EXHIBIT 3
TEAMING AGREEMENT
THIS TEAMING AGREEMENT (this "Agreement") is made this 7th day of
November 1995 by and between GTS Duratek, Inc., a Delaware corporation ("GTSD")
and BNFL Inc., a Delaware corporation ("BNFL").
W I T N E S S E T H:
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WHEREAS, GTSD has specialized knowledge, experience and rights to
technology for the vitrification of radioactive, hazardous and other wastes;
WHEREAS, BNFL possesses experience in the processing and stabilization of
radioactive waste which could complement the specialized knowledge, experience
and technology rights of GTSD for the treatment and handling of wastes at DOE
(as defined) sites throughout the United States and all of its territories and
possessions;
WHEREAS, GTSD and BNFL believe that a cooperative pursuit of contracts
and other potential business opportunities with the DOE to treat and handle
wastes at DOE sites throughout the United States and all of its territories and
possessions would be to the mutual benefit of both companies;
WHEREAS, GTSD and BNFL desire to establish a collaborative business
relationship and to support each other in the pursuit of potential business
opportunities for the treatment and handling of wastes at DOE sites;
WHEREAS, it is in the interest of the parties to use their reasonable
best efforts to apply marketing, contractual and technical resources in the most
effective manner in pursuing potential business opportunities for the treatment
and handling of wastes for the DOE;
WHEREAS, it is the desire of the parties to develop a total program
workshare that offers a satisfactory business opportunity for each while placing
the GTSD/BNFL team in the best competitive position;
WHEREAS, pursuant to the teaming arrangement provided herein, BNFL will
invest $10.0 million in GTSD in the form of a convertible subordinated debenture
(the "Convertible Debenture"), convertible into the common stock of GTSD, $.01
par value per share (the "Common Stock"), as provided herein;
WHEREAS, pursuant to the teaming arrangement provided herein, BNFL will
provide research and development funding to GTSD for five (5) years, as provided
herein; and
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WHEREAS, pursuant to the teaming arrangement provided herein, GTSD shall
grant to BNFL a sublicense with respect to the vitrification technology for use
in the United Kingdom, as provided herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
provided herein, and other good and sufficient consideration, the receipt of
which is acknowledged by each party hereto, the parties agree as follows:
ARTICLE I
DEFINITIONS
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In addition to those terms defined elsewhere herein, when used herein,
the following capitalized terms shall have the meanings indicated:
"Affiliate" of a specified person means a person that directly, or
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indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the person specified.
"Contract" means any contract awarded to GTSD, BNFL or a Project
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Organization by the DOE in response to a Proposal.
"DOE" means the United States Department of Energy, its successor, or any
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other agency or Person administering or operating the United States Department
of Energy sites around the United States and its territories and possessions.
"Person" or "person" means an individual, corporation, partnership,
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limited liability company, firm, association, joint venture, trust,
unincorporated organization, government, governmental body, agency, political
subdivision or other entity.
"Project" means a project for the treatment and handling of radioactive,
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hazardous and other wastes at a particular DOE site by means of vitrification
and the related services in connection therewith. A Project will involve
services to be provided by GTSD, BNFL and/or a Project Organization in
accordance with the scope of work to be determined by the Steering Committee, on
a project by project basis, and which may include technologies and services
other than vitrification.
"Project Organization" means a newly formed corporation, partnership,
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limited liability company, firm, joint venture, trust or other form of business
organization that is jointly owned, directly or indirectly, by GTSD, BNFL and
possibly other third parties, and was formed for the specific and limited
purpose of undertaking a Project.
"Proposal" means a proposal submitted by either GTSD, BNFL or a Project
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Organization, as agreed, in response to an RFP.
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"RFP" means any request for proposal issued by the DOE for the treatment
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and handling of radioactive, hazardous and other wastes at a DOE site and the
related services in connection therewith.
"Steering Committee" means the Vitrification Technology Steering
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Committee established pursuant to Article VI hereof.
"Subcontract" means any subcontract entered into by and between any of
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GTSD, BNFL and a Project Organization relating to work to be performed under a
Contract.
ARTICLE II
SCOPE OF ACTIVITIES
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2.1. GTSD and BNFL agree to collaboratively seek and pursue five (5)
Projects with the DOE for the treatment and handling of radioactive, hazardous
and other wastes at various DOE sites throughout the United States.
2.2. The decision to pursue a Project will be determined by the Steering
Committee. To the extent that the Steering Committee identifies and decides that
GTSD and BNFL shall jointly pursue a Project, the Steering Committee shall
acknowledge in writing the pursuit of such Project in accordance with the terms
of this Agreement and a copy of such written acknowledgment shall be provided to
both GTSD and BNFL. The written acknowledgment shall also contain the date, or
the basis for determining the date, by which the Article XII and Non-Competition
Fee (as hereinafter defined) is required to be paid pursuant to Section 3.2.
2.3 Once the DOE has issued an RFP for a Project that the Steering
Committee has determined that the parties should jointly pursue, the parties
shall collaborate in preparing and submitting a Proposal in response to the RFP.
At such time that such an RFP is issued, the Steering Committee shall determine
which party is to serve as the prime contractor (the "Prime Contractor") with
the DOE and which party shall serve as the subcontractor (the "Subcontractor").
The parties shall regulate their relationship on a particular Project through
the issuance of subcontracts and agree to work together in an exclusive prime
contractor/subcontractor relationship as per Article III herein. The scope of
work shall be decided upon by the parties in accordance with Article V below.
Alternatively, the Steering Committee may elect in its sole discretion to form a
Project Organization to pursue the Project and shall determine the structure and
ownership of such entity and the contribution of each party to such entity.
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ARTICLE III
EXCLUSIVITY; PAYMENT OF CERTAIN FEES
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3.1. For Projects which the Steering Committee has determined that the
parties shall jointly pursue, upon such determination and the receipt by each
party of the written acknowledgment of such determination, each party hereto
shall: (i) not participate in any manner in the preparation or submission of
proposals to the DOE by itself or with a third party to the exclusion of the
other party; and (ii) not participate in any manner in furtherance of the
preparation of proposals to the DOE by or with any third party for opportunities
related to the Project, without the written consent of the other party, which
consent may be withheld in such other party's sole discretion. Nothing herein
shall be deemed to confer any right or impose any obligation or restriction on
either party with respect to any other project other than a Project which the
Steering Committee has determined to pursue. Each party hereto shall not be
precluded from its normal marketing and business efforts in connection with the
sale of standard products or services not covered by this Agreement. Each party
hereto shall not be precluded from participating in a DOE project, as a
subcontractor or otherwise, once the DOE has awarded the project to a party
other than BNFL, GTSD or a Project Organization, provided that such party uses
its best efforts to participate in such DOE project with the other party hereto,
unless the types of goods or services required to be provided for such project
or the economics of the party's participation in such project do not make it
commercially reasonable, as determined in the reasonable discretion of the
Steering Committee, to jointly participate in such project.
