Teaming Agreement - GTS Duratek Inc. and BNFL Inc.
TEAMING AGREEMENT
THIS TEAMING AGREEMENT (this "Agreement") is made this 7th day of
November 1995 by and between GTS Duratek, Inc., a Delaware corporation
("GTSD") and BNFL Inc., a Delaware corporation ("BNFL").
W I T N E S S E T H:
WHEREAS, GTSD has specialized knowledge, experience and rights to
technology for the vitrification of radioactive, hazardous and other wastes;
WHEREAS, BNFL possesses experience in the processing and stabilization
of radioactive waste which could complement the specialized knowledge,
experience and technology rights of GTSD for the treatment and handling of
wastes at DOE (as defined) sites throughout the United States and all of its
territories and possessions;
WHEREAS, GTSD and BNFL believe that a cooperative pursuit of contracts
and other potential business opportunities with the DOE to treat and handle
wastes at DOE sites throughout the United States and all of its territories
and possessions would be to the mutual benefit of both companies;
WHEREAS, GTSD and BNFL desire to establish a collaborative business
relationship and to support each other in the pursuit of potential business
opportunities for the treatment and handling of wastes at DOE sites;
WHEREAS, it is in the interest of the parties to use their reasonable
best efforts to apply marketing, contractual and technical resources in the
most effective manner in pursuing potential business opportunities for the
treatment and handling of wastes for the DOE;
WHEREAS, it is the desire of the parties to develop a total program
workshare that offers a satisfactory business opportunity for each while
placing the GTSD/BNFL team in the best competitive position;
WHEREAS, pursuant to the teaming arrangement provided herein, BNFL will
invest $10.0 million in GTSD in the form of a convertible subordinated
debenture (the "Convertible Debenture"), convertible into the common stock of
GTSD, $.01 par value per share (the "Common Stock"), as provided herein;
WHEREAS, pursuant to the teaming arrangement provided herein, BNFL will
provide research and development funding to GTSD for five (5) years, as
provided herein; and
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WHEREAS, pursuant to the teaming arrangement provided herein, GTSD shall
grant to BNFL a sublicense with respect to the vitrification technology for
use in the United Kingdom, as provided herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
provided herein, and other good and sufficient consideration, the receipt of
which is acknowledged by each party hereto, the parties agree as follows:
ARTICLE I
DEFINITIONS
In addition to those terms defined elsewhere herein, when used herein,
the following capitalized terms shall have the meanings indicated:
"AFFILIATE" of a specified person means a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the person specified.
"CONTRACT" means any contract awarded to GTSD, BNFL or a Project
Organization by the DOE in response to a Proposal.
"DOE" means the United States Department of Energy, its successor, or
any other agency or Person administering or operating the United States
Department of Energy sites around the United States and its territories and
possessions.
"PERSON" or "PERSON" means an individual, corporation, partnership,
limited liability company, firm, association, joint venture, trust,
unincorporated organization, government, governmental body, agency, political
subdivision or other entity.
"PROJECT" means a project for the treatment and handling of radioactive,
hazardous and other wastes at a particular DOE site by means of vitrification
and the related services in connection therewith. A Project will involve
services to be provided by GTSD, BNFL and/or a Project Organization in
accordance with the scope of work to be determined by the Steering Committee,
on a project by project basis, and which may include technologies and
services other than vitrification.
"PROJECT ORGANIZATION" means a newly formed corporation, partnership,
limited liability company, firm, joint venture, trust or other form of
business organization that is jointly owned, directly or indirectly, by GTSD,
BNFL and possibly other third parties, and was formed for the specific and
limited purpose of undertaking a Project.
"PROPOSAL" means a proposal submitted by either GTSD, BNFL or a Project
Organization, as agreed, in response to an RFP.
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"RFP" means any request for proposal issued by the DOE for the treatment
and handling of radioactive, hazardous and other wastes at a DOE site and the
related services in connection therewith.
"STEERING COMMITTEE" means the Vitrification Technology Steering
Committee established pursuant to Article VI hereof.
"SUBCONTRACT" means any subcontract entered into by and between any of
GTSD, BNFL and a Project Organization relating to work to be performed under
a Contract.
ARTICLE II
SCOPE OF ACTIVITIES
2.1. GTSD and BNFL agree to collaboratively seek and pursue five (5)
Projects with the DOE for the treatment and handling of radioactive,
hazardous and other wastes at various DOE sites throughout the United States.
2.2. The decision to pursue a Project will be determined by the Steering
Committee. To the extent that the Steering Committee identifies and decides
that GTSD and BNFL shall jointly pursue a Project, the Steering Committee
shall acknowledge in writing the pursuit of such Project in accordance with
the terms of this Agreement and a copy of such written acknowledgment shall
be provided to both GTSD and BNFL. The written acknowledgment shall also
contain the date, or the basis for determining the date, by which the Article
XII and Non-Competition Fee (as hereinafter defined) is required to be paid
pursuant to Section 3.2.
2.3 Once the DOE has issued an RFP for a Project that the Steering
Committee has determined that the parties should jointly pursue, the parties
shall collaborate in preparing and submitting a Proposal in response to the
RFP. At such time that such an RFP is issued, the Steering Committee shall
determine which party is to serve as the prime contractor (the "Prime
Contractor") with the DOE and which party shall serve as the subcontractor
(the "Subcontractor"). The parties shall regulate their relationship on a
particular Project through the issuance of subcontracts and agree to work
together in an exclusive prime contractor/subcontractor relationship as per
Article III herein. The scope of work shall be decided upon by the parties in
accordance with Article V below. Alternatively, the Steering Committee may
elect in its sole discretion to form a Project Organization to pursue the
Project and shall determine the structure and ownership of such entity and
the contribution of each party to such entity.
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ARTICLE III
EXCLUSIVITY; PAYMENT OF CERTAIN FEES
3.1. For Projects which the Steering Committee has determined that the
parties shall jointly pursue, upon such determination and the receipt by each
party of the written acknowledgment of such determination, each party hereto
shall: (i) not participate in any manner in the preparation or submission of
proposals to the DOE by itself or with a third party to the exclusion of the
other party; and (ii) not participate in any manner in furtherance of the
preparation of proposals to the DOE by or with any third party for
opportunities related to the Project, without the written consent of the
other party, which consent may be withheld in such other party's sole
discretion. Nothing herein shall be deemed to confer any right or impose any
obligation or restriction on either party with respect to any other project
other than a Project which the Steering Committee has determined to pursue.
Each party hereto shall not be precluded from its normal marketing and
business efforts in connection with the sale of standard products or services
not covered by this Agreement. Each party hereto shall not be precluded from
participating in a DOE project, as a subcontractor or otherwise, once the DOE
has awarded the project to a party other than BNFL, GTSD or a Project
Organization, provided that such party uses its best efforts to participate
in such DOE project with the other party hereto, unless the types of goods or
services required to be provided for such project or the economics of the
party's participation in such project do not make it commercially reasonable,
as determined in the reasonable discretion of the Steering Committee, to
jointly participate in such project.
