EXHIBIT 10.4
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT, dated as of ________________ (this
"Agreement"), is made by and between F.N.B. Corporation, a Florida corporation
("FNB"), and First National Bankshares of Florida Inc., a Florida corporation
("FNBF").
WITNESSETH:
WHEREAS, FNB and FNBF are parties to an Agreement and Plan of
Distribution, dated as of _____________ (the "Distribution Agreement"), pursuant
to which FNB will transfer certain assets to FNBF and have FNBF assume certain
liabilities of FNB;
WHEREAS, in connection with the transactions contemplated by the
Distribution Agreement, FNB and FNBF wish to enter into this Agreement for
purposes of continuity and transition; and
WHEREAS, FNBF desires FNB to provide the Services set forth on Schedule
A to FNBF, and FNB is willing to provide such Services, and FNB desires FNBF to
provide the Services set forth on Schedule B to FNB, and FNBF is willing to
provide such Services, all on the terms and conditions set forth below;
NOW, THEREFORE, the parties hereto, in consideration of the premises
and the mutual covenants contained herein, agree as follows:
SECTION 1. SPECIFIC DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, as used
in this Agreement, the following terms have the respective meanings set forth
below:
"Applicable Rate" shall mean shall mean the "prime rate" of interest
per annum, as published from time to time in The Wall Street Journal, Eastern
Edition, plus four percent.
"FNB Services" shall mean those transitional services to be provided by
FNB to FNBF set forth on Schedule A hereto to assist FNBF in operating FNBF's
business.
"FNBF Services" shall mean those transitional services to be provided
by FNBF to FNB set forth on Schedule B hereto to assist FNB in operating FNB's
business.
"Loss" shall mean all losses, liabilities, damages, claims, demands,
judgments or settlements of any nature or kind, known or unknown, fixed,
accrued, absolute or contingent, liquidated or unliquidated, including all
reasonable costs and expenses (legal, accounting or otherwise as such costs are
incurred) relating thereto.
"Person" shall mean any natural person, corporation, business trust,
limited liability
company, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Services" shall mean, collectively, the FNB Services and the FNBF
Services.
SECTION 2. SERVICES.
2.1 Services.
(a) FNB shall provide to FNBF each FNB Service
for the term set forth opposite the description of such FNB
Service in Schedule A. Additional services may be provided to
FNBF by FNB if such arrangement is agreed to in writing and
executed by FNB and FNBF.
(b) FNBF shall provide to FNB each FNBF Service
for the term set forth opposite the description of such FNBF
Service in Schedule B. Additional services may be provided by
FNBF to FNB if such arrangement is agreed in writing and
executed by FNB and FNBF.
2.2 Standard of Service. In performing the Services, FNB
and FNBF shall provide substantially the same level of service and use
substantially the same degree of care as their respective personnel
provided and used in providing such Services prior to the date hereof,
subject in each case to any provisions set forth on Schedule A or
Schedule B with respect to each such Service.
SECTION 3. LICENSES AND PERMITS. Each party warrants and
covenants that all duties and obligations (including with respect to FNB, all
FNB Services and with respect to FNBF, all FNBF Services) to be performed
hereunder shall be performed in compliance with all material applicable federal,
state, provincial and local laws, rules and regulations. Each party shall obtain
and maintain all material permits, approvals and licenses necessary or
appropriate to perform its duties and obligations (including with respect to
FNB, the FNB Services and with respect to FNBF, the FNBF Services) hereunder and
shall at all times comply with the terms and conditions of such permits,
approvals and licenses.
SECTION 4. PAYMENT.
4.1 Service Fees.
(a) In consideration for the provision of each
of the FNB Services, FNBF shall pay to FNB the fee set forth
for such FNB Service on Schedule A.
(b) In consideration for the provision of each
of the FNBF Services, FNB shall pay to FNBF the fee set forth
for such FNBF Service on Schedule B.
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4.2 Costs and Expenses.
