EXHIBIT 99.4
INTERIM SERVICES AGREEMENT
INTERIM SERVICES AGREEMENT (this "Agreement"), dated as of May 8,
1997, between AMERICAN BRANDS, INC., a Delaware corporation ("Parent"), and
XXXXXXXX GROUP LIMITED, an English private limited company and, as of the date
hereof, a direct wholly-owned subsidiary of Parent ("New Xxxxxxxx").
W I T N E S S E T H :
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WHEREAS, the Board of Directors of Parent has determined that it is
appropriate and desirable to distribute all outstanding New Xxxxxxxx Ordinary
Shares (as defined in the Distribution Agreement) on a pro rata basis to the
holders of Parent's common stock (the "Distribution") pursuant to a Distribution
Agreement, dated as of May 8, 1997 (the "Distribution Agreement"), by and among
Parent, ATIC Group, Inc., a Delaware corporation and wholly-owned subsidiary of
Parent, New Xxxxxxxx and Xxxxxxxx Limited, an English private limited company
and, as of the date hereof, an indirect wholly-owned subsidiary of Parent
("Xxxxxxxx");
WHEREAS, the parties hereto deem it to be appropriate and in the best
interests of Parent and New Xxxxxxxx that Parent and New Xxxxxxxx, respectively,
provide or shall procure the provision of certain services to New Xxxxxxxx and
Parent, respectively, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereto hereby agree as follows:
1. Description of Parent Services. Subject to and conditional upon
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the Distribution (as defined in the Distribution Agreement) becoming effective,
Parent shall, subject to the terms and provisions of this Agreement, provide to
New Xxxxxxxx or a Subsidiary or Affiliate (as such terms are defined in the
Distribution Agreement) of New Xxxxxxxx, or procure the provision to New
Xxxxxxxx or a
Subsidiary or Affiliate of New Xxxxxxxx of, those services described in Exhibit
A hereto (the "Parent Services"). New Xxxxxxxx may, at its option, upon not less
than thirty (30) days prior written notice (or such other period provided in
Exhibit A for a particular service or as the parties may otherwise mutually
agree in writing), direct Parent to no longer provide or procure the provision
of all or any category of such services.
2. Provision of Parent Services.
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(a) Parent shall be responsible for ensuring that it complies with all
applicable statutes, regulations and laws relevant to the provision of the
Parent Services.
(b) For the avoidance of doubt, it is acknowledged that, subject to
its obligations to Parent under the provisions of this Agreement, New Xxxxxxxx
shall be free at any time (and without obligation to notify or inform Parent) to
arrange for any service identical to or similar to the Parent Services to be
provided to it by any person whatsoever.
(c) Parent shall exercise reasonable care to ensure that the manner in
which it performs or provides the Parent Services does not have any adverse
effect on the name, trading image, goodwill or business of New Xxxxxxxx or any
member of the New Xxxxxxxx Group (as defined in the Distribution Agreement).
(d) New Xxxxxxxx shall provide Parent with such advice, assistance and
information in connection with the performance of the Parent Services as Parent
may from time to time reasonably require. New Xxxxxxxx and Parent shall also
liaise as appropriate to ensure that the Parent Services are carried out in
accordance with the provisions of Exhibit A hereto and where reasonably
practicable, Parent shall comply with any instructions that New Xxxxxxxx shall
reasonably issue from time to time concerning the methods of operation by which
the Parent Services shall be provided to New Xxxxxxxx.
(e) New Xxxxxxxx and Parent shall each use reasonable best efforts to
keep each other informed of any special requirements applicable to the carrying
out of the Parent Services. To the extent reasonably necessary and
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appropriate Parent shall promptly take steps where reasonably practicable to
comply with such special requirements. In the event that these steps shall
result in any increase or reduction in the actual cost to Parent of providing
the relevant Parent Services then the fees payable pursuant to Section 3 below
shall be increased or reduced accordingly.
3. Consideration for Parent Services. New Xxxxxxxx shall pay Parent
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in accordance with Sections 7 and 8 of this Agreement and Parent shall accept as
consideration for the services to be rendered to New Xxxxxxxx hereunder the
charges set forth on Exhibit A.
