EXHIBIT 10.35
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT ("Services Agreement") is made as of
the 20th day of December, 2002, by and between (i) Ultrak, Inc., a Delaware
corporation ("Seller"), and each of the other Seller Entities (as defined
below), and (ii) Pittway Corporation, a Delaware corporation ("Buyer") and
wholly-owned subsidiary of Honeywell International Inc., a Delaware corporation
("Honeywell"), and each of the other Buyer Entities (as defined below).
Seller and Honeywell have entered into an Asset Purchase Agreement
dated as of August 8, 2002 (as amended to date, the "Asset Purchase Agreement"),
pursuant to which Seller and certain of the Seller Entities are selling the
Purchased Assets to Honeywell and certain of its Affiliates on the date hereof.
Seller and Buyer desire to enter into this Services Agreement pursuant
to which the Seller Entities will provide certain transition services to the
Buyer Entities on the terms and conditions set forth herein.
In consideration of the mutual undertakings contained herein, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions Incorporated. All capitalized terms not otherwise
defined in this Services Agreement shall have the respective meanings ascribed
to them in the Asset Purchase Agreement.
1.2 Additional Definitions. Unless the context otherwise requires,
the following terms, and their singular or plural, used in this Services
Agreement shall have the respective meanings set forth below:
(a) "Acquired Business" means the Business as defined in the
Asset Purchase Agreement.
(b) "Buyer" shall have the meaning set forth in the preamble to
this Services Agreement.
(c) "Buyer Entities" means, collectively, Buyer and its
Affiliates.
(d) "Confidential Information" shall have the meaning set forth
in Section 7.1 of this Services Agreement.
(e) "Party" or "Parties" means each of the entities set forth on
the signature pages to this Services Agreement.
(f) "Person" means an individual, partnership, corporation,
trust, unincorporated association, or other entity or association.
(g) "Provider" means the particular Seller Entity providing
Services pursuant to this Services Agreement.
(h) "Recipient" shall mean the particular Buyer Entity receiving
Services pursuant to this Services Agreement.
(i) "Seller" shall have the meaning set forth in the preamble to
this Services Agreement.
(j) "Seller Entities" means, collectively, Seller and the
entities Affiliated with Seller.
(k) "Services" means the transition services set forth in
Schedule A hereto and any additional services agreed to by the Parties pursuant
to Section 2.2.
(l) "Term" shall have the meaning set forth in Section 4.1 of
this Services Agreement.
Other terms are used as defined elsewhere herein.
ARTICLE 2
SERVICES
2.1 Services. Pursuant to the terms of this Services Agreement, during
the Term, the Seller Entities agree to provide, or cause to be provided, to the
Buyer Entities the Services.
2.2 Other Services. The Services provided under this Services Agreement
shall be consistent in all material respects (including, but not limited to,
quality, scope and functionality) with the services provided to the Acquired
Business prior to the Closing Date. If, after the execution of this Services
Agreement, the Parties determine that a service provided by or to the Acquired
Business as conducted by Sellers prior to the Closing Date was inadvertently
omitted from Schedule A to this Services Agreement, then the Parties shall
negotiate in good faith to attempt to agree to the terms and conditions upon
which any such additional services would be added to Schedule A to this Services
Agreement, it being agreed that the charges for such services should be
determined on a basis consistent with the methodology for determining the
initial prices for Services described in Section 3.2 below.
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ARTICLE 3
COMPENSATION
3.1 Compensation for Services. Subject to Section 3.3, the compensation
for the Services for the duration of the Term shall be as set forth on Schedule
A.
3.2 Pricing Methodology. The Parties hereby acknowledge and agree that
as of the date hereof the initial prices set forth on Schedule A hereto with
respect to any Service represent amounts which the Parties agree (i) will be
sufficient to cover the Provider's reasonable estimate of its actual costs
incurred in the provision of such Service to the Recipient and (ii) shall be
consistent with past practice or the historical pricing methodology that the
Provider used in charging its Affiliates for comparable services or, if no such
past practice or historical pricing methodology exists, as the Parties may
otherwise reasonably agree.
3.3 Terms of Payment; Dispute Resolution.
(a) Invoices. Except as expressly provided otherwise herein,
Providers shall invoice Recipients monthly in arrears for the Services provided
under this Services Agreement. Payment shall be made by Recipients within 30
days after the date of any invoice.
(b) Payment. All amounts due for Services rendered pursuant to
this Services Agreement shall be billed and paid in the currency in which the
rate for such Service is quoted, as stated herein or as shown on Schedule A
hereto.
