the Master Separation Agreement (as defined below), each party
desires to provide to the other the services described herein for a transitional
period.
The
parties hereby agree as follows:
Section 1.
Definitions.
For purposes of this Agreement, the following terms shall have the meanings
set
forth or as referenced below:
“Affiliate”
has the meaning given such term in the Master Separation Agreement.
“Closing
Date”
has the meaning given such term in the Master Separation Agreement.
“Governmental
Authorities”
has the meaning given such term in the Master Separation Agreement.
“Group”
means either the Parent Group or the Tronox Group, as the context
requires.
“Information”
has the meaning given such term in the Master Separation Agreement.
“Liabilities”
has the meaning given such term in the Master Separation Agreement.
“Master
Separation Agreement”
means the Master Separation Agreement, dated as of the date hereof, by and
among
Xxxx-XxXxx Corporation, Xxxx-XxXxx Worldwide Corporation and Tronox
Incorporated.
“Providing
Party”
means, with respect to any Service, the party providing such
Service.
“Parent
Group”
has the meaning given such term in the Master Separation Agreement.
“Receiving
Party”
means, with respect to any Service, the party receiving such
Service.
“Separation”
means, with respect to any Service, the separation, duplication, installation
or
substitution of the subject matter of such Service as utilized by the Receiving
Party as of the Closing Date (unless another date is expressly provided for
with
respect to a particular Service), such that the Receiving Party is reasonably
able to provide for itself or through alternative service providers the benefits
of such subject matter in a sustainable manner substantially similar to that
provided to, or on behalf of, the Receiving Party as of the Closing Date (unless
another date is expressly provided for with respect to a particular
Service).
“Service
Costs”
means, with respect to each Service provided under the terms and subject to
the
conditions of this Agreement, an amount equal to the sum of such of the
following items as may apply:
(i)
the fully burdened labor costs incurred by the Providing Party in respect of
the
individual employees of such Providing Party who are engaged in the provision
of
such Service without management fee (as applicable to the individual and/or
the
Service) for the portion of their work time engaged in the provision of such
Service;
(ii)
the costs charged to the Providing Party by a third party provider in connection
with such Service;
(iii)
the out-of-pocket and other expenses (other than expenses included in Transition
Costs and the costs charged under item (i) above) incurred by the Providing
Party in connection with such Service;
(iv)
taxes (other than Transfer Taxes) as set forth in
Section 9(e) incurred by the Providing Party in connection with such
Service; and
(v)
any costs expressly included as Service Costs in this Agreement, including
costs
as set forth in Section 3.7 of Exhibit A.
“Transfer
Taxes”
means all recordation, transfer, documentary, excise, sales, value added, use,
stamp, conveyance or other similar taxes, duties or governmental charges, and
all recording or filing fees or similar costs, imposed or levied by reason
of,
in connection with or attributable to the Separation of any
Service.
“Transition
Costs”
means the one-time, initial set up, costs and expenses that are incurred by
Parent Group in order to initiate the process of obtaining the Separation of
any
Service as contemplated by (and subject to) the terms and conditions of this
Agreement and the costs of obtaining and, if applicable, modifying any
contractual rights described in Section 6(c) of this Agreement,
including such costs and expenses incurred prior to the date hereof by the
Providing Party in preparation for the provision of the Services (for the
avoidance of doubt, Transition Costs shall not include any annual or recurring
fees, including without limitation, license fees, or any maintenance fees,
support services fees, subscription fees or other costs relating to ongoing
use).
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“Tronox
Group”
has the meaning given such term in the Master Separation Agreement.
Section 2.
Certain Transferred Personnel.
Parent hereby acknowledges and agrees that the individuals listed on
Schedule 2
are identified as prospective Tronox Individuals (as such term is defined in
the
Employee Benefits Agreement (as defined in the Master Separation Agreement))
each of whom may become, if not already, employees of the Tronox Group as of
the
Closing Date. Each party agrees that, for a period of one year after
the Closing Date, neither party nor its respective Affiliates shall recruit,
offer employment to, hire or engage as a consultant any Person who is an
employee of the other party immediately after the Closing Date;
provided
that the foregoing provision will not prohibit any general solicitation of
employment not specifically directed toward employees of either Group or the
soliciting or hiring of any individual who terminated his or her own employment
with any member of the other Group or whose employment was terminated by any
member of the other Group prior to such solicitation or hiring.
Section 3.
Services.
(a)
Except as otherwise provided herein, on the terms and subject to the conditions
set forth herein, Parent shall provide, or cause one or more members of its
Group to provide, the Tronox Group with each of the services listed
on
Exhibit A
and Tronox shall provide, or cause one or more members of its Group to provide,
the Parent Group with each of the services listed on
Exhibit B
(each service listed on
Exhibit A
or
Exhibit B
being a “Service”
and, collectively, the “Services”),
in each case beginning on the“Start
Date”
set forth on
Exhibit A
or
Exhibit B
for such Service and ending on the earlier of (i) the“End
Date”
set forth on
Exhibit A
or
Exhibit B
for such Service, (ii) the termination of this Agreement, or (iii) the
termination of such Service pursuant to Section 11(b) (each such
duration, a “Service
Term”).
