EXHIBIT E FORM OF TRANSITION SERVICES AGREEMENT FORM OF TRANSITION SERVICES AGREEMENT
EXHIBIT
E
FORM OF TRANSITION SERVICES
AGREEMENT
FORM OF TRANSITION SERVICES
AGREEMENT
This
Transition Services Agreement (together with the Schedules hereto, the "TSA") is made as of
____________, 2009 (the
"Effective
Date") by and between MDS Inc., a company existing under the laws of
Canada ("Parent" or "MDS") and DH
Manufacturing & Distribution Pte Ltd., a company formed under the laws of
Singapore (the "Service
Receiver").
WITNESSETH:
WHEREAS,
pursuant to a Stock and Asset Purchase Agreement, dated as of ____________,
2009, by and among Parent, DH Technologies Development Pte Ltd. ("Buyer") and the other
parties thereto (as may be amended from time to time, the "Purchase Agreement"),
Parent and certain of its Affiliates agreed to sell to Buyer and certain of its
Affiliates and Buyer and certain of its Affiliates agreed to purchase from
Parent and certain of its Affiliates, certain assets related to the Analytical
Technologies Business, all as more particularly described in and subject to the
terms in the Purchase Agreement;
WHEREAS,
prior to the date of the execution of the Purchase Agreement (the "Signing Date"), the
Analytical Technologies Business received certain services from Parent and
certain of its Affiliates;
WHEREAS,
Service Receiver is
an Affiliate of Buyer; and
WHEREAS,
Buyer desires that certain services continue to be provided after the Closing
upon the terms and conditions set forth in this TSA.
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained in
this TSA, and intending to be legally bound, and for other good and valuable
consideration, the receipt and sufficiency which is hereby acknowledged, the
Parties hereto hereby agree as follows:
SECTION
1. Definitions
Incorporated. All capitalized terms used but not otherwise defined in
this TSA have the meaning ascribed to them in the Purchase
Agreement.
SECTION
2. Additional
Definitions. Unless the context otherwise requires, the following terms,
and their singular or plural, used in this TSA shall have the meanings set forth
below:
2.1 "Party" means each of
the entities set forth on the signature pages to this TSA.
2.2 "Recipient" means
Service Receiver and/or its Affiliate(s), in each case, as identified on a
Schedule to this TSA as receiving a Service(s) set forth in such
Schedule.
2.3 "Schedule" means a
schedule for Services that (i) references this TSA, (ii) is signed by
each Party, (iii) identifies the specific Services to be provided and the prices
to be paid by Service Receiver for such Services, and (iv) identifies any terms
and conditions which are unique to the Services described therein. For the
avoidance of doubt, except as set forth in a Schedule executed by each Party,
neither Party shall be obligated to provide any other services to the other
Party.
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2.4 "Services" means the
services to be provided by Parent or an Affiliate of Parent to a Recipient, as
described in a Schedule.
2.5 "Term" shall have the
meaning set forth in Section 6.1
(Term) of this TSA.
Other
terms are used as defined elsewhere herein.
SECTION
3. Services
Provided.
3.1
Agreement to Provide
Services. Pursuant to the terms and conditions of this TSA and the
applicable Schedules, Parent will use commercially reasonable efforts to, or
will cause one or more of its Affiliates to use commercially reasonable efforts
to, provide the Services described in each Schedule to the Recipient(s)
identified in each such Schedule in accordance with either the dates set forth
in the Schedule, the dates reasonably requested by Service Receiver (subject to
Section 3.3 (Service Receiver Requests for Services)) or such other dates as are
mutually agreed upon by the Parties in writing; provided, however, that such
request must provide sufficient time for Parent to provide such Services using
commercially reasonable efforts during normal business hours (consistent with
past practices) prior to the expiration of the applicable Transition Term.
Unless otherwise agreed by the Parties in a Schedule, each Service will be
performed in the location where such Service was performed prior to the Closing.
Neither Parent nor any of its Affiliates will be required to render any Services
in a particular location that would necessitate that Parent or any of its
Affiliates qualify to do business in any location or jurisdiction other than the
current locations and jurisdictions where each Service was performed during the
Lookback Period (as defined below).
3.2
Other Unaccounted
Services. If, during the ninety (90) day period following the Effective
Date, Service Receiver believes that a service provided by Parent (or its
Affiliates) to the Analytical Technologies Business at any time in the one (1)
year period prior to the Signing Date (the "Lookback Period") in
connection with the conduct of the Analytical Technologies Business as conducted
during the Lookback Period was omitted from the Schedules to this TSA, then
Service Receiver shall raise such issue in writing with the Committee (as
defined in Section 3.6.2 (Oversight Committee)). Notwithstanding the foregoing,
in the case of Services which were provided on an ad hoc basis for which Service
Receiver would not have the ability to learn of the need for such Services
during such 90-day period referenced above, Service Receiver may raise such
issue in writing to the Committee. The Committee will consider all such issues
described above in good faith and if the Committee concurs that such service was
inadvertently omitted, then this TSA shall be amended through the inclusion of a
new Schedule or an amendment to an existing Schedule for such services, and such
services shall become Services hereunder, and the fees for such services shall
be consistent with the actual costs incurred prior to the Signing Date and/or
shall be equal to Parent's (or its Affiliates') actual out-of-pocket costs
incurred to provide such services.
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3.3
Unrelated Services.
Subject to Section 3.2 and Section 7.9, for the avoidance of doubt, unless
expressly set forth on a Schedule or reasonably related or ancillary to services
set forth on a Schedule, in the case of services that are requested by Service
Receiver that have not previously been regularly or periodically performed by
Parent or its Affiliates in connection with Parent's operation of the Analytical
Technologies Business during the Lookback Period, Parent may, in its reasonable
discretion, elect not to provide such services to Service Receiver.
3.4
Term of Each
Schedule. Each Schedule will describe the time period(s) during which
each of the Services described in such Schedule will be provided (each a "Service Term"). In
certain instances, the Service Term may be broken down into an "Initial Duration" and
an "Extended
Term" (which, together with the Initial Duration, forms the "Transition Term" for
the applicable Services). The Extended Term for a Service, if any, shall
commence at the end of the Initial Duration and extend through the one (1) year
anniversary of the Effective Date. If a Schedule does not designate an Initial
Duration for a particular Service, the Initial Duration for such Service shall
be six (6) months. If a Schedule does not designate an Extended Term
for a particular Service, the Extended Term for such Service shall be the period
from the expiration of the Initial Duration through the one (1) year anniversary
of the Effective Date. For the avoidance of doubt, in no event will
Parent or any of its Affiliates be required to provide a Service described in a
Schedule (a) beyond the Initial Duration for such Service if the Schedule
expressly provides that there is no Extended Term for such Service or (b) if
there is an Extended Term for such Service, beyond such Extended Term. For
general planning guidance, the objective of Parties is to have all Services
described in each Schedule and all related transition activities completed
within the Initial Duration with the stated goal of accelerating transition
activities, where practical.
3.5
Acknowledgement of
Completion. Certain Schedules may include specific deliverables or other
items specifically identified as "Objective Measures"
which the Parties intend to be completed during the Transition Term for the
applicable Schedule. Each Party will use commercially reasonable efforts to, and
will, if applicable, cause their Affiliates to use commercially reasonable
efforts to, perform such services and complete such activities to complete such
Objective Measures during the term of the applicable Schedule. Parent may
present to Service Receiver an "Acknowledgement of
Completion" in the form attached hereto as Annex A at such
time Parent believes that one or more Objective Measures has been completed.
