REVERSE TRANSITION SERVICES AGREEMENT
Exhibit
10.2
This
Reverse Transition Services
Agreement (this “Agreement”), dated as of July 17, 2006 (the “Signing Date”), is
entered between ALLTEL Corporation, a Delaware corporation, on behalf of
itself
and its affiliates (“AT Co.”), and Alltel Holding Corp., a Delaware corporation
and wholly-owned subsidiary of AT Co., on behalf of itself and its affiliates
(“Spinco”).
R
E C I T A L S
WHEREAS,
AT Co. and Spinco are parties to that certain Distribution Agreement dated
December 8, 2005, as amended (the “Distribution Agreement”; capitalized terms
used herein but not defined herein shall have the meanings set forth in the
Distribution Agreement), pursuant to which, among other things, AT Co. will
distribute to its stockholders all of the outstanding shares of common stock
of
Spinco (the “Distribution”); and
WHEREAS,
in connection with the Distribution, the parties desire that Spinco and its
Affiliates provide certain services to AT Co. and its Affiliates on the terms
and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
ARTICLE
1
TRANSITION
SERVICES
1.1 Transition
Services.
This
Agreement sets forth the terms and conditions for the provision by Spinco to
AT
Co. of
various transition services described herein and in the service attachment
(the
“Service Attachment”) attached hereto as Exhibit
A
and any
statement of work (an “SOW”) to be added hereto and numbered appropriately
(collectively, the “Transition Services”), pursuant to the terms hereof.
1.2 Provision
of Transition Services.
Commencing on the date hereof and continuing through the Term (as defined in
Article 2 of this Agreement), Spinco
will
provide the Transition Services to AT
Co.,
unless
(a) otherwise indicated on the Service Attachment, (b) automatically modified
by
termination of a Transition Service by AT
Co.
in
accordance with the terms and conditions hereof, (c) otherwise mutually agreed
to by the parties in writing, or (d) this Agreement is terminated in accordance
with the terms and conditions hereof.
1.3 Purchase
of Additional or Modified Transition Services.From
time to time, AT Co. may request that Spinco provide additional or modified
services that relate to the transition of ownership and operation of the
AT Co.
Business but are not described in the Service Attachment. Spinco will use,
and
will cause each of its Affiliates to use, its reasonable best efforts to
accommodate any reasonable requests by AT Co. to provide additional or modified
services relating to the transition of ownership and operations of the AT
Co.
Business. In order to initiate a request for such additional or modified
services, AT Co. shall submit a written request to Spinco specifying the
nature
of the requested additional or modified services and
requesting
an estimate of the Transition Services Costs (as defined in Section 3.1)
applicable to such additional or modified services. Spinco shall respond
to such
request within 10 Business Days following Spinco’s receipt of such request;
provided that, subject to the second sentence of Section 1.3, such 10 Business
Day period shall be subject to a reasonable extension if, due to the volume,
frequency or type of requests submitted by AT Co., Spinco’s preparation of
responses to such requests is materially interfering with, or is likely to
materially interfere with, Spinco’s normal business activities. If Spinco can,
subject to the second sentence of this Section 1.3, accommodate AT Co.’s request
to provide such additional or modified services, and if AT Co. accepts the
terms
and conditions set forth in Spinco’s response to such request, then such
additional or modified services shall be provided hereunder subject to the
terms
and conditions of Spinco’s response and such other terms and conditions as may
be agreed to by the parties in a written amendment to this Agreement. If
Spinco
agrees to any modification to the physical facilities that is requested by
AT
Co. in accordance with the terms and conditions of this Section, such
modification shall be done solely at AT Co.’s cost and expense and shall be
coordinated by the parties to minimize interference with Spinco’s normal
business activities. No representative of AT Co. shall have authority to
make
decisions with respect to Spinco and its responsibilities under this Agreement;
and no representative of Spinco shall have authority to make decisions with
respect to AT Co. and its responsibilities under this
Agreement.
1.4 Appointment
of Transition Teams.
Each
party shall designate one or more persons who have practical knowledge and
experience in each area of Spinco’s
operations that relate to the Transition Services and are authorized to make
decisions with respect to the Transition Services (each a “Transition Team”).
Without limiting the generality of the foregoing, and subject to the foregoing
proviso each Transition Team will include persons from such party and its
Affiliates whose experience includes the following areas: (a) information
technology systems, (b) billing, (c) human resources, (d) customer service,
(e)
accounting and finance, (f) engineering and network, (g) sales and marketing,
(h) operations, (i) real estate, (j) branding, and (k) capital asset management.
Each party shall designate a member of its Transition Team as the leader of
its
Transition Team (each a “Team Leader”). Each Team Leader shall coordinate the
assignment of persons to its Transition Team and shall assess and monitor the
performance of the Transition Services. Prior to the initial joint meeting
described in Section 1.5 of this Agreement, each party shall submit to the
other
party a written list identifying its initial Team Leader and the initial members
of its Transition Team including each person’s title, areas of expertise and
relevant telephone, fax and email information. If a Transition Team member
or
Team Leader shall be unavailable to work on the Transition Services for more
than five (5) Business Days, then he or she shall appoint a temporary or
permanent replacement.
1.5 Transition
Team Meetings.
Within
30 Business Days after the Signing Date, the appropriate representatives of
the
Transition Teams shall conduct an initial joint meeting for the purpose of
defining roles, responsibilities, scope and timelines related to the Transition
Services. Thereafter, the Transition Teams shall convene meetings on a mutually
agreed upon periodic basis as required. It is the expectation of the parties
that the Transition Team members shall communicate directly with one another
and
work directly with one another to ensure that all Transition Services are
completed on a timely and complete basis; provided that, except for Spinco’s
Team
Leader, the members of Spinco’s
Transition Team shall not have the legal authority to make or to modify any
obligation or to waive any right on behalf of Spinco
The
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Team
Leaders shall meet, at least weekly, or on such other mutually agreed upon
periodic basis as required, to discuss the status of the Transition Services,
as
well as to answer questions, gather information and resolve disputes that may
occur from time-to-time. All meetings pursuant to this Section 1.5 may be
face-to-face, video or telephonic meetings as may be agreed upon by the parties.
