MASTER TRANSITION SERVICES AGREEMENT
Exhibit 10.3
This Master Transition Services Agreement (this “Agreement”) is entered into as of
[•], 2011, by and among ITT Corporation, an Indiana corporation (“ITT”), Exelis Inc., an
Indiana corporation (“Exelis”) and Xylem Inc., an Indiana corporation (“Xylem”).
Each of ITT, Exelis and Xylem is sometimes referred to herein as a “Party” and collectively as the
“Parties.” Capitalized terms used herein and not otherwise defined herein have the meanings given
to such terms in the Distribution Agreement of even date herewith, by and among ITT, Exelis and
Xylem (as such may be amended from time to time, the “Distribution Agreement”).
W I T N E S S E T H :
WHEREAS, the Board of Directors of ITT has determined that it is appropriate, desirable and in
the best interests of ITT, ITT’s shareholders and ITT’s other constituents, to separate, pursuant
to and in accordance with the Distribution Agreement, ITT into three separate, publicly traded
companies, one for each of (i) the ITT Retained Business, which shall be owned and conducted,
directly or indirectly, by ITT, (ii) the Defense Business, which shall be owned and conducted,
directly or indirectly, by Exelis and (iii) the Water Business, which shall be owned and conducted,
directly or indirectly, by Xylem.
WHEREAS, in order to provide for an orderly transition under the Distribution Agreement, each
of ITT, Exelis and Xylem desire to provide to the other certain services for specified periods
following the Distribution Date, all in accordance with and subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the Parties
contained herein, the Parties agree as follows:
1. Services Provided.
(a) With respect to each Service (as defined in Section 1(b)), the Party required to
provide such Service is the “Service Provider” and the other Party is the “Service
Recipient”. In performing the Services, Service Provider and each of its Affiliates shall use
commercially reasonable efforts to provide, or to ensure that any Third Party Provider (as defined
in Section 1(b)) shall provide, the Services in the same manner, within the same amount of
time and at the same level of service (including, as applicable, with respect to type, frequency,
quality, and quantity), with the same degree of reasonable skill and care and with the same level
of security and control as provided and used in providing the Services during the twelve month
period prior to the Distribution Date (excluding any actions taken in contemplation of the
Distribution). Notwithstanding the foregoing, if there is an increase in the complexity of a
Service (whether as a result of increased quantity or quality, changing frequency or regulatory
requirements or otherwise), Service Recipient acknowledges and agrees that such Service may not be
provided within the same amount of time as it had previously taken during such period, and, in
such a case, Service Provider and each of its Affiliates shall use commercially reasonable efforts
to provide, or to ensure that any Third Party Provider shall provide, such Service in a timely
manner. Notwithstanding anything herein to the contrary, the Services are to be provided
in a manner that does not disparately treat Service Recipient (or its Subsidiaries or its or
their
personnel or business) as compared to Service Provider’s treatment of itself (or its
Affiliates or its or their personnel or business) in connection with the provision of a
Self-Service (as defined in Section 2(a)(v)).
(b) During the period commencing on the Distribution Date and ending on the date that is two
(2) years from the date hereof, unless an earlier or later date is otherwise specified for a
Service on Schedule A, Schedule B or Schedule C hereto (for each such Service, such end date being
herein referred to as the “Termination Date”, with Schedule A, Schedule B and Schedule C
being herein referred to as the “Services Schedules”), Service Provider shall provide, or
shall cause one or more of its Affiliates or a contractor, subcontractor, vendor or other
third-party service provider (each, a “Third Party Provider”) to provide, upon the terms
and subject to the conditions set forth herein, the services described on the Services Schedules,
including under the headings “General Services Description” and “Scope of Services” (the
“Services”); provided, Service Provider shall obtain the consent of Service
Recipient (not to be unreasonably withheld, delayed or conditioned) in the event any such Service
is to be provided by a Third Party Provider or Affiliate if such Services were not provided by such
Third Party Provider or Affiliate to Service Recipient during the twelve month period prior to the
Distribution Date; provided further, Service Provider shall remain primarily
responsible for the performance by any such Affiliate or Third Party Provider of its obligations
hereunder. Irrespective of whether Service Provider, an Affiliate or a Third Party Provider is
providing a Service, Service Recipient may direct that any such Service be provided directly to
Service Recipient or any other member of such Party’s Group.
(c) Each Service provided hereunder shall be terminated on its applicable Termination Date (as
defined in Section 1(b)), unless otherwise terminated earlier by Service Recipient pursuant
to Section 11. Service Provider shall be under no obligation to provide a Service to
Service Recipient after the Termination Date applicable to such Service, except to the extent
otherwise agreed in writing by Service Provider and Service Recipient.
2. Consideration.
(a) Costs and Fees.
(i) For each Service, Service Recipient shall pay (in accordance with Section
2(b)) Service Provider an amount equal to the Monthly Costs (as defined in Section
2(a)(i)(1)); provided that (i) for any Service performed from and after January
1, 2012 through and including the day before the expiration date of the Minimum Service
Period (as defined in Section 11(b)) for such Service, Service Recipient shall pay,
along with and in addition to such Monthly Costs, an amount equal to 2% of such Monthly
Costs and (ii) for any Service performed from and after the expiration date of the Minimum
Service Period for such Service through and including the date as of which the provision of
such Service hereunder has been terminated, Service Recipient shall pay, along with and in
addition to the Monthly Costs, an amount equal to 10% of such Monthly Costs, unless, upon
request by Service Recipient to terminate a Service, Service Provider is unable to
transition the Service to Service Recipient or its designated Subsidiary in a commercially
reasonable manner which does not unduly disrupt the Service and as a result, Service
Recipient is unable to terminate such Service on or after the date on which
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the Minimum
Service Period expires (in which case any third party, out-of-pocket costs resulting to
Service Recipient shall be shared in accordance with Section 11(b)).
