Exhibit 2
AMENDED AND RESTATED
MARKETING AGREEMENT
BETWEEN AND AMONG,
INTERNATIONAL TECHNOLOGY CORPORATION
FLUOR XXXXXX GTI, INC.
AND
FLUOR XXXXXX, INC.
October 27, 1998
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THIS AMENDED AND RESTATED MARKETING AGREEMENT (this "Agreement") is entered into
effective as of the 27TH day of October, 1998.
BETWEEN AND AMONG:
INTERNATIONAL TECHNOLOGY CORPORATION, a corporation organized
under the laws of the State of Delaware, having its principal
office at 2790 Mosside, Monroeville, Pennsylvania ("IT"),
FLUOR XXXXXX GTI, INC., a corporation organized under the laws
of the State of Delaware, having its principal office at 000
Xxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx ("FDGTI"),
AND FLUOR XXXXXX, INC. a corporation organized under the laws of
the State of California, having its principal office at 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, ("Fluor Xxxxxx").
WHEREAS, FDGTI and Fluor Xxxxxx previously entered into a Marketing Agreement
dated May 10, 1996 (the "Original Agreement");
WHEREAS, the Parties desire to amend and restate the Original Agreement in its
entirety by executing this Agreement, which shall become effective only upon the
consummation of that certain cash tender offer for the shares of common stock of
FDGTI proposed by IT (the "Tender Offer");
WHEREAS, the Parties wish to continue and expand upon the spirit of cooperation
which has developed between the Parties under the Original Agreement and which
has resulted in significant revenues to FDGTI and important benefits to Fluor
Xxxxxx and its customers;
WHEREAS, Fluor Xxxxxx recognizes that following the consummation of the Tender
Offer, FDGTI will have available the increased resources of IT, which has
greater scale and skills than FDGTI alone, and Fluor Xxxxxx wishes to maximize
the strategic value of a relationship with FDGTI and IT;
WHEREAS, the Parties wish to strengthen the exclusive joint marketing efforts
which have been underway under the Original Agreement, and to that end wish to
establish a Steering Committee of senior management of both Parties to maintain
a high-level dialogue on these subjects; and
WHEREAS, the Parties wish to enter into this Agreement to set forth the basis
upon which such Parties will continue to engage in the global conduct of the
environmental services business on the one hand and the engineering and
construction services business on the other hand, and the basis for providing
continued mutual support and assistance in conducting their own respective
businesses.
NOW, THEREFORE, in consideration of the above premises and mutual covenants
contained herein, the Parties have agreed as follows:
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1. DEFINITIONS
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The following terms as used in this Agreement shall have the meanings set forth
below:
1.1 "Affiliate" shall mean any corporation or other legal entity of which a
Party (either alone or together with other Affiliates of that Party) owns,
directly or indirectly, more than 50% of the stock or other equity
interests the holders of which are ordinarily and generally, in the absence
of contingencies or other understandings, entitled to vote for the election
of a majority of the board of directors or governing body.
1.2 "Contract Support Services" shall mean services provided by one Party
to or on behalf of the other Party, in connection with a project being
performed for a client, but which by themselves do not constitute a scope
of work within the project being performed.
1.3 "DOE Management and Operations/Operating and Maintenance/Management and
Integration (M&O/O&M/M&I) Projects" shall mean projects involving the
management and operation, and/or management integration of sites and
facilities and environmental engineering services for the U.S. Department
of Energy or any successor agencies.
1.4 "Engineering and Construction Business" and "Engineering and
Construction Services" shall mean the providing of feasibility studies,
conceptual design, detailed design, engineering, procurement, project and
construction management, construction, maintenance, plant operations,
technical, project finance, quality control, start-up assistance, site
evaluation, site location, asset optimization, licensing and consulting
with respect to actual or proposed sites or facilities.