For the avoidance of doubt, it is understood that services included as
“Services” may include, subject to the terms and conditions of this Agreement,
the transfer and installation of certain hardware, software, related licenses
and applications, and other items as set forth on
Exhibit A,
Exhibit B
or
pursuant to the Master Separation Agreement.
(b)
Subject to the provisos set forth in this Section 3(b), the Transition
Costs incurred by the Parent Group in connection with Separation of the Services
to be provided to the Tronox Group shall be borne 100% by the Parent Group
and
such Transition Costs shall not be included in the calculation of Service Costs
payable by the Tronox Group for such Services;
provided,
however,
that, with respect to each line item set forth in
Exhibit C,
in no event shall Parent Group have any obligation to incur any Transition
Costs
in excess of the specific amount allocated to each such line item set forth
on
Exhibit C
(with respect to each line item on
Exhibit C,
the “Per
Line Maximum Amount of Transition Costs”)
and in no event in an aggregate amount in excess of $11 million;
provided, further,
that any Transition Costs in excess of the applicable Per Line Maximum Amount
of
Transition Costs shall be borne 100% by Tronox Group. All Transfer Taxes
incurred in connection with the Separation of the Services shall be borne 100%
by the Parent Group, subject to Section 9(e). Such Transition Costs
shall not be included in the calculation of Service Costs payable by the Tronox
Group for such Services.
(c)
It is understood and agreed amongst the parties that, notwithstanding any
provision to the contrary in this Agreement, the Providing Party shall have
no
obligation whatsoever to upgrade systems, invest in product enhancements or
increase staffing, capacity, functionality, reliability or any other aspect
of
any Service beyond the level that exists as of the date hereof with respect
to
any Service.
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(d)
Notwithstanding anything to the contrary contained herein, during the Term,
a
Receiving Party may from time to time request that a Providing Party provide
special services or projects in addition to the Services, and (subject to the
mutual agreement of the parties hereto) such Providing Party shall make
commercially reasonable efforts to provide such additional services or
projects. If such Providing Party agrees to provide such additional
services or projects, the parties shall negotiate in good faith to establish
the
terms (including, without limitation, price) for providing such additional
services or projects and, following agreement on such terms,
Exhibit A
or
Exhibit B
hereof shall be amended, as applicable, to include such additions.
Section 4.
Standards of Performance; Level of Services.
(a)
Each Providing Party, with respect to any Service, shall perform such Service
exercising the same degree of care, at the same general level and at the same
general degree of accuracy and responsiveness, in each case as it exercises
in
performing the same or similar services for its own account, with priority
equal
to that provided to its own businesses and members of its
Group.
(b)
In
no event shall any party, as Receiving Party with respect to any Service, be
entitled to increase its use of such Service above that level of use specified
in the exhibit related thereto without the prior written consent of the
Providing Party. Notwithstanding anything to the contrary in this
Agreement, the Providing Party shall not be required to provide the Receiving
Party with levels of such Service above the levels that existed prior to the
date hereof or with the advantage of systems, equipment, facilities, training,
services or improvements procured, obtained or made after the date
hereof.
(c)
Notwithstanding anything to the contrary contained herein, the Providing Party
with respect to any Service may, but is not required to, make changes from
time
to time in the manner in which such Service is provided if (i) the
Providing Party is making similar changes in the manner in which such Service
is
provided to it and members of its own Group, (ii) the Providing Party
furnishes to the Receiving Party substantially the same notice the Providing
Party provides to members of its own Group with respect to such changes, and
(iii) such changes shall not create a substantial risk of a material
disruption of the Receiving Party’s business or of the Receiving Party’s
incurring a material loss or liability.
(d)
Each Group shall nominate a representative to act as the primary contact person
for the provision of all of the Services (the “Service
Coordinators”).
The initial Service Coordinators shall be Xxxxxxx Xxxxxx for the Parent Group
and Xxxx Xxxxxxxxx for the Tronox Group. Each party shall notify the other
party in writing of any change in the Service Coordinators. The parties
agree that all communications relating to the provision of the Services shall
be
directed to the Service Coordinators.