3.2 Unless otherwise agreed upon by the Steering Committee, upon the
earlier of (i) three (3) business days after the issuance of an RFP by the DOE
for a Project that the Steering Committee has determined that the parties should
jointly pursue or (ii) the determination by the Steering Committee to jointly
pursue a Project and the determination by the Steering Committee to commence
work in xxxxxxx to prepare a Proposal for such Project (but in any event not
later than the submission of a Proposal pursuant to this provision (ii)), BNFL
shall pay to GTSD, subject to Section 3.6, the sum of $1.0 million (the "Article
XII and Non-Competition Fee") in consideration of GTSD's agreement to, (i)
exclusively pursue the Project with BNFL, (ii) provide the technology required
under Article XII, and (iii) not compete with BNFL and to exclusively team with
BNFL and mutually acceptable third parties with respect to preparing a proposal
for the stabilization of radioactive waste contained in the underground tanks of
the DOE's Hanford Washington site.
3.3 GTSD shall be deemed to have earned the Article XII and Non-
Competition Fee simply by its agreement to the items specified in Section 3.2
and no further conditions or obligations shall be required to be satisfied after
the payment of the Article XII and Non-Competition Fee.
3.4 In the event that GTSD has not received the Article XII and Non-
Competition Fee within thirty (30) calendar days of when the obligation of BNFL
to pay such Article XII and Non-Competition Fee arose pursuant to Section 3.2
above, then, in addition to its right to
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receive the Article XII and Non-Competition Fee, GTSD shall be free to pursue
the Project with another party and shall not be subject to the exclusivity
provisions of Section 3.1 herein with respect to that Project.
3.5 For purposes of this Agreement, the Steering Committee has
determined to pursue the Project for the stabilization of the radioactive waste
contained in the underground tanks at the DOE's Hanford, Washington site and all
of the conditions of Section 3.2 herein shall be deemed to have been satisfied
as of the date hereof. Accordingly, BNFL shall pay to GTSD $1.0 million upon the
execution and delivery of this Agreement.
3.6 The maximum aggregate amount of Article XII and Non-Competition
Fees to be paid by BNFL to GTSD pursuant to this Agreement shall be $5.0
million. In the event that BNFL, GTSD or a Project Organization is not awarded
any one or more of the Projects that the Steering Committee has determined to
pursue, GTSD agrees to exclusively team with BNFL on one (1) additional Project
for no additional Article XII and Non-Competition Fee, provided that GTSD has
received an aggregate of $5.0 million in Article XII and Non-Competition Fees
from BNFL.
3.7 Notwithstanding anything contained herein to the contrary, in the
event that BNFL is (i) debarred or suspended from doing business with the DOE or
the United States Government or (ii) legally prohibited in any way from being
involved in a Project, then the exclusivity provisions contained in this Article
III shall be suspended until such time as BNFL is legally permitted do business
with the DOE and to be involved in a Project.
3.8 Notwithstanding anything herein to the contrary, in the event that
GTSD has defaulted on any of its payment obligations under the Convertible
Debenture, BNFL shall be entitled to offset the amounts owed to GTSD as Article
XII and Non-Competition Fees until such time as the payment default has been
cured or the payment default has been waived by BNFL. All amounts so offset
shall be applied in whole toward the cure of the payment default under the
Convertible Debenture.
ARTICLE IV
PREPARATION AND SUBMISSION OF PROPOSALS
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4.1. The parties agree that the Prime Contractor shall serve as the
primary interface with the DOE in the pursuit of a Contract for a Project.
4.2. The Subcontractor shall submit in a timely manner an offer to the
Prime Contractor for the Subcontractor's respective scope of work to be
integrated into the Proposal to be submitted to the DOE by the Prime Contractor.
The offer to be submitted by the Subcontractor to the Prime Contractor shall
include the necessary technical and price information for the goods and/or
services to be provided by the Subcontractor, and support and backup
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therefor, so that the Prime Contractor can complete the Proposal in an
appropriate manner. The Subcontractor shall bear all of the costs and expenses
associated with preparing the offer that is submitted to the Prime Contractor.
The Prime Contractor shall incorporate the relevant offer by the Subcontractor
in the Proposal and shall submit the Proposal to the DOE.
4.3 The Prime Contractor shall have the overall responsibility for the
preparation and submission of a Proposal, including the document preparation
cost for the Proposal. The parties agree to submit the Proposal for review by
the Steering Committee before submission to the DOE and the Steering Committee
shall have approved the Proposal prior to its submission. In no event shall the
Prime Contractor be entitled to modify or amend the offer from the Subcontractor
to be incorporated in the Proposal without the prior written consent of the
Subcontractor. Each party shall bear its own risks, costs, fees and other
expenses incurred in connection with the preparation and submission of a
Proposal. After submission of a Proposal to the DOE, the parties shall provide
such services and information as are reasonably required for evaluation of the
Proposal and negotiation of the resulting Contract.
4.4. The Prime Contractor shall be responsible for carrying out all
negotiations with the DOE. If requested by the Prime Contractor, the
Subcontractor, at its own expense, shall participate in presenting and
negotiating with the DOE with a view to obtaining an award to the Prime
Contractor of the Contract. The Prime Contractor shall keep the Subcontractor
informed of the progress and content of the negotiations with the DOE. The Prime
Contractor shall not agree to any amendment to the Proposal which affects the
rights and obligations of the Subcontractor without the prior written consent of
the Subcontractor, which consent shall not be unreasonably withheld or delayed.
4.5. The parties hereby undertake to provide each other with prompt
notification in the event either party determines that it may not be in its best
interest, or the best interest of both parties, to pursue the Project and enter
into a Contract with the DOE.
ARTICLE V
SUBCONTRACTS
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5.1 In the event that a Contract is awarded to the Prime Contractor
based on a Proposal, the Prime Contractor shall, as soon as practicable, place a
subcontract (the "Subcontract") with the Subcontractor for its respective scope
of work consistent with the terms of the offer submitted by the Subcontractor to
the Prime Contractor and included in the Proposal.
5.2 It is understood by the parties that the Prime Contractor may enter
into an agreement with other potential subcontractors in support of
opportunities in which the parties hereto are jointly pursuing provided that
such potential subcontractor shall not provide goods or services which the
Subcontractor is capable of providing and willing to provide on commercially
reasonable terms. Subcontractor shall be permitted (as a subcontractor) to enter
into a
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subcontract with a third party provided that the Steering Committee has approved
such third party subcontractor and the terms and conditions of the subcontract
with such third party.