1.5 "Environmental Business" or "Environmental Services" shall mean the
providing of investigation, evaluation, design, feasibility studies,
management and pollution prevention, project management, remediation,
permitting, quality control, start-up assistance, licensing and
consulting services (including incidental project finance,
procurement, construction and maintenance) relating to (i) the
treatment of groundwater, wastewater, soil and hazardous waste, or
(ii) air emissions controls; provided, however, that such terms shall
not include:
(a) the Excluded Projects;
(b) DOE Management and Operations/Operating and Maintenance/
Management and Integration (M&O/O&M/M&I) Projects;
(c) Infrastructure projects related to government or industrial water
supply, water treatment, wastewater treatment or pollution
control facilities; and
(d) Facilities that are built due to environmental drivers but that
are mainly capital plant investments by a client, such as
waste-to-energy, waste recycle and clean air emission process
upgrades.
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1.6 "Excluded Projects" shall mean those projects listed on Exhibit A
attached hereto and made a part hereof.
1.7 "Fluor Xxxxxx Group" shall mean Fluor Xxxxxx and each of its Affiliates
1.8 "FDGTI Group" shall mean FDGTI and each of its Affiliates.
1.9 "Good Faith" shall have the meaning set forth in Section 2.1.
1.10 "Intercompany Services Agreement" shall mean the Intercompany
Services. Agreement of even date herewith attached hereto as Exhibit G.
1.11 "IT Group" shall mean IT and each of its Affiliates.
1.12 "Marketing Agreement" or "Agreement" shall mean the present Agreement
together with its Exhibits, Schedules and any amendments thereof.
1.13 "Overhead and Proposal Support" shall have the meaning set forth in
Section 3.1.
1.14 "Party" means either FDGTI and IT on the one hand or Fluor Xxxxxx on
the other hand, depending on the context. "Parties" means all of them.
1.15 "Project Services" shall mean services provided by one Party to or on
behalf of the other Party which constitute a scope of work within a project
being performed for a client.
1.16 "Steering Committee" shall have the meaning set forth in Section 2.6
1.17 The Exhibits to this Marketing Agreement are the following:
Exhibit A Excluded Projects
Exhibit B Ongoing FDGTI Services to Fluor Xxxxxx
Exhibit C Ongoing Fluor Xxxxxx Services to FDGTI
Exhibit D Overhead Support Services and Commercial Contract
Support - Billing Terms
Exhibit E Commercial Project Services - Billing Terms
Exhibit F Government Project Services - Billing Terms
Exhibit G Intercompany Services Agreement
Exhibit H Co-located Offices
2. BUSINESS PURPOSE
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2.1 Environmental Services Worldwide. The Parties agree that the purpose of
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this Marketing Agreement is to establish the respective rights, roles and
responsibilities of the Parties and their Affiliates with regard to the
pursuit of the Environmental Business on a worldwide basis. The Parties
agree to enter into this Agreement and to work together during the term of
this Agreement in Good Faith and use commercially-reasonable efforts
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to provide Environmental Services to their respective clients. "Good Faith"
shall mean the Parties shall abide by a standard of good faith and fair
dealing in all aspects of their business relationship and dealings with
each other, including with respect to the performance of their respective
obligations and the exercise of their respective rights under the
Agreement.
2.2 Responsibilities. The Parties agree that, subject to the terms of this
Agreement:
(a) as between the Fluor Xxxxxx Group and the IT Group, the IT Group
shall have primary responsibility for the marketing and execution
of the Environmental Business, and the Fluor Xxxxxx Group shall
have primary responsibility for the marketing and execution of
Engineering and Construction Services.
(b) Fluor Xxxxxx, on its behalf and on behalf of the Fluor Xxxxxx
Group, will promote the use of the IT Group for Environmental
Services that are related or incidental to its Engineering and
Construction Business, provided that (i) the use of the IT Group
is not objected to by the client, (ii) the IT Group has adequate
available personnel and other resources to timely and
satisfactorily perform the work, and (iii) the IT Group proposed
commercial terms are competitive with the market. For purposes of
this Agreement, Fluor Xxxxxx will evaluate the competitiveness of
the IT Group's commercial terms by comparing them to terms and
conditions of other providers of Environmental Services of the
same quality and scope as the IT Group in the location where the
services are to be provided, and reviewing them with the IT
Group. The Steering Committee shall attempt to resolve any
disagreements that may arise under this paragraph (b). In the
event that anyone in the Fluor Xxxxxx Group refuses to promote
the use of the IT Group for such Environmental Services for a
particular project because of one of the reasons set forth in
clauses (i), (ii) or (iii) in this paragraph (b), the IT Group
may promptly appeal such decision to the Steering Committee for
reconsideration. The Steering Committee shall decide any such
appeal promptly, or if practical, before the proposal or bid on
the subject project is due.
