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EXHIBIT 10.3
SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Agreement") dated as of March ___, 2000, is
entered into by Pacific Dunlop Limited, a company organized under the laws of
Australia ("PDL") and Ansell Healthcare Incorporated, a Delaware corporation
("Ansell").
RECITALS
WHEREAS, Ansell and its affiliates designs, manufactures and markets
medical examination and surgical gloves, industrial and consumer gloves, and
condoms worldwide (the "Ansell Business"); and
WHEREAS, this Agreement is entered into in conjunction with an initial
public offering of Xxxxxx'x common stock, $.01 par value per share (the "Ansell
IPO"); and
WHEREAS, after the Ansell IPO, Ansell and its affiliates will continue
to need certain corporate and administrative support services from PDL with
respect to the operation of the Ansell Business for a period of time from and
after the Closing Date (as hereafter defined); and
WHEREAS, the parties desire to enter into an agreement to provide for
such services.
NOW, THEREFORE, in consideration of the premises and the mutual
promises of the parties contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the indicated
meanings:
"Service Fee" means the amount identified on Exhibit A attached hereto.
The Service Fee shall be paid for the PDL Services described hereunder.
"Closing Date" means the date the Ansell IPO is closed.
"PDL Services" means those services to be provided by PDL to Ansell and
its affiliates as set forth in Exhibit A attached hereto, and as the same may be
amended and revised from time to time in accordance with the terms hereof.
ARTICLE II.
PDL SERVICES
Section 2.1. Scope of PDL Services. In consideration of the Service
Fee, PDL shall continue to provide to Ansell and its affiliates the various
services currently provided by PDL, as more specifically listed on Exhibit A to
this Agreement to Ansell.
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Section 2.2. Limitations. Notwithstanding the foregoing, the nature and
scope of the PDL Services shall not interfere with those services which PDL
provides during the term of this Agreement to its own direct or indirect
subsidiaries or affiliates. Any upgrades and improvements of such services that
PDL provides to its own direct or indirect subsidiaries or affiliates will be
made available to Ansell and its affiliates at PDL's sole election. Ansell
agrees that its requests for PDL Services shall be reasonable, as to both the
nature and the timing of the services to be provided.
Section 2.3. Location of Services. Except as expressly contemplated by
the terms of this Agreement, the PDL Services to be performed are contemplated
to be performed by PDL from Melbourne, Australia or such other location as
determined by PDL in its sole discretion.
Section 2.4. Staffing. In consultation with Ansell, PDL shall determine
both the staffing required and particular personnel assigned to perform the PDL
Services, including but not limited to clerical staff, technicians,
professionals or otherwise.
Section 2.5. Access. Ansell agrees to grant access to representatives
of PDL to Xxxxxx'x and its affiliates' facilities and its employees, agents and
consultants to provide the PDL Services provided for under this Agreement, as
necessary.
Section 2.6. Subsidiaries. The parties hereto agree that (i) the PDL
Services to be provided to Ansell under this Agreement will, at Xxxxxx'x
request, be provided to subsidiaries and affiliates of Ansell and (ii) PDL may
satisfy its obligation to provide or procure the PDL Services hereunder by
causing one or more of its subsidiaries or affiliates to provide or procure such
PDL Services. With respect to PDL Services provided to, or procured on behalf
of, any subsidiary or affiliate of Ansell, (i) Ansell agrees to pay on behalf of
such subsidiary or affiliate all amounts payable by or in respect of such PDL
Services and (ii) references in this Agreement to Ansell shall be deemed to
include such subsidiary or affiliate.
Section 2.7. Subcontractors. PDL may hire or engage one or more
subcontractors to perform any or all of its obligations under this Agreement.
PDL shall require such subcontractors, as a condition to their engagement, to
agree to be bound by the provisions substantially identical to those included in
this Agreement. Subject to Section 6.4 hereof, PDL shall in all cases remain
primarily responsible for all obligations undertaken by it in this Agreement
with respect to the scope, quality and nature of the PDL Services provided to
Ansell.
