--------------------
INTERCOMPANY SERVICE AGREEMENT
Dated as of 26 October 2000
Between
--------------------
Leybold Vacuum France SAS
as Providing Company
and
--------------------
Inficon SARL
as Receiving Company
TABLE OF CONTENTS
-----------------
1. Definitions...............................................................1
2. Services..................................................................2
3. Term......................................................................3
4. Compensation..............................................................3
5. General Obligations; Standard of Care.....................................4
6. Certain Limitations.......................................................6
7. Termination...............................................................6
8. Relationship Between the Parties..........................................7
9. Subcontractors/Agents.....................................................7
10. Confidentiality..........................................................7
11. Limitation of Liability..................................................8
12. Force Majeure............................................................8
13. Dispute Resolution.......................................................8
14. Miscellaneous............................................................9
i
This Intercompany Service Agreement (this "Agreement") is made as of
26 October 2000, between Leybold Vacuum France SAS ("Providing Company"), a
French corporation, having its registered office at 0, xxxxxx xx Xxxxxx, X.X. xx
Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx (00000), Xxxxxx, with a share capital of Euros
3,095,750, incorporated at the commerce and companies' registry of Evry under
number B 702 029 976, represented by Xx. Xxxxxx Xxxxxx, its president and
Inficon SARL ("Receiving Company"), a French corporation having its registered
office at 0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx (00000),
Xxxxxx, with a share capital of Euros 7,700, incorporated at the commerce and
companies' registry of Evry, under the number B 432 644 482 represented by Xx.
Xxxx-Xxxxxx Xxxxxxx, its manager (collectively, the "Parties").
WHEREAS, PROVIDING COMPANY and RECEIVING COMPANY are direct or indirect
subsidiaries of Unaxis Holding AG, a corporation organized under the laws of
Switzerland ("Unaxis"); and
WHEREAS, Unaxis has decided to restructure its group of companies by
divesting certain divisions to separate organizational units, which shall be
formed either as independent legal entities or held by a multi-divisional legal
entity;
WHEREAS, as part of the foregoing, Unaxis and Inficon Holding AG, a
corporation organized under the laws of Switzerland ("Inficon"), have entered
into a Master Separation Agreement, which provides, among other things, for the
separation of certain Inficon Assets and Inficon Liabilities, the initial public
offering of Inficon shares and the delivery of certain other agreements in order
to facilitate and provide for the foregoing; and
WHEREAS, RECEIVING COMPANY, for reasons of cost effectiveness, wishes
to purchase from PROVIDING COMPANY certain Services (as defined hereinafter),
and PROVIDING COMPANY is prepared to render such Services upon the conditions
set forth hereinafter;
NOW THEREFORE, the Parties hereto have agreed as follows:
1. Definitions For purposes of this Agreement, the following capitalized terms
shall have the following meanings:
"Ancillary Agreements" shall have the meaning assigned to such term in the
Master Separation Agreement.
"Additional Services" shall have the meaning set forth in Section 2.2 hereof.
"Change of Control" shall be deemed to have occurred, for the purpose of this
Agreement, at such time as any Unaffiliated Person or any Unaffiliated Persons
acting together as a group, or, together with any affiliates thereof, (i) become
the beneficial owner, directly or indirectly, of capital stock of any Party to
this Agreement, entitling such Unaffiliated Person or Unaffiliated Persons or
its or their affiliates to exercise more than 50% of the total voting power of
all classes of capital stock of such Party entitled to vote generally in the
election of directors or (ii) shall succeed in having sufficient nominees
elected to the Board of Directors of any Party to this Agreement that such
nominees, together with any existing members of the board of directors
who are affiliates of or acting in concert with any such Unaffiliated Person or
Persons, shall constitute a majority of the board of directors of any Party to
this Agreement or (iii) has otherwise the direct or indirect power to direct or
cause the direction of the management and policies of any Party to this
Agreement.
"Effective Date" shall mean 26 October 2000, the effective date of this
Agreement.
"Force Majeure" shall have the meaning set forth in Section 13 hereof.
"Master Separation Agreement" shall have the meaning set forth in the recitals
of this Agreement.
"Providing Company" shall mean, with respect to any particular Service, the
party or its subsidiaries identified on Exhibit I hereto and, if applicable,
Exhibit II hereto, as the party to provide such Service.
"Receiving Company" shall mean, with respect to any particular Service, the
party or its subsidiaries identified on Exhibit I hereto, and, if applicable,
Exhibit II hereto, as the party to receive such Service.