Service Receiver will not unreasonably withhold, condition or delay its
execution or delivery of an Acknowledgement of Completion presented by Parent
and will promptly sign and return the Acknowledgement of Completion to Parent if
the applicable Objective Measure has been successfully completed in accordance
with the terms of this TSA (including any Schedules hereto). Notwithstanding the
foregoing, if Service Receiver believes in good faith that a particular
Objective Measure identified on an Acknowledgement of Completion has not been
successfully completed, then (i) if there are some Objective Measures set
forth in the Acknowledgement of Completion that have been successfully
completed, Service Receiver will cross out the Objective Measures that Service
Receiver does not believe have been successfully completed and sign and return
the Acknowledgement of Completion as to such other successfully completed
Objective Measures set forth therein and (ii) send written notice to Parent
detailing why Service Receiver believes that certain of the Objective Measures
have not been successfully completed. Service Receiver may only refuse to sign
an Acknowledgement of Completion if Parent has failed to meet its obligations
under the applicable Schedule in any material respect.
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3.6 Points of Contact; Oversight
Committee.
3.6.1 Points of Contact.
Each of Parent and Service Receiver will name a point of contact for each
Schedule, which points of contact are either set forth in such Schedule or shall
be appointed for each Party by such Party promptly after the Effective Date.
Such points of contact shall be responsible for the performance under the
applicable Schedule, including attempting to resolve any issues that may arise
during the performance hereunder on a day-to-day basis. Any reference in this
TSA to the co-operation of the Parties, or the use of good faith to negotiate
between the Parties or any other contact or communication between the Parties
shall be deemed to be an obligation of such points of contact and for
communication to be, in the first instance, between the respective points of
contact of Parent and Service Receiver. If the points of contacts are not able
to resolve a dispute, then the terms in Section 3.6.3 (Disputes) shall
apply.
3.6.2 Oversight Committee.
In order to assist with the timely and successful performance of the Services
and transitioning of the performance of the Services to Service Receiver or its
designee, the Parties shall together establish an oversight committee (the
"Committee")
that shall be responsible for overseeing, planning and facilitating performance
under this TSA, including supervising the scope and performance of the Services.
The Committee shall consist of six (6) members, three (3) of which shall be
appointed by Parent and three (3) of which shall be appointed by Service
Receiver. Unless otherwise approved by the other Party, each member of the
Committee shall be a full-time employee of Parent, Service Receiver or one of
their Affiliates. Each Party will appoint members to the Committee that are
familiar with one or more of the Services and the systems used to provide
services similar to the Services and who are qualified and suitable to serve on
the Committee. The Committee shall convene (either in person or via conference
call) once per week, or as otherwise determined by the Committee or more
frequently as requested by a Party, to review and discuss proposed amendments to
any Schedule and transitioning processes, including the scope and performance of
the Services, and its members shall cooperate in good faith to assist with the
planning and implementation of all transitioning processes. Either Party may
propose to the Committee amendments to a Schedule and all such proposed
amendments will be discussed in good faith by the Parties.
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3.6.3 Disputes. In the
event of any dispute among the Parties relating to the Services which is not
resolved by the points of contact for the applicable Schedule, including any
allegation of inadequate performance of any Services, upon the written request
of any two (2) members of the Committee, the Committee shall convene within two
(2) Business Days of such request. The purpose and scope of a meeting so
convened shall be limited to the issues relating to the specified dispute. At
such meeting, the Committee shall use its commercially reasonable efforts to
attempt to resolve the dispute. If the dispute has not been resolved within ten
(10) Business Days of the first meeting of the Committee convened pursuant to
this Section 3.6, the Committee shall escalate the dispute to senior management
of the Parties. If senior management of the Parties are unable to resolve the
dispute within twenty (20) Business Days of it being referred to them, the
Parties shall submit the dispute to mediation, followed by arbitration, in
accordance with the procedures specified in Section 11.6(b) and Section 11.6(c)
of the Purchase Agreement, respectively. The failure of the Committee to resolve
a dispute pursuant to this Section 3.6 shall not relieve a Party hereto or the
Committee from their obligations hereunder. Notwithstanding the foregoing, if
either Party reasonably believes that a breach of, or non-performance of the
other Party under, this TSA will result in irreparable harm to such Party, such
Party may request an expedited review by the Committee and senior management. In
the case of such request, the Committee will convene within two (2) Business
Days and attempt to resolve the dispute. If the dispute is not resolved within
five (5) Business Days of the request for expedited review, then the Committee
shall escalate the dispute to senior management of the Parties. If the senior
management of the Parties is not able to resolve the expedited dispute within
five (5) Business Days of it being referred to them, then the aggrieved party
may seek immediate injunctive relief, specific performance, or other equitable
remedies from a court of competent jurisdiction without first pursuing mediation
or arbitration as described above. In addition, in the event that Service
Recipient disputes an invoice as described in this TSA, Parent may avail itself
of an expedited review by the Committee and senior management to address such
dispute and the shorter time periods specified above for a breach that results
in irreparable harm shall apply.
SECTION
4. Compensation.
4.1
Compensation for
Services. Subject to the terms and conditions in this TSA, the
compensation to be paid by Service Receiver to Parent for each Service shall be
the prices and rates set forth in Annex B for such
Service. Except as otherwise set forth in a Schedule, for any Service where the
price for the Services is expressed as a specified dollar amount per week, if
such Services are provided for only a portion of the week, the Services will be
deemed provided for a full week for purposes of determining the fees under this
TSA. The weekly price for Services will be determined by dividing the monthly
price on Annex
B by four and one-third (4⅓).
4.2
Costs and Expenses.
Service Receiver shall not be obligated to reimburse Parent for amounts paid by
Parent to third party service providers that provide Services on behalf of
Parent or its Affiliates under this TSA where such amounts are incurred
consistent with Parent's and its Affiliate's prior practices during the Lookback
Period in connection with the performance of the Services for the benefit of
Parent and its Affiliates during the Lookback Period. Subject to the Service
Receiver's advance approval of Parent's costs and expenses, Service Receiver
shall reimburse Parent for the actual out-of-pocket costs and expenses, in each
case incurred by Parent or its Affiliates in connection with the performance of
the Services which such costs and expenses have not been incurred by Parent
during the Lookback Period in connection with the performance of the Services
for the benefit of Parent and its Affiliates during the Lookback Period. If
Service Receiver does not approve any expenditure and such expenditure is
necessary to perform certain Services, then Parent shall be relieved of its
obligation to provide such dependent Services; provided, however, that if
Service Receiver disputes the amount of any such expenditure in good faith,
Parent will provide such dependent Services but the Committee will convene
within two (2) Business Days and attempt to resolve the dispute and, if the
dispute is not resolved within five (5) Business Days of the request for
expedited review, then the Committee shall escalate the dispute to senior
management of the Parties for resolution. If Service Receiver requests that
Parent personnel travel in connection with the performance of any Service or if
such travel is required to perform a Service, in each case which travel is not
consistent with past practices in connection with Parent's performance of the
Services during the Lookback Period (which will not be a reimbursable expense),
Service Receiver will reimburse Parent for all reasonable costs incurred by
Parent personnel in connection with such travel, including air and ground
transportation, lodging and meals, subject to Service Receiver's travel expense
and reimbursement policy applicable to its own personnel to the extent
previously disclosed in writing to Parent. Unless otherwise set forth in a
Schedule, Service Receiver shall not be required to pay to Parent any fees for
hourly or daily personnel time for time spent traveling by Parent
personnel.
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4.3 Taxes.
