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Exhibit 10.4
CORPORATE SERVICES AGREEMENT
BETWEEN
UCAR INTERNATIONAL INC.
AND
UCAR GRAPH-TECH INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 - GENERAL DESCRIPTION OF SERVICES; AFFILIATES 3
ARTICLE 2 - SERVICES TO BE PROVIDED 5
ARTICLE 3 - PERIOD OF SERVICES: TERM 5
ARTICLE 4 - COMPENSATION; PAYMENT 6
ARTICLE 5 - REPRESENTATIONS 7
ARTICLE 6 - INDEPENDENT CONTRACTOR 7
ARTICLE 7 - TAXES 7
ARTICLE 8 - CLAIMS 9
ARTICLE 9 - INDEMNITY 9
ARTICLE 10 - FORCE XXXXXX 10
ARTICLE 11 - CONFIDENTIALITY 11
ARTICLE 12 - NOTICES 12
ARTICLE 13 - MISCELLANEOUS 13
ANNEX 1
ANNEX 2
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CORPORATE SERVICES AGREEMENT
SERVICES AGREEMENT made as of this 1st day of January, 2000 between
UCAR International Inc., a Delaware corporation acting through its various
corporate departments and subsidiaries ("UCAR"), and UCAR Graph-Tech Inc., a
Delaware corporation ("Graph-Tech").
WITNESSETH:
WHEREAS, UCAR's wholly owned subsidiary UCAR Carbon Company Inc. on the
date hereof (the "Closing Date") shall transfer the assets and liabilities of
its natural, acid-treated and flexible graphite businesses into Graph-Tech (the
"Transfer"); and
WHEREAS, it is the intention of the parties that certain services
performed prior to the Transfer by UCAR for Graph-Tech shall continue to be
provided after the Transfer; and
WHEREAS, subject to the terms and conditions set forth herein, each
party to this Agreement desires to have the other party render or cause to be
rendered the services more specifically described hereinafter;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties agree as follows:
ARTICLE 1 - GENERAL DESCRIPTION OF SERVICES; AFFILIATES
1.1 As used herein, the terms "Services" shall mean the services
described in Annex 1 attached hereto which will be supplied by UCAR hereunder
for Graph-Tech and its domestic subsidiaries and the services described in Annex
2 attached hereto which will be supplied by Graph-Tech to UCAR.
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1.02 The purpose of this Agreement is to enable both parties to
continue to operate in the same manner as before the Closing Date. In general,
the type quality and level of utilization of the Services after the Closing Date
shall be the same as the type, quality and level of utilization of the
comparable services provided by UCAR prior to the Closing Date except (i) as
otherwise set forth herein or as reasonably requested by either party and (ii)
that, in no event, shall the quality of the Services being supplied hereunder be
less than the quality of comparable services being concurrently supplied to
other businesses of UCAR. Notwithstanding the foregoing, the parties recognize
that in some cases the practices, procedures and methods followed in connection
with providing such comparable services prior to the Closing Date will have to
be modified in order to provide the Services after the Closing Date.
1.03 The parties recognize that the Services may include services
which, by their nature, are required to be provided by or to affiliates or
subsidiaries of the parties. The parties also recognize that such affiliates or
subsidiaries may enter into other service agreements with respect to the
provision of such Services ("Affiliate Agreements"). The parties shall (i) to
the extent required in order to provide such Services, cause their affiliates
and subsidiaries to provide such Services as if such affiliates and subsidiaries
were the parties themselves, and (ii) provide or cause their affiliates or
subsidiaries to provide such Services to each other's subsidiaries, and each
party shall cause its subsidiaries to pay for such Services as if such
subsidiaries were the parties themselves. In connection with the provision of
such Services, each party's affiliates and subsidiaries shall be entitled to the
benefits of (i) the limitations on liability set forth herein and (ii) the
limitations on the obligation to provide Services set forth herein as if such
subsidiaries and affiliates were the respective parent corporation. To the
extent that such subsidiaries and affiliates enter into Affiliate Agreements
with respect to such Services, such Affiliate Agreements shall supersede this
Agreement in
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respect of such Services.