Section 2.8. Reports; Books and Records. PDL shall maintain for and
provide Ansell with or shall cause to be maintained for and provide to Ansell
data or reports requested by Ansell relating to (i) information relating to the
PDL Services that is required to satisfy any reporting or disclosure
requirement, and (ii) other information, including accounting reports, relating
to the PDL Services, as may be kept by PDL in the ordinary course of its
business. PDL shall provide such reports, or cause such reports to be provided,
to Ansell within a reasonable period of time after it is requested.
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ARTICLE III.
FEES, BILLING AND PAYMENT
Section 3.1. Service Fees. Ansell agrees that in consideration of the
PDL Services described in this Agreement, Ansell shall pay PDL the Service Fee
as set forth on Exhibit A hereto, as such Exhibit A may be amended and revised
from time to time by mutual consent of the parties. In addition, Ansell shall
reimburse PDL for all direct and identifiable costs and third-party
disbursements incurred by PDL in performing the PDL Services.
Section 3.2. PDL Billing. Monthly invoices will be sent and reasonable
backup documentation will accompany such invoices with respect to PDL Services
that are not based on a per annum fee. No back up documentation shall be
required with respect to PDL Services that are based on a per annum fee.
Section 3.3. Payment by Ansell. Payment for all PDL Services provided
hereunder shall be made monthly, in arrears, prior to the fifteenth day of each
calendar month. The Service Fee for PDL Services for which there is a per annum
fee shall be paid in equal monthly installments.
Section 3.4. Ansell Taxes. Ansell will reimburse PDL for all value
added, sales, use or excise taxes levied on amounts payable by Ansell to PDL
pursuant to this Agreement, provided that Ansell shall not be responsible for
remittance of such taxes to applicable tax authorities. Ansell shall not be
responsible for any income, franchise, privilege, or occupational taxes of PDL.
PDL shall cooperate with Xxxxxx'x efforts to identify taxable and nontaxable
portions of amounts payable pursuant to this Agreement (including segregation of
such portions on invoices) and to obtain refunds of taxes paid, where
appropriate. Ansell may furnish PDL with certificates or other evidence
supporting applicable exemptions from sales, use or excise taxation.
ARTICLE IV.
TERM OF AGREEMENT
Section 4.1. Effective Date and Term. The initial term of this
Agreement shall commence on the Closing Date and, except as otherwise provided
below, continue until June 30, 2001. This Agreement will be renewed
automatically thereafter for successive one-year terms unless either Ansell or
PDL elects not to renew this Agreement by giving the other party written notice
of its intention not to renew the Agreement not less than ninety (90) days prior
to the end of the then current term.
Section 4.2. Termination. This Agreement and the scope of the PDL
Services may be reduced, suspended, or terminated as follows:
(a) Either party hereto may terminate this Agreement immediately
upon written notice to the other party (i) in the event of the
other party's voluntary bankruptcy or insolvency, (ii) in the
event that the other party shall make an assignment for the
benefit of creditors, or (iii) in the event that a petition
shall have been filed against the other party under a
bankruptcy law, a corporate reorganization law or any other
law for relief of debtors (or other law similar in purpose or
effect).
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(b) If either party hereto (the "Defaulting Party") shall fail
adequately to perform in any material respect any of its
material obligations under this Agreement, whether voluntarily
or involuntarily or as a result of any law or regulation or
otherwise, the other party hereto shall have the option to
terminate this Agreement upon sixty (60) days' written notice
(which shall be reduced to thirty (30) days' written notice in
the event of a failure to make payment in accordance with the
terms hereof) to the Defaulting Party specifying the respects
in which the Defaulting Party has so failed to perform its
obligations under this Agreement, unless during such period
the Defaulting Party shall have substantially remedied the
default therein specified.