4.3.1 The
prices set forth in the Schedules are exclusive of taxes. Service Receiver will
pay and be liable for any and all sales, service, value added, or similar taxes
imposed on, sustained, incurred, levied or measured by: (i) the cost, value or
price of Services provided by Parent or its Affiliates under this TSA; or
(ii) Parent's or its Affiliates' cost in acquiring property or services
used or consumed by Parent or its Affiliates in providing Services under this
TSA, except to the extent Parent or its Affiliates are entitled to a refund or
credit in respect of such taxes (collectively, the "Sales and Service
Taxes"). Service Receiver (or its Affiliates) shall remit any such Sales
and Services Taxes to the appropriate taxing authority to the extent required to
do so under applicable law, and to the extent not so required, such Sales and
Service Taxes will be payable by Service Receiver to Parent, or its Affiliates,
where relevant, in accordance with Section 4.4 (Terms of Payment) or as
otherwise mutually agreed in writing by the Parties and under the terms of the
applicable law which govern the relevant Sales and Service Tax. Service
Receiver's obligation to pay Sales and Service Taxes under this Section shall be
subject to the receipt of (a) a computation of the Sales and Service Taxes
payable under this Section identifying the nature and amount of the goods or
services on which the Sales and Service Tax is assessed and the applicable rate
and (b) a valid and customary invoice (or other document) for each Sales and
Service Tax sufficient to identify each Service being supplied and where
relevant to enable Service Receiver to recover all or any portion of such tax in
accordance with the applicable law. Notwithstanding the foregoing, Parent shall
be responsible for any new or additional Sales and Service Taxes imposed as a
result of Parent providing the Services from a location other than any location
specified in the applicable Schedule(s) or other than a location from which the
Services were provided during the Lookback Period. Neither Parent nor its
Affiliates shall be liable for any interest, penalties or other charges
attributable to any improper filing relating to Sales and Services Taxes or any
late payment or failure to remit Sales and Services Taxes to the relevant taxing
authority by Buyer or its Affiliates.
4.3.2 Each
of Parent and Service Receiver shall pay and be responsible for all other taxes
applicable to each of them, including taxes based on their own income or profits
or assets.
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4.3.3 Payments
for Services or other amounts under this TSA shall be made net of any required
withholding taxes. Notwithstanding the foregoing, if Parent reasonably believes
that a reduced rate of withholding applies or Parent or its Affiliates are
exempt from withholding, then Parent will notify Service Receiver and Service
Receiver will apply such reduced rate of withholding or no withholding at such
time as Parent provides Service Receiver with evidence reasonably satisfactory
to Service Receiver that a reduced rate of or no withholding is required (and
that all necessary administrative provisions have been completed). Service
Receiver shall timely remit any amounts withheld to the appropriate taxing
authority and shall provide Parent with a receipt or other documentation
evidencing such payment and sufficient to permit Parent (or its Affiliates) to
claim a foreign tax credit, including the amount paid and the applicable taxing
authority to whom payment was made. Service Receiver shall not be required in
any circumstances to pursue any refund of taxes withheld and paid over to a
taxing authority; provided, however, that (a)
Service Receiver will, at Parent's reasonable request and at Parent's expense,
assist Parent in Parent's pursuit of such refund of taxes and (b) in the event
that Service Receiver receives a refund of any amounts previously withheld from
payments to Parent and remitted, Service Receiver shall promptly surrender such
refund to Parent.
4.3.4 Each
of Parent and Service Receiver shall promptly notify the other of any deficiency
claim or similar notice by a taxing authority with respect to Sales and Service
Taxes or withholding taxes payable under this TSA, and shall provide the other
with such information as reasonably requested from time to time, and shall fully
cooperate with Parent or Service Receiver, as applicable, in connection with:
(a) the reporting of any Sales and Service Taxes or withholding taxes payable
pursuant to this TSA; (b) any audit relating to Sales and Service Taxes or
withholding taxes pursuant to this TSA; and (c) any assessment, refund, claim or
proceeding relating to such Sales and Service Taxes or withholding
taxes.
4.4 Terms of Payment.
Parent will invoice Service Receiver for each Service at the prices and rates
set forth in the applicable Schedule on or after the last day of each four (4)
week period after Closing for the weekly fees due for such four (4) week period
or on such other invoicing schedule as is set forth in a Schedule. Each invoice
will include itemized billing consistent with the fees set forth in each
Schedule so as to enable Service Receiver to reconcile the amounts invoiced with
the fees set forth on each Schedule. Parent shall provide to Service Receiver a
single invoice for all Services provided hereunder during each four (4) week
period after Closing except where there are recoverable local Sales and Service
Taxes applicable to the Services and the use of a single invoice from Parent
would render such Sales and Service Taxes unrecoverable and in such event,
Service Receiver will provide Parent at least sixty (60) days prior written
notice of Service Receiver's desire to receive separate invoices for such
Services. In addition, at the reasonable request of Service Receiver, and at
Service Receiver's sole cost, the Parties shall agree in writing upon any such
exceptions and billing locations for such exceptions in advance. Parent shall
also provide invoices to Service Receiver at the end of each four (4) week
period after Closing in arrears for amounts, such as Sales and Service Taxes
and/or other costs and expenses, that are payable in addition to the prices for
the Services. Payment in full shall be made by Service Receiver by wire transfer
in immediately available funds (or such other means as the Parties may mutually
agree in writing) within thirty (30) days after receipt of an invoice. Service
Receiver shall have the right to withhold from its payment amounts disputed in
good faith, provided that Service
Receiver must provide written notice of the dispute to Parent prior to payment
due date (and Service Receiver shall use reasonable efforts to provide such
written notice as promptly as possible) and such notice must provide detail as
to the nature of the dispute, including a detailed description of the
"sub-Service" (i.e., an element of a Schedule within a row of a Schedule) that
was not provided or provided in a manner inconsistent with the TSA and the fees
for that sub-Service. All undisputed fees must be timely paid in full. If
Service Receiver disputes an invoiced amount, the Parties will work together in
good faith to resolve such dispute expeditiously and when resolved Parent may
invoice Service Provider for such amounts and Service Receiver shall pay such
invoice as provided in this TSA. Subject to the foregoing, any such withholding
of disputed amounts shall not constitute breach of this TSA. Undisputed amounts
(which shall include disputed amounts that have been resolved in accordance with
the foregoing) not paid on or before the date required to be paid hereunder
shall be a material breach of this TSA and shall accrue interest at an annual
rate of one month LIBOR plus sixty basis points (or the maximum legal rate
whichever is lower) (the "Default Interest
Rate"), pro rated for the actual number of days elapsed, accrued from the
date such payment was due hereunder until the date of the actual receipt of
payment. In addition, Parent or its Affiliates may suspend performance of the
Services in the event that Service Receiver fails to timely pay undisputed
amounts (which shall include disputed amounts that have been resolved) within
ten (10) days after notice of non-payment from Parent. All amounts due for
Services rendered pursuant to this TSA shall be billed and paid in United States
currency or as shown on the Schedules hereto.
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4.5 Record Keeping and
Audit. Parent shall maintain complete and accurate records of any
invoices and supporting documentation for all reimbursable costs and expenses
billable to Service Receiver under this TSA, and shall retain any such records
created for a period of one (1) year following the termination of this TSA.
Parent shall provide to Service Receiver or its designee documentation and other
information relating to each invoiced reimbursable costs and expenses as may be
reasonably requested by Service Receiver to verify that Parent's invoices for
such costs and expenses are accurate, complete, and valid in accordance with
this TSA, including copies of all statements received from third-party service
providers that pertain to such costs and expenses. During the Transition Term
and any subsequent periods for which Parent is required to maintain such
records, Service Receiver's or one of its Affiliate's internal audit group or
Service Receiver's independent certified public accountant may reasonably review
such records and conduct audits of the invoices. Parent shall cooperate in any
such audit of such records; provided, however, that: (i)
any such audit shall be at Service Receiver's sole expense; and (ii) no such
audit may occur more than two (2) times in any twelve (12) month period.
Notwithstanding the foregoing, in the event any such audit uncovers an
overcharge of Service Receiver by five percent (5%) or greater, Service Receiver
shall be entitled to conduct up to two (2) audits each calendar quarter over the
course of the following twelve (12) months (at Service Receiver's cost and
expense) and Parent shall reimburse Service Receiver for the reasonable third
party costs of the audit that revealed the overcharge and the amount of the
overcharge. In the event that any such audit reveals that Parent did not charge
Service Receiver amounts owed to Parent under this TSA, then Parent may invoice
Service Receiver for such amounts and Service Receiver will pay such invoice as
provided in this TSA.