(e)
In
order to monitor, coordinate and facilitate implementation of the terms and
conditions of this Agreement, the parties shall establish (i) a“Steering
Committee”
consisting of at least one (1) senior manager from each of Parent Group and
Tronox Group and whereby each such Group is equally represented and
(ii) an“Operating
Committee”
consisting,
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as
necessary, of
one (1) representative of each of Parent Group and Tronox Group from each
functional area that is the subject of Exhibits A and B (for such time as
Service Terms within such functional areas are in effect). The Steering
Committee shall provide general oversight of the terms and conditions of this
Agreement and shall work in good faith to resolve any disputes arising under
this Agreement as set forth under Section 7. The Operating Committee shall
be responsible for the day-to-day operations related to the implementation
of
the terms and conditions of this Agreement and the exhibits hereto. The
initial Steering Committee representatives shall be (i) for the Parent
Group, Xx Xxxxxx, Xxxx Xxxxxxxxx and Xxxx X. Xxxx and (ii) for Tronox
Group, Xxx Xxxxx, Xxxx Xxxxxxxxx and Xxxxxx X. Xxxxx. The initial
Operating Committee representatives shall be (i) for the Parent Group, Xxx
Xxxxxxxx, Xxxxx Xxxxxx and Xxx XxXxxxxx and (ii) for Tronox Group, Xxxx
Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxx and Xxxxx Xxxxxx. The
initial Steering Committee and Operating Committee representatives shall not
be
changed by either Group on less than ten (10) days’ prior written notice to
the Service Coordinator of the other Group. The Steering Committee and Operating
Committee representatives shall meet at least monthly (or more frequently if
needed) during the Term of this Agreement; provided, the members of the
Steering Committee and the Operating Committee may participate in meetings
of
such committees by means of conference telephone, videoconferencing or other
communications equipment by means of which all persons participating in the
meeting can hear each other. The Steering Committee and Operating Committee
representative for each Group shall stay reasonably apprised of the activities
of the employees, agents and contractors of such Group who are providing or
receiving the Services in order to maximize efficiency in the provision and
receipt of the Services. Actions of the Steering Committee shall require the
approval of Steering Committee representatives from each of the Parent Group
and
the Tronox Group.
Section 5.
Resources.
In connection with the Services, the Receiving Party shall make reasonably
available for consultation with the Providing Party those retained employees
and
consultants or other service providers of the Receiving Party reasonably
necessary for the effective provision of such Services.
Section 6.
Third Parties.
(a)
The Providing Party with respect to a particular Service shall make reasonably
available such personnel, facilities, equipment, systems and management as
are
required to provide such Service. Subject to Section 4, the Providing
Party shall have the right to designate which such resources it shall assign
to
perform such Service and shall have the right to remove and replace any such
resources at any time or designate any other members of its Group or a third
party provider to perform such Service;
provided, however,
that (i) the Providing Party shall use commercially reasonable efforts to
prevent the disruption to the Receiving Party in the transition of the Service
to different resources or another provider and (ii) with respect to
Services that are not currently outsourced by a Providing Party to a third
party, any substitution of a third party provider in connection with the
provision of such Service shall be subject to the approval of the Steering
Committee. Notwithstanding the foregoing, each Providing Party shall
remain solely responsible, in accordance with the terms of this Agreement,
for
the performance of any Service it is required to provide hereunder.
(b)
With respect to Services that are currently outsourced by Parent Group to third
parties, Parent Group shall reasonably assist the Tronox Group in seeking to
cause such third parties to provide such Services to the Tronox Group. In
the event Parent Group is not able
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to
secure the agreement of any third parties to provide Services to the Tronox
Group, Parent Group shall reasonably assist the Tronox Group in seeking to
obtain substantially similar services from another source on substantially
similar terms and conditions as those currently being provided.
(c)
If, and to the extent, required, the Tronox Group, on the one hand, and the
Parent Group, on the other hand, shall cooperate in good faith in seeking to
obtain any required transfer or assignment agreements or any other agreements
necessary to transfer contractual rights of the Parent Group, that existed
immediately prior to the Closing Date, to receive services or license software,
to the extent (i) such agreements or rights are necessary for the provision
of Services to the Tronox Group and (ii) such rights were utilized by the
Tronox Group prior to the Closing Date. Such agreements shall be in the
name or for the benefit of the applicable member, or members, of the Tronox
Group. The cooperation required hereunder shall be included in the Service
to which it is related. For the avoidance of doubt, the parties agree and
acknowledge that a Providing Party shall not be liable under this Agreement
for
any annual or recurring fees, including without limitation license fees, or
any
maintenance fees, support services fees, subscription fees or other costs
relating to ongoing use by a Receiving Party stemming from a transfer to such
Receiving Party pursuant to a Service hereunder.
(d)
A
Providing Party shall not enter into any agreement or contract with any third
party to provide any Services hereunder pursuant to which the Receiving Party
would remain obligated to such third party upon the conclusion of this Agreement
without such Receiving Party’s prior written consent, such consent not to be
unreasonably withheld, delayed or conditioned.
(e)
Without prejudice to the obligations of the Parent Group under
Section 3(b) and Exhibit C of this Agreement, the Receiving Party
shall be solely responsible for acquiring or otherwise obtaining all assets
and
rights for third party services not otherwise obtained as a result of the
expenditure of such Transition Costs, including without limitation, hardware,
software, information systems and other materials and third party services,
reasonably necessary in connection with the Separation of any Service as
contemplated by this Agreement.
Section 7.
Good Faith Cooperation; Dispute Resolution.
(a)
The parties shall cooperate in good faith in all matters relating to the
provision and receipt of the Services. Such cooperation shall include
exchanging information, providing access to personnel, equipment, office space,
electronic systems and other property, performing true-ups and adjustments
and
obtaining all consents, licenses, sublicenses or approvals necessary to permit
each party to perform its obligations hereunder.
(b)
In
the event of a dispute under this Agreement, either Group may give notice to
the
other Group requesting that the Steering Committee in good faith try to resolve
(but without any obligation to resolve) such dispute. Not later than 10
days after said notice, each Group shall submit to the other Group a written
statement setting forth such Group’s description of the dispute and of the
respective positions of the Groups on such dispute and such Group’s recommended
resolution and the reasons why such Group feels its recommended resolution
is
fair and equitable in light of the terms and spirit of this Agreement.