3.2 Unless otherwise agreed upon by the Steering Committee, upon the
earlier of (i) three (3) business days after the issuance of an RFP by the
DOE for a Project that the Steering Committee has determined that the parties
should jointly pursue or (ii) the determination by the Steering Committee to
jointly pursue a Project and the determination by the Steering Committee to
commence work in earnest to prepare a Proposal for such Project (but in any
event not later than the submission of a Proposal pursuant to this provision
(ii)), BNFL shall pay to GTSD, subject to Section 3.6, the sum of $1.0
million (the "Article XII and Non-Competition Fee") in consideration of
GTSD's agreement to, (i) exclusively pursue the Project with BNFL, (ii)
provide the technology required under Article XII, and (iii) not compete with
BNFL and to exclusively team with BNFL and mutually acceptable third parties
with respect to preparing a proposal for the stabilization of radioactive
waste contained in the underground tanks of the DOE's Hanford Washington site.
3.3 GTSD shall be deemed to have earned the Article XII and
Non-Competition Fee simply by its agreement to the items specified in Section
3.2 and no further conditions or obligations shall be required to be
satisfied after the payment of the Article XII and Non-Competition Fee.
3.4 In the event that GTSD has not received the Article XII and
Non-Competition Fee within thirty (30) calendar days of when the obligation
of BNFL to pay such Article XII and Non-Competition Fee arose pursuant to
Section 3.2 above, then, in addition to its right to
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receive the Article XII and Non-Competition Fee, GTSD shall be free to pursue
the Project with another party and shall not be subject to the exclusivity
provisions of Section 3.1 herein with respect to that Project.
3.5 For purposes of this Agreement, the Steering Committee has
determined to pursue the Project for the stabilization of the radioactive
waste contained in the underground tanks at the DOE's Hanford, Washington
site and all of the conditions of Section 3.2 herein shall be deemed to have
been satisfied as of the date hereof. Accordingly, BNFL shall pay to GTSD
$1.0 million upon the execution and delivery of this Agreement.
3.6 The maximum aggregate amount of Article XII and Non-Competition
Fees to be paid by BNFL to GTSD pursuant to this Agreement shall be $5.0
million. In the event that BNFL, GTSD or a Project Organization is not
awarded any one or more of the Projects that the Steering Committee has
determined to pursue, GTSD agrees to exclusively team with BNFL on one (1)
additional Project for no additional Article XII and Non-Competition Fee,
provided that GTSD has received an aggregate of $5.0 million in Article XII
and Non-Competition Fees from BNFL.
3.7 Notwithstanding anything contained herein to the contrary, in the
event that BNFL is (i) debarred or suspended from doing business with the DOE
or the United States Government or (ii) legally prohibited in any way from
being involved in a Project, then the exclusivity provisions contained in
this Article III shall be suspended until such time as BNFL is legally
permitted do business with the DOE and to be involved in a Project.
3.8 Notwithstanding anything herein to the contrary, in the event that
GTSD has defaulted on any of its payment obligations under the Convertible
Debenture, BNFL shall be entitled to offset the amounts owed to GTSD as
Article XII and Non-Competition Fees until such time as the payment default
has been cured or the payment default has been waived by BNFL. All amounts
so offset shall be applied in whole toward the cure of the payment default
under the Convertible Debenture.
ARTICLE IV
PREPARATION AND SUBMISSION OF PROPOSALS
4.1. The parties agree that the Prime Contractor shall serve as the
primary interface with the DOE in the pursuit of a Contract for a Project.
4.2. The Subcontractor shall submit in a timely manner an offer to the
Prime Contractor for the Subcontractor's respective scope of work to be
integrated into the Proposal to be submitted to the DOE by the Prime
Contractor. The offer to be submitted by the Subcontractor to the Prime
Contractor shall include the necessary technical and price information for
the goods and/or services to be provided by the Subcontractor, and support
and backup
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therefor, so that the Prime Contractor can complete the Proposal in an
appropriate manner. The Subcontractor shall bear all of the costs and
expenses associated with preparing the offer that is submitted to the Prime
Contractor. The Prime Contractor shall incorporate the relevant offer by the
Subcontractor in the Proposal and shall submit the Proposal to the DOE.
4.3 The Prime Contractor shall have the overall responsibility for the
preparation and submission of a Proposal, including the document preparation
cost for the Proposal. The parties agree to submit the Proposal for review
by the Steering Committee before submission to the DOE and the Steering
Committee shall have approved the Proposal prior to its submission. In no
event shall the Prime Contractor be entitled to modify or amend the offer
from the Subcontractor to be incorporated in the Proposal without the prior
written consent of the Subcontractor. Each party shall bear its own risks,
costs, fees and other expenses incurred in connection with the preparation
and submission of a Proposal. After submission of a Proposal to the DOE, the
parties shall provide such services and information as are reasonably
required for evaluation of the Proposal and negotiation of the resulting
Contract.
4.4. The Prime Contractor shall be responsible for carrying out all
negotiations with the DOE. If requested by the Prime Contractor, the
Subcontractor, at its own expense, shall participate in presenting and
negotiating with the DOE with a view to obtaining an award to the Prime
Contractor of the Contract. The Prime Contractor shall keep the
Subcontractor informed of the progress and content of the negotiations with
the DOE. The Prime Contractor shall not agree to any amendment to the
Proposal which affects the rights and obligations of the Subcontractor
without the prior written consent of the Subcontractor, which consent shall
not be unreasonably withheld or delayed.
4.5. The parties hereby undertake to provide each other with prompt
notification in the event either party determines that it may not be in its
best interest, or the best interest of both parties, to pursue the Project
and enter into a Contract with the DOE.
ARTICLE V
SUBCONTRACTS
5.1 In the event that a Contract is awarded to the Prime Contractor
based on a Proposal, the Prime Contractor shall, as soon as practicable,
place a subcontract (the "Subcontract") with the Subcontractor for its
respective scope of work consistent with the terms of the offer submitted by
the Subcontractor to the Prime Contractor and included in the Proposal.
5.2 It is understood by the parties that the Prime Contractor may enter
into an agreement with other potential subcontractors in support of
opportunities in which the parties hereto are jointly pursuing provided that
such potential subcontractor shall not provide goods or services which the
Subcontractor is capable of providing and willing to provide on commercially
reasonable terms. Subcontractor shall be permitted (as a subcontractor) to
enter into a
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subcontract with a third party provided that the Steering Committee has
approved such third party subcontractor and the terms and conditions of the
subcontract with such third party.