(a) In addition to the fees payable in
accordance with Section 4.1(a), FNBF shall reimburse FNB for
all reasonable and necessary out-of-pocket costs and expenses
(including postage and other delivery costs, telephone,
telecopy and similar expenses) incurred by FNB with respect to
third parties in connection with the provision of FNB Services
to FNBF pursuant to the terms of this Agreement or paid by FNB
on behalf of FNBF.
(b) In addition to the fees payable in
accordance with Section 4.1(b), FNB shall reimburse FNBF for
all reasonable and necessary out-of-pocket costs and expenses
(including amounts for premiums, claims, fees, postage and
other delivery costs, telephone, telecopy and similar
expenses) incurred by FNBF with respect to third parties in
connection with the provision of FNBF Services to FNB pursuant
to the terms of this Agreement or paid by FNBF on behalf of
FNB.
4.3 Invoices.
(a) FNB will invoice FNBF: (i) as of the last
day of each calendar month for any fees payable by FNBF in
accordance with Section 4.1(a) for FNB Services listed on
Schedule A provided pursuant to the terms of this Agreement
during such month; (ii) as of the last day of each calendar
month for any amounts payable by FNBF in accordance with
Section 4.2(a) for any out-of-pocket costs and expenses
incurred during the immediately preceding month to the extent
FNB has received an invoice from such third party; and (iii)
as of the last day of each calendar month for any taxes
(excluding income taxes) payable with respect to the provision
of FNB Services to FNBF during such month. FNB shall deliver
or cause to be delivered to FNBF each such invoice within 30
days following the last day of the calendar month to which
such invoice relates. FNBF shall pay each such invoice
received by electronic funds transfer within 30 days of the
date on which such invoice was received.
(b) FNBF will invoice FNB: (i) as of the last
day of each calendar month for any fees payable by FNB in
accordance with Section 4.1(b) for FNBF Services listed on
Schedule B provided pursuant to the terms of this Agreement
during such month; (ii) as of the last day of each calendar
month for any amounts payable by FNB in accordance with
Section 4.2(b) for any out-of-pocket costs and expenses
incurred during the immediately preceding month to the extent
FNBF has received an invoice from such third party; and (iii)
as of the last day of each calendar month for any taxes
(excluding income taxes) payable with respect to the provision
of FNBF Services to FNB during such month. FNBF shall deliver
or cause to be delivered to FNB each such invoice within 30
days following the last day of the calendar month to which
such invoice relates. FNB shall pay each such invoice received
by electronic funds transfer within 30 days of the date on
which such invoice was received.
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4.4 Late Payment. Any amount not paid when due shall be
subject to a late payment fee computed daily at a rate equal to the
Applicable Rate. Notwithstanding the foregoing, in the event a party
disputes the accuracy of any invoice, a party shall pay the undisputed
portion of such invoice as provided herein, and the parties hereto will
promptly meet and seek to resolve the disputed amount of the invoice.
Each party agrees to pay the other party's reasonable attorneys' fees
and other costs incurred in collection of any amounts owed to such
other party hereunder and not paid when due. Notwithstanding anything
to the contrary contained herein, in the event either party fails to
make a payment when due hereunder, and such failure continues for a
period of 30 days following delivery of written notice to such
non-paying party of such failure, the other party shall have the right
to cease provision of Services to such non-paying party until such
overdue payment (and any applicable late payment fee accrued with
respect thereto) is paid in full. Such right of the party providing
Services shall not in any manner limit or prejudice any of such party's
other rights or remedies in the event of the non-paying party's failure
to make payments when due hereunder, including any rights or remedies
pursuant to Section 7.
4.5 Fees, Etc. Upon Termination of Services. In the event
of a termination of Services pursuant to Section 7.1, with respect to
the calendar month in which such Services cease to be provided (the
"Termination Month"), the recipient of such Services shall be obligated
to pay a pro rata share of the fee for such Service set forth on
Schedule A or Schedule B, as applicable, equal to the product of (x)
the fee set forth on Schedule A or Schedule B, as applicable,
multiplied by (y) a fraction, the numerator of which is the number of
days in the Termination Month such Services are provided, and the
denominator of which is 30.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification by Principal.