4. Description of New Xxxxxxxx Services. New Xxxxxxxx shall, subject
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to the terms and provisions of this Agreement, provide to Parent or a Subsidiary
or Affiliate (as such terms are defined in the Distribution Agreement) of
Parent, or procure the provision to Parent or a Subsidiary or Affiliate of
Parent of, those services described on Exhibit B hereto (the "New Xxxxxxxx
Services"). Parent may, at its option, upon not less than thirty (30) days
prior written notice (or such other period provided in Exhibit B for a
particular service or as the parties may otherwise mutually agree in writing),
direct New Xxxxxxxx to no longer provide or procure the provision of all or any
category of such services.
5. Provision of New Xxxxxxxx Services.
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(a) New Xxxxxxxx shall be responsible for ensuring that it complies
with all applicable statutes, regulations and laws relevant to the provision of
the New Xxxxxxxx Services.
(b) For the avoidance of doubt, it is acknowledged that, subject to
its obligations to New Xxxxxxxx under the provisions of this Agreement, Parent
shall be free at any time (and without obligation to notify or inform New
Xxxxxxxx) to arrange for any service identical to or similar to the New Xxxxxxxx
Services to be provided to it by any person whatsoever.
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(c) New Xxxxxxxx shall exercise reasonable care to ensure that the
manner in which it performs or provides the New Xxxxxxxx Services does not have
any adverse effect on the name, trading image, goodwill or business of Parent or
any member of Parent Group (as defined in the Distribution Agreement).
(d) Parent shall provide New Xxxxxxxx with such advice, assistance and
information in connection with the performance of the New Xxxxxxxx Services as
New Xxxxxxxx may from time to time reasonably require. Parent and New Xxxxxxxx
shall also liaise as appropriate to ensure that the New Xxxxxxxx Services are
carried out in accordance with the provisions of Exhibit B hereto and where
reasonably practicable New Xxxxxxxx shall comply with any instructions that
Parent shall reasonably issue from time to time concerning the methods of
operation by which the New Xxxxxxxx Services shall be provided to Parent.
(e) Parent and New Xxxxxxxx shall each use reasonable best efforts to
keep each other informed of any special requirements applicable to the carrying
out of the New Xxxxxxxx Services. To the extent reasonably necessary and
appropriate New Xxxxxxxx shall promptly take steps where reasonably practicable
to comply with such special requirements. In the event that these steps shall
result in any increase or reduction in the actual cost to New Xxxxxxxx of
providing the relevant New Xxxxxxxx Services then the fees payable pursuant to
Section 6 below shall be increased or reduced accordingly.
6. Consideration for New Xxxxxxxx Services. Parent shall pay to New
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Xxxxxxxx in accordance with Sections 7 and 8 of this Agreement and New Xxxxxxxx
shall accept as consideration for the services to be rendered to Parent
hereunder the charges set forth on Exhibit B.
7. Terms of Payment. Each party shall submit in writing an invoice
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covering its charges to the other party for services rendered hereunder. Such
invoice shall be submitted on a monthly basis and shall contain a summary
description of the charges and services rendered. Payment shall be made not
later than thirty (30) days after the invoice date. Except as otherwise
provided in this Agreement, the amount of any monthly service fee shall be
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pro-rated in the event that the corresponding services were provided for only a
portion of a given month.
8. Method of Payment. All amounts payable by New Xxxxxxxx for the
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services described on Exhibit A shall be remitted to Parent in United States
dollars to a bank to be designated in the invoice or otherwise in writing by
Parent, unless otherwise provided for and agreed upon in writing by the parties.
All amounts payable by Parent for the services described on Exhibit B shall be
remitted to New Xxxxxxxx in English pounds to a bank to be designated in the
invoice or otherwise in writing by New Xxxxxxxx, unless otherwise provided for
and agreed upon in writing by the parties. Detailed billing information will be
provided upon request.
9. Taxes. All amounts expressed in this Agreement as being payable
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by Parent or New Xxxxxxxx are expressed exclusive of any value added tax or
other similar Tax (as defined in the Distribution Agreement) which may be
properly chargeable thereon.
10. WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
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STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS WARRANTIES OR GUARANTIES AND
THERE ARE NO IMPLIED WARRANTIES OR GUARANTIES, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR
PURPOSE.
11. Limitation on Liability.
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(a) In no event shall either party have any liability, whether based
on contract, tort (including, without limitation, negligence), warranty or any
other legal or equitable grounds, for any punitive, consequential, special,
indirect or incidental loss or damage suffered by the other party or any of
their respective Subsidiaries or Affiliates (as such terms are defined in the
Distribution Agreement) arising from or related to this Agreement, including
without limitation, loss of data, profits (excluding profits under this
Agreement), interest or revenue, or use or interruption of business, even if
such party is advised of the possibility of such losses or damages.
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(b) The limitations set forth in Section 11(a) above shall not apply
to liabilities which may arise as the result of fraud, willful misconduct, bad
faith, gross negligence or willful default of Parent, New Xxxxxxxx or anyone
performing services on their behalf pursuant to this Agreement, or the reckless
disregard or breach by Parent or New Xxxxxxxx of its obligations and duties
contained in or arising as a result of or in connection with this Agreement.
12. Termination. This Agreement shall terminate on completion of all
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Parent Services and New Xxxxxxxx Services, but may be terminated earlier in
accordance with the following:
(a) upon the mutual written agreement of the parties;
(b) by either New Xxxxxxxx or Parent for material breach of any
of the terms hereof by Parent or New Xxxxxxxx, as the case may be, if the
breach is capable of being remedied and is not corrected within thirty (30)
calendar days after written notice of the breach has been delivered to the
defaulting party; provided that if the breach is not capable of being
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remedied, the Agreement may be terminated immediately; provided, further,
that such termination shall only apply to those services in respect of
which the defaulting party is in material breach and shall be without
prejudice to the provision or receipt of all other Parent Services and New
Xxxxxxxx Services pursuant to this Agreement which shall remain in full
force and effect notwithstanding such termination;
(c) by either New Xxxxxxxx or Parent forthwith, upon written
notice to Parent or New Xxxxxxxx, as the case may be, if Parent or New
Xxxxxxxx, as the case may be, shall become insolvent or shall make an
assignment for the benefit of creditors, or shall be placed in
receivership, reorganization, liquidation whether compulsory or voluntary
(except for the purposes of a bona fide reconstruction or amalgamation with
the consent of the other party, such consent not to be unreasonably
withheld or delayed) or bankruptcy;
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(d) by Parent forthwith, upon written notice to New Xxxxxxxx, if,
for any reason, the ownership or control of New Xxxxxxxx, Xxxxxxxx or any
of their respective business operations which receive or provide services
under this Agreement, becomes vested in, or is made subject to the control
or direction of, any direct competitor of Parent's consumer products
businesses, or any governmental or regulatory authority; provided, however,
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that termination in the event of a change of ownership or control of a
business operation of New Xxxxxxxx or Xxxxxxxx shall only apply to the
services received by or provided to such business operation and shall be
without prejudice to the provision or receipt of all other Parent Services
and New Xxxxxxxx Services pursuant to this Agreement which shall remain in
full force and effect notwith-standing termination of the provision of
Parent Services or New Xxxxxxxx Services to such business operation; or
(e) by New Xxxxxxxx forthwith, upon written notice to Parent, if
for any reason, the ownership or control of Parent or any of its business
operations which receive or provide services under this Agreement, becomes
vested in, or is made subject to the control or direction of, any direct
competitor of New Xxxxxxxx, or any governmental or regulatory authority;
provided, however, that termination in the event of a change of ownership
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or control of a business operation of Parent shall only apply to the
services received by or provided to such business operation and shall be
without prejudice to the provision or receipt of all other Parent Services
and New Xxxxxxxx Services pursuant to this Agreement which shall remain in
full force and effect notwith-standing termination of the provision of
Parent Services or New Xxxxxxxx Services to such business operation.