5.3 The parties agree that the proportion and content of work to be
undertaken by each party in respect of each Project shall be generally
consistent with the scope of work as determined by the Steering Committee. The
parties recognize that as the RFP and as a Project are more clearly defined,
changes to the scope of work to be performed by each party may be necessary to
meet the requirements of the DOE. In such cases the parties shall agree upon
reasonable variations to the scope of work for each party for that particular
Project in such a way so that the final scope of work for each party for that
particular Project shall be as close as possible to the proportion and content
of its scope of work initially determined by the Steering Committee.
ARTICLE VI
STEERING COMMITTEE
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6.1 A Steering Committee shall be established by the parties. The
Steering Committee shall consist of one representative of GTSD and one
representative of BNFL (each a "Representative" and collectively the
"Representatives"). The initial Representative designated by GTSD shall be
Xxxxxx X. Xxxxxx and the initial Representative designated by BNFL shall be
Xxxxxxx X. Xxxxxxx. Replacement of the designated Representative, either
permanently or at any time, by a particular party shall require the written
consent of the other party, which consent shall not be unreasonably withheld or
delayed.
6.2 Meetings of the Steering Committee shall be held at least once
every three (3) months upon five (5) business days notice to the Representatives
and such notice shall be accompanied by an agenda determined by the
Representatives. Should circumstances so require, a meeting shall be held at any
time at the request of either of the parties. The meeting shall only be held
with the presence of both of the Representatives. Decisions of the Steering
Committee shall be made by mutual agreement with each Representative acting and
negotiating in good faith. The Steering Committee cannot act or make any
determination without the approval of both Representatives.
6.3 The Representatives shall, prior to the commencement of each
meeting, elect a secretary to take minutes of the meeting. The secretary of a
Steering Committee meeting need not be one of the Representatives. The secretary
shall distribute copies of the minutes of the meeting to both of the parties
within ten (10) calendar days after the meeting. Such minutes shall be deemed to
have been accepted by the parties unless comments are made in writing within ten
(10) calendar days of their receipt by said parties.
6.4 The Steering Committee shall have the following responsibilities
and shall be empowered to take the following actions:
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(i) Overall governance of the collaborative relationship of the
parties as contemplated by this Agreement;
(ii) Determine the Projects to be pursued jointly by the parties
and provide written acknowledgment of such determination to each of the parties;
(iii) Determine which party shall serve as the Prime Contractor
and which shall serve as the Subcontractor on a particular Project or,
alternatively, determine to form a Project Organization to undertake a
particular Project and the structure, ownership and contribution of each of the
parties to such Project Organization;
(iv) Determine when to commence work on a particular Project;
(v) Determine the scope of work to be provided by each of the
parties and any appropriate modifications or amendments thereto;
(vi) Review the final Proposal to be submitted to the DOE in
response to an RFP and have final approval over such Proposal;
(vii) Approve the appointment of any agents engaged or retained by
any of the parties in connection with the pursuit of a Project;
(viii) Act in an advisory capacity concerning the negotiation of
Contracts and the performance of such Contracts and resulting Subcontracts;
(ix) Interpret the meanings of "most favored nation" and
"preferred partner," as such terms are used in Article VIII, and set forth such
meanings in a memorandum submitted to each of the parties;
(x) Determine the total capital cost of a Project and the
capital cost of the Project related to the verification portion and provide
written notice to each of the parties of such determination;
(xi) Determine the budget for the expenditure of research and
development funds and provide authorization to expend such funds pursuant to
Article XIV;
(xii) Attempt to solve expeditiously any conflict between the
parties related to this Agreement; and
(xiii) Delegate any of the authority of the Steering Committee to
appropriate individuals or groups as may be determined unanimously by the
Steering Committee, provided that such delegation can be revoked by either
Representative upon written notice.
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6.5 Each Representative has an obligation to inform the other
Representative of any possible projects or business opportunities which may be
contemplated by this Agreement, and the Representatives will make a decision
whether to jointly pursue such projects or business opportunities in a timely
fashion in light of all relevant and appropriate business considerations.
6.6 Each Representative shall designate a deputy (each a "Deputy
Representative" and collectively the "Deputy Representatives") who shall act on
his behalf only in the event that the Representative is unavailable and action
of the Steering Committee is to be taken. Each Deputy Representative may attend
all meetings of the Steering Committee and may participate in such meetings but
shall not vote at such meetings unless the Deputy Representative is acting on
behalf of his Representative pursuant to the preceding sentence. The initial
Deputy Representative designated by Xxxxxx X. Xxxxxx shall be Xxxxxx X. Xxxxxxx
and the initial Deputy Representative designated by Xxxxxxx X. Xxxxxxx shall be
determined at a later time provided that such initial Deputy Representative is
subject to the approval of Xxxxxx X. Xxxxxx. Replacement of the designated
Deputy Representative, either permanently or at any time, by a particular
Representative shall require the written consent of the other Representative,
which consent shall not be unreasonably withheld or delayed.
6.7 In the event that the Representatives cannot agree on a matter
under the authority of the Steering Committee and such inability to reach an
agreement continues for sixty (60) calendar days or such other period of time
that causes the interests of one or both of the parties to be adversely
affected, then the Representatives shall consider in good faith either (i)
delegating the authority of the Steering Committee to such other members of
their respective organizations who may be appropriate to assume such authority
or (ii) adopting such other appropriate means for resolving the disagreement.
ARTICLE VII
CLASSIFIED INFORMATION
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Access to classified information may be required in the performance
of the services hereunder and both parties shall use their best efforts to meet
the applicable security clearance requirements of the DOE and the United States
Government at all times relevant to this Agreement.
ARTICLE VIII
OTHER COVENANTS AND AGREEMENTS BETWEEN THE PARTIES
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8.1 Unless otherwise agreed, until the later of (i) the termination of
this Agreement or (ii) BNFL no longer owns an interest in GTSD, BNFL hereby
agrees to perform, directly or through a subcontractor or other party,
vitrification of any substance only with GTSD, provided that BNFL and GTSD can
agree on mutually acceptable terms and conditions.
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8.2 BNFL and GTSD agree to extend to each other a "most favored nation"
approach for working jointly on any projects.
8.3 (a) BNFL and GTSD intend to jointly pursue vitrification
projects on a "preferred partner" basis.
(b) The parties will meet at least once every six (6) months to
discuss potential opportunities and strategies for pursuing projects outside of
the United States.
8.4 The parties will use their reasonable efforts to cause their
respective Affiliates to comply with the provisions of Sections 8.1, 8.2 and
8.3(a).