(c) Dispute Resolution. If there is a dispute between any
Recipient and any Provider regarding the amounts shown as billed to such
Recipient on any invoice, such Provider shall furnish to such Recipient
reasonable documentation to substantiate the amounts billed including, but not
limited to, listings of the dates, times and amounts of the services in question
where applicable and practicable. Upon delivery of such documentation, such
Recipient and such Provider shall cooperate and use their best efforts to
resolve such dispute among themselves. If such disputing Parties are unable to
resolve their dispute within thirty (30) calendar days of the initiation of such
procedure, and such Recipient believes in good faith and with a reasonable basis
that the amounts shown as billed to such Recipient are inaccurate or are
otherwise not in accordance with the terms of this Services Agreement, then such
Recipient shall have the right, at its own expense, to commence arbitration in
accordance with Section 8.1 of this Services Agreement.
ARTICLE 4
TERM AND TERMINATION
4.1 Term. Except as expressly provided otherwise in this Services
Agreement, or with respect to specific Services as indicated on Schedule A
hereto, the term of this Services Agreement shall be for 180 days commencing at
the Effective Time (the "Initial Term"). Upon mutual written agreement of the
Parties, the Initial Term may be extended for an additional period
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of up to 180 days at the request of a Recipient by written notice from such
Recipient to its Provider, with copies to Seller and Buyer; any such written
request shall be made at least 30 days prior to the expiration of the Initial
Term (the Initial Term plus any extension thereof may be referred to herein as
the "Term"). The obligation of any Recipient to make a payment for services
previously rendered shall not be affected by the expiration of the Term or any
termination of this Services Agreement pursuant to Section 4.2 and shall
continue until full payment is made.
4.2 Termination of Individual Services. Notwithstanding anything to the
contrary contained herein or in Schedule A hereto, a Recipient may terminate at
any time during the Term any individual Service provided under this Services
Agreement on a service-by-service basis (and/or location-by-location basis where
an individual service is provided to multiple locations of a Recipient) upon
written notice to the Provider identifying the particular Service (or location)
to be terminated and the effective date of termination, which date shall not be
less than 20 days after receipt of such notice unless the Provider otherwise
agrees. Effective upon the termination of such Service, an appropriate reduction
will be made in the fees charged to such Recipient.
ARTICLE 5
CERTAIN COVENANTS
5.1 Points of Contact. Each Provider and Recipient shall name an
individual who shall serve as a point of contact and each point of contact shall
be deemed added to Schedule A hereto. Each point of contact shall be responsible
for the implementation of this Services Agreement between the respective
Provider and its Recipient, including resolution of any issues which may arise
during the performance hereunder on a day-to-day basis.
5.2 Cooperation; Reasonable Care.
(a) The Parties will cooperate (using reasonable commercial
efforts) to effect a smooth and orderly transition of the Services provided
hereunder from the Providers to the respective Recipients including, without
limitation, the separation of the Acquired Business from the Excluded
Businesses; provided, however, that this Section 5.2 shall not require any Party
hereto to incur any out-of-pocket expenses unless and except as expressly
provided otherwise herein.
(b) Each Provider shall perform the Services that it is required
to provide to its respective Recipient(s) under this Services Agreement with
reasonable skill and care and shall use at least that degree of skill and care
that it would exercise in similar circumstances in carrying out its own
business. Each Provider shall take necessary measures to protect the respective
Recipient's data that is processed by such Provider from destruction, deletion
or unauthorized change; provided, however, that a Provider shall be deemed to
have satisfied this obligation if the measures taken to protect and recover
Recipient's data are equivalent to what the Provider uses in carrying out such
Provider's own business.
5.3 Migration Projects. At the end of the Term, each Provider will
provide the respective Recipient with reasonable support necessary to transition
the Services, which may
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include (a) consulting, (b) training, (c) providing reasonable access to data
and other information in Provider's standard format and medium (whether
electronic or otherwise) and (d) reasonable access to Provider's employees.
Recipient shall bear any costs incurred as a result of requests by Recipient for
services, data elements, data manipulation or data production/processing
schedules that differ from Provider's standard internal practices and policies
(all such data, activities or requests are hereinafter referred to as "Project
Work"). Where required for transitioning the Services, the Recipient's employees
or approved representatives will be granted reasonable access to the respective
Provider's facilities during normal business hours. Certain Project Work may be
out-sourced to external service partners (including those involving conversion
programs or other programming, or extraordinary management supervision and/or
coordination). The Recipient shall pay Provider's actual costs incurred in
connection with all Project Work, whether performed by Provider's personnel or
external service providers. Prior to commencing any Project Work, Provider shall
provide Recipient with an estimate of the cost and scope of such Project Work to
be mutually approved by Seller and Buyer.
5.4 Further Assurances. From time to time after the date hereof,
without further consideration, each Party shall execute and deliver such formal
license agreements as another Party may reasonably request to evidence any
license provided for herein or contemplated hereby.
