EXHIBIT 2.2
EXECUTION COPY
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (the "Services Agreement") is
entered into as of the 26th day of March, 2004, by and between GEVITY HR INC., a
Florida corporation with its principal business address at 600 000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000 ("Purchaser"), and EPIX Holdings
Corporation, a Delaware corporation with its principal address at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 ("Seller"). Purchaser and Seller are
sometimes hereinafter collectively referred to as the "Parties."
WITNESSETH
WHEREAS, Purchaser and Seller have entered into an Asset Purchase
Agreement dated March 26, 2004 ("Asset Purchase Agreement") pursuant to which,
Purchaser has purchased the assets of the professional employer organization
("PEO") business of Seller defined therein as the "Acquired Assets";
WHEREAS, Purchaser desires that Seller provide, and Seller has agreed
to provide, certain services to Purchaser for an interim period beginning on the
Saturday following the date hereof as a result of the purchase by Purchaser of
the Acquired Assets and to assist Purchaser in matters of management and
operations; and
WHEREAS, Purchaser and Seller desire to set forth herein the terms
under which the services will be provided.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
promises set forth below and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
1.1 All terms not otherwise defined herein shall have the meanings ascribed to
such terms in the Asset Purchase Agreement.
2. TRANSITION SERVICES
2.1 Nature of Transition Services. During the Term of this Services Agreement,
Seller shall provide to Purchaser those services listed in Exhibit A, attached
hereto, with respect to the Acquired Assets, which services were rendered by
Seller with respect to the Acquired Assets prior to the Closing Date (the
"Transition Services"). Seller agrees during the term of this Services Agreement
to provide the Transition Services in accordance with the standard of
performance set forth in Section 2.2 below. In the event that following the
Closing Date, a service not otherwise set forth on Exhibit A is deemed necessary
by Purchaser and was performed by Seller prior to the Closing Date, then Exhibit
A shall be amended to include such services, so long as the Parties mutually
agree upon the cost to be charged by Seller for such
services and so long as the resources exist at Seller to provide such services
after the Closing Date.
2.2 Standard of Performance. Seller will devote commercially reasonable efforts
to deliver the same standard of performance as Seller delivered in connection
with its operation of the Acquired Assets prior to the Closing Date. Purchaser
may, from time to time, evaluate and review Seller's performance hereunder, and
Seller will cooperate in any such evaluation and review. The Parties will comply
with all applicable federal, state and local laws, rules and regulations in all
matters relating to the performance of this Services Agreement. All Transition
Services will be delivered in a manner consistent with past operating,
accounting and reporting practices of Seller. If any of the systems experience
operating difficulties, Seller will use its commercially reasonable efforts to
promptly remedy such operating issues.
2.3 Required Personnel. Seller has designated Xxx Xxxxxx as Purchaser's primary
contact and Xxx O'Drobinak as Purchaser's secondary contact with respect to the
Transition Services; provided, however, that Seller may at any time designate
one or more individuals to replace Xxx Xxxxxx or Xxx O'Drobinak and serve as
Purchaser's primary and/or secondary contact. Such designee(s) shall be
responsible for ensuring that the Transition Services are available to
Purchaser. In addition, such designee(s) shall coordinate with Purchaser to
ensure that Purchaser has access, as defined herein, to all computer systems,
hardware and software that are required in connection with the delivery of the
Transition Services. Purchaser has designated Xxxx Xxxxxx as Seller's primary
contact and Xxxxx Xxxxxx as Seller's secondary contact with respect to the
Transition Services. A list of the personnel Seller contemplates assigning to
provide the Transition Services is attached hereto as Exhibit A together with
each employee's current annualized salary and Seller's good faith estimate of
the amount and duration of such employee's time allocable to performing the
Transition Services.
2.4 Purchase of Other Assets. On or before May 1, 2004, Purchaser will advise
Seller of (a) any personnel appearing on Exhibit A to whom Purchaser desires to
extend an offer of employment, (b) any existing Seller office leases (other than
those designated in the Asset Purchase Agreement) that Purchaser wishes to
sub-lease (in whole or in part), have assigned or assume, and (c) any Seller PEO
assets dedicated to Seller's PEO business that Purchaser wishes to purchase for
an amount not to exceed Seller's book value. Purchaser and Seller will negotiate
in good faith regarding the sub-lease, assignment or assumption of any such
leases and the purchase of any such assets. Notwithstanding the foregoing,
nothing shall preclude Seller from sub-leasing or assigning any such leases to
any other person, or selling any such assets to any other person, prior to such
date.
3. COMPENSATION
3.1 Fees and Expenses. For and in consideration of the Transition Services,
Purchaser shall pay Seller (i) the direct costs described in Exhibit A hereto,
and (ii) the direct employee wages and fringe benefit costs described in Exhibit
B hereto.
3.2 Payment Procedure. Seller shall pay Purchaser or Purchaser shall pay Seller,
as the case may be, on or before each periodic payroll processing run performed
by Purchaser for the benefit of Seller under the terms of the Professional
Services Agreement, attached to the Asset Purchase Agreement as Exhibit D
thereto, the net amount due either party calculated as the
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difference between the total periodic amount due Purchaser from Seller under the
terms of the Professional Services Agreement and the total periodic amount due
Seller from Purchaser for Seller's performance of Transition Services under the
terms described in Exhibits A and B hereto which shall be invoiced on a payroll
period basis by Seller. All payments and reimbursements due either party shall
be immediately paid by the owing party by wire transfer to the owed party's bank
account, as designated by the owed party.