8.5 If GTSD is intending to borrow funds from a lender whereby it is
contemplated that such lender would have a security interest in the GTSD
Technology (as hereinafter defined), then GTSD covenants and agrees that it
shall use its best efforts to cause such lender (the "Lender") to execute as
part of the loan documents (the "Loan") a non-disturbance agreement, or similar
provision having like effect, granting to GTSD, BNFL or their Affiliates, as
appropriate, the limited, non-exclusive right to continue using the GTSD
Technology on any projects jointly undertaken by GTSD and BNFL or by a Project
Organization with terms substantially similar to those given by First Fidelity
Bank, N.A. to GTSD and BNFL in its non-disturbance agreement of even date
herewith (as determined in the reasonable discretion of the Steering Committee)
(any such agreement or provision referred to herein as a "Non-Disturbance
Agreement"). If, after GTSD uses such best efforts for a reasonable time and the
Lender will not agree to give a Non-Disturbance Agreement, BNFL shall join the
negotiations with GTSD and the Lender solely on the issue of the Non-Disturbance
Agreement and BNFL shall use its best efforts to persuade the Lender to give a
Non-Disturbance Agreement. If, after BNFL uses such best efforts for a
reasonable time, the Lender will not agree to give a Non-Disturbance Agreement,
GTSD shall be permitted to enter into the Loan arrangement only if BNFL first
consents in writing to the Loan (the "Consent"); provided, however, that the
Consent shall be required only for the portions of the Loan which are required
in order to protect continuing access to the GTSD Technology as such GTSD
Technology relates to any Project. The Consent shall not be unreasonably
withheld by BNFL; and, in determining whether to grant such Consent, the sole
consideration of BNFL shall be whether the withholding of such Consent is
necessary in order to protect access to the GTSD Technology covered by the
Sublicense Agreement or BNFL's continuing access to the GTSD Technology as such
access is contemplated under this Agreement.
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ARTICLE IX
PROPRIETARY AND CONFIDENTIAL INFORMATION
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9.1 Proprietary or confidential information (relating to technical and
non-technical matters) may be transferred between the parties during the term of
this Agreement, subject to the confidentiality and use restrictions provided
herein. Notwithstanding any other provisions herein, the parties agree that
during the term of this Agreement and for a period of five (5) years thereafter,
any proprietary or confidential information exchanged during the performance of
this Agreement shall be used by the receiving party for the exclusive purpose of
performing this Agreement, of preparing a Proposal hereunder or performing a
Contract pursuant hereto.
9.2 Each of the parties hereto agrees that during the term of this
Agreement and for a period of five (5) years thereafter, it shall not, and it
shall use reasonable efforts to cause its Affiliates, directors, officers,
employees, agents and advisors not to, reveal, divulge or make known to any
person (other than the other party hereto or the Project Organization) or use
for its own account or for the account of any person any proprietary or
confidential information. For purposes of this Agreement, "proprietary or
confidential information" includes, without limitation, any method, record,
data, report, trade secret, pricing policy, bid amount, bid strategy, rate
structure, personnel policy, method or practice of soliciting or obtaining or
doing business by a party or any other information regarding a party, other than
information that can be demonstrated to have (i) been publicly known prior to
the date of this Agreement, (ii) become well known by publication or otherwise
not due to the unauthorized act or omission on the part of a party hereto or
(iii) been obtained by a party hereto from a source other than the other party
hereto, provided that such source was not bound by an obligation of
confidentiality.
9.3 Notwithstanding anything herein to the contrary, a party may
disclose proprietary or confidential information regarding the other party to
one of its Affiliates provided that such Affiliate executes and delivers a
confidentiality agreement reasonably satisfactory to the other party.
9.4 In addition to the confidentiality provisions provided in the
preceding paragraph, BNFL shall ensure that in any project undertaken by it or
an Affiliate of BNFL within a period of five (5) years beyond the later of (i)
the termination of this Agreement, or (ii) the termination of BNFL's right to
designate a member or observer to GTSD's Board of Directors pursuant to Article
XVI hereto, which involves the performance of vitrification of any substance
other than high level radioactive waste, and which does not involve GTSD, all
intellectual property, including know-how, technical data, designs and the like
relating to the GTSD vitrification technology and any other proprietary or
confidential information of GTSD, is protected and not made available to that
project, without the written consent of GTSD.
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ARTICLE X
INTELLECTUAL PROPERTY RIGHTS
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10.1 Each party shall remain the sole owner of its intellectual property
rights, technical data, know-how, designs, specifications and the like generated
or acquired prior to the execution of this Agreement, and any transfer of such
information from one party to another (or to a Project Organization) under this
Agreement is to be used only for the express purpose for which it was
transferred. Any additional use of that information would be the subject of a
separate license or other agreement to be entered into between the parties.
10.2 No license to the other party (or to a Project Organization) under
any intellectual property rights is granted or implied by conveying proprietary
or confidential information to that party (or to a Project Organization) for any
purpose whatsoever other than the limited purposes of the parties permitted
under this Agreement. None of such information which may be transmitted or
exchanged by the respective parties (or by a Project Organization) shall
constitute any representation, warranty, assurance, guaranty or inducement by
either party to the other (or to a Project Organization) with respect to the
infringement of patents or other rights of others.
10.3 Subject to the right, if any, of the DOE and to any express
provisions contained in any Subcontract between the parties hereto (which said
provisions shall prevail in the event of any conflict with this clause) and
subject to the provisions herein contained, all intellectual property produced
pursuant to this Agreement shall vest in and at all times remain vested in the
party originating that intellectual property; provided that if the parties
jointly produce material pursuant to this Agreement then unless the parties
previously agree in writing to the contrary, all intellectual property rights in
such jointly produced material shall vest jointly in each of the parties without
accounting to the other. The parties undertake to enter into good faith
negotiations to agree upon such measures of protection as patents and like
instruments and the establishment thereof, as the parties agree to be
appropriate.
10.4 In this regard, it is recognized that the parties may be required
under provisions contained in the Contract to grant licenses or other rights to
the DOE and, in that event they shall by reasonable agreement do so. Any such
granting of licenses or other rights shall be mutually agreed by the parties.
ARTICLE XI
LOAN FROM BNFL TO GTSD
----------------------
In connection with the teaming arrangement contemplated by this
Agreement and contemporaneous with the execution of this Agreement, BNFL shall
loan to GTSD $10.0 million. Such loan shall be evidenced by a Convertible
Debenture, a form of which Convertible Debenture is attached hereto as Appendix
I. All of the terms and conditions with respect to the loan by BNFL to GTSD are
included in the Convertible Debenture.
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ARTICLE XII
PROVIDING TECHNOLOGY TO JOINT PROJECTS
--------------------------------------
12.1 With respect to any Projects jointly undertaken by GTSD and BNFL or
by a Project Organization pursuant to the terms of this Agreement, GTSD shall
provide to such Projects through its involvement in such Projects all of the
rights and know-how in the technology currently owned by GTSD, or owned by GTSD
in the future, or in which GTSD has rights of use now or in the future,
including without limitation all of the Intellectual Property as defined in
Section 19.1 and all improvements and enhancements thereto for the vitrification
of worldwide radioactive and mixed waste (excluding Germany) (all such
technologies are collectively referred to herein as the "GTSD Technology"). The
contribution of the GTSD Technology to a Project shall be undertaken through
GTSD and shall not be deemed in any way to constitute an assignment or
sublicense of such technology to any other party.