ARTICLE 2 - SERVICES TO BE PROVIDED
2.01 Each party shall provide the Services to the other party
throughout the term of this Agreement; and
2.02 The parties may, at any time during the term of this Agreement,
mutually agree to amend Annex 1 or 2 so as to delete, include or modify services
which are related to the conduct of their business.
ARTICLE 3 - PERIOD OF SERVICES: TERM
3.01 Either party may terminate its obligation to provide or to receive
and pay for, as the case may be, any or all Services or any category of Services
upon mutual consent or upon twelve (12) months' prior written notice to the
other party.
3.02 The term of this Agreement shall commence on the date hereof and
shall continue thereafter as long as any Service covered hereby shall continue
to be provided in accordance with this Agreement, unless sooner terminated in
accordance with the terms set forth herein.
3.03 Upon the termination of this Agreement the parties shall be
released from any and all obligations to perform the Services hereunder subject
to the terms of this Agreement. However, the parties' respective obligations
under Articles 4 and 8 shall survive.
ARTICLE 4 - COMPENSATION; PAYMENT
4.01 Each party shall pay or cause to be paid to the other or its
designee
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a fee for each Service as set forth in Annex 1 and Annex 2 and determined in
accordance with Section 4.02 (a "Fee").
4.02 The Fee for each Service shall be determined in accordance with
UCAR's standard internal accounting practices and procedures for determining the
cost of such Services prevailing as of the date hereof; provided, however, that
if such practices and procedures are changed by either party after the Closing
Date, such changed practices shall be used to determine such Fee only with the
prior written consent of the other party, which consent shall not be
unreasonably withheld. It is the intent of this Agreement that the cost of
Services would be the same as would be charged if Graph-Tech were a division of
UCAR Carbon Company Inc. Cost is generally defined as departmental expense
(wages and related overhead directly associated with the department, fringe
benefits, rent, telephone expense, supplies and travel expense which is charged
to a departmental unit, etc.) in accordance with the provider's practices and
procedures for determining departmental costs.
4.03 The parties shall invoice each other for the Services on such
intervals as may be determined by the parties, but not less frequently than
quarterly. Payment of each invoice shall be due net thirty (30) days from the
date of such invoice.
4.04 If, within thirty (30) days following receipt of any invoice,
either party notifies the other in writing that
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it questions all or any party of the Fee reflected in such invoice, (i) the
notifying party may withhold payment of the amount in question and (ii) the
billing party shall provide to the notifying party within thirty (30) days after
receipt of such notice a certificate, signed by the appropriate financial
officer or department head of billing party, answering the question in
reasonable detail sufficient to permit the notifying party to verify the
accuracy of such Fee together with documentary evidence of the basis for the
calculation of such Fee. Pending receipt of any such certificate and documentary
evidence, the notifying party shall pay or cause to be paid the unquestioned
amount of such Fee to the billing party or its designee when due. Within ten
(10) days after receipt of such certificate and documentary evidence, the
notifying party shall (i) pay or cause to be paid the balance of such Fee to the
billing party or its designee, or (ii) give written notice to the billing party
that the notifying party continues to so question the Fee. Promptly after
receipt of such notice, the parties shall meet to negotiate in good faith a
resolution of such questions. If the parties cannot resolve the question in a
mutually satisfactory manner within thirty (30) days after such notice
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shall have been given, the question shall promptly be submitted to the
independent public accountants retained by the parties, whose decision shall be
final and binding on both parties. Such firm will review the books and records
of the parties (and their respective subsidiaries and affiliates, as the case
may require) and make such other investigation as it shall deem necessary to
resolve the question. The costs of retaining such firm shall be borne by the
party against whom the accountants find.
ARTICLE 5 - REPRESENTATIONS
THERE ARE NO REPRESENTATIONS OR WARRANTIES BY EITHER PARTY WITH RESPECT
TO THE SERVICES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. NO
REPRESENTATION OR WARRANTY SHALL BE IMPLIED UNDER THIS AGREEMENT OR AT LAW,
INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE AS TO THE SERVICES.
ARTICLE 6 - INDEPENDENT CONTRACTOR
Each party and their subsidiaries and affiliates shall be deemed to be
independent contractors, and not agents, partners or joint venturers, in
connection with the supplying of the Services.