(c) With respect to the types of projects referred to in paragraph
(b), (c) and (d) of Section 1.5, the Parties agree that either
Party may participate without the other in the types of projects
set forth therein. The Parties recognize that there are potential
benefits from working together in these areas, and therefore, the
Parties shall explore mutually beneficial ways in which a Party
may involve the other Party in such projects.
(d) The IT Group shall commit in Good Faith and use its commercially
reasonable efforts to perform such Environmental Services as may
be requested by Fluor Xxxxxx, but shall not be obligated to
provide such
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Environmental Services if there is a valid business reason for
its refusal to perform such services.
(e) With any common clients the IT Group shall have the marketing
lead for projects that primarily involve Environmental Services
and Fluor Xxxxxx shall have the marketing lead for projects that
primarily involve Engineering and Construction Services, except
as otherwise provided in Section 2.7, concerning ongoing
activities.
2.3 Fluor Xxxxxx Notification. Fluor Xxxxxx shall notify its management and
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the management of its Affiliates of the marketing relationship formed
between the Parties and of the obligations of the Fluor Xxxxxx Group under
this Agreement. Periodically throughout the term of this Agreement, Fluor
Xxxxxx will communicate with its management and the management of its
Affiliates to remind them of the marketing relationship formed between the
Parties and of the obligations of the Fluor Xxxxxx Group under this
Agreement.
2.4 IT Notification. Within 30 days of the date of this Agreement, IT shall
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notify its management and the management of its Affiliates of the marketing
relationship formed between the Parties and of the obligations of the IT
Group under this Agreement. Periodically throughout the term of this
Agreement, IT will communicate with its management and the management of
its Affiliates to remind them of the marketing relationship formed between
the Parties and of the obligations of the IT Group under this Agreement.
2.5 Prior Review of Notification. Prior to either Party forwarding a
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written communication to their respective management pursuant to Sections
2.3 and 2.4 above, the Party preparing to forward the communication shall
give the other Party a reasonable opportunity to review and comment on the
communication.
2.6 Steering Committee. Fluor Xxxxxx and IT shall each designate two senior
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executives to serve on a steering committee for joint efforts under this
Agreement (the "Steering Committee"). The initial members of the Steering
Committee shall be Xxxx Xxxxx, Xxx Xxxxxxxx, Xxx Xxxxxxx and Xxxx
Xxxxxxxxxxx. The Steering Committee shall meet periodically during the term
of the Agreement to review the joint efforts of the Parties under this
Agreement, to determine any future course of cooperation between the
Parties and to make such other determinations as they may be called upon to
make pursuant to the terms of this Agreement. The Steering Committee shall
also discuss joint marketing opportunities and initiatives and may delegate
to other executives within their respective organizations the
responsibility to implement such opportunities and initiatives. The members
of the Steering Committee and their delegates shall use commercially
reasonable efforts to keep the others advised of their respective marketing
efforts with common clients and, with respect to the foregoing, establish
mutually acceptable communications procedures. The Steering Committee shall
attempt to reach consensus on all matters, and in the absence of a
consensus, shall make determinations by
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majority vote. For the first three (3) months following the Effective Date,
these representatives shall meet at least once a month. Following that
initial period, the Steering Committee shall meet at least once each
quarter during the first year and at least twice a year thereafter.
2.7 Ongoing Activities
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(a) Services to Fluor Xxxxxx. Prior to the effective date of this
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Agreement, FDGTI provided Environmental Services to members of
the Fluor Xxxxxx Group. Attached as Exhibit B is a summary of
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substantially all of the ongoing projects in which FDGTI is
providing Environmental Services to the Fluor Xxxxxx Group,
including contract numbers and contact persons. From the
effective date of this Agreement, and except as otherwise
provided in Exhibit B, the terms and conditions previously agreed
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to between the Parties for all projects ongoing shall govern. In
the event the terms and conditions of this Agreement are not
inconsistent with such previously agreed to terms and conditions,
the terms set forth in this Agreement shall apply. The Steering
Committee shall attempt to resolve any disagreements that may
arise under this paragraph (a).