12.2 In the event that GTSD is (i) debarred or suspended from doing
business with the DOE or the United States Government, (ii) legally prohibited
in any way from being involved in a Project and providing the GTSD Technology to
the Project pursuant to Section 12.1 or (iii) unwilling or unable to provide the
GTSD Technology to any Project pursuant to Section 12.1 for any reason, then
GTSD shall license or sublicense, as applicable, such technology to the Project
Organization or take such other action as is determined by the Steering
Committee to enable either BNFL or the Project Organization that continues to be
engaged in the Project to continue to use the GTSD Technology until completion
of such Project. In the event that GTSD shall be required to provide a license
or sublicense pursuant to this Section 12.2, such license or sublicense shall be
provided on terms which enable GTSD to receive the same economic benefit it
would have received had it been able to participate in the Project and GTSD will
not be entitled to receive any additional consideration above such amount for
the granting of the license or sublicense hereunder.
12.3 GTSD hereby covenants and agrees that it will not take any action,
or fail to take a required action, either of which results in the termination of
the license agreement by and between GTSD and Drs. Xxxxx X. Xxxxxx and Xxxxxxxx
X. Litovitz (collectively the "Inventors") dated August 17, 1992 (the "License
Agreement") prior to the expiration of its natural term. GTSD hereby covenants
and agrees that it will use its best efforts to maintain the License Agreement
and the underlying Intellectual Property (as hereinafter defined) in full force
and effect so long as GTSD and BNFL are jointly pursuing a Project or
participating jointly in a Project, however, GTSD shall have the right to amend
the License Agreement or enter into a new license agreement with the Inventors
provided that the terms of such new license agreement would not adversely affect
GTSD's performance of its obligations hereunder.
-13-
ARTICLE XIII
SHARING OF PROJECT FEES
-----------------------
13.1 Notwithstanding any other arrangement for the sharing of fees with
respect to a Project or the compensation for goods or services provided to a
Project by each of the parties, which shall be determined by Steering Committee
for each particular Project, the parties hereby covenant and agree that they
will share a portion of the fees from each Project in the following manner:
(a) A fee (the "Project Fee") equal to three percent (3%) of the
total revenues related to the vitrification portion of a Project will be shared
equally by GTSD and BNFL until such time as BNFL has received an amount
(including amounts previously distributed to BNFL pursuant to this paragraph)
equal to a twelve percent (12%) cumulative annual yield on the amount of the
Article XII and Non-Competition Fee paid by BNFL to GTSD pursuant to Article III
for the particular Project. Thereafter, such Project Fee will be distributed
eighty percent (80%) to GTSD and twenty percent (20%) to BNFL.
(b) In order to determine the total revenues related to the
vitrification portion of a given Project, the total revenues from such Project
shall be multiplied by a fraction, the numerator of which is the capital cost of
the Project related to the vitrification portion and the denominator of which is
the total capital cost of the Project. For purposes of this Section 13.1, the
term "total revenues from a Project" shall mean all amounts or proceeds received
by GTSD, BNFL or a Project Organization on a Project, less the following
deductions: (i) discounts allowed and taken for prompt payment, (ii) allowances
for returns or other trade credits, (iii) all sales, use and other taxes
imposed, (iv) packaging and transportation costs and (v) the cost of services
contracted to other subcontractors providing technologies and services
complimentary to the Technology. The total capital cost of the Project and the
capital cost of the Project related to the vitrification portion will be
determined by the Steering Committee prior to commencement of the Project.
(c) In the event that GTSD, in order to provide the GTSD
Technology, must obtain from a third party a license or other authorization
under such third party's valid patent or other proprietary rights and must pay a
license or other fees thereunder to such third party in order to use any portion
of the GTSD Technology, then in such event, GTSD shall be entitled to recover
such license or other fees payable to such third party out of the Project Fee
prior to the distribution arrangement contemplated by paragraph (a) of this
Section 13.1 and such license or other fees payable to such third party shall
reduce on a dollar for dollar basis the amount of the Project Fee distributable
to each of GTSD and BNFL pursuant to paragraph (a) of this Section 13.1.
(d) The Project Fee provided for in this Article XIII shall be
based on Project revenues received by GTSD, BNFL or a Project Organization
during each calendar year and shall be paid by March 31st of the following year.
All payments required to be made under this
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Agreement shall be made in United States funds. At the time of payment of the
Project Fee, the Steering Committee shall render to the parties hereto a
statement in writing showing computation of such Project Fee payable for such
year.
(e) Notwithstanding anything herein to the contrary, in the event
that GTSD has defaulted on any of its payment obligations under the Convertible
Debenture, BNFL shall be entitled to receive the entire Project Fee, less
amounts owed to GTSD pursuant to paragraph (c) of this Section 13.1, until such
time as the payment default has been cured or the payment default has been
waived by BNFL. All of GTSD's portion of the Project Fee directed to BNFL
pursuant to this paragraph shall be applied in whole toward the cure of the
payment default under the Convertible Debenture.
13.2 All other fees and compensation for goods and services provided by
the parties to a Project shall be determined by the Steering Committee prior to
the commencement of the Project and shall be reflected in an appropriate
Subcontract.
ARTICLE XIV
RESEARCH AND DEVELOPMENT COST SHARING ARRANGEMENT
-------------------------------------------------
14.1 In connection with the teaming arrangement contemplated by this
Agreement, BNFL hereby covenants and agrees to provide research and development
funding to GTSD of at least $500,000 per year commencing on the date hereof and
continuing until the fifth anniversary of the date of this Agreement in order to
develop, enhance and improve the GTSD Technology and to develop related
technologies.
14.2 The budget for the expenditure of the research and development
funds and the authorization to expend such funds shall be determined by the
Steering Committee. Within thirty (30) calendar days of when the budget for the
expenditure of the research and development funds and the authorization to
expend such funds has been established by the Steering Committee, BNFL shall
provide such funds to GTSD for the research and development efforts. The budget
for the expenditure of the research and development funds and the authorization
to expend such funds for the one year period commencing on the date hereof shall
be determined within thirty (30) calendar days of the date hereof. For each
successive year, the budget for the expenditure of the research and development
funds and the authorization to expend such funds shall be determined by the
Steering Committee at least thirty (30) calendar days prior to the commencement
of such one year period.
