SERVICES AGREEMENT
THIS SERVICE AGREEMENT ("Agreement") is made and entered into as of the 1st
day of September 1997, by and among
COMMODORE ENVIRONMENTAL SERVICES, INC., a Delaware corporation with
principal offices in New York, New York (hereinafter "Environmental"), and
COMMODORE APPLIED TECHNOLOGIES, INC., a Delaware corporation with principal
offices in New York, New York (hereinafter "Applied"), and
COMMODORE SEPARATION TECHNOLOGIES, INC., a Delaware corporation with
principal offices in Atlanta, Georgia (hereinafter "Separation"), and
COMMODORE REMEDIATION TECHNOLOGIES, INC., a Delaware corporation with
principal offices in Houston, Texas (hereinafter "Advanced"), and
COMMODORE LABORATORIES, INC., a Delaware corporation with principal offices
in Marengo, Ohio (hereinafter "Laboratories"), and
COMMODORE TECHNOLOGIES, INC., a Delaware corporation with principal offices
in Wilmington, Delaware (hereinafter "Technologies"), and
ADVANCED SCIENCES, INC., a New Mexico corporation with principal offices in
Albuquerque, New Mexico (hereinafter "ASI"), and
CFC TECHNOLOGIES, INC., a Delaware corporation with principal offices in
Atlanta, Georgia (hereinafter "CFC"), and
COMMODORE REFRIGERANT TECHNOLOGIES, INC., a Delaware corporation with
principal offices in Atlanta, Georgia (hereinafter "Refrigerant"), and
COMMODORE GOVERNMENT ENVIRONMENTAL TECHNOLOGIES, INC., a Delaware
corporation with principal offices in Houston, Texas (hereinafter
"Governmental"),
all of which companies are hereinafter referred to as "Companies".
WITNESSETH
WHEREAS, the Companies are all affiliated companies through common
ownership, and
WHEREAS, the Companies are all pursuing material science technologies and to
varying degrees have common markets and customers, and common business
perspectives, and
WHEREAS, some of the Companies do not have support and administrative
infrastructures and need to obtain such services from third parties, while other
of the Companies do have some such support and administrative services
personnel, and
WHEREAS, some of the Companies are sharing common facilities and are sharing
common executives, and
WHEREAS, some of the Companies are able to provide personnel and expertise
in certain operational areas, such as marketing, research and development,
manufacturing, engineering, and the provision of other technical services, and
some of the Companies are in need of such assistance, and
WHEREAS, the Companies are interested in cooperating in sharing costs where
appropriate and in cooperating on joint endeavors and projects from time to
time, all to the benefit of some of the Companies specifically and all of the
Companies generally, and
WHEREAS, the Companies are interested in ensuring that any cost sharing is
done equitably and accurately,
NOW THEREFORE, in consideration of the foregoing and the mutual promises and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Term. This Agreement shall take effect on September 1, 1997, and shall
remain in effect for a period of five years, unless earlier terminated by the
parties by mutual agreement, provided, however that any of the Companies may
earlier terminate its participation in this Agreement by giving written notice
to all of the other parties hereto thirty (30) days prior to its withdrawal from
Agreement. Any such withdrawal shall not affect the then-accrued rights of the
parties which shall remain in full force and effect.
2. Services. The parties agree that the services covered by this Agreement
include, but are not necessarily limited to, accounting, financial management,
including supervising and administering banking relationships, insurance and
risk management, credit, management of payables and accounts receivable, tax
preparation and planning, human resource and personnel management and
administration, information systems, purchasing and procurement, legal and
corporate secretarial (provided that nothing herein shall be construed to imply
that an attorney shall practice law in a state in which he or she is not
licensed to practice), executive management, sales and marketing, manufacturing,
distribution and traffic, customer relations, public relations, research and
development, engineering, technical assistance, product design, development and
maintenance, patenting, and other areas of service such as are appropriately and
necessarily required in the operations of a company such as the Companies (all
of the foregoing are jointly and severally referred to as hereafter as
"Services").
3. Compensation
(a) The parties shall designate an officer, generally the Chief Financial
Officer of a party, who shall supervise payments hereunder.