ARTICLE 7 - TAXES
In addition to any other amounts payable the party receiving Services
shall
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promptly reimburse the provider of the Services for any taxes, excises, imposts,
duties, levies, withholdings or other similar charges (except any taxes,
excises, imposts, duties, levies, withholdings or charges based on net income)
that such provider may be required to pay on account of the performance of
Services, provided, however, that the provider shall not be entitled to receive
any such payment to the extent any of the foregoing have been included in the
calculation of the Fee. Any amount payable under this provision shall be
computed so as to hold the performing party harmless on an after tax basis.
ARTICLE 8 - CLAIMS
Receipt of any Service hereunder shall constitute an unqualified
acceptance of such Service and a waiver of any and all claims with respect to
the Service unless either party receives written notice of a claim within sixty
(60) days after receipt. No claim resulting from the breach of this Agreement or
as to any Service provided whether based on negligence, strict liability in
tort, breach or warranty or any other basis, shall be greater in amount than the
Fee for that portion of the Service in respect of which such claim is made, and
in no event will either party be liable to the other or its subsidiaries for any
special, indirect, incidental or consequential damages or any lost profits,
whether or not caused by or resulting from such negligence, strict liability,
breach of warranty or other basis of claim hereunder, provided, however, that
such limitations shall not apply to damages caused by or resulting from gross
negligence, fraud or willful misconduct.
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ARTICLE 9 - INDEMNITY
Except as otherwise provided in this Agreement, or any ancillary
agreement, effective as of the date of this Agreement, each party shall, without
any further responsibility or liability of or recourse to the other or its
affiliates or any of the other party's or the other party's affiliates'
directors, shareholders, officers, employees, agents, consultants,
representatives, successors, transferees or assigns, be solely liable and
responsible for any and all claims, liabilities, obligations, losses,
deficiencies and damages (except for civil or criminal penalties or punitive
damages), or judgments of any kind or nature whatsoever arising out of the
furnishing or failing to furnish the Services provided for in this Agreement,
(all of which are hereinafter called "Liabilities"), regardless of by whom
asserted and regardless of whether or not any Liabilities are known or unknown,
fixed or contingent or asserted or unasserted, but only to the extent that such
Liabilities arise out of the furnishing of the Services after the effective date
of this Agreement. Each party shall indemnify and hold the other 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, but only
to the extent such Liabilities arose, and the facts on which they are based,
occurred, following the effective date of this Agreement. Notwithstanding the
foregoing, each party shall have any and all rights to pursue claims against the
other or the others affiliates'
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or its or their directors, shareholders, officers, employees, agents,
consultants, representatives, successors, transferees and assigns for fraud,
gross negligence, willful misconduct or breach of contract.
ARTICLE 10 - FORCE XXXXXX
Neither party shall be liable for its failure to perform hereunder to
the extent that its performance is made impracticable, delayed or prevented, in
whole or in part, due to any occurrence beyond its reasonable control, including
without limitation; acts of God; inclement weather; floods; accidents; strikes;
lockouts; fires; wars; equipment failures; labor disputes; labor shortages;
riots; demonstrations; sabotage; laws, ordinances, rules, regulations, standards
or decrees of governmental or other authorities, whether valid or invalid
(including, without limitation, import or export prohibitions or priorities,
requisitions, allocations and price adjustment restrictions); inability to
obtain or unavoidable delay in obtaining necessary power, materials, facilities,
services or equipment; interruption or unavoidable delay in communication or
transportation; or any other occurrence which could have a material adverse
impact on the ability of the party to perform this Agreement. If the obligations
of one party are suspended pursuant to the preceding sentence, such party shall
give written notice to that effect to the other within then (10) days after
suspension shall have commenced together with a statement setting forth
reasonably full particulars concerning the cause of the suspension and shall use
all possible diligence to remedy the cause of the suspension as quickly as
possible. The requirement that the cause of the
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suspension be remedied with all possible diligence shall not require the
settlement of strikes, lockouts or other labor difficulties.