5.5 Certain Disbursements/Receipts. The Parties hereto contemplate
that, from time to time on or after the Closing Date, the Seller Entities or
their Affiliates (each a "Seller Party" and collectively, the "Seller Parties")
and/or the Buyer Entities (each a "Buyer Party" and collectively, the "Buyer
Parties") (any such party, the "Paying Party"), as a convenience to another
Buyer Party or Seller Party, as the case may be (the "Responsible Party"), in
connection with the transactions contemplated by this Services Agreement or the
Asset Purchase Agreement, may make certain payments that are properly the
responsibility of the Responsible Party (whether pursuant to the Asset Purchase
Agreement, this Services Agreement, any other agreement contemplated thereby)
(any such payment made, a "Disbursement"). Similarly, from time to time on or
after the Closing Date, Seller Parties and/or Buyer Parties (any such party, the
"Receiving Party") may receive from third parties certain payments to which
another Buyer Party or Seller Party, as the case may be, is entitled (any such
Party, the "Other Party", and any such payment received, a "Receipt").
Accordingly, with respect to Disbursements and Receipts, the Parties hereto
agree as follows:
(a) Disbursements.
(i) For Disbursements made by check, the Responsible Party
will reimburse the Paying Party within seven business days after
written notice of such Disbursement has been given to the Responsible
Party.
(ii) In case of a Disbursement by wire, if written notice has
been given by 2 p.m. of the Responsible Party's local time at least one
business day prior to the payment of such Disbursement, the Responsible
Party shall reimburse the Paying Party for the amount of such payment
(in the local currency equivalent paid by the Paying Party) on the date
the Disbursement is made by the Paying Party. If notice as provided
above has not been given prior to the payment of such Disbursement, the
Responsible Party shall
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reimburse the Paying Party for the amount of such payment (in the local
currency equivalent paid by the Paying Party) within one business day
after receipt by the Responsible Party of such notice from the Paying
Party.
(iii) A Paying Party shall provide such supporting
documentation regarding Disbursements for which it is seeking
reimbursement as the Responsible Party may reasonably request.
(b) Receipts. A Receiving Party shall remit Receipts to the
Other Party (in the same currency as such payment is received) within one
business day of receipt thereof.
(c) Certain Exceptions. Notwithstanding anything to the contrary
set forth above, if, with respect to any particular transaction(s), it is
impossible or impracticable under the circumstances to comply with the
procedures set forth in subsections (a) and (b) of this Section 5.5 (including
the time periods specified therein), the Parties will cooperate to find a
mutually agreeable alternative that will achieve substantially similar economic
results from the point of view of the Paying Party or the Other Party, as the
case may be; including the paying of interest at the rate set forth in Section
1.3(d) of the Asset Purchase Agreement by the Paying Party to the Other Party
for the period of time starting on the date such payment was due and ending on
the date such payment is made such that the Paying Party will not incur any
material interest expense or the Other Party will not be deprived of any
material interest income; provided, however, that if a Receiving Party cannot
comply with the procedures set forth in subsection (b) of this Section because
it does not become aware of a Receipt on behalf of the Other Party in time (e.g.
because of the commingling of funds in an account), such Receiving Party shall
remit such Receipt without interest thereon to the Other Party within one
business day after it becomes aware of such Receipt.
5.6 Collection of Receivables. Accounts receivable collected by any
Seller Entity as part of the Services shall be remitted weekly in arrears to an
account designated by the Recipient set forth on Schedule A hereto such Service.
If some trade receivables of the Acquired Business are retained by the Seller
Entities either as owner or as collection agent, the Buyer Entities agree to
collect such trade receivables on Seller's behalf using the same degree of care
and diligence as if such receivables were their own.
5.7 No Implied Duties. No Seller Entity or Provider shall have any
implied duties or obligations arising from this Services Agreement except as may
be expressly set forth herein.
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ARTICLE 6
INDEMNITY
6.1 Indemnity.
(a) The Seller Entities (jointly and severally) will each
indemnify and hold harmless the Buyer Entities, their agents, employees and
invitees, against all liabilities, claims, losses, damages, death or personal
injury of whatever nature or kind, arising out of their performance of Services
or other obligations under this Services Agreement or the entry of their agents,
employees or invitees onto the premises of the other, to the extent occasioned
by the willful misconduct or grossly negligent actions or omissions of the
Seller Entities or their agents, employees or invitees.
(b) Notwithstanding the foregoing, no Party shall be entitled
to any damages with respect to lost profits or consequential damages or punitive
damages with respect to the performance by any other Party under this Services
Agreement.
ARTICLE 7
CONFIDENTIALITY
7.1 Obligations. With respect to any information disclosed by one Party
to another Party for the purpose of this Services Agreement or otherwise
accessible to such other Party during the performance hereunder ("Confidential
Information"), the receiving Party agrees that it will use at least that degree
of skill and care that it would exercise in similar circumstances in carrying
out its own business to prevent the disclosure or accessibility to others of the
disclosing Party's Confidential Information and will use such Confidential
Information only for the purpose of this Services Agreement. No Party shall
disclose, publish, release or otherwise make available the Confidential
Information of the other Party. The receiving Party shall limit dissemination of
and access to the other's Confidential Information to only such of the receiving
Party's employees who have a need to know.