(b) Services to FDGTI. Prior to the effective date of this Agreement,
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the Fluor Xxxxxx Group provided Engineering and Construction
Services and certain Environmental Services to FDGTI. Attached as
Exhibit C is a summary of substantially all of the ongoing
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projects in which the Fluor Xxxxxx Group is providing Engineering
and Construction Services or Environmental Services to FDGTI,
including contract numbers and contact persons. From the
effective date of this Agreement, and except as otherwise
provided in Exhibit C, the terms and conditions previously agreed
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to between the Parties for all ongoing projects shall govern. In
the event the terms and conditions of this Agreement are not
inconsistent with such previously agreed to terms and conditions,
the terms set forth in this Agreement shall apply. FDGTI wishes
to self perform all ongoing administrative support services
presently provided by Fluor Xxxxxx and to that end agrees to
transition such services to FDGTI or its designee promptly, and
in no event later than six (6) months following the date of this
Agreement. During such transition, the provisions of Section 3.1
shall apply to such administrative support services. The Steering
Committee shall attempt to resolve any disagreements that may
arise under this paragraph (b).
(c) Existing Projects. The Parties understand that a number of the
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clients of the FDGTI Group view the previous involvement of the
Fluor Xxxxxx Group in the business of the FDGTI Group as a
benefit to such clients. The Parties agree that it is in the best
interests of the clients and the Parties to minimize disruption
to such clients that may arise from the sale by the
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Fluor Xxxxxx Group of its ownership interest in FDGTI.
Accordingly, the Parties agree that they will work together in
Good Faith to minimize any such possible disruption and to use
commercially reasonable efforts to maintain for FDGTI its
existing projects. Fluor Xxxxxx shall not, however, be required
by the terms of this Agreement to give any corporate guarantees
or other contractual assurances to such clients.
2.8 Possible Acquisitions.
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(a) Restrictions on Environmental Acquisitions. The Fluor Xxxxxx
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Group shall not, during the term of this Agreement, acquire,
merge with, form a joint venture with or enter into a
business combination with any entity which is engaged
primarily in performing Environmental Services, without the
prior written consent of FDGTI; provided, however, that the
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Fluor Xxxxxx Group shall be permitted on a case-by-case
basis to team, joint venture or contract with any such
entity on any specific project (i) which the FDGTI Group
fails or refuses to perform or (ii) where the conditions set
forth in Section 2.2, paragraph (b), clauses (i), (ii) and
(iii) are not met.
(b) Non-Environmental Acquisitions. It is not the present
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intention of Fluor Xxxxxx to acquire an Environmental
Services capability; however, in the event that during the
term of this Agreement, the Fluor Xxxxxx Group consummates
an acquisition, merger, or consolidation ("Acquisition")
with any entity which is not engaged primarily in performing
the Environmental Services, but which performs Environmental
Services, the Fluor Xxxxxx Group shall be permitted to
perform Environmental Services by, through or with such
entity instead of the FDGTI Group, which shall not be deemed
a breach or violation of this Agreement. Following any such
Acquisition, this Agreement shall continue on a
non-exclusive basis, and contracts in effect on the date of
the closing of such Acquisition between the FDGTI Group and
the Fluor Xxxxxx Group shall continue, unless otherwise
agreed.
(c) Discussions on Divestiture. In the event the Fluor Xxxxxx
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Group commences preparation to consummate such an
Acquisition, it shall, subject to the limitations of any
applicable confidentiality agreements, discuss such
acquisition with the Steering Committee on a confidential
basis with a view to determining whether IT would have any
interest in considering the acquisition of such portion of
the target business which performs Environmental Services,
other than services for the United States Government, (the
"Environmental Portion") if any. If the Fluor Xxxxxx Group
consummates any such Acquisition, it shall, for a period of
60 days following the entering into of a written agreement
to consummate such Acquisition, engage in Good Faith
discussions with IT regarding the divestiture and sale of
the Environmental Portion to IT. Such discussions
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shall be exclusively with IT during such period unless
otherwise agreed (the "No-shop Period"). Following the
expiration of the No-shop Period, unless IT and the Fluor
Xxxxxx Group have reached an agreement, the Fluor Xxxxxx
Group shall, for a period of 120 days, engage in a Good
Faith effort to divest the Environmental Portion on
commercially reasonable terms (in its discretion). In the
event that the Fluor Xxxxxx Group has not within such
120-day period (a) entered an agreement to sell the
Environmental Portion, or (b) decided to liquidate or phase
out the business of the Environmental Portion, then the
Fluor Xxxxxx Group shall give consideration to any request
by IT through the Steering Committee that the terms and
conditions of this Agreement should be adjusted to avoid an
inequitable hardship to IT resulting from any material
diminution of value of this Agreement arising from such
Acquisition; provided, however, that no such adjustment
shall be made without the express written agreement of all
Parties.