(1) The “Monthly Costs” for each Service shall be an amount equal to the sum of
(A) the costs or expenses incurred as set forth on the applicable Services Schedule;
provided that if a Services Schedule is silent regarding costs and expenses,
the amount under this subsection (A) shall be equal to Service Provider’s allocated
costs (including salary, wages and benefits, but excluding severance and retention
costs, which shall be handled pursuant to Section 2(a)(ii)) for any of its
(or its Affiliates’) employees involved in providing Services, plus (B) any
reasonable out-of-pocket costs and expenses incurred in connection with retaining
Third Party Providers, including any fees for any Third Party Consent or Alternate
Method, or pursuing any warranty or indemnity against a Third Party Provider in
accordance with Section 3(d); provided that Service Recipient shall only be
responsible for 50% of the fees for any Third Party License, with Service Provider
responsible for the other 50%, plus (C) any sales, transfer, goods,
services, value added, gross receipts or similar taxes, fees, charges or assessments
(including any such taxes that are required to be withheld); provided that
the Parties agree to use commercially reasonable efforts to minimize any such tax
with respect to the Services, plus (D) other reasonable miscellaneous
out-of-pocket costs and expenses; provided, however, that any such
expenses exceeding $5,000 per month for each Service (other than routine business
travel and related expenses) shall require advance approval of Service Recipient.
The Monthly Costs for a Service shall not include any severance and retention costs
incurred by Service Provider as a result of retaining the necessary employees to
supply such Service to Service Recipient in accordance with the terms of this
Agreement, which costs shall be handled pursuant to Section 2(a)(ii) below.
(2) Any costs and expenses provided for on a Services Schedule shall be subject
to an increase of 4.5% per annum beginning on January 1, 2012 in order to adjust for
inflation.
(3) Service Provider shall notify Service Recipient of any event that may
reasonably be expected to increase the Monthly Costs by more than 5%.
(ii) Subject to the terms of this Section 2(a)(ii), Service Provider shall use
commercially reasonable efforts to retain its workforce required to provide the Services
and, consistent with its severance and retention policies then in effect, may make severance
and retention payments to employees providing the Services. As provided for on Annex
A (the “Severance and Retention Schedule”), Service Recipient shall be
responsible for the percentage as therein provided of Service Provider’s actual severance
and retention costs (which are estimated in the Severance and Retention Schedule) for those
individuals or job descriptions as set forth therein; provided that Service
Recipient shall only be so responsible for its portion of severance costs if such costs were
incurred as a result of terminating such an employee in connection with the termination of a
Service; provided further that (a) if the severance and retention costs
change from the
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estimates provided in the Severance and Retention Schedule, Service
Recipient shall be responsible for its percentage of such costs so long as such change in
costs is consistent with the Service Provider’s severance and retention policies as then in
effect and (b) any such employee is actually terminated and not rehired for at least ninety
(90) days following such termination. Service Provider shall prepare and deliver, within
thirty (30) days following the end of each quarterly period ending each March 31, June 30,
September 30 and December 31 (it being understood that the first such period shall be
shorter than one quarter), to Service Recipient an invoice setting forth the amount of
severance and retention costs to be paid by Service Recipient in accordance with the
foregoing provisions of this Section 2(a)(ii), which invoice Service Recipient shall
pay pursuant to the terms of Section 2(b).
(iii) Unless the Parties otherwise agree in writing, (i) where Services are provided in
a country outside of the United States by a Person located in the same country, amounts
shall be invoiced and paid in the local currency of the entity providing the Services and
(ii) if payments are to be made between legal entities not within the same country, such
amounts shall be invoiced and paid in U.S. Dollars. To the extent necessary, local currency
conversion on any such invoice shall be based on Service Provider’s internal exchange rate
for the then-current month, based upon the average for such month, as calculated
consistently with how such local currency conversion was calculated in the twelve month
period prior to the Distribution Date.
(iv) All charges based on a monthly or other time basis will be pro-rated based on
actual calendar days elapsed during the period of service.
(v) With respect to any service that a Service Provider provides or causes an Affiliate
to provide to itself or its Affiliates that is the same or substantially similar to a
Service provided to Service Recipient or its Subsidiaries hereunder (such service, a
“Self-Service”), if Service Provider determines to no longer provide such Self
—Service to itself or its Affiliates, Service Provider shall notify Service Recipient of
such termination no later than the number of days prior to such termination as is provided
in Section 11(b) for terminating the corresponding Service. If Service Provider
terminates a Self-Service prior to the end of the Minimum Service Period applicable for the
corresponding Service, the Monthly Costs of such Service following any such termination and
up to but not including date on which the Minimum Service Period expires shall be calculated
as if Service Provider had not terminated such Self-Service. Notwithstanding the foregoing,
Service Provider shall continue to provide the Service in accordance with the provisions of
this Agreement, unless such Service is otherwise terminated pursuant to Section 11,
and Service Provider shall not be permitted to terminate any Self-Service prior to the
Termination Date for the applicable Service if such termination would adversely affect the
level of service, security or control of such Service or the scope or content thereof
required pursuant to Sections 1(a) and 4(a).
(b) Invoices and Payment.
