BRIDGING SERVICES AGREEMENT
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This Bridging Services Agreement (the "Agreement") is made as of this 1st day of
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April, 2000, (the "Effective Date") by and between Xxxxxxx Purina Company, a
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Missouri Corporation ("Xxxxxxx"), and Energizer Holdings, Inc., a Missouri
corporation ("Energizer").
WHEREAS, the parties have entered into an Agreement and Plan of
Reorganization ("Plan of Reorganization") dated as of April 1, 2000;
WHEREAS, Xxxxxxx and Eveready Battery Company, Inc., a Delaware corporation
("Eveready") have executed a lease agreement beginning as of April 1, 2000
pursuant to which Eveready will lease certain office space from Xxxxxxx (the
"Lease");
WHEREAS, pursuant to the Plan of Reorganization, the parties have agreed
that Xxxxxxx and Energizer desire to provide each other and their respective
affiliates with certain services as more fully described on Schedules 1 through
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31, (and any exhibits attached thereto), all of which are attached hereto and
incorporated herein by reference, (collectively, the "Services"), on an interim
basis after April 1, 2000;
WHEREAS, Xxxxxxx and Energizer desire to enter into this Agreement to
confirm the terms and conditions pursuant to which each party will provide to
the other party, for a limited time from and after the Effective Date, the
Services.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Services. Subject to the terms of this Agreement, from and after the
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Effective Date, the party providing the particular Services (the "Provider")
shall make such Services available to the party receiving such Services (the
"Recipient") in accordance with the practices in effect as of the Effective Date
or as specifically set forth in the Schedules.
2. Price for Services. In consideration for the Services, the Recipient
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shall pay to the Provider the fee or other charge set forth opposite each such
Service on the applicable Schedule and each Service provided will be separately
invoiced to Recipient in accordance with the billing provisions set forth in the
Schedule with respect to such Service. Unless otherwise provided for in the
applicable Schedule, the basis for price determinations will be cost to the
Provider plus 10%, plus any travel or other out of pocket expenses. Cost shall
be determined by the Provider in a reasonable manner, which absent manifest
error or inaccuracy shall be binding on the parties. Upon written request by
Recipient, Provider will furnish such written documentation as it shall
reasonably determine is necessary to support its cost determination. Unless
otherwise provided for in the applicable Schedule, the price for Services shall
be subject to adjustment effective October 1, 2000, and annually thereafter, to
accommodate annual fiscal year increases in the cost to Provider in providing
the Services. Prices for Services shall also be subject to adjustment upon
thirty (30) days prior written notice from Provider to Recipient, if such
adjustment is the result of an actual cost adjustment by a third party provider
or outside vendor to Provider.
3. Limitations. The following limitations on responsibility and liability
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shall apply to both Providers in connection with their provision of Services
hereunder:
(a) Neither Provider shall be obligated to (i) hire any additional
personnel; (ii) maintain the employment of any person; (iii) purchase, lease,
license or otherwise obtain any equipment, facilities, software, or other items;
or (iv) pay any extraordinary cost or suffer any extraordinary expense in
transferring, converting, preserving, storing or maintaining any records,
information or data belonging to either Recipient. Upon termination of this
Agreement or any applicable Schedule, each Recipient shall promptly return to
each Provider any equipment or other property owned, leased or licensed by or to
such Provider which is in the Recipient's possession, custody or control.
(b) Neither Provider shall be liable to either Recipient for any
liabilities, claims, losses, demands, obligations, costs, expenses, proceedings,
taxes, levies, imposts, duties, deficiencies, assessments, charges, damages or
judgments of any kind, name, nature or description, including without limitation
attorney's fees and expenses (collectively, "Liabilities"), unless such
Liabilities arise solely and directly from the willful misconduct of the
Provider. In such event, the liability of the Provider shall be limited to the
lesser of (i) the Provider's correction of the defect in the Service provided;
or (ii) the return of a pro-rata portion of the fee charged for the Service that
is attributable to the defect in the Service provided.
(c) The provision of any Service hereunder by either Provider shall be
deemed an unqualified acceptance of such Service by the Recipient, and no claim
relating to any defect in Service provided (which shall, in all cases, be
limited by the terms of Section 3(b) hereof) shall be made against the Provider
of the Service more than thirty (30) days after such Service is rendered. All
such claims shall be in writing, stating in reasonable detail the defect in
Service claimed.
(d) Neither Provider shall be liable to any affiliate, contractor, agent or
employee of either Recipient, or to any third party whatsoever, for any
Liabilities arising from or relating to the Provider's performance of this
Agreement.
