BRIDGING SERVICES AGREEMENT
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This Bridging Services Agreement (the "Agreement") is made as of this ___
day of ___________, ____, (the "Effective Date") by and between Xxxxxxx Purina
Company, a Missouri Corporation ("Xxxxxxx"), and Eveready Battery Company, Inc.,
a Delaware corporation ("Eveready").
WHEREAS, Xxxxxxx has consolidated its battery and lighting products
business into Energizer Holdings, Inc., a holding company parent, and Eveready,
an operating company subsidiary, and intends to distribute the outstanding
common stock of Energizer Holdings, Inc. on a prorata basis to the holders of
Xxxxxxx Purina common stock (the "Distribution");
WHEREAS, Xxxxxxx and Eveready have executed a lease agreement dated
______________ pursuant to which Eveready will lease certain office space from
Xxxxxxx (the "Lease");
WHEREAS, Xxxxxxx desires to provide to Eveready, and Eveready desires to
receive from Xxxxxxx, certain services, as more fully described on Schedules 1A
through 1_ attached hereto, (collectively, the "Eveready Services") in
connection with the Eveready business on an interim basis following the
Distribution;
WHEREAS, Eveready desires to provide Xxxxxxx, and Xxxxxxx desires to
receive from Eveready, certain services, as more fully described on Schedules 2A
through 2_ attached hereto, (collectively, the "Xxxxxxx Services"), in
connection with Xxxxxxx'x businesses (other than the Eveready business) on an
interim basis following the Distribution; and
WHEREAS, Xxxxxxx and Eveready desire to enter into this Agreement to
confirm the terms and conditions pursuant to which each party will provide to
the other party, for a limited time from and after the Effective Date, the
Eveready Services or the Xxxxxxx Services as the case may be.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. SERVICES. Subject to the terms of this Agreement, from and after the
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Effective Date, the party providing particular Xxxxxxx Services or Eveready
Services, as the case may be, (the "Provider") shall make such Services
available to the party receiving such Services (the "Recipient") in accordance
with the practices in effect as of the Effective Date or as specifically set
forth in the Schedules. In consideration for the Services, the Recipient shall
pay to the Provider the fee or other charge set forth opposite each such Service
on the applicable Schedule and each Service provided will be separately invoiced
to Recipient in accordance with the billing provisions set forth in the Schedule
with respect to such Service. The Recipient shall give the Provider written
notice of its intent to terminate any one or more of the Services at least
thirty (30) days prior to the termination of the Service unless any Schedules
hereto provide for a different notice period in which case such different notice
period shall apply to the applicable Services. This Agreement shall continue in
full force and effect with respect to any Services not terminated by any such
notices.
2. LIABILITY; INDEMNIFICATION. The Provider shall have no liability to the
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Recipient with respect to its furnishing any of the Services hereunder except
for its willful misconduct. By agreeing to provide the Services as an
accommodation to the Recipient, the Provider is making no representations or
warranties as to the quality, suitability or adequacy of the Services for any
purpose or use. In providing the Services, the Provider shall not be obligated
to (i) hire any additional employees; (ii) maintain the employment of any
specific employee; (iii) purchase, lease or license any additional equipment or
software; or (iv) pay any costs related to the transfer or conversion of the
Recipient's data to the Recipient or any alternate supplier of administrative
services. The sole remedy of the Recipient in the event data owned by it is
lost or damaged in any way during processing by the Provider is the refund to it
of any charges paid for the processing of the damaged data. The Provider agrees
to exercise reasonable diligence to correct errors or deficiencies in the
Services but the Recipient shall have no other remedy against the Provider
regardless of any loss suffered by the Recipient or any other person or entity.