Such statements represent part of a good-faith effort to resolve a dispute
and
as such, no statements prepared by a Group
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pursuant
to this Section 7 may be introduced as evidence or used as an admission
against interest in any arbitral or judicial resolution of such
dispute.
(c)
If
the dispute continues unresolved for a period of five days (or such longer
period as the Steering Committee may otherwise agree upon) after the
simultaneous exchange of such written statements, then the Steering Committee
shall promptly commence good-faith negotiations to resolve such dispute but
without any obligation to resolve it. The initial negotiating meeting may
be conducted by teleconference.
(d)
Not later than seven days after the commencement of good-faith negotiations
under Section 7(c) above: (i) if the Steering Committee
renders an agreed resolution on the matter in dispute, then both Groups shall
be
bound thereby; and (ii) if the Steering Committee does not render an agreed
resolution, then the dispute shall be submitted for resolution pursuant to
Section 7(e).
(e)
Disputes arising under this Agreement and not resolved by the Steering Committee
within seven days under clause (i) of Section 7(d) shall be
submitted in writing to an appropriate executive officer of each party.
The executive officers shall attempt to resolve any dispute submitted to them
for resolution in accordance with this Section 7(e) through
consultation and negotiation, within 30 days after such submittal (or such
longer period as may be mutually agreed by the parties). The executive
officers may request the assistance of an independent mediator if they believe
that such a mediator would be of assistance to the efficient resolution of
the
dispute.
(f)
Subject to Section 11(c), during the course of resolution of any dispute,
the rights and obligations of the parties under this Agreement, including with
respect to the subject matter of such dispute, shall continue.
(g)
If
the parties fail to resolve any dispute pursuant to this Section 7, then
the provisions of Section 18 shall apply.
Section 8.
Exceptions to Providing Party’s Obligation to Perform.
(a)
The Providing Party with respect to any Service shall not be required to provide
such Service to the extent the performance of such Service would require the
Providing Party to violate any applicable Law or would result in the breach
of
any software license or other Contract with a Person not a member of the
Providing Party’s Group. If the Providing Party with respect to any
Service reasonably determines that it is unable to provide such Service in
accordance with the terms hereof, the parties shall cooperate to determine
the
best alternative approach. Until such alternative approach is found or the
problem is otherwise resolved to the satisfaction of the parties, the Providing
Party shall use commercially reasonable efforts to continue to provide such
Service. To the extent the parties agree upon an alternative approach that
requires payment of amounts above and beyond what the Receiving Party is
required to pay under this Agreement for such Service, such excess amounts
shall
be borne by the Receiving Party, or as otherwise agreed by the
parties.
(b)
Notwithstanding anything to the contrary contained herein,
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(i)
if
the Receiving Party (A) elects to decommission, replace, modify or change
its information technology or communications systems or any other aspect of
its
business relationship relating to a Service in a manner that prevents the
Providing Party from providing such Service as required hereunder (in the
understanding that the Receiving Party shall provide the Providing Party with
five (5) Business Days prior notice of any such election), or
(B) fails to acquire the hardware, software, information systems or other
materials or third party services reasonably necessary for the Separation of
any
Service pursuant to Section 6(e) of this Agreement and such failure
prevents the Providing Party from providing such Service as required hereunder,
then, in each case, the Providing Party shall have no liability whatsoever
with
respect to the effectiveness or quality of such Service and, following five
(5) Business Days prior written notice to the Receiving Party, shall be
excused from the performance of such Service;
(ii)
if
the Tronox Group is unable, despite the reasonable assistance of the Parent
Group in accordance with Section 6(b) of this Agreement and the good
faith cooperation of the Parent Group in accordance with
Section 7(a) of this Agreement, to secure the agreement of third
parties with whom Parent Group has outsourced certain Services to provide such
Services to the Tronox Group, the Parent Group shall have no liability
whatsoever with respect to the effectiveness or quality of any Service that
is
prevented, hindered, or delayed thereby and, following five (5) Business
Days prior written notice to the Receiving Party, shall be excused from the
performance of such Service; and
(iii)
if
the Tronox Group is unable, despite the good faith cooperation of the Parent
Group in accordance with Sections 6(c) and 7(a) of this Agreement, to
obtain any required transfer or assignment agreements or any other agreements
necessary to transfer contractual rights of the Parent Group, that existed
immediately prior to the Closing Date, the Parent Group shall have no liability
whatsoever with respect to the effectiveness or quality of any Service that
is
prevented, hindered, or delayed thereby and, following five (5) Business
Days prior written notice to the Receiving Party, shall be excused from the
performance of such Service; and
(iv)
the Parent Group may suspend performance and the Tronox Group’s access to
information technology or communications systems used by the Parent Group if,
in
the Parent Group’s reasonable judgment, the integrity, security or performance
of such systems, or any data stored thereon, is being or is likely to be
jeopardized by the activities of any member of the Tronox Group, its employees,
agents, representatives or contractors.
Section 9.
Payment and Audit Rights.
(a)
Generally.