5.3 The parties agree that the proportion and content of work to be
undertaken by each party in respect of each Project shall be generally
consistent with the scope of work as determined by the Steering Committee.
The parties recognize that as the RFP and as a Project are more clearly
defined, changes to the scope of work to be performed by each party may be
necessary to meet the requirements of the DOE. In such cases the parties
shall agree upon reasonable variations to the scope of work for each party
for that particular Project in such a way so that the final scope of work for
each party for that particular Project shall be as close as possible to the
proportion and content of its scope of work initially determined by the
Steering Committee.
ARTICLE VI
STEERING COMMITTEE
6.1 A Steering Committee shall be established by the parties. The
Steering Committee shall consist of one representative of GTSD and one
representative of BNFL (each a "Representative" and collectively the
"Representatives"). The initial Representative designated by GTSD shall be
Robert E. Prince and the initial Representative designated by BNFL shall be
Richard H. Peebles. Replacement of the designated Representative, either
permanently or at any time, by a particular party shall require the written
consent of the other party, which consent shall not be unreasonably withheld
or delayed.
6.2 Meetings of the Steering Committee shall be held at least once
every three (3) months upon five (5) business days notice to the
Representatives and such notice shall be accompanied by an agenda determined
by the Representatives. Should circumstances so require, a meeting shall be
held at any time at the request of either of the parties. The meeting shall
only be held with the presence of both of the Representatives. Decisions of
the Steering Committee shall be made by mutual agreement with each
Representative acting and negotiating in good faith. The Steering Committee
cannot act or make any determination without the approval of both
Representatives.
6.3 The Representatives shall, prior to the commencement of each
meeting, elect a secretary to take minutes of the meeting. The secretary of a
Steering Committee meeting need not be one of the Representatives. The
secretary shall distribute copies of the minutes of the meeting to both of
the parties within ten (10) calendar days after the meeting. Such minutes
shall be deemed to have been accepted by the parties unless comments are made
in writing within ten (10) calendar days of their receipt by said parties.
6.4 The Steering Committee shall have the following responsibilities
and shall be empowered to take the following actions:
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(i) Overall governance of the collaborative relationship of the
parties as contemplated by this Agreement;
(ii) Determine the Projects to be pursued jointly by the parties
and provide written acknowledgment of such determination to each of the
parties;
(iii) Determine which party shall serve as the Prime Contractor and
which shall serve as the Subcontractor on a particular Project or,
alternatively, determine to form a Project Organization to undertake a
particular Project and the structure, ownership and contribution of each of
the parties to such Project Organization;
(iv) Determine when to commence work on a particular Project;
(v) Determine the scope of work to be provided by each of the
parties and any appropriate modifications or amendments thereto;
(vi) Review the final Proposal to be submitted to the DOE in
response to an RFP and have final approval over such Proposal;
(vii) Approve the appointment of any agents engaged or retained by
any of the parties in connection with the pursuit of a Project;
(viii) Act in an advisory capacity concerning the negotiation of
Contracts and the performance of such Contracts and resulting Subcontracts;
(ix) Interpret the meanings of "most favored nation" and "preferred
partner," as such terms are used in Article VIII, and set forth such meanings
in a memorandum submitted to each of the parties;
(x) Determine the total capital cost of a Project and the capital
cost of the Project related to the verification portion and provide written
notice to each of the parties of such determination;
(xi) Determine the budget for the expenditure of research and
development funds and provide authorization to expend such funds pursuant to
Article XIV;
(xii) Attempt to solve expeditiously any conflict between the
parties related to this Agreement; and
(xiii) Delegate any of the authority of the Steering Committee to
appropriate individuals or groups as may be determined unanimously by the
Steering Committee, provided that such delegation can be revoked by either
Representative upon written notice.
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6.5 Each Representative has an obligation to inform the other
Representative of any possible projects or business opportunities which may
be contemplated by this Agreement, and the Representatives will make a
decision whether to jointly pursue such projects or business opportunities in
a timely fashion in light of all relevant and appropriate business
considerations.
6.6 Each Representative shall designate a deputy (each a "Deputy
Representative" and collectively the "Deputy Representatives") who shall act
on his behalf only in the event that the Representative is unavailable and
action of the Steering Committee is to be taken. Each Deputy Representative
may attend all meetings of the Steering Committee and may participate in such
meetings but shall not vote at such meetings unless the Deputy Representative
is acting on behalf of his Representative pursuant to the preceding sentence.
The initial Deputy Representative designated by Robert E. Prince shall be
Robert F. Shawver and the initial Deputy Representative designated by Richard
H. Peebles shall be determined at a later time provided that such initial
Deputy Representative is subject to the approval of Robert E. Prince.
Replacement of the designated Deputy Representative, either permanently or at
any time, by a particular Representative shall require the written consent of
the other Representative, which consent shall not be unreasonably withheld or
delayed.
6.7 In the event that the Representatives cannot agree on a matter
under the authority of the Steering Committee and such inability to reach an
agreement continues for sixty (60) calendar days or such other period of time
that causes the interests of one or both of the parties to be adversely
affected, then the Representatives shall consider in good faith either (i)
delegating the authority of the Steering Committee to such other members of
their respective organizations who may be appropriate to assume such
authority or (ii) adopting such other appropriate means for resolving the
disagreement.
ARTICLE VII
CLASSIFIED INFORMATION
Access to classified information may be required in the performance
of the services hereunder and both parties shall use their best efforts to
meet the applicable security clearance requirements of the DOE and the United
States Government at all times relevant to this Agreement.
ARTICLE VIII
OTHER COVENANTS AND AGREEMENTS BETWEEN THE PARTIES
8.1 Unless otherwise agreed, until the later of (i) the termination of
this Agreement or (ii) BNFL no longer owns an interest in GTSD, BNFL hereby
agrees to perform, directly or through a subcontractor or other party,
vitrification of any substance only with GTSD, provided that BNFL and GTSD
can agree on mutually acceptable terms and conditions.
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8.2 BNFL and GTSD agree to extend to each other a "most favored nation"
approach for working jointly on any projects.
8.3 (a) BNFL and GTSD intend to jointly pursue vitrification projects
on a "preferred partner" basis.
(b) The parties will meet at least once every six (6) months to
discuss potential opportunities and strategies for pursuing projects outside
of the United States.
8.4 The parties will use their reasonable efforts to cause their
respective Affiliates to comply with the provisions of Sections 8.1, 8.2 and
8.3(a).