7.2 Exclusions. Specifically excluded from the foregoing obligation is
any and all information that:
(a) is already known to the receiving Party at the time of
disclosure or thereafter is independently developed by the receiving Party
without breach of this Services Agreement;
(b) is already in the public domain at the time of disclosure,
or thereafter becomes publicly known other than as the result of a breach by the
receiving Party of its obligations under this Services Agreement or any other
confidentiality obligation under another binding agreement between the Parties;
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(c) is rightfully received from a third party without breach of
this Services Agreement;
(d) is furnished by the disclosing Party to a third party
without a similar restriction on its rights; or
(e) upon advice of counsel, must be produced by the receiving
Party as a matter of law; provided, however, that in such case the receiving
Party shall promptly notify the disclosing Party and, insofar as is permissible
and reasonably practicable without placing the receiving Party under penalty of
law, give it an opportunity to appear and to object to such production before
producing the requested information.
ARTICLE 8
MISCELLANEOUS
8.1 Arbitration; Continuation of Services Pending Outcome of Dispute.
In the event of any dispute, controversy or claim between the Parties or between
Providers and Recipients arising out of or relating to this Services Agreement,
such disputing Parties shall first attempt to resolve such disputes among
themselves within thirty (30) calendar days from the date any disputing Party
sends written notice of such dispute to the other disputing Party or Parties. If
the disputing Parties fail to resolve such dispute within such period, the
Parties shall follow the dispute resolution and arbitration procedures set forth
in Section 9.13 of the Asset Purchase Agreement, which Section is incorporated
herein by reference as if stated herein in its entirety. No Provider shall
discontinue the supply of any Service provided for herein, unless so provided in
an arbital determination that the respective Recipient is in default of an
obligation under this Services Agreement.
8.2 Notices. Any notice provided or permitted to be given to a Party
under this Services Agreement must be in writing, and may be served by
depositing same in the mail, addressed to the Person to be notified, postage
prepaid, and registered or certified, with return receipt requested. Notice
given by registered or certified mail shall be deemed given and effective on the
date of delivery as shown on the return receipt. Notice may be served in any
other manner including telex, telecopy or telegram but shall be deemed given and
effective as of the time of actual delivery thereof to the addressees. For
purposes of the giving of notice, Recipients and Providers shall be notified at
the addresses used for billing purposes (which shall be added to Schedule A
hereto), real estate occupants shall be notified at the addresses of their
respective occupied premises and Seller and Buyer shall be notified at the
addresses listed below:
If to Buyer or any Buyer Entity:
Honeywell International Inc.
X.X. Xxx 0000
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Director, Acquisitions and Divestitures
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Global Business Services
Telephone: (000) 000-0000
Telecopy: (000 000-0000
With a copy to:
Honeywell International Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Deputy General Counsel - Corporate Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller:
Ultrak, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Gardere Xxxxx Xxxxxx LLP
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any Party may change its respective address for notice by the giving of notice
of such change in the manner provided above.
8.3 Entire Agreement. Except for those matters provided for in the
Asset Purchase Agreement or the other agreements contemplated therein, this
Services Agreement sets forth the entire agreement of the Parties with respect
to its subject matter. This Services Agreement shall not be modified or amended
except by written instrument executed by each Party provided, however, that a
modification or amendment affecting only the relationship between a certain
Provider and its Recipient, or between a lessor and its lessee, does not require
signature by the other Parties. Schedule A to this Services Agreement shall be
deemed incorporated in this Services Agreement and shall form a part of it.
8.4 Waiver. The failure of a Party to insist upon strict performance of
any provision of this Services Agreement shall not constitute a waiver of, or
estoppel against, asserting the right to require such performance in the future,
nor shall a waiver or estoppel in any one instance constitute a waiver or
estoppel with respect to a later breach of a similar nature or otherwise.
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8.5 Severability. If any of the terms and conditions of this Services
Agreement are held by any court of competent jurisdiction to contravene, or to
be invalid under, the laws of any political body having jurisdiction over the
subject matter of this Services Agreement, such contravention or invalidity
shall not invalidate the entire Services Agreement. Instead, this Services
Agreement shall be construed as if it did not contain the particular provision
or provisions held to be invalid, and an equitable adjustment shall be made and
necessary provisions added so as to give effect to the intention of the Parties
as expressed in this Services Agreement at the time of the execution of this
Services Agreement and of any amendments to this Services Agreement.