(i) Service Provider shall invoice Service Recipient for the amounts owed hereunder in
arrears on a calendar monthly basis or, in the case of Section 2(a)(ii), as
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provided
therein, and shall provide reasonable documentation supporting such amounts owed pursuant to
Section 2(a), except to the extent such amounts are set forth on the Services
Schedules. Service Recipient shall pay the amount of such invoice by electronic transfer of
immediately available funds not later than thirty (30) days after of the date of such
invoice. Neither Party nor any of its respective Subsidiaries shall have a right of set-off
against the other Party or its Subsidiaries, except in connection with any amounts billed
hereunder. In the event Service Recipient does not pay Service Provider in accordance with
the terms hereof (i) all amounts so payable and past due shall accrue interest from the
31st day after the date of the invoice to the receipt of payment at a rate per
annum equal to the six (6)-month LIBOR rate (as quoted in the “Money Rates” section of The
Wall Street Journal or any other similarly reputable published source on the 31st
day after the date of the invoice, or the next Business Day, if such day is not a Business
Day) plus 3% (the “Interest Rate”, with the applicable rate to be
recalculated every six months), until such amounts, together with all accrued and unpaid
interest thereon, are paid in full, and (ii) Service Recipient shall pay, as additional
fees, all reasonable out-of-pocket costs and expenses incurred by Service Provider in
attempting to collect and collecting amounts due under this Section 3, including all
reasonable attorneys fees and expenses.
(ii) In the event that Service Recipient in good faith disputes an invoice submitted by
Service Provider, Service Recipient may withhold payment of any amount subject to the
dispute; provided, however, that (x) Service Recipient shall continue to pay
all undisputed amounts in accordance with the terms hereof, (y) Service Recipient shall
notify Service Provider, in writing, of any disputed amounts and the reason for any dispute
by the due date for payment of the invoice containing any disputed charges and (z) in the
event any dispute is resolved in the Service Provider’s favor, any amount that the Service
Recipient should have paid shall be deemed to have accrued interest at the Interest Rate
from the date such payment should have been made. In the event of a dispute regarding the
amount of any invoice, the Parties shall use all reasonable efforts to resolve such dispute
within thirty (30) days after Service Recipient provides written notification of such
dispute to Service Provider. Each Party shall provide full supporting documentation
concerning any disputed amount or invoice within thirty (30) days after written notification
of the dispute. Unpaid fees that are under good faith dispute shall not be considered a
basis for default hereunder. To the extent that a dispute regarding the amount of any
invoice cannot be resolved pursuant to this Section 2(b)(ii), the dispute resolution
procedures set forth in Section 9 herein shall apply.
3. Cooperation.
(a) Service Recipient and Service Provider shall cooperate and work together in good faith to
develop a global transition plan in order to facilitate a smooth and orderly termination of a
Service by its applicable Termination Date or at such earlier time as Service Recipient terminates
Service Provider’s performance of the Services in accordance with Section 11. In
furtherance of the foregoing, Service Provider will, if requested and at Service Recipient’s
expense, provide Service Recipient with reasonable support necessary to transition or migrate
the services to Service Recipient or any third party or parties chosen by the Service
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Recipient,
which may include consulting and training and providing reasonable access to data and other
information and to Service Provider’s employees; provided, however, that such
activities shall not unduly burden or interfere with Service Provider’s business and operations.
(b) It is understood that it will require significant efforts by the Parties to implement this
Agreement and ensure performance hereunder. Service Recipient shall (i) cooperate with and provide
Service Provider with such information and documentation as is reasonably necessary for Service
Provider to perform the Services; and (ii) perform such other duties and tasks as may be reasonably
required to permit Service Provider to perform the Services, including (x) cooperating in obtaining
any consents or approvals from third parties necessary to facilitate Service Provider’s ability to
provide the Services and (y) upon thirty (30) days prior written notice by the Service Provider,
conducting such testing as may be reasonably required by Service Provider in connection with any
updates or changes to the applicable systems or processes involved in providing a Service. A
Service Provider shall not be deemed to be in breach of its obligations to provide or make
available any Service to the extent that Service Recipient has not provided information and access
to appropriate personnel that is reasonably necessary for the performance of such Service.
(c) Service Recipient shall use commercially reasonable efforts to make or obtain any
approvals, permits and licenses and implement any systems as may be necessary for it to perform the
Services independently in each country and applicable jurisdiction as soon as practicable following
the Distribution Date.
(d) Upon Service Recipient’s written request and without prejudice to Service Recipient’s
direct rights against a Third Party Provider, Service Provider shall use commercially reasonable
efforts to pursue any warranty or indemnity under any contract Service Provider or its Subsidiaries
may have with a Third Party Provider with respect to any Service provided to Service Recipient by
such Third Party Service Provider.
(e) Service Provider shall use commercially reasonable efforts to obtain, if required, the
consent of any relevant Third Party Provider (a “Third Party Consent”) or a license from
any relevant Third Party Provider (a “Third Party License”), and Service Recipient shall,
as necessary, cooperate with Service Provider in obtaining any such Third Party Consent or Third
Party License. If a Third Party Consent or Third Party License cannot be obtained on reasonable
terms, the Parties will use commercially reasonable efforts to arrange for an alternative method of
obtaining any such Service on Service Recipient’s behalf (“Alternative Method”), which may
include Service Provider providing such Service itself. If there is any Third Party Consent or
Third Party License which was not required as of the date hereof but will subsequently be required
before the Minimum Service Period expires for a particular Service, Service Provider shall identify
in writing to Service Recipient such Third Party Consent or Third Party License within sixty (60)
days of the date hereof.
(f) The Parties shall use the fiscal month, quarter and year ends as set forth in Schedule D
in connection with the provision and receipt of applicable Services hereunder, for so long as such
Services are being provided.
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(g) In connection with the provision of Services hereunder, except as provided pursuant to
Section 2(a)(iii) for local currency conversion for invoices, the Parties shall use the
same methodology to determine the appropriate foreign exchange conversion rate as used in the
twelve month period prior to the Distribution Date, which may be determined or based upon the
average for the month or other applicable period or the spot rate at the end of such month or
period or otherwise.
4. Performance Standard; Reports; Personnel.
(a) Except as otherwise provided in the Services Schedule and Section 1(a) herein,
nothing in this Agreement shall require or be interpreted to require Service Provider to provide a
Service to Service Recipient beyond the scope and content of such Service as provided by Service
Provider to the ITT Retained Business, Water Business or Defense Business, as the case may be,
during the twelve month period prior to the Distribution Date, excluding any actions taken in
contemplation of the Distribution.
