EXHIBIT 10.(4)
TRANSITION SERVICES AGREEMENT
by and between
FLORIDA PROGRESS CORPORATION,
a Florida corporation,
and
ECHELON INTERNATIONAL CORPORATION,
a Florida corporation,
Dated as of December 16, 1996
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT is dated as of December 16,
1996, between FLORIDA PROGRESS CORPORATION, a Florida corporation ("Florida
Progress") and ECHELON INTERNATIONAL CORPORATION, a Florida corporation
("Echelon").
W I T N E S S E T H
WHEREAS, Florida Progress and Echelon have entered into a
Distribution Agreement dated as of the date hereof (the "Distribution
Agreement") pursuant to which, among other matters, Florida Progress has agreed
to provide, or cause one or more of its Subsidiaries to provide, to Echelon
certain transitional, administrative and support services on the terms set forth
in this Agreement and the Appendices hereto. Florida Progress shall sometimes
hereinafter be referred to as "Provider", and Echelon shall sometimes
hereinafter be referred to as "Recipient".
NOW, THEREFORE, subject to the terms, conditions, covenants
and provisions of this Agreement, each of Florida Progress and Echelon mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. Upon the terms and subject to the
conditions set forth in this Agreement, with respect to each of those services
set forth in an Appendix hereto, each of which Appendices is made a part of this
Agreement, Provider will provide to Recipient the services indicated in such
Appendix (hereinafter referred to individually as a "Transition Service", and
collectively as the "Transition Services") during the time period for each such
Transition Service set forth in such Appendix (hereinafter referred to as the
"Time Periods" for all of the Transition Services, and the "Time Period" for
each Transition Service).
1.2 Personnel. In providing the Transition Services, Provider
as it deems necessary or appropriate in its sole discretion, may (i) use the
personnel of Provider or its Affiliates, and (ii) employ the services of third
parties to the extent such third party services are routinely utilized to
provide similar services to other businesses of Provider or are reasonably
necessary for the efficient performance of any of such Transition Services.
Recipient may retain at its own expense its own consultants and other
professional advisers.
1.3 Representatives. Florida Progress and Echelon
shall each nominate a representative to act as its primary
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contact person for the provision of all of the Transition Services (the "Primary
Coordinators"). The initial Primary Coordinators shall be Xxxxx Xxxxxxxxx for
Provider and Xxxxxx XxXxxxx for Recipient. The initial coordinators for each
specific Transition Service shall be the individuals named in the Appendix
relating to such Transition Service (the "Service Coordinators"). Each party may
treat an act of a Primary Coordinator or a Service Coordinator of the other
party, as being authorized by such other party without inquiring behind such act
or ascertaining whether such Primary Coordinator or such Service Coordinator, as
the case may be, had authority to so act. Provider and Recipient shall advise
each other in writing of any change in their respective Primary Coordinator or
in any Service Coordinator, setting forth the name of the Primary Coordinator or
Service Coordinator, as the case may be, to be replaced and the name of the
replacement, and certifying that the replacement Primary Coordinator or Service
Coordinator is authorized to act for such party in all matters relating to this
Agreement. Each of Provider and Recipient agree that all communications relating
to the provision of the Transition Services shall be directed to the Primary
Coordinators.
1.4 Level of Transition Services. (a) Provider shall perform
the Transition Services following commonly accepted standards of care in the
industry and exercising the same degree of care as it exercises in performing
the same or similar services for its own account as of the date of this
Agreement, with priority equal to that provided to its own businesses or those
of any of its Affiliates, Subsidiaries or divisions. Nothing in this Agreement
shall require Provider to favor the businesses of Recipient over its own
businesses or those of any of its Affiliates, Subsidiaries or divisions.
(b) Provider shall not be required to provide Recipient with
extraordinary levels of Transition Services, special studies, training, or the
like or the advantage of systems, equipment, facilities, training, or
improvements procured, obtained or made after the Distribution Date by Provider.
(c) In addition to being subject to the terms and conditions
of this Agreement for the provision of the Transition Services, Recipient agrees
that the Transition Services provided by third parties shall be subject to the
terms and conditions of any agreements between Provider and such third parties.
1.5 Limitation of Liability. In the absence of gross
negligence or willful misconduct on the part of Provider, and whether or not
Provider is negligent, Provider shall not be liable for any claims, liabilities,
damages, losses, costs, expenses (including, but not limited to, settlements,
judgments, court costs and reasonable attorneys' fees), fines and penalties,
arising out of any actual or alleged injury, loss or damage of any nature
whatsoever in providing or failing to provide
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Transition Services to Recipient. Notwithstanding anything to the contrary
contained herein, in the event Provider commits an error with respect to or
incorrectly performs or fails to perform any Transition Service, at Recipient's
request, Provider shall use reasonable efforts and good faith to correct such
error, re-perform or perform such Transition Service at no additional cost to
Recipient; provided, that Provider shall have no obligation to recreate any lost
or destroyed data to the extent the same cannot be cured by the re-performance
of the Transition Service in question.