SECTION
5. Parent's Continued
Receipt of
Services. At the Closing, Buyer will assume the Purchased Assets as
provided in the Purchase Agreement and shall use, or will cause one or more of
its Affiliates to use, commercially reasonable efforts to provide the Services
specified on the Schedules as to be provided by Service Receiver. For purposes
of the Services provided in this Section 5 only,
"Parent" shall be replaced with "Service Receiver" and "Service Receiver" shall
be replaced with "Parent," as applicable, in the Section 3.1, Section 3.2,
Section 3.3, Section 3.4, Section 4, Section 6, Section 7, Section 8, Section 9,
Section 10.3, and Section 11. Except as set forth in the Schedules attached
hereto as of the Effective Date, it is not anticipated that Service Receiver
will provide any services to Parent under this TSA.
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SECTION
6. Term and
Termination.
6.1 Term. Except as
expressly provided otherwise in this Section 6 (Term and Termination) or
elsewhere in this TSA, the term of this TSA (the "Term") shall be for a
period commencing at 12:01 a.m. Eastern Time on the date immediately following
the Effective Date and ending at 11:59 p.m. Eastern Time on the last day of
the Extended Term, except as otherwise set forth in a Schedule (the "Expiry
Date").
6.2 Termination of Individual
Services by Service Receiver for Convenience. Service Receiver may, at
any time after the Effective Date, terminate any individual Service provided
under this TSA on a Service-by-Service basis (and/or location-by-location basis
where individual Services are being provided to multiple locations) upon written
notice to Parent identifying the particular Service (or location) to be
terminated and the effective date of termination, which date shall not be
(i) later than the end of the applicable Transition Term or (ii) earlier
than two (2) weeks after Parent's receipt of such notice of termination (or such
other minimum period as is set forth in a Schedule), unless Parent otherwise
agrees in writing. The termination of any individual Services pursuant to this
Section shall not affect this TSA with respect to the Services not terminated
under this Section. Service Receiver shall be responsible for any out-of-pocket
costs or expenses actually incurred or irrevocably committed to by Parent and
its Affiliates and arising out of or resulting from provision of such Services
up to the time of their termination or from the early termination of such
Services, provided that Parent
shall use commercially reasonable efforts to mitigate such out-of-pocket costs
and expenses. If, during the term of this TSA, (a) Parent enters into any
license agreement, services agreement, hardware or equipment agreement, or other
contract that Parent has entered into in connection with the performance of the
Services and that is dedicated to use for the provision of the Services, or (b)
Parent procures any hardware, equipment or other asset that is dedicated to use
for the provision of the Services, then Parent shall, upon Service Receiver's
written request in connection with the termination or expiration of this TSA,
use commercially reasonable efforts to assign or transfer such license
agreement, services agreement, hardware or equipment agreement, other contract,
or hardware, equipment or asset to Service Receiver or a designated Service
Receiver Affiliate and in such event Service Receiver shall be responsible for
any assignment or transfer fees associated therewith. It is acknowledged by the
Parties that it is not contemplated that Parent will enter into any such
agreements or contracts which are exclusively related or dedicated to the
performance of the Services.
6.3 Termination of
Agreement. This TSA shall terminate on the earliest to occur of (a) the
Expiry Date (as defined in Section 6.1); (b) the date on which the provision of
all Services have been completed or terminated or been canceled pursuant to
Section 6.2 (Termination of Individual Services by Service Receiver for
Convenience) and (c) the date on which this TSA is terminated pursuant to
Section 6.4 (Termination for Cause).
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6.4 Termination for
Cause. If either Party materially breaches any of its obligations under
this TSA, including any failure of Parent or its Affiliates to perform any
Services in accordance with this TSA, and such Party does not cure such breach
within thirty (30) days after receiving written notice thereof from the
non-breaching Party, the non-breaching Party may terminate this TSA in whole or
in part (solely with respect to the Services to which such breach relates),
immediately by providing written notice of termination to the Party in breach.
Notwithstanding the foregoing, if Service Receiver fails to pay undisputed
amounts hereunder (which shall include disputed amounts that have been resolved)
when due, and Service Receiver fails to cure its failure to pay such undisputed
amounts within ten (10) days of receipt of written notice thereof from Parent,
Seller may terminate this TSA, including the provision of Services pursuant
hereto, immediately by providing written notice of termination to Service
Receiver; provided that Parent
shall have no right to terminate this TSA due to Service Receiver withholding
disputed amounts in good faith as described in this TSA. The failure of a Party
to exercise its rights hereunder with respect to a breach by the other Party
shall neither be construed as a waiver of such rights nor prevent such Party
from subsequently asserting such rights with regard to the same or similar
defaults.
6.5 Effect of Termination;
Survival. In the event of the expiration or any termination of this TSA,
Parent shall be entitled to all amounts due for the provision of Services
rendered prior to the date of termination and such amounts will be determined in
accordance with the prices set forth in the applicable Schedule(s) and will be
paid by Service Receiver in accordance with the terms in this TSA. The following
Sections shall survive the termination or expiration of this TSA: Section 1
(Definitions Incorporated) and Section 2 (Additional Definitions) (in each case
as necessary to interpret any surviving provision hereunder), Section 4
(Compensation) (solely with respect to amounts accrued prior to the termination
or expiration of this TSA), Section 6 (Term and Termination), Section 7.9
(Non-Solicitation of Employees), Section 7.11 (Certain Disbursements/Receipts),
Section 10 (Disclaimer), 10.1 (Limitation on Liability), Section 12
(Confidentiality), and Section 13 (Miscellaneous).
SECTION
7. Certain
Covenants.
7.1 Reasonable Care.
Parent shall perform, or cause to be performed, the Services under this TSA (a)
in accordance with the service and quality levels specified in the applicable
Schedule or, (b) if no service and quality levels are provided in a Schedule
with respect to a particular Service or aspect of a Service, at the same or
higher service and quality levels and similar in nature and volume to those
Services (or similar services) provided by Parent or its Affiliates prior to the
Signing Date and with at least that degree of skill and care that Parent or its
Affiliates would exercise in carrying out similar services for Parent's own
business.
7.2 Data Protection.
Parent shall use, or cause to be used, commercially reasonable measures
consistent with generally accepted industry standards to protect the applicable
Recipient's data that is processed by or at the direction of Parent in
connection with the Services from unauthorized disclosure, access, destruction,
deletion or change and allow the recovery of such data in the case of a Force
Majeure (as defined in Section 8), provided, however, that Parent
and its Affiliates shall be deemed to have satisfied the obligations set forth
in this Section 7.2 if the measures taken to protect and recover the Recipient's
data are substantially similar in all material respects as those measures that
Parent uses in carrying out its own business.
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7.3 No Violation of Laws.
Neither Parent nor its Affiliates (nor third party service providers) shall be
required to provide all or any part of any particular Service or Services to the
extent that providing such Service or Services would require Parent or its
Affiliates to violate any applicable laws, governmental rules or regulations;
provided, that
promptly upon learning of such applicable law, governmental rules or
regulations, Parent shall deliver reasonable written notice thereof to Service
Receiver and Parent shall reasonably cooperate with Service Receiver to mitigate
the impact of Parent or its Affiliates (or a third party service providers)
being unable to provide such Service or Services, including the development and
implementation of a reasonable work-around or reasonable revision to such
Service or Services as necessary to comply with such applicable law,
governmental rules, or regulations.
