Exhibit 10.1
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this "Agreement") is made and
entered into as of the 30th day of September, 1998, by and between Allin
Communications Corporation, a Delaware corporation with an address at 000
Xxxxxxxxx Xxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Allin"), and SportsWave, Inc., a Pennsylvania corporation with an address at
000 Xxxxxxxxx Xxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("SportsWave").
RECITALS
A. Prior to the date of this Agreement, SportsWave was a wholly owned
subsidiary of Allin occupying the same facilities with Allin in Greentree
Commons and sharing equipment and administrative services.
B. Contemporaneously with this Agreement, Allin is selling all of its
common stock in SportsWave (the "Transaction") to Lighthouse Holdings, Inc., a
Delaware corporation ("Lighthouse"), pursuant to that certain Stock Purchase
Agreement, dated as of the date hereof, between Allin and Lighthouse (the "Stock
Purchase Agreement").
C. In connection with the Transaction and pursuant to the Stock Purchase
Agreement, Lighthouse and SportsWave desire, and Allin has agreed, to have Allin
provide SportsWave with the services specified herein in order to assist
SportsWave in the transition from wholly owned subsidiary of Allin to an
independently owned and operated entity of Lighthouse, all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally bound thereby, the parties hereto agree as follows:
Section 1. Definitions.
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(a) Facilities. "Facilities" means collectively the space occupied,
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utilities used or consumed and real property or other facilities rented,
licensed, purchased or used by Allin at 000 Xxxxxxxxx Xxxxxxx, 381 Mansfield
Avenue, Pittsburgh, or at other offices or real estate locations as may be
owned, rented, licensed or occupied by Allin during the term of this Agreement.
(b) Equipment. "Equipment" means collectively all equipment, machinery,
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furniture, fixtures, computers, communications equipment, office equipment and
other personal property (excluding supplies) used in the business of Allin and
SportsWave and owned or leased by Allin.
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(c) Administrative Services. "Administrative Services" means
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collectively the provision by Allin to SportsWave of all of those administrative
and accounting services previously rendered by Allin to SportsWave, such as
those services set forth on Schedule A, attached hereto. The Administrative
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Services shall not include any senior management functions, financial planning
or budgeting or any tax or year-end accounting service.
Section 2. Provision of Services; Use of Facilities and Equipment.
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(a) For the period of time extending from October 1, 1998, to December
31, 1998, and thereafter on a month-to-month basis until either party provides
the other with at least thirty (30) days written notice of its election to
terminate this Agreement, Allin shall provide SportsWave the Administrative
Services and full use of its Facilities and Equipment, subject to the terms and
conditions of this Agreement.
(b) Allin shall perform the Administrative Services in a manner
consistent with, and substantially similar in nature and quality to, the same
services provided to SportsWave by Allin prior to the date hereof. Allin also
shall assist Lighthouse and SportsWave, as appropriate, in transferring data to
Lighthouse and SportsWave from Allin's systems and establishing interconnection
between systems and otherwise transferring the operation of the Administrative
Services to Lighthouse or SportsWave.
(c) Notwithstanding anything contained herein to the contrary,
Lighthouse or SportsWave may, upon seven (7) days prior notice, terminate all or
any of the Administrative Services or use of the Facilities or Equipment.
(d) Allin, in connection with the provision of the Administrative
Services, shall provide Lighthouse and SportsWave with access, during normal
business hours, to its administrative personnel subject to their reasonable
availability so long as such access does not interfere with the conduct of
Allin's operations.
Section 3. Compensation.
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(a) As compensation for the Administrative Services and use of the
Facilities and Equipment, SportsWave shall pay to Allin a fee of $5000.00 per
month, payable in advance each month, until December 31, 1998. For the period
beginning January 1, 1999, SportsWave shall pay to Allin a fee of $10,000.00 per
month, payable in advance each month.
(b) As additional compensation for the use of the Facilities under this
Agreement, SportsWave shall pay to Allin a fee of $4,500.00 per month, payable
in advance, beginning January 1, 1999, and continuing thereafter until this
Agreement is terminated as provided herein.