8.6 Governing Law; Construction; Jurisdiction. This Services Agreement
shall be construed and enforced in accordance with and governed by the laws of
the State of Delaware, without reference to its conflicts of law rules or
principles. The headings in this Services Agreement are not to be considered
part of this Services Agreement and are inserted for convenience, identification
and reference only and are not intended to interpret, define, or limit the
scope, extent, or intent of this Services Agreement or any provision of this
Services Agreement. Whenever the context requires, the gender of all words used
in this Services Agreement shall include the masculine, feminine and neuter, and
the number of all words shall include the singular and the plural. The Parties
agree that jurisdiction will be governed by Section 9.14 of the Asset Purchase
Agreement.
8.7 Counterpart Execution. This Services Agreement may be executed in
counterparts with the same effect as if all of the Parties had signed the same
document. Such counterparts shall be construed together and shall constitute one
and the same instrument, notwithstanding that all of the Parties are not
signatories to the original or the same instrument, or that signature pages from
different counterparts are combined. The signature of any Party to one
counterpart shall be deemed to be a signature to and may be appended to any
other counterpart.
8.8 Successors and Assigns.
(a) This Services Agreement shall inure to the benefit of and
shall be binding upon the Parties, their respective legal representatives,
successors, and permitted assignees, and all Persons claiming by, through, or
under right of any of the aforesaid Persons. This Services Agreement may not be
assigned by any Party without the prior written consent of the other Parties.
(b) At the request of any Provider, Recipient, lessor or lessee
that is a Party hereto, any other Provider or Recipient that is receiving
benefits or has obligations hereunder and is not a signatory hereto, shall
execute and deliver to the other Parties a counterpart hereof. The failure of
any Person that is receiving benefits or has obligations hereunder to execute a
counterpart hereof shall not affect the enforceability of this Services
Agreement against such Person or against any other Party hereto.
8.9 No Third Party Rights. The provisions of this Services Agreement
are intended to bind the Parties to each other and are not intended and do not
create rights in any other person,
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including any employee of the Acquired Business or Seller, and no Person is
intended to be or is a third party beneficiary of any of the provisions of this
Services Agreement.
8.10 Independence. All employees and representatives of a Party
providing Services will be deemed for purposes of all compensation and employee
benefits to be employees or representatives of the Party providing such Services
(or its subcontractors) and not employees or representatives of the Party
receiving such Services. In performing Services, such employees and
representatives will be under the direction, control and supervision of the
Party providing the Services (or its subcontractors) (and not of the Party
receiving such Services) and the Party providing the Services (or its
subcontractors) will have the sole right to exercise all authority with respect
to the employment (including termination of employment), assignment and
compensation of such employees and representatives.
8.11 Nonexclusivity. Nothing in this Services Agreement shall prevent
either Party from providing any Service to any other Person. Nothing in this
Services Agreement shall prevent either Party from obtaining all or any part of
the Services from its own employees and facilities or from providers other than
the other Party, subject to the policies and procedures of the Provider where
the Recipient occupies the facilities of the other Party.
8.12 No Agency or Partner Relationship. Nothing in this Services
Agreement shall be deemed to make either Party the agent or partner of the other
Party.
8.13 Survival. The following sections of this Services Agreement and
the obligations thereunder shall survive termination hereof: Sections 3.3, 5.5,
5.6, the last sentence of Section 4.1, and Articles 6, 7 and 8.
8.13 Conflict. This Services Agreement does not supersede the Asset
Purchase Agreement, the Sublease, the Trademark License Agreement, the CCTV
Products Supply Agreement, the Access Control Supply Agreement or the Trademark
and Copyright License Agreement (collectively, the "Superior Documents"). Any
conflicts between the terms of this Services Agreement and the Superior
Documents shall be resolved in favor of the Superior Documents.
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IN WITNESS WHEREOF, the duly authorized officers or representatives of
the Parties hereto have duly executed this Services Agreement as of the date
first written above.
ULTRAK, INC.
As Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
ULTRAK OPERATING, L.P.
As Seller
By: Ultrak GP, Inc., its General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
ULTRAK GP, INC.
As Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
ULTRAK LP, INC.
As Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
ULTRAK OHIO, INC.
As Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
PITTWAY CORPORATION
As Purchaser
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
TRANSITION SERVICES AGREEMENT
SCHEDULE A
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SCHEDULE A
A. UNITED STATES
1. INFORMATION TECHNOLOGY
PROVIDER:
Contact Person: Xxx Xxxxxx
Telephone: (000) 000-0000
RECIPIENT:
Contact Person: Xxx Xxxxxx
Telephone: (000) 000-0000
SERVICES AND CHARGES: See Annex 1
TERM: Services will be provided for an Initial Term of
180 days, from 12:01 a.m. Eastern Time on the Closing
Date. Recipient may request one extension of the Initial
Term for up to an additional 180 days. The grant of any
such extension (including its duration and scope) is
subject to the mutual agreement of the Seller and the
Purchaser. Recipient shall submit such a request by
providing written notice to the Provider (with a copy to
the Purchaser and the Seller) at least 30 days prior to
the end of the Initial Term. Such notice shall indicate
Recipient's request to extend the Initial Term and
specify the desired number of days of such extension, up
to a maximum of 180 days.