(a) FNBF agrees to indemnify, defend and hold
FNB harmless from and against any Loss to which FNB may become
subject arising out of, by reason of or otherwise in
connection with the provision hereunder by FNB of FNB
Services, other than Losses resulting from FNB's gross
negligence, willful misconduct or material breach of its
obligations pursuant to this Agreement. Notwithstanding any
provision in this Agreement to the contrary, FNBF shall not be
liable under this Section 5.1 for any consequential, special
or punitive damages (including lost profits), except to the
extent that such consequential, special or punitive damages
relate to a Loss resulting from a Third-Party Claim (as
defined in the Distribution Agreement).
(b) FNB agrees to indemnify, defend and hold
FNBF harmless from and against any Loss to which FNBF may
become subject arising out of, by reason of or otherwise in
connection with the provision hereunder by FNBF of FNBF
Services, other than Losses resulting from FNBF's gross
negligence, willful misconduct or material breach of its
obligations pursuant to this
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Agreement. Notwithstanding any provision in this Agreement to
the contrary, FNB shall not be liable under this Section 5.1
for any consequential, special or punitive damages (including
lost profits), except to the extent that such consequential,
special or punitive damages relate to a Loss resulting from a
Third-Party Claim (as defined in the Distribution Agreement).
5.2 Indemnification by Provider.
(a) FNB agrees to indemnify, defend and hold
FNBF harmless from and against any Loss to which FNBF may
become subject arising out of, by reason of or otherwise in
connection with the provision hereunder by FNB of FNB Services
to FNBF where such Losses resulted from FNB's gross
negligence, willful misconduct or material breach of its
obligations pursuant to this Agreement.
(b) FNBF agrees to indemnify, defend and hold
FNB harmless from and against any Loss to which FNB may become
subject arising out of, by reason of or otherwise in
connection with the provision hereunder by FNBF of FNBF
Services to FNB where such Losses resulted from FNBF's gross
negligence, willful misconduct or material breach of its
obligations pursuant to this Agreement.
5.3 Procedures for Indemnification. Any indemnification
claims made hereunder shall be made in accordance with Article III of
the Distribution Agreement.
SECTION 6. CONFIDENTIALITY.
Each party shall keep confidential the Schedules to this Agreement and
all information received from the other party regarding the Services, including
any information received with respect to FNB or FNBF, and use such information
only for the purposes set forth in this Agreement unless otherwise agreed to in
writing by the party from which such information was received. In the event a
party is required by any court or legislative or administrative body (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigation demand or similar process) to disclose any confidential
information provided pursuant to this Agreement, the party shall provide the
other party with prompt notice of such requirement in order to afford the other
party an opportunity to seek an appropriate protective order or other remedy.
However, if the other party is unable to obtain or does not seek such protective
order and the party required to disclose the confidential information is, in the
opinion of its counsel, legally compelled to disclose such confidential
information, disclosure of such information may be made without liability under
this Agreement. The covenants in this Section 6 shall survive any termination of
this Agreement indefinitely with respect to information qualifying as a trade
secret under applicable law and for a period of three (3) years from the date
such termination becomes effective with respect to all other information.
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SECTION 7. TERM.
7.1 Duration.
(a) Subject to Sections 6, 7.2, 7.3 and 7.4, the
term of this Agreement shall commence on the date hereof and
shall continue in full force and effect with respect to each
Service until the earlier of (i) the expiration of the
duration or term period assigned to such Service on Schedule A
or Schedule B or (ii) the termination of such Service in
accordance with Section 7.1(b).