3. INTERCOMPANY SERVICES
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3.1 Overhead and Proposal Support Services. Subject to
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availability of qualified personnel, each Party agrees to provide to the
other Party, during the first six (6) months of the term of this Agreement,
the services of its employees (including technical, financial and
administrative personnel) and proposal support as may be reasonably
requested by the other Party in connection with activities of a general
nature which are not related to a specific contract or in connection with a
proposal ("Overhead and Proposal Support"), upon the terms and conditions
set forth in Exhibit D attached. Overhead and Proposal Support shall
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include without limiting the generality of the foregoing, the following
administrative services, as may be requested by a Party from time to time:
Insurance services, accounting services, payroll services, legal services,
real estate services and information technology services.
3.2 Contract Support. All Contract Support Services to be
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provided by one Party to the other Party, shall be performed pursuant to
Work Releases issued pursuant to the terms of the Intercompany Services
Agreement and containing the commercial terms and conditions set forth in
Exhibit D, and in the case of government projects, in Exhibit F.
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3.3 Project Services. All Project Services to be provided
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by one Party to the other Party shall be performed pursuant to Work
Releases issued pursuant to the terms of the Intercompany Services
Agreement and containing commercial terms and conditions set forth in
Exhibit E, and in the case of government projects in Exhibit F.
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3.4 Facilities. Attached hereto as Exhibit H is a list of
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offices of FDGTI which are co-located with offices of Fluor Xxxxxx,
including a summary of applicable lease terms. Except as otherwise agreed
on a case-by-case basis, FDGTI shall relocate such offices at its expense
out of the offices of Fluor Xxxxxx in an orderly and expeditious manner
following the execution of this Agreement, and in no event later than six
(6) months following the date hereof; provided, however, that Fluor Xxxxxx
shall make available to FDGTI during the term of this Agreement, on
commercially reasonable license terms,
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office space for no more than five employees of FDGTI in areas designated
by Fluor Xxxxxx, on the premises of Fluor Xxxxxx, but outside the card-
keyed access areas, where practical at the following locations: Greenville,
S.C., Marlton, N. J., Sugar Land, TX. and Irvine, CA. Fluor Xxxxxx shall
cooperate in the relocation of FDGTI offices and corresponding FDGTI
employees.
3.5 Other Activities. Each Party understands that the other Party will
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be involved in other activities and undertakings not within the scope of
this Marketing Agreement. The Parties hereby agree that the execution of
this Marketing Agreement and the assumption by each of the Parties of its
duties hereunder shall be without prejudice to its rights to have such
other interests and activities and to receive and enjoy the profits or
compensation therefrom. Except as otherwise provided herein, the Parties
may engage in or possess any interest in any other business, undertaking,
or venture of any nature or description independently or with others and
neither Party shall have any right by virtue of this Marketing Agreement in
and to such business, undertaking or venture of the other Party or the
income or profits derived therefrom.
4. LIABILITIES
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4.1 No Agency or Partnership; Indemnity. Neither Party shall hold
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itself out as being the agent, representative, employee or the
principal of the other Party. This Marketing Agreement does not
constitute either Party the agent of the other, nor does it create a
partnership, a consortium, an association, a joint venture, or any form
of juristic person or entity. Neither Party shall have any authority or
right to assume or create obligations of any kind or nature, express or
implied, on behalf of, or in the name of the other Party, not to accept
service of any legal process of any kind addressed to or intended for
the other Party, nor to bind the other Party in any respect, without
the specific prior written authorization of the other Party. If either
Party acts in violation of the foregoing, said Party hereby covenants
to indemnify and hold harmless the other Party from and against any and
all claims, demands, losses, damages, liabilities, law suits, and other
proceedings, judgments and awards, and costs and expenses (including,
but not limited to, reasonable attorneys' fees) arising directly or
indirectly in whole or in part out of the breach of this Section 4.1 by
such Party, whether committed by the indemnifying Party, its employees,
agents, successors, assigns, or its Affiliates.