7.4 Cooperation. It is
understood that it will require significant efforts of all Parties to implement
this TSA and ensure performance hereunder at the agreed upon level (subject to
all the terms and conditions of this TSA). The Parties will cooperate (acting in
good faith) to effect a smooth and orderly transition of the performance of the
Services provided hereunder from Parent and its Affiliates to the respective
Recipients, including the separation of the Analytical Technologies Business
from the Excluded Businesses. Such co-operation shall include but not be limited
to the provision of such reasonable access to each Party to the other Party's
personnel and records as shall be reasonably necessary to facilitate the
transition of the Services. To the extent a failure of Service Receiver or any
Recipient to act in accordance with this Section prevents or materially inhibits
the provision of a Service hereunder, Parent or its Affiliates shall be relieved
of its obligation to provide such Service to the extent affected until the
failure has ceased; provided that if
Parent or any of its Affiliates is aware of any such failure it shall provide
prompt notice thereof to Service Receiver and Parent shall, and shall cause it
Affiliates to, provide any unaffected portion of such Service notwithstanding
such failure, provided further that
Service Receiver will be responsible for paying for all incremental resources,
costs and expenses reasonably incurred by Parent or its Affiliates in connection
with Parent or its Affiliates in carrying out the above.
7.5 Means of Providing
Services.
7.5.1 Subject
to Section 7.1 (Reasonable Care) and Section 7.6 (Personnel) and its obligation
to perform the Services in accordance with the terms of this TSA, Parent shall
determine the means and resources used to provide the Services in accordance
with its reasonable business judgment. Without limiting the foregoing, Parent or
its Affiliates may elect, in its or their reasonable discretion, to modify or
replace at any time (i) its policies and procedures; (ii) any Affiliates
and/or third parties that provide any Services; (iii) the location from
which any Service is provided; or (iv) the intellectual property rights,
information technology, products and services used to provide the Services;
provided that,
in each case, any such modification or replacement shall not (a) adversely
affect in a material respect the Services or the quality thereof, (b) subject
Service Receiver to any additional liability or risk, or (d) relieve Parent of
its obligation to perform the Services in accordance with the terms of any
Schedule or this TSA.
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7.5.2 Subject
to Section 7.1 (Reasonable Care) and any limitations with respect to outages
specified in any Schedule, Parent or its Affiliates may in its or their
reasonable discretion suspend the provision of the Services (or any part
thereof), from time to time, to enable the performance of routine or emergency
maintenance to the assets used in connection with the provision of the Services
that are required to provide the Services, provided that (i)
Parent shall use commercially reasonable efforts to perform such routine
maintenance outside of the normal business hours (consistent with past
practices) of the Recipient and in accordance with the terms of the applicable
Schedule; (ii) Parent shall provide Service Receiver with reasonable prior
notice of such suspension and the anticipated duration of the suspension, in
each case to the extent practicable; and (iii) Parent shall use commercially
reasonable efforts to carry out the applicable maintenance and resume the
provision of the relevant Services as quickly as reasonably practicable. If any
suspension of Services (or any portion thereof) in connection with the foregoing
delays the execution of the Services (or portion thereof) for five (5) or more
days, then the fees for such Services (or portion thereof) shall not be charged
for the time during which such Services (or portion thereof) were suspended,
provided that
Parent shall be entitled to recommence charging such fees upon resumption of the
Services.
7.6 Personnel. Except as
otherwise specified in a Schedule with respect to the Services under such
Schedule, Parent or its Affiliates, in providing the Services, as it deems
necessary or appropriate in its reasonable discretion, may (a) use the personnel
of Parent or its Affiliates (it being understood that such personnel can perform
the Services on behalf of Parent or its Affiliates on a full-time or part-time
basis, as determined by Parent or its Affiliates in accordance with the
obligations under this TSA relating to the provision of the Services), and (b)
employ the services of third parties who are in the business of providing such
Services to the extent such third party services are reasonably necessary for
the efficient performance of any such Services; provided, however, that Parent
first obtains Service Receiver's approval (which shall not be unreasonably
withheld) for the use of any third party to provide Services that was not used
during the Lookback Period if Service Receiver is required to reimburse Parent's
or its Affiliate's costs and expenses related to such third party. In performing
the Services, employees and representatives of Parent and its Affiliates shall,
as between the Parties, be under the direction, control and supervision of
Parent or its Affiliates (and not the Recipient or Service Receiver) and, as
between the Parties, Parent or its Affiliates shall have the sole right and
obligation to exercise all authority and control with respect to the employment
(including termination of employment), assignment and compensation of such
employees and representatives (it being understood that, except as otherwise
specified in a Schedule with respect to the Services under such Schedule, in
which case such personnel identified shall be used to provide the relevant
Services, the Recipient has no right hereunder to require that Parent or its
Affiliates perform the Services hereunder with specifically identified employees
and that the assignment of employees to perform such Services shall be
determined in the sole discretion of Parent; provided that the
obligations in this TSA with regard to the quality, nature, cooperative efforts
and scope of the Services shall not be affected by this Section 7.6). If Parent
uses a third-party service provider to provide one or more Services, such use
does not relieve Parent of its obligation to provide such Service in accordance
with the requirements of this TSA, and Parent shall be responsible for the acts
and omissions of such third-party service provider with respect to the Services
or activities undertaken in connection with this TSA
7.7 Relationship of the
Parties. Nothing contained in this TSA shall be construed as creating a
partnership, joint venture, agency, trust or other association of any kind among
or between the Parties, each Party being individually responsible only for its
obligations as set forth in this TSA. Parent and its Affiliates shall provide
the Services hereunder in the capacity of an independent contractor and not as
an employee or agent of Service Receiver or any Recipient.
E-12
7.8 Treatment of
Employees. Employees of Parent and its Affiliates involved in the
provision and administration of the Services shall remain as the employees of
Parent and its Affiliates, and Parent and its Affiliates shall be solely
responsible for the payment and provision of all wages, bonuses, commissions and
employee benefit plans, programs or arrangements relating to such
employees.
7.9 Non-Solicitation of
Employees. For a period of three (3) years from and after the Effective
Date, each Party shall not, and it shall cause its Affiliates not to, without
the express written consent of the other Party, directly or indirectly, solicit
any employees of the other Party or its Affiliates (the "Employer") involved
in providing or receiving the Services ("Relevant Employees"),
in each case, to (x) leave the employment of the Employer, or (y) violate
the terms of their employment contracts, or any employment arrangements, with
the Employer, in all such cases in order to become an employee of the
non-Employer Party or its Affiliates (but limited in the case of becoming an
employee of Service Receiver or its Affiliates to being employed in the
Analytical Technologies Business); provided, however, that nothing
in this Section shall restrict or preclude a Party or its Affiliates from (A)
making generalized searches for and hiring employees by the use of
advertisements in the media (including trade media) or by engaging search firms
that are not instructed to solicit any Relevant Employee to engage in searches,
(B) soliciting, hiring or extending an offer to hire, directly or indirectly,
any Designated Employee who did not become an Affected Employee at Closing, or
(C) in the case of Service Receiver or its Affiliates, soliciting, hiring or
extending an offer to hire, directly or indirectly, any employee of Parent or
any of its Affiliates to provide services to businesses of Service Receiver or
any of its Affiliates other than the Analytical Technologies
Business.
7.10 Migration Projects.
Parent or its Affiliates will provide, after the Closing, the respective
Recipient with reasonable support necessary to transition or migrate the
Services to the applicable Recipient or any third party chosen by the applicable
Recipient and such support shall be deemed a part of the Services and Service
Receiver will pay the rates set forth in the Schedule for such support Services.
Such support may include consulting and training and providing reasonable access
to data and other information and to Parent's and its Affiliates employees. For
the avoidance of doubt, the Services described in this Section shall be limited
to the applicable Transition Term (as defined in Section 3.4 (Term of each
Schedule)) for the applicable Service.