"Services" shall have the meaning set forth in Section 2.1 hereof.
"Transfer Date" shall mean 26 October 2000, the effective time and date of the
transfer of the property and assets between Providing Company and Inficon
Aktiengesellschaft pursuant to the Asset Purchase Agreement between Providing
Company and Inficon Aktiengesellschaft, dated as of 26 October 2000 entered into
in connection with the Inficon Restructuring and of the property and assets
between Providing Company and Inficon GmbH pursuant to the Asset Purchase
Agreement between Providing Company and Inficon GmbH, dated as of 26 October
2000 entered into in connection with the Inficon Restructuring.
"Unaffiliated Person" means any person that is not affiliated with any Party of
this Agreement.
"VAT" means value added tax or any similar tax on the consumption of goods or
services levied in any applicable jurisdiction.
2. Services.
2.1 Services Generally. Except as otherwise provided herein, Providing
Company shall provide or cause to be provided to Receiving Company the services
(the "Services") described in Exhibit I hereto. The Services shall be provided
by Providing Company on a continuous basis for the term of the Agreement set
forth in Section 3.1. Receiving Company shall not be required to furnish
specific orders for Services to be provided by Providing Company hereunder.
2.2 Additional Services. From time to time after the Effective Date,
the Parties may identify additional Services that Providing Company will provide
to Receiving Party in accordance with the terms and conditions of this Agreement
(the "Additional Services").
2
Accordingly, the Parties shall amend this Agreement to include Additional
Services on Exhibit II hereto.
2.3 Obligation to Provide Additional Services. Except as set forth in
the next sentence, Providing Company shall be obligated to perform, at a
reasonable charge, any Additional Service that: (A) was provided by Providing
Company or its predecessor in interest immediately prior to the Transfer Date
and that Receiving Company reasonably believes was inadvertently or
unintentionally omitted from the list of Services or (B) is essential to
effectuate an orderly transition following the Inficon Restructuring unless such
performance would significantly disrupt Providing Company's operations or
materially increase the scope of its responsibility or obligations under this
Agreement. If Providing Company reasonably believes the performance of
Additional Services required under subparagraphs (A) or (B) would significantly
disrupt its operations or materially increase the scope of its responsibility or
obligations under this Agreement, Providing Company and Receiving Company shall
negotiate in good faith to establish the terms under which Providing Company can
provide such Additional Services and use their best efforts to reach an
agreement thereon, but Providing Company shall not be obligated to provide such
Additional Services if, following good faith negotiation, it is unable to reach
agreement with Receiving Company.
3. Term.
3.1 Term. The term of this Agreement shall commence on the Effective
Date and shall remain in effect for an unlimited period of time, unless
terminated pursuant to Section 7 or agreed otherwise by the parties.
4. Compensation.
4.1 Fees for Services. Receiving Company shall pay Providing Company
the service fee set forth on Exhibit I or, if applicable, Exhibit II hereto, for
each of the Services listed therein as adjusted, from time to time, in
accordance with the process and procedures established under Section 4.4 hereof.
Such service fee shall be based on a fixed annual amount to be calculated on the
budgeted direct or indirect cost of providing such Services hereunder plus seven
percent (7 %) and remain fixed through the end of the current year unless
Additional Services are provided at the request of the Receiving Company in
accordance with Section 2.3 of this Agreement. The Parties also intend for the
service fee payable hereunder to be easy to administer and, therefore, hereby
acknowledge it may be counterproductive to try to recover every cost, fee, or
expense, particularly those that are insignificant or de minimis. If the
Providing Party has determined that the estimated fee for the next calendar year
will exceed, or be less than, the fee for the current year, it shall notify the
Receiving Party of such determination no later than October 31 of the current
year and in case of a fee increase provide the Receiving Party with proper
documentation in support of its determination. The Parties shall discuss any
such situation and use their best efforts to reach an agreement on the fee to be
paid for the following calendar year; provided, however, that failure to reach
agreement on a fee increase proposed by the Providing Party shall not justify
stopping the provision of, or payment for, Services under this Agreement but
that the Receiving Party may terminate the agreement pursuant to Section 7.1(a)
of this Agreement.