4. TERM AND TERMINATION
4.1 Term. The term of this Services Agreement shall commence at 12:01 a.m. on
the Saturday following the Closing Date (as defined in the Asset Purchase
Agreement) and terminate 90 days thereafter (the "Termination Date"), unless
sooner terminated pursuant to the provisions hereof or extended upon the mutual
agreement of the parties.
4.2 Termination by Seller. Seller may terminate this Services Agreement prior to
the Termination Date, immediately upon written notice by Seller if Purchaser
fails to pay an invoice within fifteen (15) days of its due date.
4.3 Termination by Purchaser. Purchaser may terminate this Services Agreement or
any individual service listed on Exhibit A upon fifteen (15) days prior written
notice to Seller. Notwithstanding the foregoing, Purchaser acknowledges and
understands, as a material inducement to retain in Seller's employ in order to
provide the Transition Services, Seller has represented or will represent to the
personnel designated on Exhibit A that they will be employed by Seller through
June 29, 2004 (or such earlier date with respect to any such individual as may
be shown on Exhibit A hereto). Therefore, Purchaser agrees to reimburse Seller
for all allocable reimbursable amounts designated in Exhibit B hereto that
otherwise would have been incurred with respect to such individuals through June
29, 2004 (or such earlier date with respect to any such individual as may be
shown on Exhibit A hereto) even if Purchaser elects to terminate this Services
Agreement or any of the Transition Services prior to June 29, 2004.
5. INDEMNIFICATION
5.1 Indemnification by Seller. Seller shall defend, indemnify and hold harmless
Purchaser and its directors, officers, employees and agents from and against any
and all losses, claims, actions, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs) relating to or arising
from or in connection with any act or omission constituting gross negligence or
intentional misconduct by Seller or its agents, employee or representatives
under this Services Agreement. Seller shall not be liable for Purchaser's
consequential, special or punitive damages under this provision.
5.2 Indemnification by Purchaser. Purchaser shall defend, indemnify and hold
harmless Seller and its directors, officers, employees and agents from and
against any and all losses, claims, actions, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs) relating to or
arising from or in connection with any act or omission constituting gross
negligence or intentional misconduct by Purchaser or its agents, employees or
representatives under this Services Agreement.
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6. MISCELLANEOUS
6.1 Non-Waiver. The failure of any party to exercise any power or right under
this Services Agreement or to insist on compliance with any obligation under
this Services Agreement shall not waive the right of such party to demand full
compliance with the terms of this Services Agreement. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
6.2 No Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.
6.3 Entire Agreement. This Services Agreement and the other Acquisition
Documents (including the documents referred to herein) constitute the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
6.4 Succession and Assignment. This Services Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign either this Services Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other Party; provided, however, that the Purchaser may (i)
assign any or all of its rights and interests hereunder to one or more of its
Affiliates, and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Purchaser nonetheless
shall remain responsible for the performance of all of its obligations
hereunder).
6.5 Counterparts. This Services Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
6.6 Headings. The section headings contained in this Services Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Services Agreement.
6.7 Severability. In the event any court holds one or more provisions of this
Services Agreement void or unenforceable, the Parties shall treat that clause or
those clauses as separate to the minimum extent necessary and shall treat the
remainder of this Services Agreement as valid and in full force and effect. The
terms of this Services Agreement shall be equitably adjusted to compensate the
appropriate party for any consideration lost because of the elimination of such
clause or clauses and to give effect to the Parties' intent.
6.8 Notices. All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if delivered personally or by
overnight delivery services or marked by certified or registered mail, return
receipt requested and postage prepaid, or sent by facsimile addressed to the
relevant party at its address or facsimile number as follows:
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If to Purchaser:
Gevity HR, Inc.
600 000 Xxxxxxxxx Xxxx Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telephone: (000)000-0000
Fax: (000)000-0000
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP Sixteenth
Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: G. Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Seller:
EPIX Holdings Corporation
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address or facsimile number as any party may provide to the
other party in writing by proper notice. All such notices and other
communications shall be effective on the date of delivery, mailing or facsimile
transmission, as the case may be.
6.9 Governing Law. This Services Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
6.10 Amendments. No modification of any provision of this Services Agreement
shall be valid unless the same shall be in writing and signed by the Purchaser
and the Seller.
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6.11 Force Majeure. Neither Purchaser nor Seller shall be liable or responsible
for any delays in performance due to strikes, riots, acts of God, shortages of
labor or materials, attacks, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of Purchaser or
Seller.
6.12 Construction. The Parties have participated jointly in the negotiation and
drafting of this Services Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Services Agreement shall be construed as
if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Services Agreement. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
6.13 Applicable Taxes. Purchaser shall be responsible for any taxes and
assessments, including interest and penalties, which may be assessed or levied
by any governmental entity applicable to this Services Agreement, on the
services rendered hereunder or measured by payments made or wages paid hereunder
or which are required to be collected by Seller or remitted by Seller to tax
authorities as a result of this Services Agreement; provided, however, that
Purchaser shall not be responsible for any interest or penalties resulting from
Seller's failure to forward tax funds received from Purchaser to the applicable
tax authority. Such taxes include, but are not limited to, sales, use, excise,
business enterprise and gross receipts taxes, but do not include taxes on the
net income of Seller or its employees. This provision shall survive the
termination of this Services Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this
Transition Services Agreement on the date first above written.
GEVITY HR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel
EPIX HOLDINGS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