4.2 Personal Injury or Property Damage; Indemnity. Unless as otherwise
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required by any prime or subcontract pertaining to a project, each
Party shall indemnify and hold harmless the other Party from and
against any and all claims, demands, losses, damages, liabilities,
lawsuits and other proceedings, judgments and awards, and the costs and
expenses (including, but not limited to, reasonable attorneys' fees) of
any action resulting from the death of any person, or for damage or
destruction of property, but only to the extent resulting solely from
the negligent acts or omissions of such Party .
4.3 Waiver of Certain Damages. Unless as otherwise required by any
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prime or subcontract pertaining to a project. in no event shall either
Party ever be liable to, or required to provide indemnity to, the other
Party for any incidental, special, consequential or punitive damages of
the other Party, or its Affiliates, including without limitation,
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liability for loss of profits or business interruption, however the
same may be caused.
4.4 Proposals and Contracts; Indemnity. Unless as otherwise required
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by any prime contract or subcontract pertaining to a project, each
Party shall be solely responsible for the accuracy and completeness of
information and representations supplied by each Party and
incorporated in any proposal, prime or sub contract, including, but
not limited to, cost or pricing data, materials, specifications, and
certifications, and each Party agrees to release defend, indemnify and
hold the other harmless from and against any and all claims,
liabilities and causes of action arising out of or relating to the
provision of such information and/or representations.
4.5 Applicability of Indemnities. Indemnities against, releases from
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and limitation on liability expressed in Sections 4.1 through 4.4
shall apply even in the event of the fault, negligence or strict
liability of the Party indemnified or released or whose liability is
limited.
4.6 Exclusive Rights. The Parties make no other representations,
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covenants, warranties or guarantees, express or implied, other than
those set forth in this Marketing Agreement, the Intercompany Services
Agreement or in a Work Release (as defined in the Intercompany
Services Agreement) or an applicable purchase order or subcontract.
The Parties' rights, and responsibilities with respect to the matters
set forth in this Marketing Agreement, shall be exclusively those set
forth in this Marketing Agreement, the Intercompany Services Agreement
or in a Work Release.
5. CONFIDENTIALITY
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5.1 Restrictions on Use and Disclosure. Each Party covenants and
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agrees it will not, and it will not permit its Affiliates to, directly
or indirectly, or in any capacity whatsoever, divulge or disclose
Confidential Information (as hereinafter defined), in whole or in
part, to any person or entity, except to the extent such divulgence or
disclosure is specifically permitted by the Originator (as hereinafter
defined) or is required by law. The Recipient (as hereinafter defined)
shall use Confidential Information for the purpose of carrying out the
activities that are the subject of this Agreement, and the
Intercompany Services Agreement, and for no other purpose.
5.2 Confidential Information Defined. As used herein, the term
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"Confidential Information" shall mean: all technical, economic or
descriptive information, data, concepts, or know-how disclosed to a
Party, including any officers, directors, managers, partners or
employees of such Party or any of such Party's Affiliates (the
"Recipient") by the other Party (the "Originator") (1) in written or
documentary form marked "Confidential" or with words of similar
import, or (2) in an oral presentation or visual demonstration and
identified as confidential at the time of such disclosure, and
subsequently confirmed in written or tangible form marked
"Confidential", or with words of similar import, except any portion of
such information which:
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(i) the Recipient can show was in its possession prior to the earliest
disclosure by the Originator, provided that the Recipient has the
right of free and unlimited disclosure thereof; or
(ii) is presently or hereafter becomes a part of the public knowledge
or literature without default by the Recipient of its obligations
pursuant to this Agreement; or
(iii) the Recipient can show was developed by the Recipient from
independent information not subject to restrictions of
confidentiality; or
(iv) is or has been disclosed to the Recipient by a third party, so
long as Recipient does not know or have reason to know such third
party acquired that information directly or indirectly from the
Originator under an obligation of confidentiality, provided
Recipient's use of such information is in accordance with the
terms under which it is received.