Section 4.3. Transition Assistance. Prior to and following the
termination of this Agreement or the failure to renew this Agreement, PDL shall
provide at Xxxxxx'x request and expense, reasonable transition services and
assistance in engaging or training another person or persons to provide such PDL
Services or their equivalent. PDL shall provide Ansell full access to all
records and other information relating to the PDL Services provided by PDL
immediately preceding such termination.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Independent Contractor Status. PDL shall perform the PDL
Services hereunder as an independent contractor. Nothing in this Agreement shall
constitute or be deemed to constitute a partnership or joint venture between the
parties hereto, or constitute or be deemed to constitute any party as the agent
or employee of the other party for any purpose whatsoever and neither party
shall have authority or power to bind the other or to contract in the name of,
or create a liability against, the other in any way or for any purpose. Each
party shall be responsible for any injury or death to its own employees,
including all workers' compensation claims or liabilities resulting therefrom,
and each such party shall remain responsible for reporting its income and paying
its own taxes.
Section 5.2. Confidentiality. The parties each agree that they will not
divulge to any third party, or to any person within each respective corporation
who does not have a need to know, any confidential matters relating to each
other's business and the businesses of the other party's customers, vendors,
employees or competitors which may become known by reason of performance of the
PDL Services described in this Agreement; provided, however, that the
obligations of either party under this section shall not apply to information
which has been in the public domain or becomes in the public domain without
breach of this Agreement or which a party is legally obligated to disclose. The
obligations of the parties hereto set forth in this section shall survive the
expiration or termination of this Agreement for a period of one (1) year.
Section 5.3. Force Majeure. Each party shall be excused for failure to
perform any part of this Agreement due to events beyond its control, including
but not limited to fire, storm, flood, earthquake, explosion, accident, riots
and other civil disturbances, sabotage, strikes or other labor disturbances,
injunctions, transportation embargoes or delays, failure of performance of third
parties necessary for the parties' performance under this Agreement, or the laws
or regulations of the federal, state or local government or breach or agency
thereof; provided, however, no force
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majeure event shall excuse the obligation of the party claiming the benefit of a
force majeure event from paying the applicable fees for any services provided by
the other party.
Section 5.4. Standard of Performance; Remedies; Consequential Damages.
In performing its obligations under this Agreement, PDL represents to Ansell
that it will use the same standard of care and good faith as it uses in
performing services for its own account. PDL agrees to exercise reasonable
diligence to correct errors or deficiencies in the PDL Services provided by it
hereunder. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PDL MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, ARISING OUT OF THIS AGREEMENT AND THE PDL SERVICES TO BE
PROVIDED HEREUNDER. The sole remedy of Ansell for any claim relating to the
performance or nonperformance of the PDL Services shall be a refund by PDL to
Ansell of any charges or fees paid for the applicable PDL Services. In addition,
in no event shall either party be liable to the other for special, punitive,
incidental or consequential damages arising out of this Agreement.
Section 5.5. Notice. Any notice, request, designation, direction,
demand, election, acceptance or other communication shall be in writing and
shall be effective and deemed to have been given when it is (i) mailed postage
prepaid, by certified first class mail, return receipt requested, addressed to a
party and received by such party; (ii) hand or courier delivered; or (iii) sent
by telecopy with receipt confirmed, as follows:
If to PDL,
Pacific Dunlop Limited
000 Xxxxxxx Xxxxxx Xxxxx 00
Xxxxxxxxx, Xxxxxxxx Xxxxxxxxx 3000
Attention: Secretary
Telephone: 000-000-0000-0000
Fax: 000-000-0000-0000
If to Ansell,
Ansell Healthcare Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: President
Telephone: 000-000-0000
Fax: 000-000-0000
Any party may from time to time designate another address to which
notice or other communication shall be addressed or delivered to such party and
such new designation shall be effective on the later of (i) the date specified
in the notice or (ii) receipt of such notice by the intended recipient.
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Section 5.6. Assignability; Successor and Assigns. Neither party hereto
shall assign this Agreement in whole or in part without the prior written
consent of the other party hereto, which consent shall not be unreasonably
withheld. This Agreement shall inure to the benefit of and shall be binding upon
the successor and permitted assigns of the parties hereto.
