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").
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.
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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.
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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.
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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.
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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.
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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.
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.
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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.
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.
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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.
If to
Parent:
0000
Xxxxxxxx Xxxx. Xxxx, Xxxxx 000
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Phone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention:
Xxx Xxxxxx
with a
copy to (which shall not constitute notice):
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Phone:
(000) 000 0000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxx
and
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxx
Xxxxxx Xxxxx 0000
X.X. Xxx
000
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxxxxxx X. Xxxxxx
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If to
Service Receiver:
DH
Manufacturing & Distribution Pte Ltd.
c/o
Danaher Corporation.
0000
Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Chief
Counsel, Mergers & Acquisitions
with a
copy (which shall not constitute notice) to:
Xxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Facsimile: (000)
000-0000
Any Party
may change its respective address for notice by the giving of notice of such
change in the manner provided above.
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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[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:
|
|
Name: | |
Title: | |
DH
MANUFACTURING & DISTRIBUTION PTE LTD.
|
|
By:
|
|
Name: | |
Title: |
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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.
By:
|
|
Name:
|
|
Title:
|
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Schedule [__] to
Acknowledgment of Completion
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Initial
Service Schedules
See
Attached
[Redacted]
[Initial Service Schedules]
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ANNEX
B
FEE
SCHEDULE
[Redacted]
[Fee Schedule]
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