1.6 Force Majeure. Any failure or omission by a party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each party hereto: acts of God, fire, storm, flood, earthquake,
governmental regulation or direction, acts of the public enemy, war, rebellion,
insurrection, riot, invasion, strike or lockout; provided, however, that such
party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. Provider may make changes from
time to time in its standards and procedures for performing the Transition
Services. Notwithstanding the foregoing sentence, unless required by law,
Provider shall not implement any substantial changes affecting Recipient unless:
(a) Provider has furnished Recipient notice thereof;
(b) Provider changes such procedures for its own
businesses at the same time; and
(c) Provider gives Recipient a reasonable period of time for
Recipient (i) to adapt its operations to accommodate such changes or (ii) to
reject the proposed changes. In the event Recipient fails to accept or reject a
proposed change on or before a date specified in such notice of change,
Recipient shall be deemed to have accepted such change. In the event Recipient
rejects a proposed change but does not terminate this Agreement, Recipient
agrees to pay any charges resulting from Provider's need to maintain different
versions of the same systems, procedures, technologies, or services or resulting
from requirements of third party vendors or suppliers.
1.8 No Obligation to Continue to Use Services.
Recipient shall not have any obligation to continue to use any of
the Transition Services and may delete any Transition Service by
giving Provider notice thereof in accordance with the notice
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provisions herein and in the Appendix relating to such Transition
Service.
1.9 Provider Access. To the extent reasonably required for
personnel of Provider to perform the Transition Services, Recipient shall
provide personnel of Provider with access to its data, equipment, office space,
plants, telecommunications and computer equipment and systems, and any other
areas and equipment.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition
Services, Recipient shall pay to Provider the amount specified for each such
Transition Service as set forth in the Appendix relating to such Transition
Service.
2.2 Invoices. After the end of each quarter, Provider,
together with its Affiliates or Subsidiaries providing Transition Services will
submit one invoice to Recipient for all Transition Services provided to
Recipient by Provider during such quarter. Such invoices shall be issued no
later than the fifteenth day after the end of the invoice period. Each invoice
shall include a summary list of the previously agreed upon Transition Services
for which there are fixed dollar fees, together with documentation supporting
each of the invoiced amounts that are not covered by the fixed fee agreements.
The total amount set forth on such summary list and such supporting detail shall
equal the invoice total. All invoices shall be sent to Recipient at the
following address or to such other address as Recipient shall have specified by
notice in writing to Provider referenced on each such invoice:
Echelon International Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Office
Fax: (000) 000-0000
2.3 Payment of Invoices. (a) Payment of all invoices in
respect of a Transition Service shall be made by check or electronic funds
transmission in U.S. Dollars, without any offset or deduction of any nature
whatsoever, within thirty (30) days of the invoice date unless otherwise
specified in the Appendix relating to such Transition Service. All payments
shall be made to such accounts as may be notified by the Provider to the
Recipient from time to time.
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(b) If any payment is not paid when due, Provider shall have
the right, without any liability to Recipient, or anyone claiming by or through
Recipient, to immediately cease providing any or all of the Transition Services
provided by Provider to Recipient, which right may be exercised by Provider in
its sole and absolute discretion.
ARTICLE III
CONFIDENTIALITY
3.1 Obligation. Each of (i) Florida Progress and the Florida
Progress Subsidiaries and (ii) Echelon shall not use or permit the use of
(without the prior written consent of the other) and shall keep, and shall cause
its consultants and advisors to keep, confidential all information concerning
the other party received pursuant to or in connection with this Agreement.
3.2 Care and Inadvertent Disclosure. With respect to
any confidential information, each party agrees as follows:
(a) it shall use the same degree of care in
safeguarding said information as it uses to safeguard its
own information which must be held in confidence; and
(b) upon the discovery of any inadvertent disclosure
or unauthorized use of said information, or upon obtaining notice of
such a disclosure or use from the other party, it shall take all
necessary actions to prevent any further inadvertent disclosure or
unauthorized use, and, subject to the provisions of Section 1.5 above,
the other party shall be entitled to pursue any other remedy which may
be available to it.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on the
Distribution Date and shall remain in force until the expiration of the longest
Time Period specified in any Appendix hereto, including any extension thereof,
unless all of the Transition Services are deleted by Recipient in accordance
with Section 1.8 above, or this Agreement is terminated under Section 1.6 above
or Sections 4.3 or 6.16 below prior to the end of such Time Period.
