Exhibit 10.43
AMENDMENT NO. 3 TO RUST INTERCORPORATE SERVICES AGREEMENT
This Amendment No. 3 (the "Amendment") to that certain Rust Intercorporate
Services Agreement (the "Services Agreement") dated as of January 1, 1993 by and
among WMX Technologies, Inc. (formerly known as Waste Management, Inc.) ("WMX"),
Chemical Waste Management, Inc. ("CWM"), Wheelabrator Technologies Inc. ("WTI")
and Rust International Inc. ("Rust" or the "Company"), all Delaware
corporations, is made as of December 31, 1995 by and among WMX, CWM, WTI and
Rust.
RECITALS
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WHEREAS, WMX, CWM, WTI and Rust desire to amend the Services Agreement in
order for WMX and its Subsidiaries to provide additional services in connection
with the management of Rust Industrial Services Inc. ("RIS"), a wholly owned
subsidiary of Rust, as set forth herein; and
WHEREAS, WMX, CWM, WTI and Rust desire to alter the administrative
arrangements which apply to the employee benefit and welfare plans (other than
stock option plans) referred to in the Services Agreement to reflect
organizational changes in Rust;
NOW, THEREFORE, in consideration of the mutual promises herein set forth and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
AGREEMENTS
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1. RIS Services. Section 2(f) is added to the Services Agreement to read in
its entirety as follows:
"(f) RIS Services. WMX shall cause its Subsidiaries to operate and manage
the business of RIS in a reasonable and prudent manner and in accordance
with all applicable statutes, regulations, ordinances, rules, governmental
consent agreements and orders, as well as such policies and procedures
applicable to scaffolding services, industrial cleaning services, and
utility services as may be adopted from time to time by Rust or RIS,
subject to such exceptions or modifications thereto as Rust or RIS and WMX
may from time to time agree upon. All capital and other expenditures
incurred with respect to the business of RIS shall be for the account of
RIS and shall be subject to approval by RIS in accordance with the
procedures which shall be established by RIS. Notwithstanding the
provisions of Section 9 of the Services Agreement, for providing such
operation and management services to RIS, WMX and its Subsidiaries shall be
allowed to allocate regional and corporate overhead to RIS on a basis no
less favorable than the basis on which WMX and its Subsidiaries allocate
such overhead to their other, wholly owned operating units."
2. Employee Benefits and Benefit Services. Section 6 of the Services
Agreement is hereby amended to read in its entirety as follows:
"6. Employee Benefits and Payroll and Benefit Services by the
Company. (a) Responsibility for Savings and Retirement Plan. With
respect to the Wheelabrator-Rust Savings and Retirement Plan jointly
sponsored by the Company and WTI, the Company shall be responsible for all
claims incurred under such plan and all contributions required by the terms
of such plan with respect
to employees of the Company or any of its Subsidiaries and WTI shall be
responsible for all claims incurred under such plan and all contributions
required by the terms of such plan with respect to employees of WTI or any
of its Subsidiaries. If in the future WTI or any of its Subsidiaries
establishes one or more savings and retirement plans for the benefit of its
and its Subsidiaries' employees, the Company shall cause the trustees of
the Savings and Retirement Plan to transfer to the trustees of such WTI
retirement plan or plans cash, securities or other property, or a
combination thereof, as determined by the Company, subject to approval by
WTI (which shall not be unreasonably withheld), in an amount equal to the
aggregate account balance of WTI's and its Subsidiaries' affected present
or former employees (other than present or former employees of the Company
or its Subsidiaries) as of the date of the transfer.
"(b) Benefits Administration. WTI shall be solely responsible for the
administration of employee benefit plans sponsored by WTI or any of its
Subsidiaries ("WTI Plans"). However, if requested by WTI, WMX shall cause
its Subsidiaries to provide to WTI and its Subsidiaries benefits
administrative services with respect to such WTI Plans, including without
limitation:
(i) record keeping;
(ii) employee enrollment and termination;
(iii) claims and payout administration and processing;
(iv) ERISA and other legal and regulatory compliance;
(v) Internal Revenue Service reporting;
(vi) employee communication; and
(vii) preparation of reports.
Further, WMX agrees to cause its Subsidiaries to provide to WTI and its
Subsidiaries such benefits administrative services with respect to the
portion of any employee benefit plan sponsored by WMX or its Subsidiaries
which benefits employees of WTI or its Subsidiaries. For any such services
WTI shall pay to WMX or its Subsidiaries each calendar quarter during the
term of this Agreement, within 30 days after being notified of the amount
due, a quarterly fee equal to WTI's portion of WMX's costs and third party
charges or expenses related to administration of such plans, which portion
shall be the arithmetic average of the monthly percentages for the three
months of such quarter of all employees of all participating employers
eligible (or who would be eligible, but for the applicable waiting period)
to participate as of the end of each such month in the plan who were present
or former employees of WTI or its Subsidiaries as of the end of each month
(other than present or former employees of WMX or its Subsidiaries).
"(c) Separate Reports. To the extent legally required, benefits
administrative services to be provided by the Company, WMX or their
Subsidiaries shall be performed with respect to employees of WTI and its
Subsidiaries as a group separate and apart from employees of the Company,
WMX and their Subsidiaries. To the extent practicable, all reports
pertaining to benefits and benefit and welfare programs shall also be
prepared for employees of WTI and its Subsidiaries as a group separate and
apart from the Company, WMX and their Subsidiaries.
"(d) Review of Method of Allocation. Promptly after the end of each
year ending after the Effective Date, WMX and WTI shall review the method
set forth in Section 6(b) above for WTI's paying
charges, expenses or allocations and shall make such changes in such method
as are necessary or appropriate to ensure that the charges, fees or
allocations borne by WTI are proportionate to the services provided by WMX
or its Subsidiaries to WTI pursuant to this Section 6."
3. Other Provisions. Except as expressly set forth in this Amendment,
all provisions of the Services Agreement in effect immediately prior to the
execution and delivery of this Amendment shall remain in full force and effect
in accordance with their terms.
4. Choice of Law. This Amendment shall be interpreted and construed in
accordance with the internal laws (and not the conflicts laws rules) of the
State of Illinois applicable to contracts made and to be performed in the State
of Illinois.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
RUST INTERNATIONAL INC.
By: /s/ Xxx Xxxxx Xxxx
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Name: Xxx Xxxxx Xxxx
Title: Assistant Secretary
WMX TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
CHEMICAL WASTE MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Secretary
WHEELABRATOR TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Secretary