In consideration of each Service provided hereunder, during the Term of this
Agreement, the Receiving Party shall pay the Providing Party, on a monthly
basis, an amount equal to the Service Costs attributable to the Services
provided by the Providing Party during the prior month period. Upon a
material reduction in the Services to be provided to the Receiving Party by
the
Providing Party (through Separation), such payment amounts shall be
commensurately reduced. With respect to any particular Service, if any,
requiring additional payment by the Receiving Party, the Receiving Party shall
pay the Providing Party in accordance with the specifications set forth on
the
exhibit describing such Service. To the extent that during
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the
Term of this Agreement the parties mutually agree to modify, amend, delete
or
add to the Services, the parties shall cooperate to determine in good faith
an
equitable adjustment to the amounts paid by the Receiving Party to the Providing
Party.
(b)
Invoices.
With respect to the Services actually provided, the Providing Party shall
invoice the Receiving Party on a monthly basis for all amounts due the Providing
Party hereunder with respect to such Services. For the avoidance of doubt,
it is
hereby understood that, unless mutually agreed in writing amongst the parties
hereto, amounts due hereunder shall consist solely of Service Costs. Such
invoices shall be accompanied by a reasonable accounting of all invoiced
amounts, all third party invoices and receipts related to such invoiced amounts
and such other supporting documentation as may be reasonably requested by the
Receiving Party.
(c)
Payment.
Each party shall pay the other party for any properly invoiced amounts within
30
days of receipt of the invoice and other information required by
Section 9(b);
provided, however,
that if such paying party shall have a bona fide dispute with the amount
invoiced, then such paying party shall pay only the undisputed amount at such
time and the parties shall seek to resolve such dispute in accordance with
Section 7 of this Agreement. All payments hereunder shall be made by
deposit of United States Dollars in the requisite amount to such bank account
as
the party receiving such payment may from time to time designate by notice
to
the paying party. Late payments of undisputed amounts shall bear interest
at the published one-month LIBOR Rate plus 2% per annum.
(d)
Audit Rights.
With respect to a particular Service, the Receiving Party shall have the right
to audit the financial and other records of the Providing Party and any member
of the Providing Party’s Group related to the provision of such Service, the
systems and undertakings (including testing protocols) used to provide such
Service and the incurrence of Transition Costs;
provided,
however,
that such right to audit shall exist only for so long as such financial or
other
records are retained by the Providing Party under its records retention policies
or practices;
provided, further, that
such financial and other records shall be retained for a minimum of two years
after the termination of this Agreement. If any such audit reveals any
excess amounts paid by the Receiving Party, the Providing Party shall, promptly
after receipt of the results of such audit, (a) pay to the Receiving Party
any such excess amounts, with interest from the date of payment due at the
published one-month LIBOR Rate plus 2% per annum, and (b) if such excess
amounts represent more than 2% of the total amount actually owed under this
Agreement with respect to such Service, reimburse the Receiving Party for the
reasonable out-of-pocket cost of such audit.
(e)
Taxes.
Any taxes (other than Transfer Taxes) assessed on the provision of any Service
hereunder shall be included in the Service Costs of such Services.
Section 10.
Confidentiality.
(a)
With respect to any Service, the Receiving Party with respect thereto agrees
that (i) all software, hardware or data store, procedures and materials
provided to such Receiving Party by or on behalf of the Providing Party in
connection with such Service are solely for the use of the Receiving Party
and
members of its Group solely for purposes of using such Services during the
Term
(provided that benefits received by third parties in the ordinary course of
business conducted with a Receiving Party shall not be subject to
this
Section 10);
(ii) title to
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any
software, hardware or data store or any other intellectual property or
proprietary right of any kind used in performing such Service shall, as between
such Receiving Party and the Providing Party, remain in the Providing Party;
(iii) such Receiving Party shall not copy, modify, reverse engineer,
decompile, distribute or in any way alter or make derivative works of any
software, hardware or data store used in performing such Service without the
Providing Party’s prior written consent, and (iv) such Receiving Party
shall comply with any and all usage guidelines pertaining to any Service and
provided by or on behalf of a Providing Party, including without limitation,
any
and all usage guidelines pertaining to software, data, or other intellectual
property or proprietary rights. Notwithstanding the foregoing, (x) the hardware
and software licenses set forth in Schedules 2.2(j), 2.2(k) and 2.2(l) shall
not
be subject to this Section 10(a) (and the Tronox Group shall be solely
responsible for complying with all terms and conditions applicable to such
hardware and software licenses) and (y) any software, hardware, data store,
procedures or materials purchased for the Receiving Party pursuant to
Section 3(b) of this Agreement in connection with the Separation of a
Service or the independent functionality of the Receiving Party, and any assets
acquired or purchased by a Receiving Party for its own account, shall not be
subject to this Section 10(a).
(b)
Each party shall use the other party’s data solely to exercise its rights or
perform its obligations, as applicable, under this Agreement. No party
shall sell, assign, lease, disseminate or otherwise dispose of any of the other
party’s data received or accessed as a consequence of the receipt or performance
of Services pursuant to this Agreement. No party shall possess or assert
any property interest in, or any lien, security interest or other right against
or to, any of the other party’s data, and each party shall afford to the other
party’s data the same level of security that is afforded to its own data.