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4.2 Extension. Subject to the earlier termination of this
Agreement in accordance with Section 1.6 above or Sections 4.3 or 6.16 below,
Recipient may extend each Time Period for a Transition Service for the time
period, if any, set forth in the relevant Appendix by giving Provider the period
of prior written notice set forth in such Appendix prior to the end of the Time
Period in question.
4.3 Termination. If either party (hereafter called the
"Defaulting Party") shall fail to perform or default in the performance of any
of its obligations under this Agreement (other than a payment default), the
other party (hereinafter referred to as a "Non-Defaulting Party") may give
written notice to the Defaulting Party specifying the nature of such failure or
default and stating that the Non-Defaulting Party intends to terminate this
Agreement with respect to the Defaulting Party if such failure or default is not
cured within 15 days of such written notice. If any failure or default so
specified is not cured within such 15 day period, the Non-Defaulting Party may
elect to immediately terminate this Agreement with respect to the Defaulting
Party; provided, however, that if the failure or default relates to a dispute
contested in good faith by the Defaulting Party, the Non-Defaulting Party may
not terminate this Agreement pending the resolution of such dispute in
accordance with Article V hereof. Such termination shall be effective upon
giving a written notice of termination from the Non-Defaulting Party to the
Defaulting Party and shall be without prejudice to any other remedy which may be
available to the Non-Defaulting Party against the Defaulting Party. Nothing in
this Section 4.3 shall limit Provider's rights under Section 2.3(b).
4.4 Termination of Obligations. Recipient specifically agrees
and acknowledges that all obligations of Provider to provide each Transition
Service shall immediately cease upon the expiration of the Time Period (and any
extension thereof in accordance with Section 4.2) for such Transition Service,
and Provider's obligations to provide all of the Transition Services shall
immediately cease upon the termination of this Agreement. Upon the cessation of
Provider's obligation to provide any Transition Service, Recipient shall
immediately cease using, directly or indirectly, such Transition Service
(including, without limitation, any and all software of Provider or third party
software provided through Provider, telecommunications services or equipment, or
computer systems or equipment).
4.5 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the parties, the following obligations shall
survive the termination of this Agreement: (a) the obligations of each party
under Article III, and (b) Provider's right to receive the compensation for the
Transition Services provided by it hereunder provided in Section 2.1 above
incurred prior to the effective date of termination.
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ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Any disputes arising out of or in
connection with this Agreement shall be settled in accordance with the dispute
resolution mechanisms set forth in Article VIII of the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement,
including the Appendices hereto, shall constitute the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. In the event of any inconsistency between this Agreement and any
Appendix hereto, the Appendix shall prevail. In the event and to the extent that
there shall be a conflict between the provisions of this Agreement and the
provisions of any other Ancillary Agreement, this Agreement shall control.
6.2 Other Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address,
the matters specifically and expressly covered by the other
Ancillary Agreements.
6.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each party and delivered to the other party.
6.4 Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
6.5 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To Florida Progress Corporation:
Xxx Xxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
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To Echelon International Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
6.6 Waivers. The failure of any party to require strict
performance by the other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
6.7 Amendments. Subject to the terms of Section 4.2 hereof,
this Agreement may not be modified or amended except by an agreement in writing
signed by each of the parties hereto.
6.8 Assignment. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by either party hereto without the
prior written consent of the other party hereto, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
6.9 Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
6.10 Subsidiaries. Provider shall cause to be performed, and
hereby guarantees the performance of, all actions, agreements and obligations
set forth herein or in any Appendix hereto to be performed by any Florida
Progress Subsidiary.
6.11 Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and their respective Subsidiaries and
Affiliates and should not be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
6.12 Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
6.13 Appendices. The Appendices shall be construed with and as
an integral part of this Agreement to the same extent as if the same had been
set forth verbatim herein. In the event of any inconsistency between the terms
of any Appendix and the terms set forth in the main body of this Agreement, the
terms of the Appendix shall govern.
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6.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF FLORIDA.
6.15 Consent to Jurisdiction. Without limiting the provisions
of Article V hereof, each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the Circuit Court of the State of Florida, Pinellas County,
and (b) the United States District Court for the Middle District of Florida, for
the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States District Court for the Middle District of Florida or if such suit, action
or other proceeding may not be brought in such court for jurisdictional reasons,
in the Circuit Court of the State of Florida, Pinellas County. Each of the
parties further agrees that service of any process, summons, notice or document
by U.S. registered mail to such party's respective address set forth above shall
be effective service of process for any action, suit or proceeding in Florida
with respect to any matters to which it has submitted to jurisdiction in this
Section 6.15. Each of the parties irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in (i) the Circuit
Court of the State of Florida, Pinellas County, or (ii) the United States
District Court for the Middle District of Florida, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
6.16 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
6.17 Laws and Government Regulations. Recipient, shall be
responsible for (i) compliance with all laws and governmental regulations
affecting its businesses and (ii) any use Recipient may make of the Transition
Services to assist it in complying with such laws and governmental regulations.