3
4.2 Payment Terms. Providing Company shall xxxx Receiving Company
monthly for all fees pursuant to this Agreement. Such bills shall be accompanied
by reasonable documentation or other reasonable explanation supporting such
charges. The Service Fee shall be due on the first day of each month and shall
be payable by Receiving Company within sixteen (16) days after receipt of a
proper invoice therefore. Late payments beyond sixty (60) days of the date of
the invoice shall be subject to an interest charge at 8 percent (8 %) per annum
of the invoiced amount, calculated on a daily basis, commencing on the
sixty-first day of the date of the invoice.
4.3 VAT. The amounts determined in accordance with this Section 4 are
exclusive of VAT (which shall be paid by the Receiving Company in the manner and
the rate prescribed by law from time to time) and it is the responsibility of
both the Receiving Company and the Providing Company to ensure that the correct
VAT treatment is applied in respect of a Service provided.
4.4 Performance Under Ancillary Agreements. Notwithstanding anything to
the contrary contained herein, Receiving Company shall not be charged under this
Agreement for any obligations that are specifically required to be performed
under any Ancillary Agreement and any such other obligations shall be performed
and charged for (if applicable) in accordance with the terms of such other
Ancillary Agreement.
4.5 Accounting. Before the Transfer Date, the Parties shall agree on a
process and procedure for conducting internal audits and making adjustments to
fees as a result of the movement of employees and functions between Parties, the
discovery of errors or omissions in fees, as well as a true-up of amounts owed.
In no event shall such processes and procedures extend beyond one (1) year after
completion of a particular Service.
4.6 Pricing Adjustments. In the event of a tax audit adjustment
relating to the pricing of any or all Services provided pursuant to this
Agreement in which it is determined by a taxing authority that any of the fees,
individually or in the aggregate, did not result in an arm's-length payment, as
determined under internationally accepted arm's-length standards, then the
Parties may agree to make corresponding adjustments to the fees in question for
such period to the extent necessary to achieve arm's-length pricing. Any
adjustment made pursuant to this Section 4.5 shall be reflected in the Parties'
legal books and records, and the resulting overpayment or underpayment shall
create an obligation to be paid in the manner specified in Section 4.2.
5. General Obligations; Standard of Care.
5.1 Performance of Providing Company. Providing Company shall maintain
a high professional standard of care in rendering the Services hereunder.
Subject to Section 6.3, Providing Company shall maintain sufficient resources to
perform its obligations to provide Services hereunder. Providing Company shall
use reasonable efforts to provide Services to Receiving Company in accordance
with the policies, procedures and practices in effect before the date hereof and
shall exercise the same care and skill as it exercises in performing similar
services for itself.
4
5.2 Performance of Receiving Company. Receiving Company shall use
reasonable efforts, in connection with receiving Services, to follow the
policies, procedures and practices in effect before the date hereof, including
providing information and documentation sufficient for Providing Company to
perform the Services and making available, as reasonably requested by the
Providing Company, sufficient resources and timely decisions, approvals and
acceptances in order that Providing Company may accomplish its obligations to
provide Services hereunder in a timely manner.
5.3 Changes in Provision of Services. The Parties acknowledge that
Providing Company may make changes from time to time in the manner of performing
the Services if the Providing Company is making similar changes in performing
similar services for itself and if Providing Company furnishes to Receiving
Company reasonable advance notice of not less than three month regarding such
changes.
5.4 Responsibility for Errors; Delays. Providing Company's sole
responsibility to Receiving Company:
(a) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the
Services, at no additional cost or expense to Receiving
Company; provided Receiving Company must promptly advise
Providing Company of any such error or omission of which it
becomes aware after having used reasonable efforts to detect
any such errors or omissions in accordance with the standard
of care set forth in Section 5.1; and
(b) for failure to deliver any Service because of
impracticability, shall be to use reasonable efforts, subject
to Section 6.2, to make the Services available and/or to
resume performing the Services as promptly as reasonably
practicable.
5.5 Good Faith Cooperation; Consents. The Parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
providing electronic access to systems used in connection with Services,
performing true-ups and adjustments and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each Party to perform its
obligations hereunder. The costs of obtaining such third party consents,
licenses, sublicenses or approvals shall be borne by the Receiving Company. The
Parties will maintain documentation supporting the information contained in
Exhibit I hereto and cooperate with each other in making such information
available as needed in the event of a tax audit, whether in the country of the
Providing Company or any other country.