NOTES:
1. Telecom, Internet and VPN services will continue to be
billed by existing vendors and approved by local site
management until transition is completed. Seller will
retain license agreements with MCI WorldCom or
equivalent vendors and pay all local circuit termination
penalties.
2. Services will be billed on actual usage for Desktop and
Copier Leasing via U.S. vendors. Recipient will assume
all liability for these services as of the Closing Date.
3. Software Licenses: licenses, which can be transferred,
will be identified and become the property of the
recipient. The Recipient will not be entitled to SAP
client or server licenses. Demand Solutions forecasting
software will be transferred to Recipient with vendor
approval.
4. Software Consent Fees: during transition period, Seller
will be responsible for paying all vendors consent and
maintenance fees during the transition period.
5. Within 90 days following the Closing Date, Recipient
shall have the option, with respect to the leased
Computer Equipment and Copier Machines used by the
Affected Business, to (a) enter into an assignment of
the leased Equipment to Recipient to be effected such
that
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TRANSITION SERVICES AGREEMENT
SCHEDULE A
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the Recipient shall have use of the Equipment on the
same terms following the Equipment Lease assignment as
the Affected Business did prior to such assignment, (b)
negotiate and exercise a buy-out of the Equipment Lease
and the purchase of the Equipment on terms agreed to by
the Recipient and the equipment lessor or (c) exercise
an early lease termination and return leased Equipment
to the equipment lessor(s). Provider agrees to assist
the Recipient in exercising any of the options in the
preceding sentence by facilitating discussions between
the equipment lessor and the Recipient.)
6. Within 90 days following the Closing Date, Provider will
assign ownership of Toll Free and Local Exchange Carrier
(LEC) telephone numbers and Internet Domain Names to
Recipient.
7. Cell phones, pagers and calling cards will be provided
for 30 days.
8. Within 30 days following the Closing Date, Provider will
physically secure Recipient owned and managed equipment.
Provider will be responsible for all building structural
modifications and utility alterations required.
Recipient will be responsible for moving owned and
managed equipment.
9. Videoconferencing: Provider will provide Recipient with
access to Videoconferencing facility owned and managed
by Provider on a requested basis subject to
availability. Services will be billed on Recipient usage
of the facility and actual cost.
10. Provider is responsible for all SAP hardware/software
Break-Fix, network connectivity to Xxxxx and Database
Break-Fix. To the extent Recipient is responsible for a
problem, Recipient will reimburse Provider for the
direct costs to resolve the problem and be provided with
supporting documentation. All system outages and
performance issues will be resolved by Provider in
accordance with business practices typical in the
industry. Recipient will neither change the SAP
configuration nor contact vendors directly without prior
written approval of the Provider, except as it relates
to SAP migration, in which case, Provider agrees to
provide UNIX and SAP administrative permission as
required and, if required, a temporary VPN connection.
Recipient agrees to provide administrative read
permission to Vendor communications.
B. CONSULTING SERVICES OF XXXXX XXXXXX, XXXXX XXXXXXX, XXXX XXXXXX AND
OTHERS
For a period of 180 days (subject to extension from time to time pursuant to
Section 5.1), Sellers and their Affiliates shall cause Xxxxx Xxxxxx, Xxxxx
Xxxxxxx, Xxxx Xxxxxx and such other employees of Sellers and their Affiliates as
Buyer Entities may identify from time to time ("Consultants") to provide
consulting services to the Buyer Entities on subjects and in areas within such
Persons' expertise.
Compensation for such services shall be charged at an hourly rate of US$100.00
plus the out-of-pocket expenses of the Consultants incurred in connection with
such services and pre-approved by the Buyer Entities in writing, including
travel expenses incurred at the request of Buyer.
Sellers and their Affiliates shall only be obligated to make Consultants
available pursuant to the terms of this
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TRANSITION SERVICES AGREEMENT
SCHEDULE A
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Services Agreement for so long as such Persons are employed by Sellers and their
Affiliates and for no more than fifty-percent of such employee's professional
service time.