6.18 Relationship of Parties. Nothing in this Agreement shall
be deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being
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understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship of buyer and seller of services nor be deemed to vest any
rights, interests or claims in any third parties. The parties do not intend to
waive any privileges or rights to which they may be entitled.
6.19 Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
FLORIDA PROGRESS CORPORATION, a
Florida corporation
By:/s/Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President & Treasurer
ECHELON INTERNATIONAL CORPORATION,
a Florida Corporation
By:/s/Xxxxxx X. XxXxxxx
---------------------------
Name: Xxxxxx X. XxXxxxx
Title: President and
Chief Executive Officer
APPENDIX TO TRANSITION SERVICES AGREEMENT
Description of Transition Service:
General information technology support and services including, but not limited
to, access to cc-mail, use of server 11-1 and support of personal computers.
Payment:
Payment for services rendered shall be at a market rate which the parties agree
will be cost plus ten percent.
Time Period (including terms of extension, if any):
As of the date of this agreement through December 31, 1996.
Service Coordinator for Provider:
Art Xxxxxxxxxx, Vice President of Information Technology, Florida Power Corporation
Service Coordinator for Recipient:
Xxxxx Xxxxxxx, Senior Vice President, Chief Financial Officer, Secretary and Treasurer,
Echelon International Corporation
Notice Period for Deletion of Transition Services:
10 days
Any Other Terms:
Not applicable
APPENDIX TO TRANSITION SERVICES AGREEMENT
Description of Transition Service:
General tax assistance necessary to allow Echelon to perform its obligations
under the tax sharing agreement entered into by Florida Progress and Echelon
dated as of the date hereof (the "Tax Sharing Agreement"). Such assistance shall
include, but not be limited to, assistance in the preparation of any tax return
for which Echelon is responsible for preparing under the Tax Sharing Agreement.
Payment:
Payment for services rendered shall be at a market rate which the parties agree
will be cost plus ten percent.
Time Period (including terms of extension, if any):
As of the date of this agreement through filing of all tax returns relating to
any taxable period ending on or before December 31, 1996.
Service Coordinator for Provider:
Xxxxxx Xxxxxxxx, Director, Federal Tax Services, Florida Power Corporation
Service Coordinator for Recipient:
Xxxxx Xxxxxxx, Senior Vice President, Chief Financial Officer, Secretary and Treasurer,
Echelon International Corporation
Notice Period for Deletion of Transition Services:
10 days
Any Other Terms:
Not applicable
APPENDIX TO TRANSITION SERVICES AGREEMENT
Description of Transition Service:
Assistance with human resources through providing recruiting assistance and
physical examinations and testing for new hires through June 30, 1997 and
providing processing of payroll and employee benefits through the last pay
period in 1996.
Payment:
Payment for services rendered shall be at a market rate which the parties agree
will be cost plus ten percent.
Time Period (including terms of extension, if any):
As of the date of this agreement through June 30 1997, with respect to providing
assistance in recruiting and providing physical examinations and testing for new
hires. As the date of this agreement through December 31, 1996, with respect to
providing processing of payroll and employee benefits, provided, the time period
may be extended for up to three months.
Service Coordinator for Provider:
Xxxxxxxx Xxxxxxxx, Vice President, Human Resources, Florida Power Corporation
Service Coordinator for Recipient:
Xxxxxx XxXxxxx, President and Chief Executive Officer, Echelon International Corporation
Notice Period for Deletion of Transition Services:
10 days
Any Other Terms:
Not applicable
APPENDIX TO TRANSITION SERVICES AGREEMENT
Description of Transition Service:
General corporate secretarial support including, but not limited to, assistance
with the preparation of corporate resolutions, minutes and agendas, assistance
with the CPOA annual meeting schedule to be held on January 31, 1997 and the PCC
Delaware year-end transaction.
Payment:
Payment for services rendered shall be at a market rate which the parties agree
will be cost plus ten percent.
Time Period (including terms of extension, if any):
As of the date of this agreement through the end of the annual meeting first
held in 1997, but no later than June 30, 1997.
Service Coordinator for Provider:
Xxxxxxxx Xxxxx, Corporate Secretary, Florida Progress Corporation
Service Coordinator for Recipient:
Xxxxx Xxxxxxx, Vice President, Administration and Legal Services and Corporate Secretary
of Echelon International Corporation
Notice Period for Deletion of Transition Services:
10 days
Any Other Terms:
Not applicable