Nothing in this Agreement or in the performance or use of the Services hereunder
shall be deemed to transfer, assign or otherwise convey any rights, title or
interests in or to any intellectual property or proprietary rights of one party
to the other party;
provided, however,
each party shall grant to the other party a non-exclusive, limited purpose,
non-transferable, non-assignable, non-sublicenseable license to any intellectual
property set forth in
Schedule 2.2(m)
of
Exhibit A and any software interfaces owned exclusively and developed
in-house by the Providing Party and used to provide Services hereunder
(collectively, the “Licensed
Intellectual Property”),
to the extent such intellectual property license is necessary, in the case
of a
Receiving Party, to utilize the Services in accordance with this Agreement,
and
in the case of a Providing Party, such license is necessary to perform its
obligations under this Agreement, which license shall terminate on the earlier
of the date (x) the party granting such license shall no longer have the right
to license such Licensed Intellectual Property as contemplated herein, and
(y)
the recipient of such license ceases to use such Licensed Intellectual Property
in connection with the Services described in this Agreement in the manner
expressly contemplated and described in this Agreement. Each party expressly
reserves all rights, title and interests in and to its intellectual property
that are not licensed in accordance with this Agreement. Each party
shall not possess or assert any interest in or any lien or security interest
or
other right against or to any of the other party’s intellectualproperty beyond
any licenses granted pursuant to this Agreement. Notwithstanding any other
provision of this Agreement, each party shall be free to use for itself and
for
others, in any manner, the general knowledge, skill or experience acquired
by
that party in the course of the performance of this Agreement, including using
that knowledge for any present or future customer or other business
partner.
10
(c)
The parties hereto acknowledge that, pursuant to the mutual provision of
Services or as a result of the transfer of certain business operations and
assets (including information technology, software and hardware) contemplated
by
the Master Separation Agreement, each Group shall possess or have access
(intentionally or inadvertently) to information that belongs to the other Group
or has commercial value in that other Group’s business, and is not in the public
domain, including information relating to its customers, suppliers, finances,
operations, facilities and markets (“Confidential
Information”).
Neither Group shall disclose, use, sell, assign, lease or otherwise dispose
of
the other Group’s Confidential Information, except as otherwise expressly
permitted by this Agreement or the Master Separation Agreement. A Providing
Party hereunder shall not, and shall use its commercially reasonable efforts
to
ensure that Providing Party’s employees, contractors and other agents do not use
the Services to access any of a Receiving Party’s Confidential Information that
is outside the scope of the Service provided. Nothing in this
Section 10(c) shall be construed as obligating any party hereto to
disclose its Confidential Information to any other party, or as granting to
or
conferring on another party, expressly or by implication, any rights or license
to its Confidential Information, provided that the parties acknowledge that,
in
order to perform the Services, a Providing Party shall have custody of and
usage
of certain of a respective Receiving Party’s Confidential Information and each
party hereby grants to each other party acting as a Providing Party to it the
right to do so in accordance with this Agreement.
(d)
Notwithstanding Section 10(c), Information is not Confidential Information
to the extent that: (i) the Information is or becomes publicly available
through no fault of the party which received the Information from the other
party, (ii) the same Information is rightfully in the possession of a party
prior to receipt of that Information from another party;
provided, however
that Tronox Group Information or data that is in the Parent Group’s possession
prior to the Closing Date and is otherwise Confidential Information of the
Tronox Group shall be Confidential Information, (iii) the same Information
is independently developed (without the use of another party’s Confidential
Information) by the party which received that information from such other party,
or (iv) the same Information becomes available to a party on a
non-confidential basis from a source other than another party hereto, which
source, to the knowledge of the disclosing party, is not prohibited from
disclosing that information by a legal, contractual or fiduciary obligations
to
the party about whom such Information pertains.
(e)
Notwithstanding Section 10(c), a party hereto shall not have violated the
terms of this Section 10 for disclosing Confidential
Information:
(i)
to
third parties performing services required under this Agreement where (A)
use of that Confidential Information by that third party is authorized under
this Agreement; or (B) disclosure is reasonably necessary or typically
occurs in the natural course of the third party’s duties;
provided,
in each case,
that
the third party has executed a written confidentiality agreement under which
the
third party is obligated to maintain the confidentiality of the Confidential
Information in a manner substantially equivalent to this Agreement;
(ii)
in
order to comply with any applicable Laws,
provided that
as
soon as practicable and legally permitted the disclosing party shall notify
the
party whose Confidential Information was or is to be disclosed of the disclosure
or possible disclosure under this subsection; or
11
(iii)
to
the disclosing party’s independent auditors under an obligation of
confidentiality.
Section 11.
Term.
(a)
The term of this Agreement (the“Term”)
shall commence on the date hereof, and, unless earlier terminated in accordance
with Section 11(b), shall continue until the first anniversary of the
Closing Date. This agreement may only be extended by written agreement of
the parties as evidenced by the signature of authorized representatives of
such
parties.