C. UNITED KINGDOM
1. USE OF WARRINGTON FACILITY
Ultrak (UK) Limited
PROVIDER:
Contact Person: Xx. Xxxxx Xxxxxxxxx, Partner
Putsman.wlc Solicitors
Birmingham England
Telephone:
RECIPIENT:
Video Controls Limited
Contact Person: Xxxx Xxxxx
Telephone: x00 (0)0000 000000
SERVICES AND CHARGES: See Annex 2
TERM: Services will be provided for an Initial Term of
60 days, from 12:01 a.m. Eastern Time on the Closing
Date. Recipient may request an extension of the Initial
Term by providing written notice to the Provider (with a
copy to the Purchaser and the Seller) at least 7 days
prior to the end of the Initial Term. The grant of any
such extension (including its duration and scope) is
subject to the mutual agreement of the Provider and the
Recipient. If Recipient's request to extend the Initial
Term is granted by Provider, such extension shall be for
the number of days agreed upon by the parties, up to a
maximum of 90 days. Such extension may be terminated by
either party upon 7 days written notice of such party's
intention to terminate Recipient's occupancy of the
premises located at Carnoustie House, The Links, Xxxxxx
Close, Birchwood, Warrington WA3 7PB (the "Warrington
Facility").
NOTES:
1. Recipient will pay to Provider a monthly fee, as set
forth on Annex 2, to reimburse Provider for the
following fixed costs attributable to Recipient's use of
the Warrington Facility including: (a) monthly rental
payments under the existing lease (including any monthly
insurance premiums payable under the lease) (b)
telephone rental and charges expenses (including any
associated with data transmission), (c) building and
associated equipment maintenance costs (including
service charges associated with the lease under which
Provider holds the Warrington Facility) and (d) rates,
including any water rates.
2. Recipient will reimburse Provider, on a monthly basis,
for the following variable costs attributable to
Recipient's use of the Warrington Facility: (a) gas and
electrical service, and (b) telephone and data
transmission services. Provider will be reimbursed for
these services based on the actual usage at the
Warrington Facility as billed by the appropriate service
provider.
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TRANSITION SERVICES AGREEMENT
SCHEDULE A
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3. Provider and its representatives shall have a right of
access to the Warrington Facility, during office hours
and upon prior appointment, save in the case of
emergency. A key shall be maintained by a nominated
Seller representative in the United Kingdom.
4. Provider will be responsible for all damage or loss to
the Warrington Facility caused by the Recipient, its
employees, agents or visitors. Provider is responsible
for all dilapidations in the nature of normal fair wear
and tear.
5. During the course of Recipient's occupancy of the
Warrington Facility, Provider may continue to
exclusively occupy a secure area of the Warrington
Facility, equivalent to the office used by Jan Beetson,
for storage and accounting purposes. In addition,
Provider and Recipient shall have joint access to common
areas at the Warrington Facility.
6. Provider may set up and maintain a sale board at the
Warrington Facility to assist Provider in its efforts to
sublet the Warrington Facility following Recipient's
vacancy.
7. Recipient shall permit access to that part of the
Warrington Facility that it occupies and provide
reasonable viewing facilities to persons interested in
acquiring the Warrington Facility.
8. Recipient shall occupy the Warrington Facility as an
office and industrial premises in the same manner as
used by the Provider in connection with the CCTV
Business and shall keep and surrender them in a clean
and tidy state and shall occupy and use them in a good
and tenantlike manner. In particular, the Recipient
shall not do or permit anything to be done at or brought
onto the Warrington Facility which may either (a) change
the insurance risk/invalidate the insurance(s) of the
Provider and/or that of any superior landlord of the
Provider or (b) knowingly breach the existing planning,
environmental or safety permits relating to the
Warrington Facility.
D. PAYROLL AND BENEFITS SERVICES
1. Payroll Services:
Seller shall provide Buyer with continued access to Seller's payroll processing
application for payrolls that are processed subsequent to the Closing Date, and
prior to the end of calendar year 2002, for payments that are considered Seller
wages and Seller W-2 applicable. Seller further agrees that Seller shall be
responsible for the issuance to employees of forms W-2 for calendar year 2002.
To the extent that the closing is consummated in the middle of a payroll cycle,
Buyer will reimburse Seller for the prorated gross payroll associated with post
closing wages for that cycle. This reimbursement will be calculated by
multiplying total gross wages for the final pay cycle by a fraction, with such
fraction being the number of post closing days in the final pay cycle divided by
the total number of days in the final pay cycle.
2. Benefits Services:
4
TRANSITION SERVICES AGREEMENT
SCHEDULE A
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Seller agrees to continue all benefits coverage for Transferred Employees
through December 31, 2002, to the extent that such coverage would not normally
be continued through the end of the month.