14.3 GTSD will administer and manage the research and development
efforts performed in the United States and an Affiliate of BNFL will administer
and manage the research and development efforts performed in the United Kingdom,
but GTSD shall participate in such research and development activities in the
United Kingdom and shall provide any necessary technology rights that it owns to
such activities. The Steering Committee shall determine who is to administer and
manage the research and development efforts performed outside of the
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United States and the United Kingdom. Any party other than GTSD that is to
administer and manage the research and development efforts relating to the GTSD
Technology will be required to execute an appropriate confidentiality agreement,
prior to its commencement of research and development efforts, containing
restrictions on the disclosure and use by such party of such technology.
14.4 All goods and services provided by each of the parties in
furtherance of the research and development efforts contemplated by this Article
XIV shall be at such party's cost, including an allocation of reasonable
overhead costs and expenses (including without limitation general and
administrative expenses), without any markup or built-in profit to such party.
14.5 As to the research and development efforts which are the subject of
this Article XIV, each party shall remain the sole owner of its technologies
(including any enhancements or improvements thereto) resulting from the research
and development efforts contemplated by this Article XIV, and the ownership and
access rights of the parties with respect to any such intellectual property
regarding any such technologies, other than each party's respective
technologies, shall be determined on a case by case basis by the Steering
Committee in its reasonable discretion either (i) at the time the budget for the
expenditure of the research and development funds and the authorization to
expend such funds is determined or (ii) at the time such intellectual property
is developed.
14.6 In consideration of its agreement to provide the research and
development funding commitment specified herein, BNFL shall receive the benefit
of such enhancements or improvements to the GTSD Technology through its
sublicense arrangement pursuant to Article XV below and shall also receive all
information, data and know-how that are the product of the research and
development activities under the arrangement specified by this Article XIV.
14.7 The research and development funding provided by BNFL pursuant to
this Article XIV is to be used solely for research and development of the GTSD
Technology and is not in any way to be construed as part of the consideration
for the sublicense granted by GTSD to BNFL pursuant to Article XV.
14.8 The obligations of each of the parties pursuant to this Article XIV
shall be a material obligation of this Agreement.
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ARTICLE XV
GRANT OF SUBLICENSE TO BNFL
---------------------------
In connection with the teaming arrangement contemplated by this
Agreement and contemporaneous with the execution of this Agreement, GTSD and
BNFL shall enter into a sublicense agreement (the "Sublicense Agreement"), a
form of which is attached hereto as Appendix II, pursuant to which GTSD shall
grant to BNFL a sublicense to the GTSD Technology for the United Kingdom,
subject to such other terms, conditions, limitations and conditions as are
contained in the Sublicense Agreement.
ARTICLE XVI
BNFL REPRESENTATION ON GTSD BOARD OF DIRECTORS
----------------------------------------------
16.1 As long as the Convertible Debenture is outstanding, BNFL shall
have the right to designate an observer to GTSD's Board of Directors who shall
have visitation rights on GTSD's Board of Directors, but no right to vote on any
matter that comes before GTSD's Board of Directors. The observer designated by
BNFL pursuant to this Section 16.1 shall not be considered a member of GTSD's
Board of Directors for any purpose. As long as the observer rights provided
herein are in effect, the observer designated by BNFL shall be notified in
writing of any action taken by written consent of the Board of Directors without
a meeting having been held. The visitation rights provided in this Section 16.1
shall be subject to the sole discretion of GTSD's Board of Directors who may
suspend such rights for a portion of a meeting, for an entire meeting, for any
action taken by written consent of the Board of Directors of GTSD or terminate
such rights altogether. BNFL shall be promptly notified of any action taken by
written consent of the Board of Directors.
16.2 GTSD covenants and agrees that it shall take all action that may be
required of it in order to effect the terms of the agreement by and between BNFL
and The Carlyle Group of even date herewith relating to the rights of BNFL to
designate a member or an observer to GTSD's Board of Directors under certain
circumstances.
ARTICLE XVII
TERM OF THE AGREEMENT
---------------------
This Agreement shall commence on the date hereof and remain in effect for
a period of five (5) years thereafter, unless terminated prior thereto in
accordance with Article XVIII.
ARTICLE XVIII
TERMINATION EVENTS
------------------
18.1 This Agreement may be terminated prior to the end of its natural
term as provided in Article XVII at any time by mutual agreement of both
parties.
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18.2 A party hereto shall have the right to terminate this Agreement by
giving prior written notice upon the occurrence of any of the following events
involving the other party hereto:
(i) A material breach of this Agreement by the other party,
including without limitation the representations and warranties contained in
Article XIX, which if capable of remedy, has not been remedied by such breaching
party within thirty (30) calendar days of written notice by the non-breaching
party;
(ii) The filing of any petition under the United States
Bankruptcy Code, in effect from time to time, or any similar Federal or state
statute by or against the other party if such petition is not dismissed within
120 days after service upon the other party, or the failure of the other party
generally to pay its debts as such debts become due;
(iii) The filing of an application for the appointment of a
receiver for, the making of a general assignment for the benefit of creditors
by, or the insolvency of, the other party; or
(iv) The other party's liquidation, dissolution, termination of
existence or cessation of the conduct of its business operations.
18.3 The following provisions shall survive termination of this
Agreement:
SECTION 8.1
ARTICLE IX - PROPRIETARY AND CONFIDENTIAL INFORMATION
ARTICLE X - INTELLECTUAL PROPERTY RIGHTS
ARTICLE XII - PROVIDING TECHNOLOGY TO JOINT PROJECTS
ARTICLE XVI - BNFL REPRESENTATION ON GTSD BOARD OF DIRECTORS
ARTICLE XX - PUBLIC DISCLOSURE
ARTICLE XXIII - RESPONSIBILITY FOR COSTS INCURRED
ARTICLE XXIV - COMPLIANCE WITH LAWS
ARTICLE XXX - ARBITRATION
-18-
ARTICLE XIX
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
---------------------------------------------
19.1 GTSD hereby represents and warrants to BNFL as of the date hereof
as follows:
(i) GTSD is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
(ii) GTSD has all requisite corporate power and authority to enter
into this Agreement, the Convertible Debenture and the Sublicense Agreement and
carry out and perform its obligations under the terms of such agreements.
(iii) The execution, delivery and performance of this Agreement,
the Convertible Debenture and the Sublicense Agreement have been duly authorized
and approved by all necessary corporate action and this Agreement, the
Convertible Debenture and the Sublicense Agreement, when duly executed and
delivered by GTSD, will constitute valid and legally binding obligation of GTSD,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to the rights of
creditors generally.
(iv) The execution and performance of this Agreement, the
Convertible Debenture and the Sublicense Agreement do not and will not (i)
violate GTSD's certificate of incorporation or bylaws, or the terms of any
judgment, decree or order of any court or administrative authority or the terms
of any material agreement to which it is a party or by which it is bound or (ii)
require the filing, declaration or registration with, or permit, consent or
approval of, or the giving of any notice to, any governmental authority or third
party, excluding those that have already been obtained prior to the date hereof.