The Provider shall not be liable to any third party in any way for any
obligation or commitment pursuant to this Agreement or for any act or omission
and the Recipient shall be solely liable and responsible for any and all claims,
liabilities, obligations, losses, costs, expenses, litigation, proceedings,
taxes, levies, imposts, duties, deficiencies, assessments, charges, allegations,
demands, damages or judgments of any kind or nature whatsoever ("Liabilities")
related to, arising from, asserted against or associated with the Provider
furnishing or failing to furnish to the Recipient any of the Services described
herein. Upon the termination of any of the Services, the Recipient shall be
obligated to return to the Provider, as soon as practicable, any equipment or
other property of the Provider relating to the Services which is owned or leased
by it and is or was in the Recipient's possession or control. Effective as of
the date of this Agreement, the Recipient shall indemnify and hold the Provider
and its affiliates and their respective directors, shareholders, officers,
employees, agents, consultants, representatives, successors, transferees and
assigns harmless from and against any and all Liabilities (including, without
limitation, reasonable fees and expenses of counsel) of whatever kind and nature
related to, arising from, asserted against or associated with the Provider's
furnishing or failing to furnish the Services provided for in this Agreement,
other than Liabilities arising out of the willful misconduct of the Provider or
its affiliates or their respective directors, shareholders, officers, employees,
agents, consultants, representatives, successors, transferees or assigns.
Nothing herein, however, shall be deemed to affect the right of the Recipient to
seek damages or other rights of redress against the Provider for breach of the
provisions of this Agreement.
3. CLAIMS. Recipient's receipt of any Service performed hereunder shall be
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an unqualified acceptance of, and a waiver by it of any and all claims with
respect to such Service unless it gives the Provider notice of claim within
thirty (30) days after such receipt; no claim by the Recipient against the
Provider of any kind, whether as to service performed or for delayed performance
or non-performance and whether or not based on negligence, shall be greater in
amount than the fee for the Service in respect of which such claim is made; and
in no event will the Provider be liable to the Recipient for any incidental or
consequential damages, whether or not caused by or resulting from negligence or
breach of obligations hereunder.
4. ADDITIONAL SERVICES. If a party to this Agreement wants the other to
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provide any service other than the Services provided for in the Schedules, such
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party shall notify the other in writing, and within thirty (30) days following
the giving of such notice, such other party shall decide, in its sole
discretion, whether to provide such service. If such other party agrees to be a
Provider with respect to such additional service, the Recipient and Provider
shall agree on the fee for such service. The provision by Provider of any such
additional Services shall be subject to all other provisions of this Agreement,
as if those Services had originally been part of the Schedules to this
Agreement.
5. CONFIDENTIALITY. Any and all information which is not generally known to
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the public which is exchanged between the parties in connection with this
Agreement, whether of a technical or business nature, shall be considered to be
confidential. The parties agree that confidential information shall not be
disclosed to any third party or parties without the written consent of the other
party. Each party shall take reasonable measures to protect against
nondisclosure of confidential information by its officers and employees.
Confidential information shall not include any information (i) which is or
becomes part of the public domain; (ii) which is obtained from third parties who
are not bound by confidentiality obligations; or (iii) which is required to be
disclosed by law, regulation, legal process or the rules of any state or federal
regulatory agency or the New York Stock Exchange. The provisions of this
section shall survive the termination of this Agreement.
6. ASSIGNMENT. Notwithstanding anything to the contrary in this Agreement,
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this Agreement shall not be assignable by either party hereto, to any other
person, firm or entity without the prior written consent of the other party;
provided, however, that the Agreement in its entirety, or any portion of the
rights and obligations established hereunder, may be assigned by either party
hereto to one of its directly or indirectly wholly-owned subsidiaries without
the written consent of the other party. Except as expressly provided herein,
nothing herein shall create or be deemed to create any third party beneficiary
rights in any person or entity not a party to this Agreement.
7. WAIVER, AMENDMENT OR MODIFICATION. No waiver, amendment or modification
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of this Agreement shall be valid unless in writing and duly executed by the
party to be charged therewith.