(b) Service Provider shall not make changes in the manner of providing a Service
unless (i) Service Provider is making similar changes in a Self-Service being performed for
itself or its Subsidiaries or such changes are de minimus, in each case so long as such changes do
not adversely affect the level of service, security or control of such Service or the scope or
content thereof required pursuant to Sections 1(a) and 4(a) above, (ii) such
changes are required by Service Provider or Service Recipient pursuant to applicable Law (including
changes required by Service Provider or Service Recipient in connection with the provision of the
Services to the other Party) or (iii) Service Recipient provides its prior written consent (which
shall not be unreasonably withheld, conditioned or delayed) to such changes (in each case, for the
avoidance of doubt, with the costs of any such change to be included in the calculation of Monthly
Costs). In the event Service Provider determines to change the location of delivery of any
Service, Service Provider shall provide Service Recipient with thirty (30) days prior written
notice. All Services shall be performed in compliance with applicable Law, including all
applicable U.S. and non-U.S. laws and regulations relating to export controls, sanctions, and
imports, including without limitation those regulations maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control, the Export Administration Regulations maintained by
the U.S. Department of Commerce, Bureau of Industry and Security, and the International Traffic in
Arms Regulations maintained by the U.S. Department of State, Directorate of Defense Trade Controls.
(c) In performing the Services, Service Provider shall prepare and furnish to Service
Recipient reports concerning the Services with such reports to contain substantially the same data,
in substantially the same format, and prepared and delivered on substantially the same timetable,
as reports prepared during the twelve month period prior to the Distribution Date (excluding any
reports solely prepared in contemplation of the Distribution), except as may be otherwise required
by Service Recipient or Service Provider pursuant to applicable Law. Upon Service Recipient’s
written request for modifications to the reporting and data transfer practices
reasonably required to assist Service Recipient in transitioning off the Service, Service
Provider shall cooperate and consult in good faith with Service Recipient to make such
modifications; provided that if Service Provider reasonably determines in its sole
discretion that any such
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modification may cause Service Provider to be in breach of its obligations
to the other Party hereunder (including as a result of breaching its obligations as a Service
Provider to the other Party as Service Recipient), then Service Provider shall not be under any
obligation to make such modifications.
(d) Service Provider shall use commercially reasonable efforts consistent with past practice
to make available such personnel as may be required to provide the Services. Service Provider shall
have the right to designate which personnel it will assign to perform the Services. Service
Provider also shall have the right to remove and replace any such personnel at any time or
designate any of its Subsidiaries or a Third Party Provider (subject to Section 1(a)
herein) at any time to perform the Transition Services; provided, however, that
Service Provider shall use its commercially reasonable efforts consistent with past practice to
limit the disruption to Service Recipient in the transition of the Services to different personnel.
Subject to and consistent with Section 2(a)(ii), Service Provider shall have no obligation
to retain any individual employee for the sole purpose of providing a particular Transition
Service.
(e) In the event Service Recipient or any of it Subsidiaries hires away an employee of Service
Provider or its Subsidiaries, and such employee was providing Services to Service Recipient and
will not continue to provide such Service, Service Provider shall have the option, in its sole
discretion (in addition to any other remedies available to it under the Distribution Agreement or
otherwise), upon ten (10) Business Days written notice to Service Recipient to reduce its
obligations with respect to such Service (with a proportionate reduction in the applicable Monthly
Costs) effective on the date of such employee’s termination of employment with Service Provider.
Any provision of Service thereafter pursuant to such a reduction in Service Provider’s obligations
shall be deemed to be consistent with Service Provider’s obligations under this Agreement, so long
as Service Provider satisfies the other obligations contained in this Section 4 with
respect to such Service.
(f) Each Party agrees that it shall take appropriate action by instruction of or agreement
with its personnel (including any Third Party Provider) to ensure that all such personnel
performing or otherwise involved with Services shall be bound by and comply with all of the terms
and conditions of this Agreement.
(g) In the event Service Provider has received a notice of default or breach in the
performance of a Service hereunder (including as a result of substantial errors in the performance
of such Service), it will use its commercially reasonable efforts to cure such default or breach.
In the event Service Provider is unable to cure such default within thirty (30) days from receipt
of notice thereof, in addition to the rights available under Section 11, there shall be an
adjustment to Monthly Costs to reflect the costs to Service Recipient associated with such default,
breach or error, including any reasonable out-of-pocket costs and expenses incurred by Service
Recipient in retaining any Third Party Provider to provide such Service or in providing the such
Service itself.
(h) Each Party shall notify the applicable other Party as promptly as practicable after
becoming aware of any breach of this Agreement committed by either it or the applicable other
Party. Service Provider shall notify Service Recipient of any event that may reasonably be
expected to materially impact a Service provided hereunder, which may include a
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Termination Notice (as defined in Section 11(b)) provided by the other Party as
Service Recipient hereunder or a notice of termination of a Self-Service, issued pursuant and in
accordance with, Section 2(a)(v).
(i) In the event of any conflict, as reasonably determined by Service Provider in its sole
discretion, between requests for modification or termination of Services made by the two other
Parties and each properly delivered hereunder, Service Provider shall determine which request it
received first and, subject to the other terms and conditions of this Agreement, make such
modifications or terminations pursuant to the request that was first received before making any
modifications or terminations pursuant to any requests received afterwards.