8.5 If GTSD is intending to borrow funds from a lender whereby it is
contemplated that such lender would have a security interest in the GTSD
Technology (as hereinafter defined), then GTSD covenants and agrees that it
shall use its best efforts to cause such lender (the "Lender") to execute as
part of the loan documents (the "Loan") a non-disturbance agreement, or
similar provision having like effect, granting to GTSD, BNFL or their
Affiliates, as appropriate, the limited, non-exclusive right to continue
using the GTSD Technology on any projects jointly undertaken by GTSD and BNFL
or by a Project Organization with terms substantially similar to those given
by First Fidelity Bank, N.A. to GTSD and BNFL in its non-disturbance
agreement of even date herewith (as determined in the reasonable discretion
of the Steering Committee) (any such agreement or provision referred to
herein as a "Non-Disturbance Agreement"). If, after GTSD uses such best
efforts for a reasonable time and the Lender will not agree to give a
Non-Disturbance Agreement, BNFL shall join the negotiations with GTSD and the
Lender solely on the issue of the Non-Disturbance Agreement and BNFL shall
use its best efforts to persuade the Lender to give a Non-Disturbance
Agreement. If, after BNFL uses such best efforts for a reasonable time, the
Lender will not agree to give a Non-Disturbance Agreement, GTSD shall be
permitted to enter into the Loan arrangement only if BNFL first consents in
writing to the Loan (the "Consent"); provided, however, that the Consent
shall be required only for the portions of the Loan which are required in
order to protect continuing access to the GTSD Technology as such GTSD
Technology relates to any Project. The Consent shall not be unreasonably
withheld by BNFL; and, in determining whether to grant such Consent, the sole
consideration of BNFL shall be whether the withholding of such Consent is
necessary in order to protect access to the GTSD Technology covered by the
Sublicense Agreement or BNFL's continuing access to the GTSD Technology as
such access is contemplated under this Agreement.
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ARTICLE IX
PROPRIETARY AND CONFIDENTIAL INFORMATION
9.1 Proprietary or confidential information (relating to technical and
non-technical matters) may be transferred between the parties during the term
of this Agreement, subject to the confidentiality and use restrictions
provided herein. Notwithstanding any other provisions herein, the parties
agree that during the term of this Agreement and for a period of five (5)
years thereafter, any proprietary or confidential information exchanged
during the performance of this Agreement shall be used by the receiving party
for the exclusive purpose of performing this Agreement, of preparing a
Proposal hereunder or performing a Contract pursuant hereto.
9.2 Each of the parties hereto agrees that during the term of this
Agreement and for a period of five (5) years thereafter, it shall not, and it
shall use reasonable efforts to cause its Affiliates, directors, officers,
employees, agents and advisors not to, reveal, divulge or make known to any
person (other than the other party hereto or the Project Organization) or use
for its own account or for the account of any person any proprietary or
confidential information. For purposes of this Agreement, "proprietary or
confidential information" includes, without limitation, any method, record,
data, report, trade secret, pricing policy, bid amount, bid strategy, rate
structure, personnel policy, method or practice of soliciting or obtaining or
doing business by a party or any other information regarding a party, other
than information that can be demonstrated to have (i) been publicly known
prior to the date of this Agreement, (ii) become well known by publication or
otherwise not due to the unauthorized act or omission on the part of a party
hereto or (iii) been obtained by a party hereto from a source other than the
other party hereto, provided that such source was not bound by an obligation
of confidentiality.
9.3 Notwithstanding anything herein to the contrary, a party may
disclose proprietary or confidential information regarding the other party to
one of its Affiliates provided that such Affiliate executes and delivers a
confidentiality agreement reasonably satisfactory to the other party.
9.4 In addition to the confidentiality provisions provided in the
preceding paragraph, BNFL shall ensure that in any project undertaken by it
or an Affiliate of BNFL within a period of five (5) years beyond the later of
(i) the termination of this Agreement, or (ii) the termination of BNFL's
right to designate a member or observer to GTSD's Board of Directors pursuant
to Article XVI hereto, which involves the performance of vitrification of any
substance other than high level radioactive waste, and which does not involve
GTSD, all intellectual property, including know-how, technical data, designs
and the like relating to the GTSD vitrification technology and any other
proprietary or confidential information of GTSD, is protected and not made
available to that project, without the written consent of GTSD.
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ARTICLE X
INTELLECTUAL PROPERTY RIGHTS
10.1 Each party shall remain the sole owner of its intellectual property
rights, technical data, know-how, designs, specifications and the like
generated or acquired prior to the execution of this Agreement, and any
transfer of such information from one party to another (or to a Project
Organization) under this Agreement is to be used only for the express purpose
for which it was transferred. Any additional use of that information would
be the subject of a separate license or other agreement to be entered into
between the parties.
10.2 No license to the other party (or to a Project Organization) under
any intellectual property rights is granted or implied by conveying
proprietary or confidential information to that party (or to a Project
Organization) for any purpose whatsoever other than the limited purposes of
the parties permitted under this Agreement. None of such information which
may be transmitted or exchanged by the respective parties (or by a Project
Organization) shall constitute any representation, warranty, assurance,
guaranty or inducement by either party to the other (or to a Project
Organization) with respect to the infringement of patents or other rights of
others.
10.3 Subject to the right, if any, of the DOE and to any express
provisions contained in any Subcontract between the parties hereto (which
said provisions shall prevail in the event of any conflict with this clause)
and subject to the provisions herein contained, all intellectual property
produced pursuant to this Agreement shall vest in and at all times remain
vested in the party originating that intellectual property; provided that if
the parties jointly produce material pursuant to this Agreement then unless
the parties previously agree in writing to the contrary, all intellectual
property rights in such jointly produced material shall vest jointly in each
of the parties without accounting to the other. The parties undertake to
enter into good faith negotiations to agree upon such measures of protection
as patents and like instruments and the establishment thereof, as the parties
agree to be appropriate.
10.4 In this regard, it is recognized that the parties may be required
under provisions contained in the Contract to grant licenses or other rights
to the DOE and, in that event they shall by reasonable agreement do so. Any
such granting of licenses or other rights shall be mutually agreed by the
parties.
ARTICLE XI
LOAN FROM BNFL TO GTSD
In connection with the teaming arrangement contemplated by this
Agreement and contemporaneous with the execution of this Agreement, BNFL
shall loan to GTSD $10.0 million. Such loan shall be evidenced by a
Convertible Debenture, a form of which Convertible Debenture is attached
hereto as APPENDIX I. All of the terms and conditions with respect to the
loan by BNFL to GTSD are included in the Convertible Debenture.
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ARTICLE XII
PROVIDING TECHNOLOGY TO JOINT PROJECTS
12.1 With respect to any Projects jointly undertaken by GTSD and BNFL or
by a Project Organization pursuant to the terms of this Agreement, GTSD shall
provide to such Projects through its involvement in such Projects all of the
rights and know-how in the technology currently owned by GTSD, or owned by
GTSD in the future, or in which GTSD has rights of use now or in the future,
including without limitation all of the Intellectual Property as defined in
Section 19.1 and all improvements and enhancements thereto for the
vitrification of worldwide radioactive and mixed waste (excluding Germany)
(all such technologies are collectively referred to herein as the "GTSD
Technology"). The contribution of the GTSD Technology to a Project shall be
undertaken through GTSD and shall not be deemed in any way to constitute an
assignment or sublicense of such technology to any other party.