13. Consequences of Termination. Upon termination of this Agreement
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in accordance with Section 12:
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(a) each party shall be compensated for all services performed up to
and including the date of termination in accordance with the provisions of
this Agreement;
(b) any rights or obligations to which any of the parties to this
Agreement may be entitled or be subject to before such termination shall
remain in full force and effect; and
(c) termination shall not affect or prejudice any right to damages or
other remedy which the terminating party may have in respect of the event
which gave rise to the termination or any other right to damages or other
remedy which any party may have in respect of any breach of this Agreement
which existed at or before the date of termination.
14. Term. This Agreement shall be effective from and after the
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Distribution Date (as defined in the Distribution Agreement) until terminated in
accordance with Section 12 hereof.
15. Amendment. This Agreement may be modified or amended only by the
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agreement of the parties hereto in writing, duly executed by the authorized
representatives of each party.
16. Force Majeure.
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(a) Any delays in or failure of performance by any party hereto, other
than the payment of money, shall not constitute a default hereunder if and to
the extent such delays or failures of performance are caused by occurrences not
reasonably foreseeable at the date of this Agreement and which are beyond the
reasonable control of such party ("Force Majeure"), including, but not limited
to: acts of God; expropriation or confiscation of facilities; compliance with
any order or request of any governmental authority; acts of war; riots or
strikes or other concerted acts of personnel; or any causes, whether or not of
the same class or kind as those specifically named above, which are not within
the reasonable control of such party, and which by the exercise of reasonable
diligence, such party is unable to prevent.
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(b) If and to the extent that either party is prevented or delayed by
Force Majeure from performing any of its obligations under this Agreement and
promptly so notifies the other party, specifying the matters constituting Force
Majeure together with such evidence in verification thereof as it can reasonably
give and specifying the period for which it is estimated that the prevention or
delay will continue, then the party so affected shall be relieved of liability
to the other party for failure to perform or for delay in performing such
obligations (as the case may be) and shall not be in breach of the terms and
conditions of this Agreement as a result of such failure or delay, but shall
nevertheless use its reasonable best efforts to resume full performance thereof
as soon as possible; provided, however, that:
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(i) if the Force Majeure continues for a period of two months or
more following notification, the party not affected by the Force
Majeure may terminate the provision or receipt of the services
affected by the Force Majeure by giving not less than 30 days prior
notice to the other party, without prejudice to the provision or
receipt of all other Parent Services and New Xxxxxxxx Services
pursuant to this Agreement which shall remain in full force and effect
notwithstanding such termination; and
(ii) if the Force Majeure continues for a period of two months or
more following notification and is such that the party affected by the
Force Majeure is prevented or delayed from performing all or a
substantial part of its obligations under this Agreement, the party
not affected by the Force Majeure may terminate this Agreement by
giving not less than 30 days prior notice to the other party;
provided, further, that a notice of termination given under
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Section 16(b)(i) or (ii) shall be of no effect if the party affected by the
Force Majeure resumes full performance of its obligations before the expiration
of such notice period.
17. Assignment. This Agreement and all of the provisions hereof
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shall not be assignable by either party hereto without the prior written consent
of the other party
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hereto (which consent shall not be unreasonably withheld or delayed). This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties and their respective successors and permitted
assigns.
18. Notices. All notices, requests, claims, demands and other
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communications required or permitted to be given hereunder shall be in writing
and shall be delivered by hand or sent by prepaid cable or telecopy or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, cabled or
telecopied, or if mailed, ten days after mailing (two business days in the case
of express mail or overnight courier service), as follows:
If to Parent:
Xx. Xxxxx X. Xxxxxxx, Xx.
Vice President and
Secretary
American Brands, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to
Xxxxxxx X. Xxxxxxx, XX, Esq.
Senior Vice President and
General Counsel
American Brands, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to New Xxxxxxxx:
Xx. Xxxxx X. Xxxxxxx
Company Secretary
Xxxxxxxx Group PLC
Members Hill
Brooklands Road
Weybridge
Surrey, KT 00 0XX
Xxxxxxx
Telephone: 000-00-0000-000-000
Facsimile: 011-44-1932-832-536
With a copy to
Xxxxxxxxxxx X. Xxxxxxx, Esq.