5.3 Disclosure to Employees. The Recipient shall use all reasonable
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efforts to (i) limit disclosure of Confidential Information within its
organization to only those employees who need to use such Confidential
Information for the purpose authorized in Section 5.1, and who are
obligated to the Recipient by a secrecy agreement with terms concerning
disclosure and use at least as restrictive as those herein in a form
acceptable to the disclosing Party, and (ii) advise each of those
employees of Recipient's obligations under this Agreement.
5.4 No License. Nothing contained herein shall be construed to grant
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Recipient any immunity or license under any patent or other intellectual
property right.
5.5 Term of Non-Disclosure. The Parties' obligations concerning
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non-disclosure and the use of Confidential Information contained in this
Section 5 shall continue for three (3) years from the termination of this
Agreement and shall then terminate.
6. USE OF FLUOR XXXXXX NAME
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Fluor Daniel's name and logo are proprietary to Fluor Xxxxxx. The right
of FDGTI or any member of the FDGTI Group to continue to use the Fluor
Xxxxxx name (or any derivation thereof) shall cease upon the consummation
of the Tender Offer and the Fluor Xxxxxx name shall be removed from all
company documents (including without limitation, its corporate name as
reflected in its charter documents) promptly and in any event within 30
days following such closing and all future use is hereby prohibited. No
further notice of Fluor Daniel's rights pursuant to this Article is
required. FDGTI shall be allowed to use the name "GTI" and "Groundwater
Technology" following the consummation of the Tender Offer. The Parties
acknowledge that the change in ownership of FDGTI will require the
written consent of certain parties to certain existing contracts with
FDGTI and its Affiliates, including certain United States government
agencies, and may require FDGTI to apply for certain permits and licenses
domestically and internationally in order
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to allow the complete disentanglement of FDGTI and Fluor Xxxxxx in these
areas. FDGTI agrees to promptly, and in no event later than 60 days
following consummation of the Tender Offer (or such shorter period as may
be required by contract or law), apply for all of such consents, licenses
and permits and to obtain the same as promptly as reasonably possible
thereafter and in no event later than one year following the date of this
Agreement. Fluor Xxxxxx agrees to use commercially reasonable efforts to
cooperate with FDGTI to accomplish a prompt and orderly disentanglement.
Each party shall execute and deliver such further documents and take such
other actions as may be necessary or appropriate to consummate or implement
the disentanglement contemplated hereby or to evidence such events or
matters.
7. TERM, TERMINATION
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This Marketing Agreement shall commence and become effective only on the
date of consummation of the Tender Offer and the term of this Marketing
Agreement shall be four (4) years from such date, whereupon it shall lapse
and terminate without formality unless it has been extended by mutual
written agreement.
8. ASSIGNMENT, SUBCONTRACTING
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Neither Party shall sell, assign or in any manner transfer, convey or
alienate (by operation of law or otherwise) its interest or part thereof in
this Marketing Agreement without first obtaining the written consent of the
other Party. This Marketing Agreement shall inure to the benefit of and be
binding upon the Parties, their successors, trustees, permitted assigns,
receivers and legal representatives, but shall not inure to the benefit of
any other person or entity.
9. AMENDMENTS
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No amendment of this Marketing Agreement or its Exhibits or Schedules shall
be of any force or effect unless reduced to writing and executed by the
Parties.
10. NOTICES
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All notices under this Marketing Agreement shall be given in writing and
shall be delivered by (i) certified or registered mail, postage prepaid,
return receipt requested, or (ii) reputable overnight commercial courier or
delivery service, or (iii) by facsimile transmission confirmed by certified
or registered mail or commercial courier or delivery service as follows:
(a) To: FLUOR XXXXXX, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile number: 000-000-0000
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(b) To: FLUOR XXXXXX GTI, INC.
Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile number: 000-000-0000
(c) To: INTERNATIONAL TECHNOLOGY CORPORATION
K Street, N. W.