ARTICLE 11 - CONFIDENTIALITY
Each party agrees to refrain from using in any manner and to use its
best efforts to keep confidential, any and all information and data concerning
the business and affairs of the other party of its affiliates which it has
received as a result of this Agreement except to the extent that such party can
demonstrate that the information or data (i) is generally available to the
public as evidenced by prior written publication through no act of failure to
act of it, (ii) was already known to it on a non-confidential basis on the date
of receipt as evidenced by written and dated records made by it prior to the
date hereof, (iii) was independently developed without reference to the other
parties information as evidenced by written documentation, or (iv) is
subsequently disclosed to it on a non-confidential basis by a third party not
having a confidential relationship with such other party with respect to such
information. Notwithstanding the foregoing, each of the parties shall be free to
disclose any such information or data to the extent and only to the extent (i)
required by applicable law or by a government in a duly authorized
investigation, or (ii) necessary to establish such party's position in any
litigation or any arbitration or other proceeding based upon or in connection
with the subject matter of this Agreement, including without limitation, the
failure of the transactions contemplated hereby to be consummated. Prior to any
disclosure pursuant to the preceding sentence, the disclosing party
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shall give reasonable prior notice to the other party to this Agreement of such
intended disclosure and, if requested by such party, shall use all reasonable
efforts to obtain a protective order or similar protection for such other party.
ARTICLE 12 - NOTICES
All notices permitted or required to be given hereunder shall be given
by personal delivery, telex, telecopy, reputable overnight carrier, or
registered or certified mail, return receipt requested, postage prepaid,
addressed to the receiving party at its address set forth below:
When UCAR is the receiving party:
UCAR International Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
With a copy to: General Counsel
When Graph-Tech is the receiving party:
UCAR Graph-Tech Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: President
Any party may change its address for such purpose by giving written
notice to the other party of such change. Any notice so delivered,
telecopied or telexed shall be deemed to have been duly given upon
receipt and any notice so mailed shall be deemed to have been given
four (4) business days after so mailed.
ARTICLE 13 - MISCELLANEOUS
13.01 This Agreement shall be binding upon, and inure to the benefit
of, the parties and their respective successors and permitted assigns. Except as
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otherwise expressly provided herein, nothing contained herein shall be deemed to
create any third party beneficiary rights in any individual who or entity which
is not a party. Any assignment or delegation of this Agreement by either party
without the prior written consent of the other party shall be void except that
no such consent shall be required with respect to an assignment or delegation
made (i) to a subsidiary or affiliate of a party or (ii) in connection with the
sale, transfer or other disposition of all substantially all of the businesses
of either party.
13.02 This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument. In pleading or proving any provision of this
Agreement, it shall not be necessary to produce more than one such counterpart.
13.03 The headings contained in this Agreement are inserted for
convenience of reference only and shall not otherwise affect the meaning or
interpretation or be deemed to be a substantive part of this Agreement.
13.04 The failure of either party at any time to enforce or require
performance of any provision contained in this Agreement shall in no way operate
as a waiver or affect the right of such party at a later time to enforce such
provision.
13.05 If any provision contained in this Agreement shall be held to be
invalid or unenforceable in any jurisdiction for any reason, such 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 this
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Agreement continuing in full force and effect. Such reformation or severance
shall not have the effect of rendering such provision invalid or unenforceable
in any other jurisdiction or in any other case or circumstances or of rendering
invalid or unenforceable any other provision contained in this Agreement to the
extent that such other provision is not itself actually in conflict with any
applicable law.
13.06 THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAW OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS RULES OR
PRINCIPLES.
13.07 This Agreement and all the Annexes or Exhibits attached hereto,
and all other documents and certificates referred to herein, constitute the
entire understanding of the parties concerning the services to be performed
hereunder and cancels and supersedes all previous agreements and understandings,
oral or written, between the parties with respect to the subject matter hereof.
No modification of this Agreement or waiver of any provision or right hereunder
will be binding upon either party unless signed in writing by an authorized
representative of such party.
13.08 All capitalized terms used herein or in the Annexes attached
hereto which are not otherwise defined herein or therein shall have the meanings
assigned to them in the appropriate Transfer Agreement dated as of December 31,
1999 between UCAR Carbon Company Inc. and Graph-Tech.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above
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written.
UCAR International Inc. UCAR Graph-Tech Inc.
By: /s/ Xxxxx X Xxxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxxx By: Xxxx X. Xxxxxx
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Title: Vice President Title: President
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