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(c) In addition to the foregoing fees, SportsWave shall reimburse Allin
for any out-of-pocket expenses paid to third parties incurred in connection with
the provision of the Administrative Services or use of the Facilities and
Equipment under this Agreement, including, but not limited to, long distance
telephone charges, postage, courier and overnight express delivery services.
Section 4. Benefits.
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For the period of time extending to the earlier of the termination of
this Agreement or December 31, 1998, Allin shall continue to carry all employee
benefits provided prior to the date hereof (except 401(k)) including, health,
dental, disability and life insurance benefits for SportsWave employees, and
SportsWave shall reimburse Allin for all actual costs, fees and expenses
associated therewith.
Section 5. Indemnity.
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(a) SportsWave shall indemnify and hold Allin, its employees, officers,
managers, equity holders, agents and servants harmless from any and all claims,
suits, demands, losses and liabilities arising under or related to this
Agreement and paid by Allin to a third party, except as may arise from the gross
negligence or willful misconduct of, or intentional breach of this Agreement by
Allin, its employees, officers, managers, equity holders, agents or servants.
(b) Allin shall indemnify and hold SportsWave, its employers, officers,
managers, equity holders, agents and servants harmless from any and all claims,
suits, demands, losses and liabilities arising under or related to this
Agreement and paid by SportsWave to a third party to the extend caused by
Allin's gross negligence, willful misconduct or intentional breach of this
Agreement or that of its employees, officers, managers, equity holders, agents
or servants.
(c) The procedure set forth governing indemnities in Section 6.2 of the
Stock Purchase Agreement shall be used regarding claims for indemnity under this
Agreement.
Section 6. Consequential and Other Damages.
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Neither party shall be liable to the other party for any special,
indirect, incidental or consequential damages whatsoever which in any way arise
out of, relate to, or are a consequent of, each party's or its employees'
performance or nonperformance under this Agreement.
Section 7. Relationship.
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Allin and SportsWave shall in no event be construed as joint venturers or
partners of each other as a consequence of the relationship contemplated under
this Agreement. Neither Allin nor SportsWave shall have the power to bind or
obligate the other.
Section 8. General Matters.
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(a) Captions. The captions utilized in this Agreement are for the
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purposes of identification only and shall not control or affect the meaning or
construction of any of the provisions hereof.
(b) Integration. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and will supersede
all previous negotiations, representations, commitments and writings.
(c) Modification and Waiver. This Agreement may not be amended,
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released, discharged, rescinded or abandoned, except by a written agreement duly
executed by each of the parties hereto. The
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failure of any party hereto at any time to enforce any of the provisions of this
Agreement will in no way constitute or be construed as a waiver of such
provision or of any other provision hereof, nor in any way affect the validity
of, or the right thereafter to enforce, each and every provision of this
Agreement.
(d) Governing Law. This Agreement and its validity, construction,
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administration and all rights hereunder, will be governed by the laws of
Illinois without regard to its conflict of laws provisions.
(e) Severability. The invalidity or unenforceability of any particular
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provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
(f) Notices. All notices required or permitted hereunder shall be in
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writing and shall be deemed to have been sufficiently given when sent and
delivered in accordance with Section 7.1 of the Stock Purchase Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
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several counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same instrument.
(h) Non-Assignability. Except as otherwise provided in this Section
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8(h), this Agreement shall not be assigned, conveyed or otherwise transferred by
the parties hereto without the prior written consent of the parties hereto.
Notwithstanding the foregoing, nothing herein shall prohibit (i) SportsWave from
assigning any of their rights hereunder to any one or more of its affiliates or
(ii) Allin from utilizing the services of any third party customarily utilized
in connection with the provisions of this Agreement or otherwise used by Allin
in the ordinary course of business for performance of similar functions.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have executed this Agreement as of the date first above written.
ALLIN COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
SPORTSWAVE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chief Executive Officer
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SCHEDULE A
1. All daily and monthly accounting functions including accounts receivable,
accounts payable, payroll and general ledger.
2. All human resources functions including benefits management.
3. Clerical services including reception and overflow administrative/clerical
support.
4. Maintain and support the existing computer system and network
infrastructure.
5. Use of copy machines and other office equipment.
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