(b) Each party acknowledges that the purpose of
this Agreement is for FNB to provide the FNB Services to FNBF
on an interim basis until FNBF can perform the FNB Services
for itself, and for FNBF to provide the FNBF Services to FNB
on an interim basis until FNB can perform the FNBF Services
for itself. Accordingly, each of FNB and FNBF shall use its
commercially reasonable efforts to make or obtain such
approvals, permits and licenses and implement such systems, as
shall be necessary for it to provide the appropriate Services
for itself as promptly as practicable. As FNBF becomes
self-sufficient or engages other sources to provide any FNB
Service, FNBF shall be entitled to release FNB from providing
any or all of the FNB Services hereunder by delivering a
written notice thereof to FNB at least 30 days prior to the
effective date of release of such FNB Service(s). At the end
of such 30 day period (or such shorter period as may be agreed
by the parties), FNB shall discontinue the provision of the
FNB Services specified in such notice and any such FNB
Services shall be excluded from this Agreement, and Schedule A
shall be deemed to be amended accordingly. As FNB becomes
self-sufficient or engages other sources to provide any FNBF
Service, FNB shall be entitled to release FNBF from providing
any or all of the FNBF Services hereunder by delivering a
written notice thereof to FNBF at least 30 days prior to the
effective date of release of such FNBF Service(s). At the end
of such 30-day period (or such shorter period as may be agreed
by the parties), FNBF shall discontinue the provision of the
FNBF Services specified in such notice and any such FNBF
Services shall be excluded from this Agreement, and Schedule B
shall be deemed to be amended accordingly.
7.2 Early Termination by FNB. FNB may terminate this
Agreement by giving written notice to FNBF if FNBF shall default in the
performance of any of its material obligations under, or breach any of
its warranties set forth in, this Agreement, and such default or breach
shall continue and not be remedied for a period of 30 days after FNB
has given written notice to FNBF specifying such default or breach and
requiring it to be remedied.
7.3 Early Termination by FNBF. FNBF may terminate this
Agreement by giving written notice to FNB if FNB shall default in the
performance of any of its material obligations under, or breach any of
its warranties set forth in, this Agreement and such default or breach
shall continue and not be remedied for a period of 30 days
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after FNBF has given written notice to FNB specifying such default or
breach and requiring it to be remedied.
7.4 Force Majeure. In the event the performance by FNBF
or FNB of their respective duties or obligations hereunder is
interrupted or interfered with by reason of any cause beyond its
reasonable control, including fire, storm, flood, earthquake,
explosion, war, strike or labor disruption, rebellion, insurrection,
quarantine, act of God, boycott, embargo, shortage or unavailability of
supplies, riot, or governmental law, regulation or edict (collectively,
the "Force Majeure Events"), the party affected by such Force Majeure
Event shall not be deemed to be in default of this Agreement by reason
of its nonperformance due to such Force Majeure Event, but shall give
prompt written notice to the other party of the Force Majeure Event.
The party affected by the Force Majeure Event shall cooperate with the
other party in obtaining, at the other party's sole expense, an
alternative source for the affected Services, and the other party shall
be released from any payment obligation to the party affected by the
Force Majeure Event with respect to such Services during the period of
such Force Majeure Event. Additionally, upon and during the occurrence
of a Force Majeure Event, at the sole option of the party receiving the
Services affected by the Force Majeure Event, the term of this
Agreement shall be tolled with respect to any Services that are not
being provided by a third party.
7.5 Consequences on Termination. In the event this
Agreement expires or is terminated in accordance with this Section 7,
then (a) all Services to be provided will promptly cease, (b) each of
FNB and FNBF shall promptly return all confidential information
received from the other party in connection with this Agreement
(including the return of all information received with respect to the
Services of FNB or FNBF, as the case may be), without retaining a copy
thereof, and (c) each of FNB and FNBF shall honor all credits and make
any accrued and unpaid payment to the other party as required pursuant
to the terms of this Agreement, and no rights already accrued hereunder
shall be affected.
SECTION 8. RECORDS.
Each of the parties shall create and, for a period of six years after
the termination or expiration of this Agreement, maintain full and accurate
books in connection with the provision of the Services, and all other records
relevant to this Agreement, and upon reasonable notice from the other party
shall make available for inspection and copy by such other party's agents such
records during reasonable business hours.