5. New Services.
If, after the date hereof and on or prior to March 31, 2012, or, with respect to Services
provided in connection with any Transfer that, pursuant to Section 2.6(a) of the Distribution
Agreement, is not consummated at or prior to the Effective Time, one hundred (100) days following
the actual date of such Transfer (notwithstanding that under Section 2.6(b) of the Distribution
Agreement such Transfer may be deemed to have occurred on the Effective Time) the Parties determine
that a service required by Service Recipient and provided by Service Provider or one of its
Subsidiaries prior to the Distribution Date was inadvertently omitted from the Services Schedules,
Service Recipient may request that Service Provider perform such service (“New Service”) in
addition to the Services being provided hereunder. Service Provider shall promptly begin
performing any New Service consistent with past practice upon a timely written request from Service
Recipient (which request may be in the form of email) including (i) a description of the work
Service Recipient anticipates being performed by Service Provider in connection with such New
Service and (ii) a schedule for commencing and completing such New Service, and Service Provider
and Service Recipient shall enter into good faith negotiations to agree to an amendment to the
Services Schedules providing for such New Service; provided that if no agreement for an
Additional Service Schedule Amendment has been reached in writing in thirty (30) days, such New
Service shall be deemed to have a Minimum Service Period expiring on June 30, 2012 and a
Termination Date of two years from the Distribution Date, with Monthly Costs as provided for in
Section 2(a)(i), calculated as if the amendment to the Services Schedule for such New
Service were silent regarding costs and expenses (such amendment or deemed amendment pursuant to
the foregoing proviso, an “Additional Service Schedule Amendment”). Any New Service shall
be considered a Service hereunder and the Services Schedules shall incorporate, and be deemed to be
duly amended by, such Additional Service Schedule Amendment.
6. Intellectual Property; IT Security.
(a) Except as provided in the Services Schedules, the Monthly Costs shall include the
allocable portion of any amounts that are required to be paid by Service Provider to
any third party licensors of software that is used by Service Provider in connection with the
provision of any Services hereunder, including (i) license, right-to-use and royalty fees and (ii)
any amounts required to obtain the consent of such licensors to allow Service Provider to provide
any of the Services hereunder. Service Recipient agrees to comply and cause its Subsidiaries to
comply with the terms of any license or other agreement of Service Provider or
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any of its
Subsidiaries relating to software that is provided to Service Recipient and is used in connection
with the provision of any Services hereunder; provided that in the event that Service
Provider enters into new software licenses after the Distribution Date, Service Recipient shall
have the prior opportunity to review and confirm its ability to comply therewith, which it shall do
in good faith. In the event that Service Recipient provides notice of its inability to comply
therewith, Service Provider may at its sole discretion discontinue its provision of any Services
under such new software licenses effective after thirty (30) days notice of the same, and Service
Recipient shall indemnify Service Provider for any claims by third parties arising out of or in
connection with Service Recipient’s noncompliance or violation of such software licenses. Subject
to the foregoing, Service Provider shall use commercially reasonable efforts to obtain any consent
that may be required from such licensors in order to provide any of the Services hereunder and the
Parties shall cooperate to identify any material licenses or consents necessary for such provision
and shall use commercially reasonable efforts to minimize the costs associated therewith.
(b) If the receipt or provision of any Service hereunder requires the use by a Party of the
Intellectual Property (other than Trademarks) of the other Party, then such Party and its
Subsidiaries shall have the non-exclusive, royalty-free, non-sublicensable (except as required for
its and its Subsidiaries’ receipt or provision of Services) right and license to use such
Intellectual Property for the sole purpose of, and only to the extent necessary for, the receipt or
provision of such Services hereunder, pursuant to the terms and conditions of this Agreement. This
license does not permit a Party to access, possess, or modify the source code of the other Party or
to reverse engineer the software of the other Party. Upon the Termination Date applicable to such
Service, or the earlier termination of any Services in accordance with Section 11, the license
herein to the applicable Intellectual Property will terminate; and the applicable Service Recipient
and/or Service Provider shall cease all use of the Intellectual Property licensed hereunder.
Nothing in this Section 6(b) shall be deemed to limit, modify or terminate any License
Agreement between the Parties.
(c) Subject to the limited licenses granted in Section 6(b), each Party shall
exclusively own any Intellectual Property that it creates, develops or invents in connection with
the provision of any Services hereunder.
(d) While using or accessing any computers, systems, software, networks, information
technology or related infrastructure or equipment (including any data stored thereon or transmitted
thereby) (“Systems”) of the other Party (whether or not a Service), each Party shall and
shall cause each of its Subsidiaries to, adhere in all respects to the other Party’s controlled
processes, policies and procedures (including any of the foregoing with respect to Confidential
Information, data, communications and system privacy, operation, security and proper use) as in
effect on the Distribution Date or as communicated to such Party from time to time in writing.
(e) Those employees of Service Recipient and Service Provider (or their respective Affiliates)
having access to the other Party’s Systems may be required by Service Provider or Service
Recipient, as the case may be, to enter into a customary non-disclosure agreement in connection
with, and as a condition to, such access.
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7. Records.
Service Provider shall provide to Service Recipient, taking into consideration the financial
reporting, internal controls and other public company requirements of Service Recipient, all
information and records reasonably required to maintain full and accurate books relating to the
provision of Services to the extent any such information and/or records were provided or maintained
during the twelve month period prior to the Distribution Date, excluding any actions taken in
contemplation of the Distribution. Upon reasonable notice and reasonable request from the Service
Receiver, and at the Service Receiver’s cost, Service Provider shall (a) make available for
inspection and copying by Service Receiver’s agents or representatives such information, books and
records relating to the Services during reasonable business hours and (b) certify that the controls
in effect prior to the Distribution Date continue to be in effect, or if Service Provider is aware
of any instances where such controls are not so in effect, in lieu of certification for such
instances, provide a list of such instances and descriptions of the change in such controls
thereof.