Section 5.7. No Third Party Beneficiaries. Each of the provisions of
this Agreement is for the sole and exclusive benefit of the parties hereto
respectively, as their interests may appear, and shall not be deemed for the
benefit of any other person or entity or group of persons or entities.
Section 5.8. Severability. If any term or condition of this Agreement
shall be held invalid in any respect, such invalidity shall not affect the
validity of any other term or condition hereof.
Section 5.9. Applicable Law. This Agreement shall be construed under
the laws of Victoria, Australia, and the rights and obligations of the parties
shall be determined under the substantive law of Victoria, Australia, without
giving effect to such jurisdiction's conflict of law rules or principles.
Section 5.10. Amendment or Modification. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties, or in the case of a waiver, by the party waiving compliance. Any waiver
by either party hereto of any condition, or of the breach of any provision or
term in any one or more instances shall not be deemed to be nor construed as a
further or continuing waiver of any such condition, or of the breach of any
other provision or term of this Agreement.
Section 5.11. Construction. Descriptive headings to sections and
paragraphs are for convenience only and shall not control or affect the meaning
or construction of any provisions in this Agreement.
Section 5.12. Counterparts. This Agreement may be executed in two
counterparts, each of which shall constitute an original, and both of which,
when taken together, shall constitute one and the same instrument.
Section 5.13. Look-Back. The parties acknowledge that the intent of
this Agreement is to accurately capture the scope and nature of the services
provided to Ansell by PDL as of the date hereof, so that such services may
continue uninterrupted for the term of this Agreement. Both parties have made a
good faith attempt to identify all of the services provided to Ansell by PDL as
of the date hereof. If, however, it is later determined that the parties
unintentionally omitted a description of services or charges therefor, both
parties shall negotiate in good faith to amend this Agreement to include such
services and charges, and charges and credits for such additional services shall
be retroactive back to the commencement date of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties as of the date first written
above.
PACIFIC DUNLOP LIMITED
By:
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Name:
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Title:
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Attest:
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ANSELL HEALTHCARE INCORPORATED
By:
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Name:
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Title:
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Attest:
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EXHIBIT A
Services to be provided by PDL to Ansell
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FISCAL YEAR 2000
SERVICE FEE
SERVICES PER SERVICE
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o Public Relations Services
- Coordination of investor relations and media management A$50,000
per annum
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o Legal Services
- Coordination of the registration, renewal, licensing and A$100,000
protection of Xxxxxx'x trademark portfolio including the per annum
provision and maintenance of the trademark management
infrastructure.
- Assistance with litigation management
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o Acquisition Planning Services Executive General Manager
- Assistance in planning, negotiating and completing acquisitions A$2,700 per day
General Manager
A$1,700 per day
Manager
A$1,000 per day
(plus out-of-pocket expenses)
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o Insurance Services [Charges will be amounts that PDL
- Coordination of insurance programs is advised by its broker would be
payable by Ansell if it secured
the coverage independently]
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o Treasury Services
- Coordination and implementation of internal and external A$200,000
borrowing programs, credit facilities and Letters of Comfort per annum*
- Cash management
- Hedging currency and commodity exposure
- Interest rate management
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o Tax Services
- Preparation and review of income tax returns A$200,000
- Assistance in managing and reporting employment taxes and per annum
transaction taxes
- Provision of technical advice
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o Manufacturing Assistance Services Executive General Manager
- Review of manufacturing practices, costing systems, inventory A$2,700 per day
management systems and site selection General Manager
A$1,700 per day
Manager
A$1,000 per day
(plus out-of-pocket expenses)
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o Information and Telecommunication Services in Australia and New Zealand A$82,000
o Use of telephone lines and equipment
o Telephone service support
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* This fee does not include fees and interest charges to Ansell set forth
under a Credit Facility pursuant to which PDL makes loans to Ansell and
its affiliates. In addition, PDL will act as a counterparty with Ansell
in connection with hedging currency and commodity exposure and as a
counterparty will set terms that PDL in good faith believes are terms
that would be available to Ansell in the open market.