8. ENTIRE AGREEMENT.This Agreement and the Schedules hereto constitutes the
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entire agreement of the parties concerning the subject matter hereof and
supersedes all previous agreements between the parties, whether written or oral,
with respect to such subject matter.
9. GOVERNING LAW.Despite any different result required by any conflicts of
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law provisions, this Agreement shall be governed by the laws of the State of
Missouri.
10. NOTICES.All notices, requests, demands, waivers and other communications
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(hereinafter "Notices') required or permitted to be given pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given (i) at
the time of delivery, if delivered by hand; (ii) on the date of transmission, if
sent by facsimile, telegram or other standard form of telecommunications; or
(iii) three (3) business days after mailing, if mailed registered or certified
first-class mail, postage prepaid, return receipt requested. Notices shall be
delivered or sent, as the case may be, to the following addresses or to such
other addresses as the parties may hereinafter designate by like notice
similarly provided:
IF TO EVEREADY: Eveready Battery Company, Inc.
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Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
IF TO XXXXXXX: Xxxxxxx Purina Company
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Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: General Counsel
11. FORCE MAJEURE. Anything else in this Agreement notwithstanding, the
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Provider shall be excused from providing Services hereunder while, and to the
extent that, its performance is prevented by fire, drought, explosion, flood,
invasion, rebellion, earthquake, civil commotion, strike or labor disturbance,
governmental or military authority, act of God, mechanical failure or any other
event or casualty beyond the reasonable control of the Provider, whether similar
or dissimilar to those enumerated in this paragraph (hereinafter a "Casualty").
In the event of a Casualty, the Recipient shall be responsible for making its
own alternative arrangements with respect to the interrupted Services.
12. INDEPENDENT CONTRACTOR. The relationship of Provider and Recipient
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which is created hereunder is that of an independent contractor. This Agreement
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is not intended to create and shall not be construed as creating between
Eveready and Xxxxxxx the relationship of affiliate, principal and agent, joint
venture, partnership, or any other similar relationship, the existence of which
is hereby expressly denied.
13. BILLING AND PAYMENT. The Provider shall xxxx the Recipient on a monthly
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basis for the amounts due to the Provider for Services provided pursuant to the
term of this Agreement. All such bills shall contain reasonable detail and
shall be due thirty (30) days after receipt unless any Schedules hereto provide
for a different payment period in which case such different payment period shall
apply to the applicable Services. The failure of the Recipient to pay any xxxx
on time shall result in the Recipient owing the Provider an additional handling
charge equal to one percent (1%) per month of the amount due from the date due
to the payment date.
14. TERM. It is intended that the Services be provided by each party hereto
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as a temporary accommodation to the other. Each party shall arrange for the
relevant Services to be provided by its own employees or by third-party
providers as soon as is practicable even if such arrangements result in greater
cost to it than it would incur if the Services were provided by the other party.
In no event, however, shall either be obliged to provide any Services after
_____________, _____. Notwithstanding the foregoing, if any Schedules hereto
provide for the provision of Services for a longer period, such longer period
shall govern the provision of such Services.
15. WAIVER. The failure of either party at any time or times to enforce or
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require performance of any provision hereof shall in no way operate as a waiver
or affect the right of such party at a later time to enforce the same.
16. SEVERABILITY. If any provision of this Agreement shall hereafter be
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held to be invalid or unenforceable for any reason, that provision shall be
reformed to the maximum extent permitted to preserve the parties' original
intent, failing which it shall be severed from this Agreement with the balance
of the Agreement continuing in full force and effect. Such occurrence shall not
have the effect of rendering the provision in question invalid in any other
jurisdiction or in any other case or circumstances or of rendering invalid any
other provisions contained herein to the extent that such other provisions are
not themselves actually in conflict with any applicable law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
XXXXXXX PURINA COMPANY EVEREADY BATTERY COMPANY, INC.
By:_______________________ By:____________________
Name:_____________________ Name:__________________
Title:______________________ Title:___________________
Witness:____________________ Witness:_________________
Name:______________________ Name:__________________