8. Force Majeure; Reduction of Services.
No Party (or any Person acting on its behalf) shall have any liability or responsibility for
failure to fulfill any obligation (other than a payment obligation) under this Agreement so long as
and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or
delayed as a consequence of circumstances of Force Majeure. A Party claiming the benefit of this
provision shall, as soon as reasonably practicable after the occurrence of any such event: (a)
notify the other applicable Parties of the nature and extent of any such Force Majeure condition
and (b) use due diligence to remove any such causes and resume performance under this Agreement as
soon as feasible. Notwithstanding the foregoing, Service Recipient shall be entitled to terminate
Services so affected by a Force Majeure upon fifteen (15) day prior written notice in respect of
any such delay or failure resulting from any such Force Majeure without any penalty or obligation
to pay for Services not performed; provided that, for the avoidance of doubt, Service Recipient
shall remain responsible, pursuant to and in accordance Section 2(a)(ii), for its portion
of any severance and retention costs for any such Services.
9. TSA Managers; Dispute Resolution.
(a) Each Party shall nominate in writing one representative to act as the primary contact with
respect to the provision and receipt of Services (a “TSA Manager”), with the initial TSA
Managers as listed on Schedule E. Each Party may, at its discretion, from time to time
select another individual to serve in these capacities during the term of this Agreement;
provided, however, each Party shall notify the other Party promptly (and in any
event within five (5) Business Days) of any change in an individual serving in this capacity,
setting forth the name
and contact information of the replacement, and stating that such replacement is authorized to
act for such Party in accordance with this Section 9(a).
(b) The TSA Managers shall meet as expeditiously as possible to resolve any dispute hereunder,
and notwithstanding anything in Article IX (Dispute Resolution) of the Distribution Agreement to
the contrary, in the event any dispute is not so resolved within thirty
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(30) days, a TSA Manager
may provide written notice of such dispute to the Chief Financial Officer of each Party (or such
other executive as designated by the Chief Executive Officer of such Party), who shall attempt
within a period of fifteen (15) days following the end of such previous thirty (30) day period to
conclusively resolve any such issue, and in the event the dispute remains unresolved following such
fifteen (15) day period, either Party may submit the dispute to mediation in accordance with
Section 9.2 (Mediation) of the Distribution Agreement (provided that, for the avoidance
of doubt, the forty-five (45) day waiting period referenced therein shall be inapplicable), and if
any dispute remains unresolved after the Mediation Period (as defined in the Distribution
Agreement), such dispute shall be determined, at the request of either Party, by arbitration in
accordance with Section 9.3 (Arbitration) of the Distribution Agreement and the other
applicable provisions of Article IX (Dispute Resolution) of the Distribution Agreement. Each Party
may treat an act of any other Party’s TSA Manager or Chief Financial Officer (or such other
executive as designated by the Chief Executive Officer of such other Party), in each case that is
consistent with the provisions of this Agreement, as being authorized by such other Party to
resolve such dispute without inquiring behind such act or ascertaining whether such TSA Manager or
Chief Financial Officer (or such other executive as designated by the Chief Executive Officer of
such other Party) had authority to so act; provided, however, that none of the TSA Managers or
Chief Financial Officer or other executives so designated shall have authority to amend this
Agreement, except as otherwise provided pursuant to Section 16.
(c) In the event of any dispute between the Parties regarding a Service, prior to the
applicable Termination Date, Service Provider shall not discontinue the supply of any such Service,
unless so provided for in a settlement agreement between the Parties or arbitral determination
pursuant to and in accordance with Section 9(b) herein and Article IX of the
Distribution Agreement or as requested by Service Recipient pursuant to a Termination Notice.
10. Disclaimer; Limited Liability.
(a) Service Recipient acknowledges that Service Provider is not in the business of providing
the Services and that the Services being provided pursuant to this Agreement are provided as an
accommodation to Service Recipient. Other than in the event of Service Provider’s gross negligence
or willful misconduct, Service Provider will not be liable for any error or omission in rendering
Services under this Agreement, or for any defect in Services so rendered; provided that if
there is a substantial error in any of the Services, Service Provider shall use commercially
reasonable efforts to attempt to correct the error, or if Service Provider is unable to so correct
such error, to provide an adjustment to the Monthly Cost for such Service in reasonable proportion
to that which the error bears to the Service provided for such month, which adjustment may,
pursuant to Section 4(g), include any reasonable out-of-pocket costs and expenses incurred
by Service Recipient in retaining a Third Party Provider to provide such
Service or in providing such service itself. Other than in the event of Service Recipient’s
gross negligence or willful misconduct, and other than for the Monthly Costs, severance and
retention costs owed under Section 2(a)(ii) and other amounts expressly owed hereunder,
Service Recipient will not be liable for any damages caused in connection with the Services
provided under this Agreement.
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(b) Service Provider shall have no responsibility to maintain insurance to cover any loss or
damage to goods or equipment to which Service Recipient has title that are in the possession or
control of Service Provider, its Subsidiaries or a Third Party Provider as a result of this
Agreement and the risk of loss with respect to such goods or equipment shall be solely with Service
Recipient. Service Recipient shall obtain from its insurance company a waiver of subrogation on
behalf of Service Provider and its Subsidiaries effective as of Distribution Date. Service
Recipient shall have no responsibility to maintain insurance to cover any loss or damage to goods
or equipment to which Service Provider has title that are in the possession or control of Service
Recipient or its Subsidiaries as a result of this Agreement and the risk of loss with respect to
such goods or equipment shall be solely with Service Provider. Service Provider shall obtain from
its insurance company a waiver of subrogation on behalf of Service Recipient and its Subsidiaries
effective as of the Distribution Date.