(e) Neither Provider shall in any event be liable to either Recipient, or to
any of such Recipient's affiliates, contractors, agents or employees, or to any
third party whatsoever, for any special, indirect, incidental, consequential or
punitive damages alleged to arise out of or relate to the performance of this
Agreement.
(f) Neither Provider shall be liable to either Recipient to the extent that
Services provided under a Schedule are terminated, in whole or in part, earlier
than the stated duration if the basis for providing such Services requires the
consent or cooperation of a third party, and such third party refuses to give
such consent or cooperation. In such case, Provider shall be immediately
relieved of any obligation to provide those Services to the Recipient, and
Recipient shall be relieved of any obligation to pay for any Services not yet
performed.
4. Indemnification. Each Recipient of Services hereunder agrees and hereby
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does indemnify and hold harmless each Provider of Services hereunder from and
against any and all Liabilities (as defined in Section 3 (b) hereof) arising out
of or relating to the performance of this Agreement, including any Liabilities
alleged to result solely from the negligence of the Provider, and saving only
such Liabilities as may arise solely and directly from the willful misconduct of
the Provider.
5. Additional Services. If a party to this Agreement wants the other to
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provide any service other than the Services provided for in the Schedules, such
party shall notify the other in writing, and within thirty (30) days following
the giving of such notice, such other party shall decide, in its sole
discretion, whether to provide such additional service. If such other party
agrees to be a Provider with respect to such additional service, the Recipient
and Provider shall mutually agree on the fee for such service and shall set
forth the terms of their agreement with respect to the additional service in a
separate schedule that shall be incorporated herein. The provision by Provider
of any such additional services shall be considered "Services" hereunder and
subject to all other provisions of this Agreement, as if those additional
services had originally been part of the Schedules to this Agreement.
6. Confidentiality. The parties will use their best efforts to restrict
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any information (including, but not limited to, confidential information) which
is exchanged between the parties under this Agreement to those employees or
agents who are required to know or utilize such information in order to provide
the Services hereunder. Any and all information which is not generally known to
the public and which is exchanged between the parties in connection with this
Agreement, and which consists of employee information (including payroll
records, benefits information, and personnel files), business or marketing
plans, forecasts, financial records, financing information, capital and
operating budgeting information, tax return preparation information, plus any
other information that is identified in writing as "CONFIDENTIAL" by either
party within ten (10) days of disclosure thereof, whether of a technical or
business nature, shall be considered to be confidential. The parties agree that
confidential information shall not be disclosed to any third party or parties
without the prior written consent of the other party. In the event that either
party shall receive a subpoena, order or official request for the disclosure of
the other's confidential information, it shall promptly (and if possible, no
later than seven (7) days prior to the return date) advise the other party of
such subpoena, order or request, in order to enable such other party to seek
relief or appropriate protection from such subpoena, order or official request.
Each party shall take reasonable measures to protect against nondisclosure of
confidential information by its officers, employees and agents. Confidential
information shall not include any information (i) which is or becomes part of
the public domain; (ii) which is obtained from third parties who are not bound
by confidentiality obligations; (iii) which is required to be disclosed by law,
regulation, legal process or the rules of any state or federal regulatory agency
or the New York Stock Exchange; or (iv) which was independently developed by or
for the receiving party. All confidentiality provisions shall expire two years
from April 1, 2000 or the date of disclosure of the confidential information,
whichever is later, unless otherwise specifically agreed to in writing or
provided by law.
7. Legal Advice. The parties acknowledge that none of the Services provided
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hereunder shall constitute legal advice or the rendering of legal services.
Each party shall rely solely on its own legal counsel for any legal advice or
legal services.
8. Assignment. Notwithstanding anything to the contrary in this Agreement,
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this Agreement shall not be assignable by either party hereto, to any other
person, firm or entity without the prior written consent of the other party in
its sole and absolute discretion; provided, however, that the Agreement in its
entirety, or any portion of the rights and obligations established hereunder,
may be assigned by either party hereto to one of its directly or indirectly
wholly owned subsidiaries without the prior written consent of the other party.
Except as expressly provided herein, nothing herein shall create or be deemed to
create any third party beneficiary rights in any person or entity not a party to
this Agreement.
9. Waiver, Amendment or Modification. No waiver, amendment or modification
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of this Agreement shall be valid unless in writing and duly executed by both
parties to this Agreement.
10. Entire Agreement. This Agreement, and the Schedules hereto (including
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any exhibits), constitutes the entire agreement of the parties concerning the
subject matter hereof and supersedes all previous agreements between the
parties, whether written or oral, with respect to such subject matter. To the
extent that the provisions of this Agreement are inconsistent with the
provisions of any Exhibit to a Schedule, the provisions of such Exhibit shall
prevail.