5.6 Alternatives. If Providing Company reasonably believes it is unable
to provide any Service because of a failure to obtain necessary consents,
licenses, sublicenses or approvals pursuant to Section 5.6 or because of
impracticability, the Parties shall cooperate to determine the best alternative
approach. Until such alternative approach is found or the problem otherwise
resolved to the satisfaction of the Parties, Providing Company shall use
reasonable efforts, subject to Section 6.1 and Section 6.2, to continue
providing the Service or, in the case of
5
systems, to support the function to which the system relates or permit Receiving
Company to have access to the system so Receiving Company can support the
function itself. To the extent an agreed upon alternative approach requires
payment above and beyond that which is included in the Providing Company's fee
for the Service in question, such payment shall be made by Receiving Company
unless they otherwise agree in writing.
6. Certain Limitations.
6.1 Impracticability. Providing Company shall not be required to
provide any Service to the extent the performance of such Service becomes
"impracticable" as a result of a cause or causes outside the reasonable control
of Providing Company including unfeasible technological requirements, or to the
extent the performance of such Services would require Providing Company to
violate any applicable laws, rules or regulations or would result in the breach
of any software license or other applicable contract or any Ancillary Agreement.
6.2 Additional Resources. Except as provided in the relevant Exhibit
for a specific Service, in providing the Services, Providing Company 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 Receiving Company's data to Receiving Company or any alternate
supplier of Services.
7. Termination.
7.1 Termination.
(a) Any Party may terminate this Agreement, either with respect to
all or with respect to any one or more of the Services, without cause, at any
time upon six (6) months prior written notice to the other Parties;
(b) Subject to the provisions of Section 14 below, any Party may
terminate this Agreement with respect to a specific Service if the other party
materially breaches a material provision with regard to that particular Service
and does not cure such breach (or does not take reasonable steps required under
the circumstances to cure such breach going forward) within sixty (60) business
days after being given written notice of the breach; provided, however, that the
non-terminating party may request that the parties engage in a dispute
resolution negotiation as specified in Section 14 below prior to termination for
breach; and
(c) Any Party may terminate this Agreement, either with respect to
all or with respect to any one or more of the Services, if a Change of Control
occurs with respect to the other Party to the Agreement within six month of
being notified in writing of such Change of Control, unless the terminating
Party has consented to such Change of Control.
7.2 Survival. Those Sections of this Agreement that, by their nature,
are intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
6
7.3 Effect of Termination. In the event of a termination, all
outstanding fees shall become immediately due and payable and all documents
delivered in connection with a terminated service shall be returned by the
recipient thereof immediately upon request by the delivering party.
8. Relationship Between the Parties.
The relationship between the Parties established under this Agreement
is that of independent contractors and neither party is an employee, agent,
partner, or joint venture of or with the other. Providing Company will be solely
responsible for any employment-related taxes, insurance premiums or other
employment benefits respecting its personnel's performance of Services under
this Agreement. Receiving Company agrees to grant Providing Company personnel
access to sites, systems and information (subject to the provisions of
confidentiality stated below) as necessary for Providing Company to perform its
obligations hereunder. Providing Company personnel agree to obey any and all
security regulations and other published policies of Receiving Company.
9. Subcontractors/Agents.
Providing Company may engage a "subcontractor" or "agent" to perform
all or any portion of Providing Company's duties under this Agreement; provided
that any such subcontractor or agent agrees in writing to be bound by
confidentiality obligations at least as protective as the terms of Section 11
regarding confidentiality below; provided further that Providing Company remains
responsible for the performance of such subcontractor or agent; and provided
further that such engagement of a subcontractor may not increase the
compensation owed under the terms of this Agreement. As used in this Section 9,
"subcontractor" or "agent" means any individual, partnership, corporation, firm,
association, unincorporated organization, joint venture, trust or other entity
engaged BY Providing Company to perform Services hereunder.
10. Confidentiality.
During the term of this Agreement, a Party may receive or have access
to certain information of the other Party that is marked as "Confidential
Information," including, though not limited to, information or data related to
any Party's products (including the discovery, invention, research, improvement,
development, manufacture, or sale thereof), processes, or general business
operations (including sales, costs, profits, pricing methods, organization,
employee or customer lists and processes), and any information obtained through
access to any information assets or information systems (including computers,
networks, voice mail, etc.), which, if not otherwise described above, is of such
a nature that a reasonable person would believe to be confidential (together
"Confidential Information"). Each Party agrees to hold confidential all
Confidential Information furnished to it under this Agreement, except for
information which (a) is in the public domain or enters the public domain other
than by such Party's breach of this Agreement, (b) is disclosed to such Party
without restrictions of confidentiality by a third person who is not in breach
of an obligation of confidentiality in doing so, or (c) is required to be
disclosed by any applicable law or regulation or by order of a judicial or
administrative authority having jurisdiction.