12.2 In the event that GTSD is (i) debarred or suspended from doing
business with the DOE or the United States Government, (ii) legally
prohibited in any way from being involved in a Project and providing the GTSD
Technology to the Project pursuant to Section 12.1 or (iii) unwilling or
unable to provide the GTSD Technology to any Project pursuant to Section 12.1
for any reason, then GTSD shall license or sublicense, as applicable, such
technology to the Project Organization or take such other action as is
determined by the Steering Committee to enable either BNFL or the Project
Organization that continues to be engaged in the Project to continue to use
the GTSD Technology until completion of such Project. In the event that GTSD
shall be required to provide a license or sublicense pursuant to this Section
12.2, such license or sublicense shall be provided on terms which enable GTSD
to receive the same economic benefit it would have received had it been able
to participate in the Project and GTSD will not be entitled to receive any
additional consideration above such amount for the granting of the license or
sublicense hereunder.
12.3 GTSD hereby covenants and agrees that it will not take any action,
or fail to take a required action, either of which results in the termination
of the license agreement by and between GTSD and Drs. Pedro B. Macedo and
Theodore A. Litovitz (collectively the "Inventors") dated August 17, 1992
(the "License Agreement") prior to the expiration of its natural term. GTSD
hereby covenants and agrees that it will use its best efforts to maintain the
License Agreement and the underlying Intellectual Property (as hereinafter
defined) in full force and effect so long as GTSD and BNFL are jointly
pursuing a Project or participating jointly in a Project, however, GTSD shall
have the right to amend the License Agreement or enter into a new license
agreement with the Inventors provided that the terms of such new license
agreement would not adversely affect GTSD's performance of its obligations
hereunder.
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ARTICLE XIII
SHARING OF PROJECT FEES
13.1 Notwithstanding any other arrangement for the sharing of fees with
respect to a Project or the compensation for goods or services provided to a
Project by each of the parties, which shall be determined by Steering
Committee for each particular Project, the parties hereby covenant and agree
that they will share a portion of the fees from each Project in the following
manner:
(a) A fee (the "Project Fee") equal to three percent (3%) of the
total revenues related to the vitrification portion of a Project will be
shared equally by GTSD and BNFL until such time as BNFL has received an
amount (including amounts previously distributed to BNFL pursuant to this
paragraph) equal to a twelve percent (12%) cumulative annual yield on the
amount of the Article XII and Non-Competition Fee paid by BNFL to GTSD
pursuant to Article III for the particular Project. Thereafter, such Project
Fee will be distributed eighty percent (80%) to GTSD and twenty percent (20%)
to BNFL.
(b) In order to determine the total revenues related to the
vitrification portion of a given Project, the total revenues from such
Project shall be multiplied by a fraction, the numerator of which is the
capital cost of the Project related to the vitrification portion and the
denominator of which is the total capital cost of the Project. For purposes
of this Section 13.1, the term "total revenues from a Project" shall mean all
amounts or proceeds received by GTSD, BNFL or a Project Organization on a
Project, less the following deductions: (i) discounts allowed and taken for
prompt payment, (ii) allowances for returns or other trade credits, (iii) all
sales, use and other taxes imposed, (iv) packaging and transportation costs
and (v) the cost of services contracted to other subcontractors providing
technologies and services complimentary to the Technology. The total capital
cost of the Project and the capital cost of the Project related to the
vitrification portion will be determined by the Steering Committee prior to
commencement of the Project.
(c) In the event that GTSD, in order to provide the GTSD
Technology, must obtain from a third party a license or other authorization
under such third party's valid patent or other proprietary rights and must
pay a license or other fees thereunder to such third party in order to use
any portion of the GTSD Technology, then in such event, GTSD shall be
entitled to recover such license or other fees payable to such third party
out of the Project Fee prior to the distribution arrangement contemplated by
paragraph (a) of this Section 13.1 and such license or other fees payable to
such third party shall reduce on a dollar for dollar basis the amount of the
Project Fee distributable to each of GTSD and BNFL pursuant to paragraph (a)
of this Section 13.1.
(d) The Project Fee provided for in this Article XIII shall be
based on Project revenues received by GTSD, BNFL or a Project Organization
during each calendar year and shall be paid by March 31st of the following
year. All payments required to be made under this
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Agreement shall be made in United States funds. At the time of payment of the
Project Fee, the Steering Committee shall render to the parties hereto a
statement in writing showing computation of such Project Fee payable for such
year.
(e) Notwithstanding anything herein to the contrary, in the event
that GTSD has defaulted on any of its payment obligations under the
Convertible Debenture, BNFL shall be entitled to receive the entire Project
Fee, less amounts owed to GTSD pursuant to paragraph (c) of this Section
13.1, until such time as the payment default has been cured or the payment
default has been waived by BNFL. All of GTSD's portion of the Project Fee
directed to BNFL pursuant to this paragraph shall be applied in whole toward
the cure of the payment default under the Convertible Debenture.
13.2 All other fees and compensation for goods and services provided by
the parties to a Project shall be determined by the Steering Committee prior
to the commencement of the Project and shall be reflected in an appropriate
Subcontract.
ARTICLE XIV
RESEARCH AND DEVELOPMENT COST SHARING ARRANGEMENT
14.1 In connection with the teaming arrangement contemplated by this
Agreement, BNFL hereby covenants and agrees to provide research and
development funding to GTSD of at least $500,000 per year commencing on the
date hereof and continuing until the fifth anniversary of the date of this
Agreement in order to develop, enhance and improve the GTSD Technology and to
develop related technologies.
14.2 The budget for the expenditure of the research and development
funds and the authorization to expend such funds shall be determined by the
Steering Committee. Within thirty (30) calendar days of when the budget for
the expenditure of the research and development funds and the authorization
to expend such funds has been established by the Steering Committee, BNFL
shall provide such funds to GTSD for the research and development efforts.
The budget for the expenditure of the research and development funds and the
authorization to expend such funds for the one year period commencing on the
date hereof shall be determined within thirty (30) calendar days of the date
hereof. For each successive year, the budget for the expenditure of the
research and development funds and the authorization to expend such funds
shall be determined by the Steering Committee at least thirty (30) calendar
days prior to the commencement of such one year period.