(v) There is no litigation, arbitration, mediation or other
investigation or proceeding pending or, to the best of GTSD's knowledge,
threatened or in prospect, against GTSD with respect to the transactions
contemplated by this Agreement.
(vi) SCHEDULE 19.1 attached hereto sets forth, as of the date
hereof, a true, complete and accurate list of all (i) United States and foreign
patents and patent applications, (ii) unpatented technology, including trade
secrets, know-how, proprietary rights and information, and expertise, (iii)
United States, state and foreign trademark applications and registrations, trade
names and material common-law marks, (iv) United States and foreign registered
and material unregistered copyrighted works, including any computer programs and
(v) any license, joint venture or other material agreements relied on, related
to, used or enjoyed by GTSD in connection with its business of vitrifying
radioactive and mixed wastes (collectively, the "Intellectual Property").
-19-
(vii) Except as set forth in SCHEDULE 19.1, GTSD either (a) owns or
(b) holds adequate, enforceable, valid and binding licenses to use, transfer,
sublicense and otherwise grant rights to third parties in, all of the
Intellectual Property.
(viii)Except as set forth in SCHEDULE 19.1, GTSD has no knowledge
nor any basis to believe that (a) any of the Intellectual Property or (b) any
past operations or currently planned operations, activities or products of GTSD,
infringe on any intellectual property, proprietary, contract or other rights of
any third party.
(ix) Except as set forth in SCHEDULE 19.1, to the best of GTSD's
knowledge, no entity or person is infringing the rights of GTSD with respect to
the Intellectual Property and GTSD has no reasonable basis to claim such
infringement.
(x) Except as set forth in SCHEDULE 19.1 and other than the
rights of the Inventors, (a) the Intellectual Property is free and clear of any
liens, pledges, assignments, obligations or any other encumbrances of any
nature, and (b) no consents or approvals of any person or entity are necessary
to sell, convey, transfer, assign, deliver or sublicense any of the Intellectual
Property to any third party.
(xi) The patents, registered trademarks and registered copyrights
listed on SCHEDULE 19.1 are subsisting, valid and enforceable, and have been
maintained by the Company.
(xii) Except as set forth in SCHEDULE 19.1, none of (a) the
Catholic University, (b) the Vitreous State Laboratory of the Catholic
University, (c) the United States Government or any United States government
agency, (d) any foreign government or foreign government agency or (e) any other
person or entity (other than GTSD, the Inventors and First Fidelity Bank, N.A.)
have any rights whatsoever in any of the Intellectual Property.
19.2 BNFL hereby represents and warrants to GTSD as of the date hereof
as follows:
(i) BNFL is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
(ii) BNFL has all requisite corporate power and authority to enter
into this Agreement and the Sublicense Agreement and carry out and perform its
obligations under the terms of such agreements.
(iii) The execution, delivery and performance of this Agreement and
the Sublicense Agreement have been duly authorized and approved by all necessary
corporate action and this Agreement and the Sublicense Agreement, when duly
executed and delivered by BNFL, will constitute valid and legally binding
obligation of BNFL, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to the rights of creditors generally.
-20-
(iv) The execution and performance of this Agreement and the
Sublicense Agreement do not and will not (i) violate BNFL's certificate of
incorporation or bylaws, or the terms of any judgment, decree or order of any
court or administrative authority or the terms of any material agreement to
which it is a party or by which it is bound or (ii) require the filing,
declaration or registration with, or permit, consent or approval of, or the
giving of any notice to, any governmental authority or third party, excluding
those that have already been obtained prior to the date hereof.
(v) There is no litigation, arbitration, mediation or other
investigation or proceeding pending or, to the best of BNFL's knowledge,
threatened or in prospect, against BNFL with respect to the transactions
contemplated by this Agreement.
19.3 Each of the parties hereto covenants and agrees to indemnify the
other party and its Affiliates, directors, officers, employees, agents,
successors and assigns and hold such other person harmless against any and all
liabilities, losses, damages, claims, deficiencies, costs and expenses,
interest, awards, judgments and penalties (including, without limitation,
reasonable legal costs and expenses) actually suffered or incurred by such other
person (hereinafter a "Loss"), arising out of or resulting from the breach of
any representation or warranty by such party contained herein.
19.4 Promptly after the assertion by any third party of any claim
against any party entitled to be indemnified under this Article XIX (the
"Indemnitee") that, in the judgment of such Indemnitee, may result in the
incurrence by such Indemnitee of Losses for which such Indemnitee would be
entitled to indemnification pursuant to this Agreement, such Indemnitee shall
deliver to the other party who has indemnified such Losses hereunder
("Indemnitor") a written notice describing such claim. Such Indemnitor may
participate in and, at its option upon acknowledgment of Indemnitee's right to
indemnification for such matter, assume the defense of the Indemnitee against
such claim, including the employment of counsel, who shall be reasonably
satisfactory to such Indemnitee. In such case, any Indemnitee shall have the
right to employ separate counsel in any such action or claim and to participate
in the defense thereof, but the fees and expenses of such counsel shall not be
at the expense of the Indemnitor unless (i) the Indemnitor shall have failed,
within a reasonable time after having been notified by the Indemnitee of the
existence of such claim as provided in the preceding sentence, to assume the
defense of the such claim, (ii) the employment of such counsel has been
specifically authorized in writing by the Indemnitor or (iii) the named parties
to any such action (including impleaded parties) include both such Indemnitee
and the Indemnitor and such Indemnitee shall have been advised in writing by
Indemnitor's counsel that there may be conflicting interests between Indemnitee
and the Indemnitor in the legal defense thereof. No Indemnitor shall be liable
to indemnify any Indemnitee for any compromise or settlement of any such action
or claim effected without the consent of the Indemnitor.
19.5 In the event that GTSD is required under Section 19.3 to make any
indemnification to BNFL, and GTSD cannot or does not make such required payment
when
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required, for whatever reason, BNFL or the Project Organization, as applicable,
shall be entitled to offset any such unpaid amounts against any payment
otherwise due to GTSD under this Agreement. In the event that BNFL is required
under Section 19.3 to make any indemnification to GTSD, and BNFL cannot or does
not make such required payment when required, for whatever reason, GTSD or the
Project Organization, as applicable, shall be entitled to offset any such unpaid
amounts against any payment otherwise due to BNFL under this Agreement or under
the Convertible Debenture. In the event the Project Organization withholds
amounts otherwise due a party pursuant to this Section 19.5, the Project
Organization will promptly forward such amounts to the other party.
19.6 All representations and warranties made pursuant to or in
connection with this Agreement shall survive the date hereof, but shall
terminate three (3) years after the date hereof; provided, that there shall be
no such termination with respect to any representation or warranty as to which a
bona fide claim has been asserted prior to such date.