(b)
Notwithstanding the foregoing, the commencement dates and, if sooner than the
first anniversary of the Closing Date, the termination dates of any Service
shall be as set forth in the applicable exhibit;
provided, however, that
where such dates are not specified in the exhibits, the term of a Service shall
coincide with the term of this Agreement;
provided, further,
that the Receiving Party with respect to any Service may terminate the term
of
such Service upon thirty (30) days notice to the Providing Party.
(c)
Notwithstanding anything to the contrary set forth in this Agreement, if any
party hereto defaults in any of its material obligations with respect to a
Service hereunder, and such default is not cured within 30 days after the
resolution, pursuant to Section 7, of a dispute entered as a result of such
default, the party not in default shall be entitled, without prejudice to any
of
its other rights conferred on it by this Agreement, and in addition to any
other
remedies available to it by law or in equity, to terminate its obligations
with
respect to such Service.
Section 12.
Consequences of Termination.
(a)
Termination or expiration of this Agreement for any reason shall be without
prejudice to any rights that shall have accrued to the benefit of a party prior
to such termination or expiration. Such termination, relinquishment, or
expiration shall not relieve a party from obligations that are expressly
indicated to survive the termination or expiration of this
Agreement.
(b)
Upon termination or expiration of this Agreement, each party, at the request
of
the other, shall return all relevant records and materials in its possession
or
control containing or comprising the other party’s Information and to which the
returning party does not retain rights hereunder (except one copy of which
may
be retained in such files for archival purposes).
Section 13.
Disclaimer of Warranties.
EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES,
SYSTEM INTEGRATION, ACCURACY, WORKMANLIKE EFFORT AND WARRANTIES ARISING THROUGH
COURSE OF DEALING OR USAGE OF TRADE. NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, AVAILABILITY,
RELIABILITY, SECURITY, PERFORMANCE OR ADEQUACY OF THE SERVICES.
12
Section 14.
Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT AS EXPRESSLY
SET FORTH HEREIN, NO PARTY HERETO SHALL BE LIABLE TO ANY OTHER PARTY HERETO
(INCLUDING ITS RESPECTIVE HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS,
AS THE CASE MAY BE, HEREUNDER) FOR ANY LOSSES THAT ARE NOT REASONABLY
FORESEEABLE OR ANY DAMAGES FOR THE LOSS OF PROFITS, BUSINESS, ANTICIPATED
SAVINGS, GOODWILL, OR THE LOSS OF OR DAMAGE TO DATA OR ANY OTHER INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR
ITS
TERMINATION OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, WHETHER FOR
BREACH OF REPRESENTATION OR WARRANTY OR COVENANT OR OTHER AGREEMENT OR ANY
OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN
CONTRACT OR TORT (INCLUDING GROSS NEGLIGENCE, NEGLIGENCE AND STRICT PRODUCT
LIABILITY) AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HERETO HEREBY WAIVES
ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE
REMEDY.
Section 15.
Indemnification.
The Providing Party with respect to a particular Service shall not have any
liability to the Receiving Party with respect thereto for the furnishing of
or
failure to furnish such Service hereunder, including for Liabilities arising
out
of the gross negligence or willful misconduct of the Providing Party or a member
of its Group. The Receiving Party shall indemnify, defend and hold
harmless the Providing Party and each of its Affiliates and each of their
respective officers, directors, employees, stockholders, agents and
representatives (each an “Indemnitee”)
in respect of all Liabilities related to, arising from, asserted against or
associated with any Service.
Section 16.
Subrogation.
If any liability arises from the performance of any Service hereunder by a
third
party contractor, the Receiving Party with respect to such Service shall be
subrogated to such rights, if any, as the Providing Party may have against
such
third party contractor.
Section 17.
Counterparts; Entire Agreement.
(a)
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement, and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other party.
(b)
This Agreement, and the exhibits and schedules hereto, contain the entire
agreement between the parties with respect to the subject matter hereof,
supersede all previous agreements, negotiations, discussions, writings,
understandings, commitments and conversations with respect to such subject
matter and there are no agreements or understandings between the parties other
than those set forth or referred to herein or therein.
13
Section 18.
Governing Law; Jurisdiction; Jury Trial Waiver.
(a)
This Agreement shall be governed by, and construed in accordance with, the
laws
of the State of New York without giving effect to principles of conflicts of
laws thereof.
(b)
Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of the United States District Court for the Southern District
of
New York or the Supreme Court of The State of New York, New York County in
the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court, and (iii) agrees that it will not bring any action relating to this
agreement or any of the transactions contemplated hereby in any court other
than
the United States District Court for the Southern District of New York or the
Supreme Court of the State of New York, New York County.
(c)
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR
BY THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 19.
Assignability.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their respective successors and permitted assigns;
provided,
however,
that, without prejudice to the provisions of Section 6 of this Agreement,
no party hereto may assign its respective rights or delegate its respective
obligations under this Agreement without the express prior written consent
of
the other parties hereto, except that any party may assign any of its rights
or
obligations under this Agreement to any member of its Group without the prior
written consent of the other party.
Section 20.
Third Party Beneficiaries.
(a)
Except for the indemnification rights under this Agreement of any Indemnitee
in
its capacity as such, (a) the provisions of this Agreement are solely for
the benefit of the parties hereto and are not intended to confer upon any other
any rights or remedies hereunder and (b) there are no third party
beneficiaries of this Agreement and this shall not provide any third person
with
any remedy, claim, liability, reimbursement, claim of action or other right
in
excess of those existing without reference to this Agreement.