7.11 Certain
Disbursements/Receipts. The Parties hereto contemplate that, from time to
time on or after the Closing Date, a Party and/or its Affiliates (any such
person, the "Paying
Party"), as a convenience to, and at the request or with the prior
approval of, the other Party and its Affiliates (the "Responsible Party"),
in connection with the transactions contemplated by this TSA or the Purchase
Agreement, may make certain payments that are properly the responsibility of the
Responsible Party (whether pursuant to the Purchase Agreement or this TSA or
otherwise (any such payment made, a "Disbursement").
Similarly, from time to time on or after the Closing Date, a Party and its
Affiliates (any such person, the "Receiving Party") may
receive from third parties certain payments to which the other Party and/or its
Affiliates, as the case may be, is entitled (any such person, the "Other Party", and any
such payment received, a "Receipt").
Accordingly, with respect to Disbursements and Receipts, the Parties hereto
agree as follows:
E-13
7.11.1 Disbursements.
7.11.1.1 A
Paying Party may request reimbursement for Disbursements made by check within
seven (7) Business Days after notice of such Disbursement has been given to the
Responsible Party in writing and with reasonable supporting
documentation.
7.11.1.2 In
case of a Disbursement paid by wire, if notice in writing and with reasonable
supporting documentation has been given by 2 p.m. of the Responsible Party's
local time at least one (1) Business Day prior to the payment of such
Disbursement, the Responsible Party shall reimburse the Paying Party for the
amount of such payment (in the local currency equivalent paid by the Paying
Party) on the date the Disbursement is made by the Paying Party. If notice as
provided above has not been given prior to the payment of such Disbursement, the
Responsible Party shall reimburse the Paying Party for the amount of such
payment (in the local currency equivalent paid by the Paying Party) within three
(3) Business Days after receipt by the Responsible Party of such notice from the
Paying Party.
7.11.2 Receipts. A Receiving
Party shall remit Receipts to the Other Party (in the same currency as such
payment is received) within five (5) Business Days of receipt
thereof.
7.11.3 Certain Exceptions.
Notwithstanding anything to the contrary set forth above, if, with respect to
any particular transaction(s), it is impossible or impracticable under the
circumstances to comply with the procedures set forth in this Section 7.11
(including the time periods specified herein), the Parties will cooperate to
find a mutually agreeable alternative that will achieve substantially similar
economic results from the point of view of the Paying Party or the Other Party,
as the case may be; i.e., an alternative pursuant to which the Paying Party will
not incur any material interest expense or the Other Party will not be deprived
of any material interest income; provided, however, that if a
Receiving Party cannot comply with the procedures set forth in this Section 7.11
because it does not become aware of a Receipt on behalf of the Other Party in
time (e.g., because of the commingling of funds in an account), such Receiving
Party shall remit such Receipt (without interest thereon) to the other Party
within twenty-four (24) hours after it becomes aware of such
Receipt.
7.11.4 Interest Rate. The
rate for any interest income or expense that is paid or payable pursuant to this
Section 7.11 shall be the Default Interest Rate, pro rated for the actual number
of days elapsed, accrued from the date such payment was due hereunder until the
date of the actual receipt of payment.
7.11.5 Dispute Resolution for
Receipts and Disbursements. Any disputes arising or relating to the
subject matter of this Section 7.11 shall be referred to the Committee for
resolution.
E-14
7.12 No Violation of Third Party
Agreements. Nothing in this TSA shall require Parent or any of its
Affiliates to violate any agreement with a third party, including any software
license agreement; provided that if
Parent reasonably believes that the provision of any Services will result in
such violation, the Parties shall cooperate in good faith and use their
commercially reasonable efforts to procure any applicable license or enter into
any appropriate agreement in order to allow the Services to be provided in
accordance with the terms set forth herein. All costs incurred as a result of
the cooperation of the Parties pursuant to the immediately preceding sentence
shall be borne by Buyer. Nothing in this Section 7.12 shall limit any
obligation of Parent or its Affiliates to transfer any licenses or agreements,
or to procure any consents, as set forth in the Purchase Agreement.
7.13 Information Provided by
Service Receiver. Service Receiver will provide (or will cause to be
provided) to Parent complete and accurate data and information to the extent
necessary for Parent or its Affiliates to provide the Services. Parent and its
Affiliates may rely on the completeness and accuracy of such data and
information in connection with the provision of the Services to Service
Receiver. Neither Parent nor its Affiliates will be liable or responsible for
any failure to provide a Service in compliance with this TSA as a result of such
data or information provided by Service Receiver being incomplete or inaccurate
and Service Receiver will be responsible and liable therefor.
7.14 IT System. As
promptly as reasonably possible between the Effective Date and the end of the
Transition Term for the IT Enterprise Business Systems Schedule, Parent shall
create a cloned OracleApps environment configured on Parent's hardware in
accordance with the IT Enterprise Business Systems Schedule that is configured
in the same manner as the environment for the Analytical Technologies Business
(as part of Parent's overall OracleApps environment) was configured in the
Lookback Period. Such cloned OracleApps environment shall contain all
current and historical data for the Analytical Technologies Business used in
Parent's OracleApps environment; provided, however, that Parent
shall remove or close open transactional data from such cloned OracleApps
environment that is not applicable to the Analytical Technologies
Business. During the Transition Term for the Services set forth on
the Information Technology (IT) Services Schedule attached hereto after the
creation of such cloned OracleApps environment, Service Receiver shall have the
right at all times to freely access such cloned OracleApps environment to
access, use, copy and transfer the data in such cloned environment; provided
that backdoor access for any personnel of Service Receiver or its Affiliates who
were not previously personnel of Parent or its Affiliates with existing Oracle
accounts will be limited to such personnel of Service Receiver or its Affiliates
who have executed an appropriate confidentiality agreement in a form reasonably
acceptable to Parent or its licensor. Upon expiration of the
Transition Term for such Services, Parent shall deliver to Service Receiver a
data set of all transactions entered into the OracleApps cloned
environment during the Transition Term and a final copy of the clone that
satisfies the Parent’s data protection requirements.
E-15
SECTION
8. Force
Majeure.
Neither
Party nor any of its Affiliates (nor any Person acting on its or their behalf)
shall bear any responsibility or liability for any losses arising out of any
delay, inability to perform or interruption of its performance of obligations
under this TSA due to any acts or omissions of a Recipient or for events beyond
the reasonable control of such Party or its Affiliates (or any Person acting on
its or their behalf) (hereinafter referred to as "Force Majeure"),
including acts of God, acts of governmental authority, acts of the public enemy
or due to terrorism, war, riot, flood, civil commotion, insurrection, labor
difficulty, severe or adverse weather conditions, lack of or shortage of
electrical power beyond the reasonable control of such Party or its Affiliates,
malfunctions of equipment or software programs beyond the reasonable control of
such Party or its Affiliates or any other cause beyond the reasonable control of
such Party or its Affiliates or its or their third party service providers whose
performance is affected by the Force Majeure event. In such event, the
obligations hereunder of such Party in providing the impacted Service or
performing its obligations under this TSA, and the obligations of the Service
Receiver to pay for any such Service, shall be postponed for such time as its
performance is suspended or delayed on account thereof but only to the extent
that the Force Majeure event prevents such Party or its Affiliates from
performing its duties and obligations hereunder. During the duration of the
Force Majeure event, the affected Party shall use all commercially reasonable
efforts to avoid or remove such Force Majeure event and shall use all
commercially reasonable efforts to resume its performance under this TSA with
the least practicable delay. From and during the occurrence of a Force Majeure
event that affects Parent, Service Receiver may replace the affected Services by
providing such Services for itself or engaging a third party to provide such
Services at Service Receiver's sole cost and expense, in which case Service
Receiver shall have no obligation to pay Parent for the same Services. A Force
Majeure shall not toll or otherwise extend the Transition Term.