11. Governing Law, Language and Currency. Despite any different result
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required by any conflicts of law provisions, this Agreement shall be governed by
the laws of the State of Missouri, United States of America. This Agreement is
originally drafted in the English language. Should it be translated into any
other language, the English version shall govern any interpretation thereof.
The price for Services in each Schedule shall be in U.S. dollars unless
otherwise indicated.
12. Notices. All notices, requests, demands, waivers and other
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communications (hereinafter "Notices") required or permitted to be given
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given (i) at the time of delivery, if delivered by hand; (ii) on the date
of transmission, if sent by facsimile, telegram or other standard form of
telecommunications; or (iii) three (3) business days after mailing, if mailed
registered or certified first-class mail, postage prepaid, return receipt
requested. Notices shall be delivered or sent, as the case may be, to the
following addresses or to such other addresses as the parties may hereinafter
designate by like notice similarly provided:
If to Energizer: Energizer Holdings, Inc.
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
If to Xxxxxxx: Xxxxxxx Purina Company
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
13. Force Majeure. Anything else in this Agreement notwithstanding, the
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Provider shall be excused from providing Services hereunder while, and to the
extent that, its performance is prevented by fire, drought, explosion, flood,
invasion, rebellion, earthquake, civil commotion, strike or labor disturbance,
governmental or military authority, act of God, mechanical failure or any other
event or casualty beyond the reasonable control of the Provider, whether similar
or dissimilar to those enumerated in this paragraph (hereinafter a "Casualty").
In the event of a Casualty, the Recipient shall be responsible at its own cost
for making its own alternative arrangements with respect to the interrupted
Services.
14. Independent Contractor. The relationship of Provider and Recipient
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which is created hereunder is that of an independent contractor. This Agreement
is not intended to create and shall not be construed as creating between
Energizer and Xxxxxxx the relationship of affiliate, principal and agent, joint
venture, partnership, or any other similar relationship, the existence of which
is hereby expressly denied. Notwithstanding the foregoing, nothing in the
Schedules attached hereto shall cause any employee of the Provider to become a
leased employee or an independent contractor of the Recipient.
15. Billing and Payment. Unless otherwise provided in the applicable
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Schedule, the Provider shall xxxx the Recipient on a monthly basis for the
amounts due to the Provider for Services provided pursuant to the terms of this
Agreement. All such bills shall contain reasonable detail and shall be due
thirty (30) days after receipt unless any Schedules hereto provide for a
different payment period in which case such different payment period shall apply
to the applicable Services. The failure of the Recipient to pay any xxxx on
time shall result in the Recipient owing the Provider an additional handling
charge equal to one percent (1%) per month of the amount due from the date due
to the payment date.
16. Duration of Services. It is intended that the Services be provided by
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each party hereto as a temporary accommodation to the other. Each party shall
arrange for the relevant Services to be provided by its own employees or by
third-party providers as soon as is practicable, even if such arrangements
result in greater cost to it than it would incur if the Services were provided
by the other party. In no event, however, shall either party be obligated to
provide any Services after March 31, 2001. Notwithstanding the foregoing, if
any Schedules hereto provide for the provision of Services for a longer period,
such longer period shall govern the provision of such Services. If provided for
in the Schedules, either party may give the other party written notice of its
intent to terminate any one or more of the Services prior to the stated
termination of the Services.
17. Termination. This Agreement shall remain in full force and effect for
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as long as any Services are being provided pursuant to the Schedules attached
hereto. If any person who is not at the effective date of this Agreement an
affiliate of either party should acquire (by any means, including without
limitation by operation of law) a voting or equity interest of twenty percent
(20%) or more in such party, then the other party may terminate this Agreement
(without penalty and without further cause) upon thirty (30) days written notice
to such party.
18. Waiver. The failure of either party at any time or times to enforce or
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require performance of any provision hereof shall in no way operate as a waiver
or affect the right of such party at a later time to enforce the same. No
waiver by either party of the breach of any provision contained in this
Agreement shall be construed as a waiver of any subsequent breach of any
provision.
19. Severability. If any provision of this Agreement shall hereafter be
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held to be invalid or unenforceable for any reason, that provision shall be
reformed to the maximum extent permitted to preserve the parties' original
intent, failing which it shall be severed from this Agreement with the balance
of the Agreement continuing in full force and effect. Such occurrence shall not
have the effect of rendering the provision in question invalid in any other
jurisdiction or in any other case or circumstances or of rendering invalid any
other provisions contained herein to the extent that such other provisions are
not themselves actually in conflict with any applicable law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
XXXXXXX PURINA COMPANY ENERGIZER HOLDINGS, INC.
By:/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President, Chief Title: Vice President and General
Financial Officer Counsel
and Treasurer