Group Legal Advisor
Xxxxxxxx Group PLC
Members Hill
Brooklands Road
Weybridge
Surrey, KT 00 0XX
Xxxxxxx
Telephone: 000-00-0000-000-000
Facsimile: 011-44-1932-832-536
19. Governing Law. This Agreement shall be governed by and construed
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in accordance with the internal laws of the state of New York applicable to
contracts made and to be performed entirely within such state, without regard to
the principles of conflicts of laws thereof.
20. Relationship of the Parties. Nothing in this Agreement shall
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constitute a partnership between the parties. Each party hereto is an
independent contractor and not an agent or employee of the other party. Neither
party shall have the authority or right to make any statements, representations,
warranties or commitments of any kind, incur any liability or assume any
obligation of any kind or to take any action which shall be binding on the other
party, except as may be explicitly provided for in this Agreement or authorized
in writing by the other party.
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21. Liability for Acts and Omissions of Others. Any act or omission
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of any subsidiary, employee, director, officer, contractor, representative or
agent of Parent or New Xxxxxxxx involved in the performance of this Agreement
shall be considered in relation to this Agreement as an act or omission of
Parent or New Xxxxxxxx (as appropriate).
22. Subcontracting.
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(a) Either party may subcontract or delegate the performance of all or
any of its duties and obligations under this Agreement to any person without the
prior consent of the other party, provided that the subcontracting party shall
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use reasonable skill and care in selecting such subcontractors or delegates and
shall so far as is possible ensure that they are experienced and competent in
relation to their respective duties and obligations.
(b) Any party who subcontracts or delegates any of its duties and
obligations in accordance with this Section 22 shall be responsible for every
act or omission of the subcontractor or delegate as if it were an act or
omission of the party itself.
23. Cooperation after the Distribution. If, following the
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Distribution Date (as defined in the Distribution Agreement), it shall come to
the notice of Parent or New Xxxxxxxx that any service or facility provided by
the other or any of its Subsidiaries or Affiliates (as such terms are defined in
the Distribution Agreement) prior to the Distribution Date to or for it or any
of its Subsidiaries or Affiliates and not covered hereby is not being performed
or made available after the Distribution Date and such party considers that the
relevant service or facility is necessary or desirable for the effective
operation of its business, it may notify the other party giving full details of
the relevant service or facility and the parties shall cooperate and negotiate
in good faith to the extent reasonably practicable with a view to such service
or facility being provided on reasonable commercial terms.
24. Construction. In this Agreement:
---------------------------------
(a) references to an "Exhibit" are, unless otherwise specified,
references to one of the Exhibits attached to this Agreement, and references to
a "Section"
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are, unless otherwise specified, references to one of the Sections of this
Agreement and references to a "sub-section" are, unless the context otherwise
requires, references to the section in which the reference appears;
(b) each of the Exhibits shall have effect as if set out in this
Agreement and references to this Agreement shall include each of the Exhibits;
(c) in the event of and to the extent that there shall be any conflict
between the provisions of this Agreement and the provisions of the Exhibits, the
provisions of the Exhibits shall take precedence notwithstanding any other
provision of this Agreement to the contrary; and
(d) references to The Xxxxx & Mackay Group Plc shall also include
references to JBB (Greater Europe) Plc and vice versa.
25. Titles and Headings. Titles and headings to sections herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
26. Severability. Any provision of this Agreement which is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
27. No Waivers. No failure or delay by any party hereto to take any
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action or assert any right hereunder shall be deemed to be a waiver of such
right in the event of the continuation or repetition of the circumstances giving
rise to such right, unless expressly waived in writing by the party against whom
the existence of such waiver is asserted.
28. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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29. Rights. The rights, powers, privileges and remedies provided in
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this Agreement are cumulative and are not exclusive of any rights, powers,
privileges or remedies provided by law or otherwise. No single or partial
exercise of any right, power, privilege or remedy under this Agreement shall
prevent any further or other exercise thereof or the exercise of any other
right, power, privilege or remedy.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
AMERICAN BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, XX
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Name: Xxxxxxx X. Xxxxxxx, XX
Title: Senior Vice President
and General Counsel
XXXXXXXX GROUP LIMITED
By: /s/ C.T. Xxxxxxx
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Name: C.T. Xxxxxxx
Title: Director
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