7
11. Limitation of Liability.
Neither Party will be liable to the other for any lost profits, loss of
data, loss of use, cost of cover, business interruption or other special,
incidental, indirect, punitive or consequential damages, however caused, under
any theory of liability, arising from the performance of any Service hereunder,
or relating to this Agreement, except to the extent such liability may not be
excluded under provisions of applicable law.
12. Force Majeure.
Each Party shall be excused for any failure or delay in performing any
of its obligations under this Agreement, other than the obligations of Receiving
Company to make certain payments to Providing Company pursuant to Section 4
hereof for Services rendered, if such failure or delay is caused by Force
Majeure. "Force Majeure" means any act of God or the public enemy, any accident,
explosion, fire, storm, earthquake, flood, or any other circumstance or event
beyond the reasonable control of the party relying upon such circumstance or
event.
13. Dispute Resolution.
13.1 Negotiation. The Parties shall make a good faith attempt to
resolve any dispute or claim arising out of or related to this Agreement through
negotiation. Within thirty (30) days after notice of a dispute or claim is given
by any party to the other parties, the parties' negotiating teams shall meet and
make a good faith attempt to resolve such dispute or claim and shall continue to
negotiate in good faith in an effort to resolve the dispute or claim or
renegotiate the applicable section or provision without the necessity of any
formal proceedings. During the course of negotiations under this Section 13.1,
all reasonable requests made by one Party to the other, for information,
including requests for copies of relevant documents, will be honored. The
specific format for such negotiations will be left to the discretion of the
designated negotiating teams but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the other
Parties.
13.2 Arbitration. In the event that any dispute or claim arising out of
or related to this Agreement is not settled by the Parties within fifteen (15)
days after the first meeting of the negotiating teams under Section 13.1, the
Parties will attempt in good faith to resolve such dispute or claim by
arbitration in accordance with the International Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one arbitrator appointed
in accordance with such Rules. The language of any such arbitration shall be
English and the forum shall be the Republic of France. The arbitration shall be
held as soon as practicable after the end of such fifteen (15) day negotiation
period. Except as provided below in Section 13.3, no litigation for the
resolution of such dispute may be commenced until the Parties make a good faith
effort to settle the dispute by such arbitration in accordance with such rules
and the Parties has concluded in good faith that amicable resolution through
continued arbitration of the matter does not appear likely. The costs of
arbitration shall be shared equally by the Parties to the arbitration. Any
settlement reached by arbitration shall be recorded in writing, signed by the
Parties, and shall be binding on them.
8
13.3 Proceedings. Nothing herein, however, shall prohibit a Party from
initiating litigation or other judicial or administrative proceedings if such
Party would be substantially harmed by a failure to act during the time that
such good faith efforts are being made to resolve the dispute or claim through
negotiation or arbitration. In the event that litigation is commenced under this
Section 13.3, the Parties agree to continue to attempt to resolve any dispute
according to the terms of Sections 13.1 and 13.2 during the course of such
litigation proceedings under this Section 13.3.
14. Miscellaneous.
14.1 Entire Agreement. This Agreement, together with the Exhibits
hereto, constitutes the entire agreement between the Parties with respect to the
subject matter hereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
14.2 Governing Law. This agreement will be governed by and construed in
accordance with the laws of France regardless of the laws that might otherwise
govern under principles of conflicts of laws applicable thereto.
14.3 Consent to Jurisdiction. Subject to the dispute resolution
procedures of Section 13 of this Agreement, each of the Parties irrevocably
submits to the exclusive jurisdiction of France and, in each case, any appellate
court therein, for the purpose of any suit, action or proceeding against it
arising out of or related to this Agreement ("proceedings"). Each of the Parties
irrevocably waives, to the fullest extent permitted by law, any objection that
it may have to the laying of the venue of any such proceedings brought in such a
court any claim that any such proceedings have been brought in an inconvenient
forum. Each of the Parties agrees that final judgment in any proceedings brought
in such a court shall be conclusive and binding upon such Party and may be
enforced in any court of the jurisdiction of which it is subject by a suit upon
such judgment; provided that service of process is effected upon such party in
accordance with the laws of the jurisdiction of France.