(b) Services provided by one party to one or more other parties hereunder
shall be equitably charged in accordance with the following principles:
1. Professional employees shall be charged on the basis of time
actually worked as a percentage of salary (including cost of benefits)
attributable to that professional. Such employees shall keep accurate records of
the time worked on behalf of another party to this agreement. Charges for
clerical employees shall track the charges of the supervisory professional
employee.
2. Charges for offices, including rent, utilities, office services,
and all other routine charges regularly incurred in the normal course of
business, shall be apportioned to the professionals working in the office on the
basis of salary, and then charged to any party in respect of whom the
professional is working based upon time actually worked.
3. Charges from third parties, including but not limited to
consultants, lawyers, accountants, and similarly, shall be levied against the
party actually receiving the benefit of the services. Best efforts shall be
exerted to ensure that third parties themselves keep accurate records as to
which company they are performing services.
(c) Any issues arising under this provision shall be settled by the
officers designated under Clause 3(a) above.
(d) No fees shall be levied upon services rendered hereunder inasmuch as
the parties agree that each party to this Agreement shall benefit equally from
this Agreement.
(e) Payments hereunder shall be made by a party within thirty (30) days
after the close of a quarter during which receipt of a billing from another
party has occurred, by check or wire transfer in accordance with the billing
instructions of the billing party. Any xxxxxxxx hereunder shall be supported by
such documentation as the party being charged may reasonably require.
(f) Applied shall act as a coordinator of xxxxxxxx and payments hereunder
on behalf of itself and other parties hereunder. It shall also coordinate
receipt of third parties xxxxxxxx, analysis of supporting documentation, and
allocation of charges to the appropriate parties hereunder, subject to the other
provisions of this Agreement.
4. Parties to the Agreement. Additional parties ("After-adhering Parties")
may adhere to this Agreement and become full parties to this Agreement, with the
agreement of the initial parties ("Initial Parties") hereto. If any of the
parties named herein shall not execute this Agreement, all parties hereto that
have executed this Agreement shall
nevertheless be fully bound one to another. If any of the Initial Parties shall
withdraw from the Agreement, all remaining Initial Parties to the Agreement
shall continue to be fully bound one to another.
5. Agreement Between Separation and CFC. The Services Agreement between
Separation and CFC dated April 8, 1997, shall be terminated and of no further
force and effect, subject to the then-accrued rights of the parties with the
effective date of this Agreement.
6. Audit. Any party hereto may audit the books and records of any other
party hereto in respect of xxxxxxxx hereunder upon reasonable notice and during
normal business hours.
7. Indemnification. Each party hereto agrees to indemnify and hold harmless
the other parties hereto against and in respect of any and all claims, suits,
actions, proceedings, investigations, judgments, deficiencies, damages,
settlements, liabilities, and legal and other expenses (collectively "Losses")
as and when incurred, arising out of, in connection with or based upon any act
or omission, or alleged act or omission, by the indemnified party in connection
with its performance or non-performance hereunder. The indemnified party has to
give the indemnifying party prompt notice of any claim asserted or threatened
against it in respect of which indemnification is sought (though indemnification
shall not be conditioned upon receipt of such notice). Indemnification hereunder
is conditioned upon the indemnified party having acted in good faith and in a
manner believed to be in the best interests of the indemnifying party and within
the scope of authority set forth hereunder.
8. Notices. All notices required or permitted hereunder shall be in writing
and mailed or sent by facsimile to the chief financial officer of the party
receiving the notice at its principal office.
9. Assignment. Neither this Agreement nor any rights or obligations
hereunder may be transferred, assigned, or delegated, in whole or in part, by
any party without the written consent of all other parties to this Agreement.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns, but no other persons shall acquire or have any
rights under this Agreement.
10. Choice of law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to conflict
or choice of laws principles.
IN WITNESS HEREOF, and intending to be legally bound, the parties have duly
executed this Agreement with effect as of September 1, 1997.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE APPLIED TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE SEPARATION TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE REMEDIATION TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE LABORATORIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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ADVANCED SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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CFC TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE REFRIGERANT TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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COMMODORE GOVERNMENT ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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