Washington, D.C. 20005
Attention: Xxxxxx Xxxxxxxxxxx
Facsimile number: 000-000-0000
or to such other address of which either Party shall have notified the other.
All notices shall be effective only upon receipt by the receiving Party.
11. GOVERNING LAW
-------------
This Marketing Agreement shall be governed by the laws of the State of
California without regard to conflict of law rules, whose courts, state or
federal, shall have sole and exclusive jurisdiction.
12. FORCE MAJEURE
-------------
A Party shall not be liable for non-performance or delay in performance
caused by any event reasonably beyond the control of such Party including,
but not limited to, hostilities, revolutions, riots, civil commotion,
national emergency, strikes, work stoppages, slowdowns, labor disputes,
lockouts, unavailability of supplies, epidemics, fire, flood, earthquake,
force of nature, explosion, embargo, or any other Act of God, or any law,
proclamation, regulation, ordinance, or other act or order of any court,
government, or governmental agency; provided, however, that this Article
shall not affect the liability of any Party for its failure to pay any sum
of money required by this Marketing Agreement.
13. SEVERABILITY
------------
In the event that any of the provisions of this Marketing Agreement are
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision thereof and this Marketing Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein and the Parties shall to the fullest extent possible modify any such
provision to the extent required to carry out the general intention of this
Marketing Agreement and to impart validity thereto.
14. EFFECT OF WAIVERS
-----------------
No forbearance, indulgence, or relaxation or inaction by any Party at any
time to require performance of any provisions of this Marketing Agreement
shall in any way affect,
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diminish or prejudice the right of a Party to require performance of that
provision and any waiver or acquiescence by either Party in any breach of
any provision of this Marketing Agreement shall not be construed as a
waiver or acquiescence in any continuing or succeeding breach of such
provision, a waiver or an amendment of the provision itself or a waiver of
any right under or arising out of this Marketing Agreement or acquiescence
in or recognition of rights and/or positions other than as expressly
stipulated in this Marketing Agreement.
15. COUNTERPARTS
------------
This Marketing Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and all of which shall
constitute one and the same Marketing Agreement.
16. ENTIRE AGREEMENT
----------------
This Agreement (including any schedules, exhibits or annexes hereto) and
the Intercompany Services Agreement constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the
subject matter hereof.
17. NO THIRD PARTY BENEFICIARIES.
----------------------------
This Agreement is not intended to confer upon any person or entity other
than the Parties any rights or remedies hereunder.
18. DISPUTE RESOLUTION.
------------------
(a) All claims, disputes, and other matters in question arising out of, or
relating to, this Agreement or the breach hereof, shall be decided
first, by the Steering Committee, second, if the Steering Committee
fails to resolve the matter within 90 days, by nonbinding mediation,
and third, if mediation fails to resolve the matter within 90 days, by
binding arbitration in accordance with the Construction Industry
Mediation and Arbitration Rules of the American Arbitration
Association then prevailing unless the parties mutually agree
otherwise. This agreement to mediate and arbitrate shall be
specifically enforceable under prevailing law.
(b) Notice of the demand for mediation and/or arbitration shall be filed
in writing with the other parties to this Agreement and with the
American Arbitration Association. The demand shall be made within a
reasonable time after the Steering Committee fails to resolve the
matter in question. In no event shall the mediation and/or arbitration
be made after the date when institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question
would be barred by the applicable statute of limitation.
(c) The award rendered by the Steering Committee or mediation shall not be
binding upon the parties. The award rendered by the arbitration shall
be final and binding,
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and judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof.
(d) All mediation and arbitration shall be conducted in Irvine,
California.
IN WITNESS WHEREOF the Parties have signed this Marketing Agreement effective as
of the date first above written.
FLUOR XXXXXX GTI, INC. FLUOR XXXXXX, INC.
By: /s/Xxxxxx X. Xxxxxx By: /s/Xxxxxx X. Xxxxxxxx
-------------------- ---------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
-------------------- --------------------
Title: President Title: Group President
-------------------- --------------------
INTERNATIONAL TECHNOLOGY CORPORATION
By: /s/Xxxxxxx X. XxXxxx
---------------------------
Name: Xxxxxxx X. XxXxxx
---------------------------
Title: President and Chief Executive Officer
-------------------------------------
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