14.3 GTSD will administer and manage the research and development
efforts performed in the United States and an Affiliate of BNFL will
administer and manage the research and development efforts performed in the
United Kingdom, but GTSD shall participate in such research and development
activities in the United Kingdom and shall provide any necessary technology
rights that it owns to such activities. The Steering Committee shall
determine who is to administer and manage the research and development
efforts performed outside of the
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United States and the United Kingdom. Any party other than GTSD that is to
administer and manage the research and development efforts relating to the
GTSD Technology will be required to execute an appropriate confidentiality
agreement, prior to its commencement of research and development efforts,
containing restrictions on the disclosure and use by such party of such
technology.
14.4 All goods and services provided by each of the parties in
furtherance of the research and development efforts contemplated by this
Article XIV shall be at such party's cost, including an allocation of
reasonable overhead costs and expenses (including without limitation general
and administrative expenses), without any markup or built-in profit to such
party.
14.5 As to the research and development efforts which are the subject of
this Article XIV, each party shall remain the sole owner of its technologies
(including any enhancements or improvements thereto) resulting from the
research and development efforts contemplated by this Article XIV, and the
ownership and access rights of the parties with respect to any such
intellectual property regarding any such technologies, other than each
party's respective technologies, shall be determined on a case by case basis
by the Steering Committee in its reasonable discretion either (i) at the time
the budget for the expenditure of the research and development funds and the
authorization to expend such funds is determined or (ii) at the time such
intellectual property is developed.
14.6 In consideration of its agreement to provide the research and
development funding commitment specified herein, BNFL shall receive the
benefit of such enhancements or improvements to the GTSD Technology through
its sublicense arrangement pursuant to Article XV below and shall also
receive all information, data and know-how that are the product of the
research and development activities under the arrangement specified by this
Article XIV.
14.7 The research and development funding provided by BNFL pursuant to
this Article XIV is to be used solely for research and development of the
GTSD Technology and is not in any way to be construed as part of the
consideration for the sublicense granted by GTSD to BNFL pursuant to Article
XV.
14.8 The obligations of each of the parties pursuant to this Article XIV
hall be a material obligation of this Agreement.
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ARTICLE XV
GRANT OF SUBLICENSE TO BNFL
In connection with the teaming arrangement contemplated by this
Agreement and contemporaneous with the execution of this Agreement, GTSD and
BNFL shall enter into a sublicense agreement (the "Sublicense Agreement"), a
form of which is attached hereto as APPENDIX II, pursuant to which GTSD shall
grant to BNFL a sublicense to the GTSD Technology for the United Kingdom,
subject to such other terms, conditions, limitations and conditions as are
contained in the Sublicense Agreement.
ARTICLE XVI
BNFL REPRESENTATION ON GTSD BOARD OF DIRECTORS
16.1 As long as the Convertible Debenture is outstanding, BNFL shall
have the right to designate an observer to GTSD's Board of Directors who
shall have visitation rights on GTSD's Board of Directors, but no right to
vote on any matter that comes before GTSD's Board of Directors. The observer
designated by BNFL pursuant to this Section 16.1 shall not be considered a
member of GTSD's Board of Directors for any purpose. As long as the observer
rights provided herein are in effect, the observer designated by BNFL shall
be notified in writing of any action taken by written consent of the Board of
Directors without a meeting having been held. The visitation rights provided
in this Section 16.1 shall be subject to the sole discretion of GTSD's Board
of Directors who may suspend such rights for a portion of a meeting, for an
entire meeting, for any action taken by written consent of the Board of
Directors of GTSD or terminate such rights altogether. BNFL shall be
promptly notified of any action taken by written consent of the Board of
Directors.
16.2 GTSD covenants and agrees that it shall take all action that may be
required of it in order to effect the terms of the agreement by and between
BNFL and The Carlyle Group of even date herewith relating to the rights of
BNFL to designate a member or an observer to GTSD's Board of Directors under
certain circumstances.
ARTICLE XVII
TERM OF THE AGREEMENT
This Agreement shall commence on the date hereof and remain in effect
for a period of five (5) years thereafter, unless terminated prior thereto in
accordance with Article XVIII.
ARTICLE XVIII
TERMINATION EVENTS
18.1 This Agreement may be terminated prior to the end of its natural
term as provided in Article XVII at any time by mutual agreement of both
parties.
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18.2 A party hereto shall have the right to terminate this Agreement by
giving prior written notice upon the occurrence of any of the following
events involving the other party hereto:
(i) A material breach of this Agreement by the other party,
including without limitation the representations and warranties contained in
Article XIX, which if capable of remedy, has not been remedied by such
breaching party within thirty (30) calendar days of written notice by the
non-breaching party;
(ii) The filing of any petition under the United States Bankruptcy
Code, in effect from time to time, or any similar Federal or state statute by
or against the other party if such petition is not dismissed within 120 days
after service upon the other party, or the failure of the other party
generally to pay its debts as such debts become due;
(iii) The filing of an application for the appointment of a
receiver for, the making of a general assignment for the benefit of creditors
by, or the insolvency of, the other party; or
(iv) The other party's liquidation, dissolution, termination of
existence or cessation of the conduct of its business operations.
18.3 The following provisions shall survive termination of this
Agreement:
SECTION 8.1
ARTICLE IX - PROPRIETARY AND CONFIDENTIAL INFORMATION
ARTICLE X - INTELLECTUAL PROPERTY RIGHTS
ARTICLE XII - PROVIDING TECHNOLOGY TO JOINT PROJECTS
ARTICLE XVI - BNFL REPRESENTATION ON GTSD BOARD OF DIRECTORS
ARTICLE XX - PUBLIC DISCLOSURE
ARTICLE XXIII - RESPONSIBILITY FOR COSTS INCURRED
ARTICLE XXIV - COMPLIANCE WITH LAWS
ARTICLE XXX - ARBITRATION
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ARTICLE XIX
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
19.1 GTSD hereby represents and warrants to BNFL as of the date hereof
as follows:
(i) GTSD is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
(ii) GTSD has all requisite corporate power and authority to enter
into this Agreement, the Convertible Debenture and the Sublicense Agreement
and carry out and perform its obligations under the terms of such agreements.
(iii) The execution, delivery and performance of this Agreement,
the Convertible Debenture and the Sublicense Agreement have been duly
authorized and approved by all necessary corporate action and this Agreement,
the Convertible Debenture and the Sublicense Agreement, when duly executed
and delivered by GTSD, will constitute valid and legally binding obligation
of GTSD, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to the
rights of creditors generally.
(iv) The execution and performance of this Agreement, the
Convertible Debenture and the Sublicense Agreement do not and will not (i)
violate GTSD's certificate of incorporation or bylaws, or the terms of any
judgment, decree or order of any court or administrative authority or the
terms of any material agreement to which it is a party or by which it is
bound or (ii) require the filing, declaration or registration with, or
permit, consent or approval of, or the giving of any notice to, any
governmental authority or third party, excluding those that have already been
obtained prior to the date hereof.