5
TRANSITION SERVICES AGREEMENT
SCHEDULE A
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1. ANNEXES
ANNEX 1 TO SCHEDULE A
USA - SERVICES AND CHARGES
MONTHLY BILLING
AMOUNT
SERVICE (IN US DOLLARS) APPLICABLE NOTES
---------------------------------------------------------- ---------------- ---------------------
SAP (Xxxxx Outsourcing) $ 18,375 (1)
SAP Software Maintenance $ 12,455 (2)
Other Software Maintenance Licenses $ 3,172 (3)
SAP Maintenance Services (personnel) $ 3,958 (4)
SAP, ACD and SalesForce Application Support Support $ 5,000 (5)(11)
XxxxxXxxxx.xxx $ 4,844 (6)
Local Area Network $ 3,000 (7)(13)
Local Phone Service (PBX, ACD, Depreciation) $ 7,000 (7)(13)
Long Distance Services $ 5,000 (11)(13)
Local Exchange Carrier (LEC) $ 2,000 (11)(13)
Enterprise-Wide Network (EWN) $ 1,041 (8)
Help Desk Support and E-Mail $ 0 (9)
Intel and Unix Servers $ 0 (10)
Desktop Leasing $ 1,000 (11)
Cell Phones and Pagers $ 500 (11)
Remote Access $ 500 (11)
Videoconferencing $ 400 (11)
Copier Leasing $ 500 (11)
SAP Consultant TBD (12)
----------------
INFORMATION TECHNOLOGY GROUP $ 68,745
(1) Cost shown for SAP (Xxxxx Outsourcing) will be billed monthly at 75% of
actual vendor invoice cost. Recipient has the option to terminate with
a 30 day written notice. Provider agrees to terminate Recipient billing
30 days after receipt of Recipient's written notice.
(2) Recipient shall reimburse Provider for the actual cost of 100 SAP
Licenses which can be terminated with a 90 day written notice. Provider
agrees to terminate Recipient billing 90 days after receipt of
Recipient's written notice.
(3) Software maintenance licensing includes the use of Oracle, UNIX,
Vertex, Jbase, and Topcall, (collectively, the "SAP Maintenance
Licenses") in direct support of the SAP system. Costs shown for SAP
Maintenance Licenses will be billed monthly at 75% of actual vendor
invoice cost. Recipient has the option to terminate the SAP Maintenance
Licenses with a 90 day written notice. Provider agrees to terminate
Recipient billing 90 days after receipt of Recipient's written notice.
(4) Recipient shall pay Provider a fixed fee to reimburse Provider for SAP
maintenance personnel services ("SAP Maintenance Services"). Services
and billing will terminate in conjunction with SAP Software
Maintenance.
(5) Any services required by Recipient (such as re-configuration of the
Advanced Call Dist, or assistance with SAP conversion), will be billed
at the rate of $55/Hr and will require written financial pre-approval
from Recipient before work is initiated.
(6) XxxxxXxxxx.xxx will be billed at $4,844 for the month of January only.
The Xxxxxxxxxx.xxx contract expires January 31, 2003, and Provider does
not intend to renew the contract.
(7) Monthly amount includes hardware/software leases, depreciation of local
area wiring, hubs, switches, and phone system that will remain the
property of Provider.
6
TRANSITION SERVICES AGREEMENT
SCHEDULE A
--------------------------------------------------------------------------------
(8) Includes access charges to Maryland ($382) and Las Vegas ($659).
(9) No charges will be incurred since Recipient will provide helpdesk and
Email support.
(10) Server assets will be divided between Recipient and Provider to
adequately support the Recipient and Provider businesses.
(11) Costs shown for these services will be billed at actual monthly cost;
figures given above are estimates. Long Distance and Local Exchange
Carrier (LEC) charges will be based on actual usage reporting and
extensions assigned to Recipient.
(12) Provider to allow Recipient access to SAP Consultant for special
projects at Recipient's expense.
(13) Provider will extend services beyond 180 days. Services to be provided
for the duration of Recipient's occupancy of the Lewisville, Texas
facility.
7
SCHEDULE A
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ANNEX 2 TO SCHEDULE A
UK - SERVICES AND CHARGES
MONTHLY
BILLING
AMOUNT
SERVICE (IN GBP) APPLICABLE NOTES
------------------------------------------------------------ -------------- ----------------
FIXED COSTS: (2)(3)(4)
Rental expense 9,288.50
Rates 3,361.00
Building and associated equipment maintenance service and
service charges associated with the Provider's lease
Namely:
Service Charge including service charge 266.67
Telephone system maintenance 67.92
Heating and boiler maintenance 56.08
Lift (elevator) maintenance 20.00
Fire defense maintenance 20.00
Total Fixed Costs 13,080.17
VARIABLE COSTS: (2)(3)(4)
Gas service TBD (1)
Electrical service TBD (1)
Telephone service rentals and charges including data TBD (1)
transmission services
(1) Provider will be reimbursed for costs associated with these services
based upon actual usage at the Warrington Facility.
(2) All monthly charges shall be prorated for any part month of usage by
the Recipient.
(3) Where applicable all charges or payments shall be subject to the
Provider charging sales tax or other applicable value added taxes on
the sums charged.
(4) Provider shall invoice the Fixed and Variable Costs monthly in arrears
and the Recipient shall pay the same within 14 days of receipt of
invoice.
8