SECTION
9. Indemnification.
In the
event of a breach of the representations and warranties set forth in Section 10
or a Party's (or its Affiliate's) gross negligence or willful misconduct
hereunder that results in a third party Claim (as defined below) against an
Indemnitee (as defined below) and subject to the terms and conditions in this
TSA, each Party (the "Indemnifying Party") will (i) defend the other Party, its
Affiliates and each of their respective officers, directors, employees and
agents (the "Indemnitees") from and against any and all such third party claims,
suits, actions or proceedings (collectively, "Claims") against the Indemnitees
arising out of or related to any such breach the Indemnifying Party, and (ii)
pay any damages awarded or settlement amounts paid to the third party bringing
such Claims.
Service
Receiver (as the Indemnifying Party) will (a) defend Parent, its Affiliates
and each of their respective officers, directors, employees and agents (as the
Indemnitees) from and against any and all Claims by employees of Service
Receiver or any of its Affiliates against any Indemnitee whereby the employee
Claims are reasonably characterized as a joint-employer or co-employer
relationship or claim as a result of the relationship of the Parties and/or
their Affiliates in relation to the provision of the Services under this TSA and
(b) pay any damages awarded or settlement amounts paid to such employees
bringing such Claims. Notwithstanding the foregoing, to the extent there is any
conflict between the indemnification provisions of this TSA and any provision of
the Purchase Agreement with respect to employee matters, the applicable
provision of the Purchase Agreement shall govern.
E-16
The
Indemnitees will (a) provide prompt written notice to the Indemnifying Party of
each Claim, (b) allow the Indemnifying Party to control the defense and
settlement of each Claim and (c) provide reasonable assistance to the
Indemnifying Party in connection with the defense and settlement of each Claim.
No Indemnitee may settle a Claim without the prior written consent of the
Indemnifying Party. The failure of any Indemnitee to give notice of a Claim as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 9 except to the extent that the failure to give such notice
is prejudicial to the Indemnifying Party's ability to defend the
Claim.
Except as
expressly set forth in this Section, but subject to any claim a Party may have
for breach of this TSA by the other Party, neither Party shall have any
obligation to defend or indemnify the other Party for any third party
Claims.
SECTION
10. Representations and
Warranties.
10.1 Authorization. Each
Party represents and warrants that (a) it has the requisite power and authority
to execute and deliver this TSA and to perform the transactions contemplated
hereby, (b) all corporate action on the part of such Party necessary to approve
or to authorize the execution and delivery of this TSA and the performance of
the transactions contemplated hereby to be performed by it has been duly taken,
and (c) this TSA is a valid and binding obligation of such Party, enforceable in
accordance with its terms, subject to the effect of principles of equity and the
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally and other customary
qualifications.
10.2 Compliance with Laws.
Subject to the terms in Section 7.3, each Party represents and warrants that it
shall perform its obligations under this TSA in a manner that complies with all
applicable laws, governmental rules or regulations in effect as of the Effective
Date. In the event of a change in laws, rules or regulations after the Effective
Date, the terms in Section 7.3 shall apply.
10.3 DISCLAIMER. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, PARENT MAKES NO REPRESENTATIONS OR WARRANTIES IN
RESPECT OF THE SERVICES OR ANY ITEMS TO BE DELIVERED OR PROVIDED TO SERVICE
RECEIVER OR ANY SERVICE RECEIVER AFFILIATE OF ANY KIND, NATURE OR DESCRIPTION,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, AND PARENT HEREBY DISCLAIMS THE
SAME.
SECTION
11. Limitation on
Liability.
IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO OR OTHERWISE RESPONSIBLE TO ANY OTHER
PARTY HERETO OR ANY AFFILIATE OF ANY OTHER PARTY HERETO FOR ANY EXEMPLARY OR
PUNITIVE DAMAGES THAT ARISE OUT OF OR RELATE TO THIS TSA OR THE PERFORMANCE OR
BREACH HEREOF, WHETHER SUCH DAMAGES OR OTHER RELIEF ARE SOUGHT BASED ON BREACH
OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY
AND WHETHER OR NOT THE PARTY WAS AWARE OR ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING SHALL NOT APPLY TO DAMAGES RESULTING FROM A PARTY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OR A PARTY'S BREACH OF Section 12
(CONFIDENTIALITY) OR TO THE EXTENT ANY SUCH DAMAGES ARE AWARDED TO A THIRD PARTY
IN CONNECTION WITH A THIRD PARTY CLAIM WHICH IS SUBJECT TO INDEMNITY UNDER THE
TERMS OF Section 9.
E-17
IN NO
EVENT WILL THE TOTAL, CUMULATIVE, AGGREGATE LIABILITY OF PARENT, WHETHER BASED
UPON AN ACTION OR CLAIM IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY,
MISREPRESENTATION, EQUITY OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE BY
SERVICE RECEIVER TO PARENT FOR THE SERVICES PROVIDED DURING THE TWELVE (12)
MONTHS AFTER THE EFFECTIVE DATE. THE FOREGOING SHALL NOT APPLY TO PARENT'S GROSS
NEGLIGENCE OR WILLFUL OR INTENTIONAL MISCONDUCT.
SECTION
12. Confidentiality.
With
respect to any non-public information disclosed by a Party (or its Affiliates or
representatives) (the "Disclosing Party") to
the other Party (or its Affiliates or representatives) (the "Receiving Party") for
the purpose of this TSA or otherwise accessible to such Receiving Party during
the performance hereunder which non-public information is either marked or
otherwise identified as confidential or proprietary or would reasonably be
considered confidential or proprietary in light of the nature of the information
(collectively, the "Confidential
Information"), the Receiving Party agrees that it will keep such
Confidential Information confidential, using at least the same degree of care
used to protect its own confidential or proprietary information, but not less
than reasonable care, to prevent the disclosure or accessibility to others of
the Disclosing Party's Confidential Information and the Receiving Party will use
the Disclosing Party's Confidential Information only for the purpose of
performing its obligations under this TSA. The Receiving Party shall limit
dissemination of and access to the Disclosing Party's Confidential Information
to only such of its Affiliates, advisers, employees, agents or contactors
(including, in the case of Parent, any third party engaged to provide the
Services hereunder) or consultants who have a need to know for the purpose of
this TSA, provided that any
third party to which Confidential Information is provided by a Receiving Party
is subject to confidentiality obligations with respect to such Confidential
Information at least as protective as the obligations set forth
herein.
Specifically
excluded from the foregoing obligations is any and all information that the
Receiving Party can show (i) is already known to the Receiving Party at the time
of disclosure and is not subject to a confidentiality obligation (other than any
information that is transferred to Service Receiver or one of its Affiliates as
a Purchased Asset under the Purchase Agreement) or thereafter is independently
developed by the Receiving Party without breach of this TSA; (ii) is already in
the public domain at the time of disclosure, or thereafter becomes publicly
known other than as the result of a breach by the Receiving Party of its
obligations under this TSA; or (iii) is rightfully received from a third party
without breach of this TSA.
If, upon
advice of counsel, any Disclosing Party Confidential Information must be
produced by the Receiving Party as a matter of law, then the Receiving Party
shall promptly notify the Disclosing Party and, insofar as is permissible and
reasonably practicable without placing the Receiving Party under penalty of law,
give the Disclosing Party an opportunity to appear and to object to such
production before producing the requested information.
E-18
Upon the
termination or expiration of this TSA, each Party, as a Receiving Party, shall,
at the option of the other Party, as a Disclosing Party, return to such
Disclosing Party all Confidential Information of such Disclosing Party or
destroy such Confidential Information and provide a written certification of
destruction with respect thereto to such Disclosing Party.