(v) There is no litigation, arbitration, mediation or other
investigation or proceeding pending or, to the best of GTSD's knowledge,
threatened or in prospect, against GTSD with respect to the transactions
contemplated by this Agreement.
(vi) Schedule 19.1 attached hereto sets forth, as of the date
hereof, a true, complete and accurate list of all (i) United States and
foreign patents and patent applications, (ii) unpatented technology,
including trade secrets, know-how, proprietary rights and information, and
expertise, (iii) United States, state and foreign trademark applications and
registrations, trade names and material common-law marks, (iv) United States
and foreign registered and material unregistered copyrighted works, including
any computer programs and (v) any license, joint venture or other material
agreements relied on, related to, used or enjoyed by GTSD in connection with
its business of vitrifying radioactive and mixed wastes (collectively, the
"Intellectual Property").
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(vii) Except as set forth in SCHEDULE 19.1, GTSD either (a) owns or
(b) holds adequate, enforceable, valid and binding licenses to use, transfer,
sublicense and otherwise grant rights to third parties in, all of the
Intellectual Property.
(viii) Except as set forth in SCHEDULE 19.1, GTSD has no knowledge
nor any basis to believe that (a) any of the Intellectual Property or (b) any
past operations or currently planned operations, activities or products of
GTSD, infringe on any intellectual property, proprietary, contract or other
rights of any third party.
(ix) Except as set forth in SCHEDULE 19.1, to the best of GTSD's
knowledge, no entity or person is infringing the rights of GTSD with respect
to the Intellectual Property and GTSD has no reasonable basis to claim such
infringement.
(x) Except as set forth in SCHEDULE 19.1 and other than the rights
of the Inventors, (a) the Intellectual Property is free and clear of any
liens, pledges, assignments, obligations or any other encumbrances of any
nature, and (b) no consents or approvals of any person or entity are
necessary to sell, convey, transfer, assign, deliver or sublicense any of the
Intellectual Property to any third party.
(xi) The patents, registered trademarks and registered copyrights
listed on SCHEDULE 19.1 are subsisting, valid and enforceable, and have been
maintained by the Company.
(xii) Except as set forth in SCHEDULE 19.1, none of (a) the
Catholic University, (b) the Vitreous State Laboratory of the Catholic
University, (c) the United States Government or any United States government
agency, (d) any foreign government or foreign government agency or (e) any
other person or entity (other than GTSD, the Inventors and First Fidelity
Bank, N.A.) have any rights whatsoever in any of the Intellectual Property.
19.2 BNFL hereby represents and warrants to GTSD as of the date hereof
as follows:
(i) BNFL is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
(ii) BNFL has all requisite corporate power and authority to enter
into this Agreement and the Sublicense Agreement and carry out and perform
its obligations under the terms of such agreements.
(iii) The execution, delivery and performance of this Agreement and
the Sublicense Agreement have been duly authorized and approved by all
necessary corporate action and this Agreement and the Sublicense Agreement,
when duly executed and delivered by BNFL, will constitute valid and legally
binding obligation of BNFL, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to the rights of creditors generally.
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(iv) The execution and performance of this Agreement and the
Sublicense Agreement do not and will not (i) violate BNFL's certificate of
incorporation or bylaws, or the terms of any judgment, decree or order of any
court or administrative authority or the terms of any material agreement to
which it is a party or by which it is bound or (ii) require the filing,
declaration or registration with, or permit, consent or approval of, or the
giving of any notice to, any governmental authority or third party, excluding
those that have already been obtained prior to the date hereof.
(v) There is no litigation, arbitration, mediation or other
investigation or proceeding pending or, to the best of BNFL's knowledge,
threatened or in prospect, against BNFL with respect to the transactions
contemplated by this Agreement.
19.3 Each of the parties hereto covenants and agrees to indemnify the
other party and its Affiliates, directors, officers, employees, agents,
successors and assigns and hold such other person harmless against any and
all liabilities, losses, damages, claims, deficiencies, costs and expenses,
interest, awards, judgments and penalties (including, without limitation,
reasonable legal costs and expenses) actually suffered or incurred by such
other person (hereinafter a "Loss"), arising out of or resulting from the
breach of any representation or warranty by such party contained herein.
19.4 Promptly after the assertion by any third party of any claim
against any party entitled to be indemnified under this Article XIX (the
"Indemnitee") that, in the judgment of such Indemnitee, may result in the
incurrence by such Indemnitee of Losses for which such Indemnitee would be
entitled to indemnification pursuant to this Agreement, such Indemnitee shall
deliver to the other party who has indemnified such Losses hereunder
("Indemnitor") a written notice describing such claim. Such Indemnitor may
participate in and, at its option upon acknowledgment of Indemnitee's right
to indemnification for such matter, assume the defense of the Indemnitee
against such claim, including the employment of counsel, who shall be
reasonably satisfactory to such Indemnitee. In such case, any Indemnitee
shall have the right to employ separate counsel in any such action or claim
and to participate in the defense thereof, but the fees and expenses of such
counsel shall not be at the expense of the Indemnitor unless (i) the
Indemnitor shall have failed, within a reasonable time after having been
notified by the Indemnitee of the existence of such claim as provided in the
preceding sentence, to assume the defense of the such claim, (ii) the
employment of such counsel has been specifically authorized in writing by the
Indemnitor or (iii) the named parties to any such action (including impleaded
parties) include both such Indemnitee and the Indemnitor and such Indemnitee
shall have been advised in writing by Indemnitor's counsel that there may be
conflicting interests between Indemnitee and the Indemnitor in the legal
defense thereof. No Indemnitor shall be liable to indemnify any Indemnitee
for any compromise or settlement of any such action or claim effected without
the consent of the Indemnitor.
19.5 In the event that GTSD is required under Section 19.3 to make any
indemnification to BNFL, and GTSD cannot or does not make such required
payment when
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required, for whatever reason, BNFL or the Project Organization, as
applicable, shall be entitled to offset any such unpaid amounts against any
payment otherwise due to GTSD under this Agreement. In the event that BNFL
is required under Section 19.3 to make any indemnification to GTSD, and BNFL
cannot or does not make such required payment when required, for whatever
reason, GTSD or the Project Organization, as applicable, shall be entitled to
offset any such unpaid amounts against any payment otherwise due to BNFL
under this Agreement or under the Convertible Debenture. In the event the
Project Organization withholds amounts otherwise due a party pursuant to this
Section 19.5, the Project Organization will promptly forward such amounts to
the other party.
19.6 All representations and warranties made pursuant to or in
connection with this Agreement shall survive the date hereof, but shall
terminate three (3) years after the date hereof; provided, that there shall
be no such termination with respect to any representation or warranty as to
which a bona fide claim has been asserted prior to such date.