14.4 Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
14.5 Notices. All notices and other communications hereunder will be in
writing and will be deemed to have been duly given when delivered in person, by
telecopy with answer back, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
9
if to Providing Company: Leybold Vacuum France SAS, 0, xxxxxx xx
Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx (00000), Xxxxxx
if to Receiving Company: Inficon SARL, 0, xxxxxx xx Xxxxxx, X.X. xx
Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx (00000), Xxxxxx
or to such other address as the Party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person will be deemed effective upon
delivery. Any notice or communication sent by telecopy or by air courier will be
deemed effective on the first business day at the place at which such notice or
communication is received following the day on which such notice or
communication was sent. Any notice or communication sent by registered or
certified mail will be deemed effective on the third business day at the place
from which such notice or communication was mailed following the day on which
such notice or communication was mailed. As used in this Agreement, "business
day" means day other than a Saturday, a Sunday or a day on which banking
institutions located in the jurisdictions where Receiving Company and Providing
Company are located are authorized or obligated by law or executive order to
close.
14.6 Nonassignability. Except as specifically permitted under Section 9
above, no Party may, directly or indirectly, in whole or in part, whether by
operation of law or otherwise, assign or transfer this Agreement, without the
prior written consent of the other Parties hereto, and any attempted assignment,
transfer or delegation without such prior written consent shall be voidable at
the sole option of the other Parties. Notwithstanding the foregoing, any Party
(or its permitted successive assignees or transferees hereunder) may assign or
transfer this Agreement as a whole without consent to an entity that succeeds to
all or substantially all of the business or assets of such Party. Without
limiting the foregoing, this Agreement will be binding upon and inure to the
benefit of the Parties and their permitted successors and assigns.
14.7 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the Parties will negotiate in
good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible.
14.8 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Party in the exercise of any right hereunder will impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any provision of
this Agreement, nor will any single or partial exercise of any such right
preclude other or further exercise of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
14.9 Amendment. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the Parties to
this Agreement.
10
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed in duplicate originals by its duly authorized
representatives.
Leybold Vacuum France SAS
/s/ Xx. Xxxxxx Xxxxxx
-------------------------------
By: Xx. Xxxxxx Xxxxxx
Title: President
Inficon SARL
/s/ Xx. Xxxx-Xxxxxx Xxxxxxx
-------------------------------
By: Xx. Xxxx-Xxxxxx Xxxxxxx
Title: Manager (Gerant)
11
EXHIBIT I
SERVICES
Providing Company: Leybold Vacuum France SAS
Address: 0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx
(00000), Xxxxxx
Telephone: x00 0 00 00 00 00
Facsimile: x00 0 00 00 00 00
Contact Person: Xx. Xxxxxx Xxxxxx
Receiving Company: Inficon SARL
Address: 0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx
(00000), Xxxxxx
Telephone: x00 0 00 00 00 00
Facsimile: ___________
Contact Persons: Xx. Xxxxxx Xxxxxxx, Xx. Xxxxx-Xxxxxx Xxxxx
Country of Providing Company: France
A. Description of Services
1. Finance and business administration:
- Establishing and implementation of cost accounting and information
systems
- Financial accounting including without limitation the preparation of the
statutory accounts and all relevant tax returns
- Group reporting
- Switchboard and receptionist
2. Personnel:
- Personnel administration including without limitation the preparation of
the payroll and the payment of the salary and social costs as required
by French law
3. Warehousing
B. Location of Services
0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx (00000),
Xxxxxx
C. Initial Service Date
26 October 2000
D. Service Fee
FRF 323,000 per year divided as follows:
- FRF 286,000 for finance and business administration and personnel,
- FRF 37,000 for warehousing.
EXHIBIT II
ADDITIONAL SERVICES
Providing Company: Leybold Vacuum France SAS
Address: 0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx
(00000), Xxxxxx
Telephone: x00 0 00 00 00 00
Facsimile: x00 0 00 00 00 00
Contact Person: Xx. Xxxxxx Xxxxxx
Receiving Company: Inficon SARL
Address: 0, xxxxxx xx Xxxxxx, X.X. xx Xxxxxxxxxxx, Xxxxxxxx-xxx-Xxxxxx
(00000), Xxxxxx
Telephone: __________
Facsimile: ___________
Contact Person: ____________________
Country of Providing Company: France
A. Description of Additional Services
B. Location of Additional Services
C. Initial Service Date
D. Service Fee