SECTION
13. Miscellaneous.
13.1 Notices. Any notice
provided or permitted to be given to a Party under this TSA must be in writing,
and may be served by depositing same in the mail, addressed to the Person to be
notified, postage prepaid, and registered or certified, with a return receipt
requested; or, in the alternative by reputable courier with tracking
capabilities. Notice given by registered, certified mail, or courier shall be
deemed given and effective on the date of delivery as shown on the return
receipt. Notice may be served in any other manner including telex, telecopy or
telegram but shall be deemed given and effective as of the time of actual
delivery thereof to the addressees. For purposes of the giving of notice, Parent
and Service Receiver shall be notified at the addresses listed
below:
If to
Parent:
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇
with a
copy to (which shall not constitute notice):
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Phone:
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Facsimile:
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Attention:
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If to
Service Receiver:
DH
Manufacturing & Distribution Pte Ltd.
c/o
Danaher Corporation.
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Facsimile: (▇▇▇)
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Attention: Chief
Counsel, Mergers & Acquisitions
with a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP
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Facsimile: (▇▇▇)
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Attention: ▇▇▇▇▇▇
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Any Party
may change its respective address for notice by the giving of notice of such
change in the manner provided above.
13.2 Entire Agreement.
Except for those matters provided for in the Purchase Agreement or the other
agreements contemplated therein, this TSA sets forth the entire agreement of the
Parties with respect to its subject matter. This TSA shall not be modified or
amended except by written instrument executed by each Party. The Schedules to
this TSA shall be deemed incorporated in this TSA and shall form a part of
it.
13.3 Waiver. The failure
of a Party to insist upon strict performance of any provision of this TSA shall
not constitute a waiver of, or estoppel against, asserting the right to require
such performance in the future, nor shall a waiver or estoppel in any one
instance constitute a waiver or estoppel with respect to a later breach of a
similar nature or otherwise.
13.4 Severability. If any
of the terms and conditions of this TSA are held by any court of competent
jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter of this TSA, such contravention
or invalidity shall not invalidate the entire TSA. Instead, this TSA shall be
construed as if it did not contain the particular provision or provisions held
to be invalid, and equitable adjustment shall be made and necessary provisions
added so as to give effect to the intention of the Parties as expressed in this
TSA at the time of the execution of this TSA and of any amendments to this
TSA.
13.5 Governing Law; Forum.
This TSA shall be construed and enforced in accordance with and governed by the
laws of the State of New York, without reference to its conflicts of law rules
or principles. Each of the Parties irrevocably and unconditionally submits to
the exclusive jurisdiction of the State and Federal Courts sitting in the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this TSA or any transaction contemplated hereby (and
each agrees that no such action, suit or proceeding relating to this TSA shall
be brought by it except in such courts). Each of the Parties further agrees
that, to the fullest extent permitted by applicable law, service of any process,
summons, notice or document by U.S. registered mail to such Party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction as set forth above in the immediately preceding
sentence. Each Party irrevocably and unconditionally waives (and agrees not to
plead or claim) any objection to the laying of venue of any action, suit or
proceeding arising out of this TSA or the transactions contemplated hereby in
any court specified in this Section, or that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
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13.6 Construction. Unless
otherwise indicated to the contrary in this TSA by the context or use thereof:
(a) the words, "herein," "hereto," "hereof" and words of similar import refer to
this TSA as a whole and not to any particular Section or paragraph hereof; (b)
words importing the masculine gender shall also include the feminine and neutral
genders, and vice versa; (c) the word "including" means "including without
limitation"; and (d) all statements of or
references to dollar amounts in this TSA are to the lawful currency of the
United States of America. The Parties have participated jointly in the
negotiation and drafting of this TSA. In the event an ambiguity or question of
intent arises, this TSA shall be construed as if drafted jointly by the parties,
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this TSA. The
Parties agree that any language from prior drafts of this TSA, to the extent not
included in the definitive version of this TSA executed by the Parties hereto,
shall not be deemed to reflect the intention of any Party hereto with respect to
the transactions contemplated hereby.
13.7 Counterpart
Execution. This TSA may be executed in counterparts with the same effect
as if the Parties had signed the same document. Such counterparts shall be
construed together and shall constitute one and the same instrument,
notwithstanding that the Parties are not signatories to the original or the same
instrument, or that signature pages from different counterparts are combined.
The signature of any Party to one counterpart shall be deemed to be a signature
to and may be appended to any other counterpart.
13.8 Successors and
Assigns. This TSA shall inure to the benefit of and shall be binding upon
the Parties, their respective legal representatives, successors, and permitted
assignees, and all Persons claiming by, through, or under right of any of the
aforesaid Persons. This TSA may not be assigned by a Party without the prior
written consent of the other Party; provided, however, either Party
may assign its rights and obligations to one or more of its respective
Affiliates (it being understood that such assignment shall not be permitted if
it would delay or impair the consummation of the transactions contemplated
hereby) and provided, further, that no such
assignment shall relieve any Party of any of its obligations
hereunder.
13.9 No Third Party
Rights. The provisions of this TSA are intended to bind the Parties to
each other and are not intended and do not create rights or obligations in any
other Person, including any Recipient, employee of the Analytical Technologies
Business, the Service Receiver or Parent, and no Person is intended to be or is
a third party beneficiary of any of the provisions of this TSA. Notwithstanding
the foregoing, the Indemnitees shall be third party beneficiaries of Section 9
(Indemnification).
13.10 Purchase Agreement.
The Parties hereby acknowledge and agree that nothing in this TSA (including any
breach hereof) shall affect any obligation of any Party under the Purchase
Agreement.
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13.11 Equitable Remedies.
Parent acknowledges and agrees that, due to the personal and unique nature of
the Services and the dependence of Service Receiver on the Services for the
effective and ongoing conduct of the Analytical Technologies Business that, in
the event Parent breaches its obligation to provide Services hereunder or
suspends or threatens to suspend the Services hereunder (other than suspension
as expressly permitted under this TSA, including Sections 4.4 and 7.5.2), then
notwithstanding the dispute resolution procedures set forth in Section 3.6.3
(Disputes) and without limitation of any of its other rights and remedies
hereunder at law or in equity, Service Receiver shall be entitled to seek an
injunction, order of specific performance, or other equitable relief in any
court of competent jurisdiction.
[SIGNATURE
PAGES FOLLOW]
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WITNESS
WHEREOF, the duly authorized officers or representatives of the Parties hereto
have duly executed this TSA as of the date first written above.
|
By:
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| Name: | |
| Title: | |
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DH
MANUFACTURING & DISTRIBUTION PTE LTD.
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By:
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|
| Name: | |
| Title: | |
E-23
ANNEX
A
ACKNOWLEDGMENT
OF COMPLETION
Reference is made to that certain Stock
and Asset Purchase Agreement, dated as of ___________________, 2009 by and among
MDS Inc. ("Parent"), DH
Technologies Development Pte Ltd. ("Buyer") and the other
parties thereto relating to the sale by Parent and certain of its Affiliates to
Buyer and certain of its Affiliates of certain assets of the Analytical
Technologies Business (the "Purchase Agreement").
In connection with the Purchase Agreement, a Transition Services Agreement (the
"TSA"), dated
______________, 2009 was entered into by and between Parent and DH Manufacturing
& Distribution Pte Ltd.
Each of the undersigned hereby
acknowledges that the Objective Measures (as defined in the TSA) described in
Schedule [__]
hereto have been successfully completed and delivered.
IN WITNESS WHEREOF, the undersigned has
executed and delivered this Acknowledgment of Completion as of this _____ day of
__________, 2009.
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By:
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Name:
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Title:
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IN WITNESS WHEREOF, the undersigned has
executed and delivered this Acknowledgment of Completion as of this _____ day of
__________, 2009.
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Schedule [__] to
Acknowledgment of Completion
E-25
Initial
Service Schedules
See
Attached
[Redacted]
[Initial Service Schedules]
E-26
ANNEX
B
FEE
SCHEDULE
[Redacted]
[Fee Schedule]
E-27