SECTION 9. DISPUTE RESOLUTION.
9.1 Dispute Resolution under Distribution Agreement. Any
dispute arising out of or relating to the performance, breach or
interpretation of this Agreement shall be handled in accordance with
Article V of the Distribution Agreement.
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9.2 Continuity of Service and Performance. Unless
otherwise agreed herein or in writing, the parties will continue to
provide Services and honor all other commitments under this Agreement
and each Ancillary Agreement (as defined in the Distribution Agreement)
during the course of dispute resolution pursuant to the provisions of
this Section 9 with respect to all matters not subject to such dispute,
controversy or claim.
SECTION 10. NOTICES.
All notices and other communications hereunder shall be in writing,
shall reference this Agreement and shall be 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 FNB:
F.N.B. Corporation
Xxx X.X.X. Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: _________________
To FNBF:
First National Bankshares of Florida, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: __________________
SECTION 11. MISCELLANEOUS.
11.1 Waivers, Modifications, Amendments. Any provision of
this Agreement may be amended or waived if, and only if, such amendment
or waiver is in writing and signed, in the case of an amendment, by
FNBF, on the one hand, and FNB, on the other hand, or in the case of a
waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and in addition to other or further remedies provided by law or equity.
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11.2 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.
11.3 Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the
application thereof to any person, corporation, partnership or other
entity or any circumstance, is invalid and unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order
to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to
other persons, corporations, partnerships or other entities or
circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect
the validity or enforceability of such provision, or the application
thereof, in any jurisdiction.
11.4 Reference; Interpretation. References in this
Agreement to any gender include references to all genders, and
references to the singular include references to the plural and vice
versa. The words "include", "includes" and "including" when used in
this Agreement shall be deemed to be followed by the phrase "without
limitation." Unless the context otherwise requires, references in this
Agreement to Sections and Schedules shall be deemed references to
Sections of, and Schedules to, this Agreement. Unless the context
otherwise requires, the words "hereof", "hereby" and "herein" and words
of similar meaning when used in this Agreement refer to this Agreement
in its entirety and not to any particular Section or provision of this
Agreement. This Agreement shall not be construed against either party
as the principal drafter hereof.
11.5 Entire Agreement. This Agreement (including all
Schedules hereto) contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, with respect to
such matters.
11.6 Assignment. Neither FNB nor FNBF may, directly or
indirectly, assign or subcontract, or attempt to assign or subcontract,
any of its rights or obligations hereunder, in whole or in part, by
operation of law or otherwise, except as contemplated by Schedule A or
Schedule B or except with the prior written consent of the other party;
it being understood that such consent shall not be unreasonably
withheld if FNB or FNBF assigns or subcontracts the Agreement to one of
its Affiliates (as defined in the Distribution Agreement) with the
financial and other resources and expertise to perform all of the
obligations of such party hereunder. Any attempted assignment or
delegation not in compliance with the forgoing shall be null and void
and of no effect. Nothing contained herein shall prevent a party from
providing Services through or with the assistance of third parties whom
such party regularly used to provide such Services prior to the date
hereof.
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11.7 Binding Effect. This Agreement shall be binding upon
the parties hereto and their respective successors and permitted
assigns, if any, and except as provided herein, shall inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, if any.
11.8 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and
all of which shall constitute one and the same Agreement.
11.9 No Agency or Partnership. Nothing in this Agreement
will create, or will be deemed to create, a partnership or the
relationship of principal and agent or of employer and employee between
the parties.
11.10 Provisions Unaffected. Nothing contained in this
Agreement shall affect the rights and obligations of FNB and FNBF
pursuant to the Distribution Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
on behalf of the parties hereto as of the date first herein above written.
F.N.B. CORPORATION
By:
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Xxxxxxx X. Xxxxxxxxx
Vice Chairman
FIRST NATIONAL BANKSHARES OF FLORIDA, INC.
By:
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Xxxx X. Xxxx
Chairman and Chief Executive Officer
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