19.7 Notwithstanding anything herein to the contrary, each party hereto
shall not be liable as Indemnitor for any Losses of the other party under
this Article XIX unless and until the aggregate amount of all Losses
hereunder by such other party equals or exceeds $50,000, in which case the
indemnifying party shall be liable for all such losses of the other party
equal to or greater than $50,000, up to a maximum aggregate amount of
$10,000,000.
ARTICLE XX
PUBLIC DISCLOSURE
Any news release, public announcement, advertising, publicity or
discussion with any other contractor or vendor whatsoever pertaining to the
performance or the nature of the work related to this Agreement shall be
subject to the express prior written approval of all of the parties hereto.
ARTICLE XXI
WAIVER AND SEVERABILITY
21.1 The waiver by any of the parties of any breach of any provision
hereof by another shall not be construed to be a waiver of any succeeding
breach of such provision or a waiver of the provision itself.
21.2 If one or more of the provisions of the Agreement shall be found to
be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified consistent with the intent of the
parties to the extent necessary to render it legal, valid and enforceable,
and if no such modification shall render it legal, valid and enforceable,
then this Agreement shall be construed as if not containing the provision
held to be invalid, and the rights and obligations of the parties shall be
construed and enforced accordingly.
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ARTICLE XXII
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed to create
any joint venture, pooling arrangement or partnership, whether statutory or
otherwise, and the rights and obligations of the parties hereto shall be
limited to those expressly recited herein. Nothing in this Agreement shall
be construed to grant to either of the parties hereto any right to make
commitments of any kind for or on behalf of the other party hereto without
the prior written consent of said other party.
ARTICLE XXIII
RESPONSIBILITY FOR COSTS INCURRED
Each party shall bear all of the costs and expenses entailed in its
own performance of its activities contemplated by this Agreement, excluding
any work to be performed pursuant to any Subcontract resulting from this
Agreement.
ARTICLE XXIV
COMPLIANCE WITH LAWS
Each party agrees to comply with applicable provisions of all laws,
ordinances, orders, rules and regulations of the United States as they relate
to the parties' performance of this Agreement and each of the parties agrees
to require any and all consultants, vendors and agents retained in
conjunction with the activities described in this Agreement to do likewise;
and such compliance shall be a material obligation of this Agreement.
ARTICLE XXV
NOTICES
Except as otherwise expressly stated, all notices required to be given
or which may be given under this Agreement shall be in writing and shall be
deemed given upon the earlier of (i) when it is personally delivered, (ii)
three (3) days after having been mailed by certified mail, postage prepaid,
return receipt requested, (iii) two (2) days after having been sent by
recognized overnight delivery service or (iv) one (1) day after having been
sent by facsimile transmission, addressed as follows:
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If to:
(a) GTSD:
GTS DURATEK, INC.
8955 Guilford Road, Suite 200
Columbia, MD 21046
Attn: Robert E. Prince, President and Chief Executive Officer
Telecopy No.: (301) 621-8211
(b) BNFL:
BNFL INC.
9302 Lee Highway, Suite 950
Fairfax, Virginia 22031
Attn: K. Edward Newkirk, General Counsel
Telecopy No.: (703) 359-0442
ARTICLE XXVI
COMPLETE AGREEMENT
This Agreement together with the other agreements referenced herein
to be entered into between the parties contains the complete agreement and
understanding between the parties concerning the subject matter hereof and
shall supersede all other agreements, understandings or commitments between
the parties as to such subject matter.
ARTICLE XXVII
ASSIGNMENT
The obligations and rights of each party hereunder shall not be
assignable without the prior written consent of the other party; provided,
however, that a party hereto may without the consent of the other party
assign this Agreement to any successor owner of such party or its business
resulting from merger, consolidation, sale of the business or otherwise so
long as such successor agrees in writing to assume the party's obligations
under this Agreement in a form and manner reasonably acceptable to the other
party. Notwithstanding anything herein to the contrary, BNFL may assign its
obligations and rights hereunder to an Affiliate upon the written consent of
GTSD, which consent will not be unreasonably withheld or delayed. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit
of the parties' respective heirs, legal representatives, successors and
assigns.
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ARTICLE XXVIII
WAIVER, MODIFICATION OR AMENDMENT
No waiver, modification or amendment of any provision of this
Agreement shall be effective, binding or enforceable unless in writing and
signed by all of the parties hereto.
ARTICLE XXIX
GOVERNING LAW
The validity of this Agreement and of any of the terms or
provisions as well as the rights and duties of the parties hereunder shall be
governed by the laws of the State of Maryland, without reference to any
conflict of law or choice of law principles in the State of Maryland that
might apply the law of another jurisdiction.
ARTICLE XXX
ARBITRATION
Any disputes between the parties relating to the terms of this
Agreement, or the breach thereof, shall be submitted to binding arbitration
in Baltimore, Maryland, in accordance with the rules of the American
Arbitration Association. In the event that either party desires to arbitrate
any such dispute, such party shall so notify the other party and the parties
shall endeavor, for a period of thirty (30) days, to resolve such dispute
without arbitration. In the event that the parties cannot resolve the
dispute within such thirty (30) day period, then within ten (10) days
thereafter, the parties shall jointly designate an arbitrator to hear the
dispute, or, if the parties are unable to jointly select an arbitrator, an
arbitrator shall be chosen by the President of the American Arbitration
Association from lists of candidates provided by each of the parties. The
decision of the arbitrator shall be final and binding upon the parties, their
successor and assigns, and they shall comply with such decision in good
faith, and each party hereby submits itself to the jurisdiction of the courts
of the place where the arbitration is held, but only for the entry of
judgment with respect to and to enforce the decision of the arbitrator
hereunder. The arbitrator may order specific performance or other equitable
relief or remedies to the extent it deems it appropriate, in any situation in
which a court could so order. Each party shall pay all of its own expenses
in connection with such arbitration and one-half of the arbitrator's fees and
expenses.
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ARTICLE XXXI
CONSTRUCTION
Headings or captions of this Agreement are for reference only and
are not to be construed in any way as part of this Agreement, nor in the
interpretation of this Agreement. The masculine pronoun shall include the
feminine and neuter, and vice versa, where the context so requires.
ARTICLE XXXII
COUNTERPARTS
This Agreement may be executed in multiple original counterparts, each
of which shall be deemed an original and all of which together shall
constitute but one and the same document.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WITNESS/ATTEST: GTS DURATEK, INC.
/s/ Diane R. Brown By: /s/ Robert E. Prince
---------------------------------- ------------------------------------
Diane R. Brown, Secretary Name: Robert E. Prince
Title: President and Chief Executive
Officer
BNFL INC.
/s/ Richard H. Peebles By: /s/ Rolland A. Langley
---------------------------------- ------------------------------------
Richard H. Peebles, Vice President Name: Rolland A. Langley
Title: President
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APPENDIX I
FORM OF CONVERTIBLE DEBENTURE