19.7 Notwithstanding anything herein to the contrary, each party hereto
shall not be liable as Indemnitor for any Losses of the other party under this
Article XIX unless and until the aggregate amount of all Losses hereunder by
such other party equals or exceeds $50,000, in which case the indemnifying party
shall be liable for all such losses of the other party equal to or greater than
$50,000, up to a maximum aggregate amount of $10,000,000.
ARTICLE XX
PUBLIC DISCLOSURE
-----------------
Any news release, public announcement, advertising, publicity or
discussion with any other contractor or vendor whatsoever pertaining to the
performance or the nature of the work related to this Agreement shall be subject
to the express prior written approval of all of the parties hereto.
ARTICLE XXI
WAIVER AND SEVERABILITY
-----------------------
21.1 The waiver by any of the parties of any breach of any provision
hereof by another shall not be construed to be a waiver of any succeeding breach
of such provision or a waiver of the provision itself.
21.2 If one or more of the provisions of the Agreement shall be found to
be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified consistent with the intent of the
parties to the extent necessary to render it legal, valid and enforceable, and
if no such modification shall render it legal, valid and enforceable, then this
Agreement shall be construed as if not containing the provision held to be
invalid, and the rights and obligations of the parties shall be construed and
enforced accordingly.
-22-
ARTICLE XXII
RELATIONSHIP OF THE PARTIES
---------------------------
Nothing contained in this Agreement shall be construed to create
any joint venture, pooling arrangement or partnership, whether statutory or
otherwise, and the rights and obligations of the parties hereto shall be limited
to those expressly recited herein. Nothing in this Agreement shall be construed
to grant to either of the parties hereto any right to make commitments of any
kind for or on behalf of the other party hereto without the prior written
consent of said other party.
ARTICLE XXIII
RESPONSIBILITY FOR COSTS INCURRED
---------------------------------
Each party shall bear all of the costs and expenses entailed in its
own performance of its activities contemplated by this Agreement, excluding any
work to be performed pursuant to any Subcontract resulting from this Agreement.
ARTICLE XXIV
COMPLIANCE WITH LAWS
--------------------
Each party agrees to comply with applicable provisions of all laws,
ordinances, orders, rules and regulations of the United States as they relate to
the parties' performance of this Agreement and each of the parties agrees to
require any and all consultants, vendors and agents retained in conjunction with
the activities described in this Agreement to do likewise; and such compliance
shall be a material obligation of this Agreement.
ARTICLE XXV
NOTICES
-------
Except as otherwise expressly stated, all notices required to be given or
which may be given under this Agreement shall be in writing and shall be deemed
given upon the earlier of (i) when it is personally delivered, (ii) three (3)
days after having been mailed by certified mail, postage prepaid, return receipt
requested, (iii) two (2) days after having been sent by recognized overnight
delivery service or (iv) one (1) day after having been sent by facsimile
transmission, addressed as follows:
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If to:
(a) GTSD:
GTS DURATEK, INC.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, President and Chief Executive Officer
Telecopy No.: (000) 000-0000
(b) BNFL:
BNFL INC.
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: K. Xxxxxx Xxxxxxx, General Counsel
Telecopy No.: (000) 000-0000
ARTICLE XXVI
COMPLETE AGREEMENT
------------------
This Agreement together with the other agreements referenced herein
to be entered into between the parties contains the complete agreement and
understanding between the parties concerning the subject matter hereof and shall
supersede all other agreements, understandings or commitments between the
parties as to such subject matter.
ARTICLE XXVII
ASSIGNMENT
----------
The obligations and rights of each party hereunder shall not be
assignable without the prior written consent of the other party; provided,
however, that a party hereto may without the consent of the other party assign
this Agreement to any successor owner of such party or its business resulting
from merger, consolidation, sale of the business or otherwise so long as such
successor agrees in writing to assume the party's obligations under this
Agreement in a form and manner reasonably acceptable to the other party.
Notwithstanding anything herein to the contrary, BNFL may assign its obligations
and rights hereunder to an Affiliate upon the written consent of GTSD, which
consent will not be unreasonably withheld or delayed. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the parties'
respective heirs, legal representatives, successors and assigns.
-24-
ARTICLE XXVIII
WAIVER, MODIFICATION OR AMENDMENT
---------------------------------
No waiver, modification or amendment of any provision of this
Agreement shall be effective, binding or enforceable unless in writing and
signed by all of the parties hereto.
ARTICLE XXIX
GOVERNING LAW
-------------
The validity of this Agreement and of any of the terms or
provisions as well as the rights and duties of the parties hereunder shall be
governed by the laws of the State of Maryland, without reference to any conflict
of law or choice of law principles in the State of Maryland that might apply the
law of another jurisdiction.
ARTICLE XXX
ARBITRATION
-----------
Any disputes between the parties relating to the terms of this
Agreement, or the breach thereof, shall be submitted to binding arbitration in
Baltimore, Maryland, in accordance with the rules of the American Arbitration
Association. In the event that either party desires to arbitrate any such
dispute, such party shall so notify the other party and the parties shall
endeavor, for a period of thirty (30) days, to resolve such dispute without
arbitration. In the event that the parties cannot resolve the dispute within
such thirty (30) day period, then within ten (10) days thereafter, the parties
shall jointly designate an arbitrator to hear the dispute, or, if the parties
are unable to jointly select an arbitrator, an arbitrator shall be chosen by the
President of the American Arbitration Association from lists of candidates
provided by each of the parties. The decision of the arbitrator shall be final
and binding upon the parties, their successor and assigns, and they shall comply
with such decision in good faith, and each party hereby submits itself to the
jurisdiction of the courts of the place where the arbitration is held, but only
for the entry of judgment with respect to and to enforce the decision of the
arbitrator hereunder. The arbitrator may order specific performance or other
equitable relief or remedies to the extent it deems it appropriate, in any
situation in which a court could so order. Each party shall pay all of its own
expenses in connection with such arbitration and one-half of the arbitrator's
fees and expenses.
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ARTICLE XXXI
CONSTRUCTION
------------
Headings or captions of this Agreement are for reference only and
are not to be construed in any way as part of this Agreement, nor in the
interpretation of this Agreement. The masculine pronoun shall include the
feminine and neuter, and vice versa, where the context so requires.
ARTICLE XXXII
COUNTERPARTS
------------
This Agreement may be executed in multiple original counterparts, each of
which shall be deemed an original and all of which together shall constitute but
one and the same document.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WITNESS/ATTEST: GTS DURATEK, INC.
_________________________ By:________________________________
Xxxxx X. Xxxxx, Secretary Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
BNFL INC.
________________________ By:________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
-27-
APPENDIX I
FORM OF CONVERTIBLE DEBENTURE
-----------------------------
APPENDIX II
FORM OF SUBLICENSE AGREEMENT
----------------------------