(c) NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED (INCLUDING WARRANTIES
OF NON-INFRINGEMENT, MERCHANTIBILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
PURPOSE OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION), ARE MADE BY SERVICE PROVIDER OR ANY OF
ITS AFFILIATES WITH RESPECT TO THE PROVISION OF SERVICES UNDER THIS AGREEMENT AND, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH REPRESENTATIONS OR WARRANTIES ARE HEREBY WAIVED AND
DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES, INCLUDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY, SHALL SERVICE PROVIDER BE LIABLE FOR, INCLUDING BUT
NOT LIMITED TO, ANY LOST PROFITS, REMITTANCES, COLLECTIONS, INVOICES, PENALITIES, INTEREST OR
SPECIAL, INCIDENTIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES CAUSE BY THE PERFORMANCE OF, ANY DELAY IN
THE PERFORMING, FAILURE TO PERFORM OR DEFECTS IN THE PERFORMANCE OF, THE SERVICES CONTEMPLATED TO
BE PERFORMED BY SERVICE PROVIDER PURSUANT TO THIS AGREEMENT, REGARDLESS OF WHETHER A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Term and Service Termination Dates.
(a) This Agreement (other than Sections 9, 10, 11 and 13)
shall terminate upon the last of the Termination Dates in respect of all Services to be provided
hereunder; provided that the rights of the parties in respect of any claims that have
accrued prior to such termination shall survive such termination.
(b) For each Service, the minimum service period (“Minimum Service Period”) during
which Service Provider is obligated to provide such Service to Service Recipient is set forth on
the Services Schedule. The Parties agree to cooperate if necessary to adjust such Minimum Service
Period (and the applicable Termination Date) to end on a date that is the end of a calendar or
fiscal month, as deemed appropriate. Service Recipient may terminate any Service prior to its
Termination Date by providing to Service Provider written notice of termination, which shall be
deemed irrevocable upon delivery (a “Termination Notice”), not less
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than (i) thirty (30)
days before the date of such earlier termination if the Service is to be terminated on or before
December 31, 2011, (ii) sixty (60) days before the date of such earlier termination if the Service
is to be terminated after December 31, 2011 but on or before June 30, 2012, (iii) ninety (90) days
before the date of such earlier termination if Service is to be terminated after June 30, 2012 but
on or before December 31, 2012 and (iv) one hundred and twenty (120) days before the date of such
earlier termination if Service is to be terminated on or after January 1, 2013; provided
that if the Services Schedule indicates that any Service is dependent on one or more other
Services, then each such Service must be terminated together; provided further that
any termination may be on a location by location basis if so indicated on the Services Schedules.
In the event a Service is terminated prior to the end of its Minimum Service Period pursuant to
Service Recipient’s Termination Notice, Service Recipient shall pay a make-whole fee equal to the
actual out-of-pocket costs and any additional costs that would have been incurred by Service
Provider if such Service had not been terminated (which costs, for the avoidance of doubt, exclude
the 2% and 10% increases described in Section 2(a)(i)) between the actual date of
termination of the Service and the applicable date on which the Minimum Service Period expires
(subject to Service Provider exercising commercially reasonable efforts to mitigate such costs).
Notwithstanding the foregoing, upon the receipt of a Termination Notice, if Service Provider is
unable to transition the applicable Service to the Service Recipient or its designee in a
commercially reasonable manner which does not unduly disrupt the Service on the requested
termination date, Service Provider shall use commercially reasonable efforts consistent with past
practice to transition such Service as soon as possible, and any resulting third party,
out-of-pocket costs to Service Recipient shall be shared equally between Service Provider and
Service Recipient.
(c) In the event either Party defaults in the performance of any of its obligations under this
Agreement, and if such default is not excused and not cured within thirty (30) days after written
notice from the other Party specifying such default, then the non-defaulting Party may at any time
thereafter terminate, at its option, any such Service that is the subject of such default by giving
five (5) days prior written notice; provided that if no such termination notice is given
within fifteen (15) days after the end of the thirty (30) day cure period, then the non-defaulting
Party waives all rights to terminate such Service with respect to such default; provided
further, that such fifteen (15) day period referred to in the immediately foregoing proviso
shall be extended if (x) the Parties dispute whether there has been a default hereunder or (y)
agree that there has been a default hereunder and have a dispute related to such default, and in
either case are attempting to resolve such dispute pursuant to Section 9(b) until ten (10)
days after there has been a final determination pursuant to the procedures in Section 9(b).
12. Independent Contractor.
The Parties hereto understand and agree that this Agreement does not make either of them an
agent or legal representative of the other for any purpose whatsoever. No Party is granted, by
this Agreement or otherwise, any right or authority to assume or create any obligation or
responsibilities, express or implied, on behalf of or in the name of any other Party, or to bind
any other Party in any manner whatsoever. The Parties expressly acknowledge (i) that Service
Provider is an independent contractor with respect to Service Recipient in all respects,
14
including
the provision of the Services, and (ii) that the parties are not partners, joint venturers,
employees or agents of or with each other.
13. Confidentiality.
(a) Any Confidential Information of either Party shall be subject to Section 8.6 of
the Distribution Agreement. With respect to any information disclosed by one Party to another
Party for the purpose of this Agreement or otherwise accessible to such other Party during the
performance hereunder (“Confidential Information”), the Party receiving such Confidential
Information agrees that it will use the same skill and care as set forth in Section 4(a)
to prevent the disclosure or accessibility to others of the disclosing Party’s Confidential
Information and will use such Confidential Information only for the purposes of this Agreement, the
Distribution Agreement and the Ancillary Agreements. The receiving Party and its employees,
representatives and agents (including any Third Party Provider) (collectively, the “Recipient
Parties”) shall only disclose and permit access to the other’s Party’s Confidential Information
to such Recipient Parties who have a need to know such Confidential Information for the purposes of
this Agreement, the Distribution Agreement and the Ancillary Agreements. For Confidential
Information provided with respect to any Service, the obligations of the Recipient Parties pursuant
to this Section 13 shall expire on the date that is five (5) years from the termination of
such Service. Each Party shall provide prompt written notice of any breach of the obligations
under this Section 13 by such Party or its Recipient Parties and shall use commercially
reasonable efforts to assist the other Party in remedying any such breach.