(b)
Unless otherwise expressly provided herein (other than in the ordinary course
of
business of the Receiving Party), (i) each Service shall be provided solely
for the benefit of the applicable Receiving Party and members of its Group
and
(ii) no party may sell, transfer, assign or otherwise use the Services
provided to it hereunder or its right to receive such Services, in whole or
in
part, for the benefit of any Person other than a member of its
Group.
Section 21.
Notices.
All notices or other communications under this Agreement shall be in writing
(including by telecopy) and shall be deemed to be duly given or made when
delivered, or, in the case of telecopy, when received, addressed as follows
or
to such other address as may be hereafter notified by the respective
party:
14
To
Parent or any
member
of the
Parent
Group:
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Xxxx-XxXxx
Corporation
Xxxx-XxXxx
Worldwide Corporation
Xxxx-XxXxx
Center
000
Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General
Counsel
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with
a copy to:
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Xxxxxxxxx &
Xxxxxxx
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx
X. Xxxxx
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To
Tronox or any
member
of the
Tronox
Group:
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Tronox
Incorporated
000
Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Chief
Executive Officer
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with
a copy to:
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Tronox
Incorporated
000
Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General
Counsel
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Section 22.
Independent Contractor. At
all times during the term of this Agreement, the Providing Party shall be
an independent contractor in providing the Services hereunder with the
sole right to supervise, manage, operate, control and direct the performance
of
the Services and the sole obligation to employ, compensate and manage its
employees and business affairs. Nothing contained in this Agreement shall
be deemed or construed to create a partnership or joint venture, to create
the
relationships of employee/employer or principal/agent, or otherwise create
any
liability whatsoever of any party with respect to the indebtedness, Liabilities,
obligations or actions of the other party or any of its respective officers,
directors, employees, stockholders, agents or representatives, or any other
person or entity.
Section 23.
Severability.
If any provision of this Agreement or the application thereof to any Person
or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application
of
such provision to Persons or circumstances or in jurisdictions other than those
as to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination, the parties shall negotiate in good faith in an effort
to
agree upon such a suitable and equitable provision to effect the original intent
of the parties.
Section 24.
Force Majeure.
The Providing Party shall not be in default hereunder by reason of any failure
or delay in the performance of its obligations hereunder where such failure
or
delay is due to any cause beyond its control, including strikes, labor disputes,
civil
15
disturbances,
riot, rebellion, invasion, epidemic, hostilities, war, embargo, natural
disaster, acts of God, flood, fire, sabotage, accident, delay in transportation,
loss and destruction of property, intervention by Governmental Authorities,
change in laws, regulations or orders, other events or any other circumstances
or causes beyond the Providing Party’s control. In the event that any Providing
Party reasonably expects a failure or delay in the performance of its
obligations hereunder, such Providing Party shall promptly notify the Receiving
Party of such expectation and shall set forth in such notice, if practicable,
such Providing Party’s reasonable estimate of the nature, extent and duration of
such expected failure or delay. Notwithstanding anything to the contrary
contained herein, any Providing Party that experiences any shortage,
interruption, delay inadequacy or limitation in the availability of any of
the
Services (by reason of force majeure or otherwise) and is unable to fulfill
the
Receiving Party’s requirements for those Services shall ensure that the
Receiving Party is treated no less favorably than any member of the Providing
Party’s Group in the allocation by the Providing Party between such Group
members and the Receiving Party of such affected Services.
Section 25.
Headings.
The article, section and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 26.
Survival.
The provisions of Sections 9, 10 (other than the licenses granted thereunder),
as well as the related provisions of Sections 12 through 28, shall survive
the expiration or earlier termination of this Agreement for any reason
whatsoever.
Section 27.
Amendments.
No provisions of this Agreement shall be deemed waived, amended, supplemented
or
modified by any party, unless such waiver, amendment, supplement or modification
is in writing and signed by the authorized representative of the party against
whom it is sought to enforce such waiver, amendment, supplement or
modification.
Section 28.
Interpretation.
Words in the singular shall be held to include the plural and vice versa and
words of one gender shall be held to include the other genders as the context
requires. The terms “hereof”, “herein”, and “herewith” and words of similar
import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules and Exhibits hereto)
and not to any particular provision of this Agreement. Article, Section,
Exhibit and Schedule references are to the Articles, Sections,
Exhibits and Schedules to this Agreement unless otherwise specified. The word
“including” and words of similar import when used in this Agreement shall mean
“including, without limitation,” unless the context otherwise requires or unless
otherwise specified. The word “or” shall not be exclusive.
16
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed and delivered as of the day and year first above written.
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XXXX-XXXXX
CORPORATION
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxx
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Title:
Senior Vice President and Chief Financial Officer
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XXXX-XXXXX
WORLDWIDE CORPORATION
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By:
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/s/
Xxxxxx X. Xxxxxxxx
|
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Name:
Xxxxxx X. Xxxxxxxx
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Title:
Senior Vice President and Chief Financial Officer
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TRONOX
INCORPORATED
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
Chief Executive Officer
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