(b) Specifically excluded from the definition of Confidential Information is any and all
information that:
(i) is independently developed by or on behalf of a Recipient Party without use of or
reference to Confidential Information;
(ii) is or becomes available to the public, other than as the result of a breach by a
Recipient Party of the confidentiality obligations under this Agreement; or
(iii) is rightfully received from a third party not known by the Recipient Party to be
bound by an obligation of confidentiality to the disclosing Party.
(c) If the Recipient Party is required to disclose Confidential Information by law, process or
regulation, to the extent legally permissible, such Recipient Party shall promptly notify the
disclosing Party, reasonably cooperate with the disclosing Party to the extent it may seek to limit
such disclosure and, insofar as a protective order or waiver from the disclosing Party is not
obtained, only disclose such Confidential Information as is required to be disclosed.
(d) In connection with any permitted disclosure of this Agreement to any third party, each
Party shall redact the portions of the Services Schedules that are not relevant to such third
party’s inquiry.
(e) It is further understood and agreed that money damages may not be a sufficient remedy for
any breach of this Section 13 and that each Party shall be entitled to seek
15
equitable relief,
including injunction and specific performance, as remedy for any such breach. Such remedies shall
not be deemed to be the exclusive remedies for a breach, but shall be in addition to all other
remedies herein described available at law or equity.
14. Beneficiary of Services; No Third Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto, and nothing expressed or implied
shall give or be construed to give any person any legal or equitable rights hereunder, whether as a
third-party beneficiary or otherwise. Each Party agrees, and each Party in its capacity as a
Service Recipient represents and warrants, that the Services shall be provided solely to, and shall
be used solely by, Service Recipient and its Subsidiaries. Service Recipient shall not resell or
provide the Services to any other Person, or permit the use of the Services by any Person other
than Service Recipient and its Subsidiaries.
15. Entire Agreement.
This Agreement, together with the Distribution Agreement and the other Ancillary Agreements,
constitutes the entire agreement of the Parties with respect to the subject matter hereof, and
supersedes all prior agreements, understandings and negotiations, both written and oral, between
the Parties with respect to the subject matter hereof. In the event and to the extent that there
shall be a conflict between the provisions of this Agreement and the provisions of the Distribution
Agreement or any other Ancillary Agreement, the Parties agree that this Agreement shall govern. The
Parties agree that, in the event of an express conflict between the terms of this Agreement and a
Services Schedule, the terms of the Services Schedule shall govern.
16. Amendment; Waiver.
This Agreement and the Services Schedules may be amended, and any provision of this Agreement
may be waived, if but only if such amendment or waiver is in writing and signed, in the case of an
amendment, by each of the Parties, or in the case of a waiver, by the Party against whom the waiver
is effective. No failure or delay by either Party in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege.
17. Notices.
All notices, requests and other communications to any Party hereunder shall be in writing
(including telecopy or similar writing) and shall be given as follows:
if to ITT or to any of its Affiliates:
ITT Corporation
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
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Attn: General Counsel
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
if to Exelis or to any of its Affiliates:
Exelis Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, XX 00000
Attn: Chief Legal Officer
Facsimile:
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, XX 00000
Attn: Chief Legal Officer
Facsimile:
if to Xylem or to any of its Affiliates:
Xylem Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Facsimile:
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Facsimile:
or to such other address or telecopy number and with such other copies, as such
Party may hereafter specify for the purpose of notice to the other parties. Each such notice,
request or other communication shall be effective (i) if given by fax, when such fax is transmitted
to the fax number specified in this Section 17 and evidence of receipt is received or (ii)
if given by any other means, upon delivery or refusal of delivery at the address specified in this
Section 17.
18. Non-Assignability.
Neither this Agreement nor any of the rights, interests or obligations of either Party
hereunder may be assigned or transferred by any such Party without the prior written consent of the
other Party (not to be unreasonably withheld, delayed or conditioned), and any purported
assignment, without such prior written consent shall be null and void; provided a Party may
assign or transfer all its rights hereunder without such consent to an acquirer in connection with
a sale of all or substantially all of its assets or other similar change in control of such Party.
19. Further Assurances.
From time to time after the date hereof, without further consideration, each Party shall use
commercially reasonable efforts to take, or cause to be taken, all appropriate action, do or cause
to be done all things reasonably proper or advisable under applicable Law, and execute and deliver
such documents as may be required or appropriate to carry out the provisions of this Agreement and
to consummate, perform and make effective the transition contemplated hereby.
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20. Definitions and Rules of Construction.
(a) Defined terms used in this Agreement have the meanings ascribed to them by
definition in this Agreement or in the Distribution Agreement.
(b) This Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the Party drafting or causing any
instrument to be drafted.
(c) Whenever the words “include”, “including”, or “includes” appear in this Agreement,
they shall be read to be followed by the words “without limitation” or words having similar
import.
(d) As used in this Agreement, the plural shall include the singular and the singular
shall include the plural.
21. Counterparts; Effectiveness.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to
be an original and all of which together shall be deemed to be one and the same instrument. Copies
of executed counterparts transmitted by telecopy, telefax or other electronic transmission service
shall be considered original executed counterparts for purposes of this Section 21,
provided that receipt of copies of such counterparts is confirmed. This Agreement shall become
effective when each Party has received a counterpart hereof signed by the other Party hereto.
22. Section Headings.
The section headings contained in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
23. Severability.
If any provision of this Agreement shall be declared by any court of competent jurisdiction to
be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect, and the Parties shall negotiate in good faith to replace
such illegal, void or unenforceable provision with a provision that corresponds as closely as
possible to the intentions of the parties as expressed by such illegal, void, or unenforceable
provision.
24. Governing Law.
This Agreement shall be governed by and construed in accordance with the Laws, but not the
Laws governing conflicts of Laws (other than Sections 5-1401 and 5-1402 of the New York General
Obligations Law), of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| ITT CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EXELIS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XYLEM INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
19