Each party shall bear its own costs of attending or participating in Transition
Team meetings.
1.6 Oversee
Completion of Transition Services.
The
Transition Teams will be accountable for overseeing the completion of the
Transition Services in accordance with the terms and conditions hereof. Unless
otherwise provided in the Service Attachment, the parties will use their
reasonable best efforts to respond to requests for information within 5 Business
Days after receipt of each such request.
1.7 Availability
of Subject Matter Experts. From time to time, AT Co. may request that
Spinco make available to AT Co. a resource of Spinco that has expertise in
the
subject matter (which must be directly related to the systems and procedures
utilized by Spinco and its Affiliates in connection with the AT Co. Business)
specified by AT Co. in such request. Within 5 Business Days after receipt
by
Spinco of a reasonable request by AT Co. that a specified subject matter
expert
be made available, Spinco shall make, and shall cause its Affiliates to make,
such subject matter experts (including, without limitation, technical and
operational personnel) available to AT Co.’s Transition Team or other subject
matter experts during Spinco’s normal business hours. For purposes of
determining the reasonableness of any such request by AT Co., Spinco shall
consider the specified subject matter expert’s other duties and then-current
schedule as well as the availability of other individuals with the same skills
as the specified subject matter expert.
1.8 Equipment
and Software.
Spinco
shall
keep the equipment and software used to provide the Transition Services in
working order with sufficient capacity to perform the Transition Services
concurrent with the equipment’s and software’s other use for Spinco,
if any;
provided, however, if Spinco
is
required to increase the capacity of its equipment or software (for example,
because previously shared hardware capacity must be duplicated) to perform
the
Transition Services, then Spinco
shall
obtain AT
Co.’s
prior
written approval of any additional cost or expense that Spinco
expects
to incur in connection with such increase in capacity, and AT
Co.
shall
pay any such additional cost or expense incurred by Spinco
to
provide such increased capacity to the extent so approved by AT
Co.
1.9 General
Cooperation.
Subject
to the terms and conditions set forth in this Agreement, Spinco
and
AT
Co.
shall
each use reasonable best efforts to provide information and documentation
sufficient for each party to perform the Transition Services as they were
performed before the date of this Agreement, and make available, as reasonably
requested by the other party, sufficient resources and timely decisions,
approvals and acceptances in order that each party may accomplish its
obligations under this Agreement in a timely and efficient manner.
1.10 Modifications.
Unless
otherwise provided for in this Agreement, if AT Co. makes any change in the
processes, procedures, practices, networks, equipment, configurations,
3
or
systems pertaining to the AT Co. Business, and such change has an adverse impact
on Spinco’s ability to provide any of the Transition Services, then Spinco shall
be excused from performance of any such affected Transition Services until
AT
Co. mitigates the adverse impact of such change, and AT Co. shall be responsible
for all direct expenses incurred by Spinco in connection with the cessation
and,
if applicable, the resumption of the affected Transition Services.
ARTICLE
2
TERM
Unless
terminated earlier in accordance with Article 8 of this Agreement, the term
of
this Agreement shall expire on the one-year anniversary of the Signing Date
(the
“Term”), except AT
Co.
shall have the right to extend the Term for an additional 30 days by providing
written notice to Spinco
at least
60 days prior to the expiration of the Term indicating AT
Co.’s
election to extend the Term. . The parties may agree in any SOW to a longer
period of time for performance of Services, and in that event the Term shall
be
extended for such time but only with respect to such SOW. AT Co. may extend
the
period of time for which a particular Service will be required by an additional
30 days if AT Co. delivers written notice of such election to Spinco no later
than 30 days prior to the scheduled expiration date of such Service, provided
that no such election shall extend the period of performance of such Service
beyond the expiration of the Term and AT Co. may exercise this extension right
only once as to any particular Service.
ARTICLE
3
COMPENSATION
AND PAYMENT ARRANGEMENTS FOR TRANSITION SERVICES
3.1 Compensation
for Transition Services.
Subject
to the terms and conditions of this Agreement, the total compensation payable
by
AT
Co.
to
Spinco
for each
and every Transition Service provided pursuant to the Service Attachment shall
be set forth in the Services Attachment (the “Transition Services Costs”).
3.2 Payment
Terms.
Within
30 days after the end of each calendar month during the Term, or extension
thereof, Spinco
shall
xxxx AT
Co.
in
arrears for the Transition Services Costs that apply to the Transition Services
performed by Spinco
Each of
Spinco’s
invoices shall describe in reasonable detail the Transition Services upon which
the applicable Transition Services Costs are based. Within 30 days after
AT
Co.’s
receipt of each of Spinco’s
invoices, AT
Co.
shall
pay Spinco
the
amount of such invoice. If such payment is not received by Spinco
within
such 30-day period, AT
Co.
shall
also pay Spinco
interest
from and after the last date of the calendar month in respect of such invoice,
but excluding the date of payment by AT
Co.,
at a rate per annum equal to the Prime Rate on the last day of the calendar
month in respect of such invoice. If AT
Co.
disputes
in good faith any portion of the amount due on any invoice, AT
Co.
shall
notify Spinco
in
writing of the nature and basis of the dispute within 10 Business Days after
AT
Co.’s
receipt of such invoice. Otherwise the invoiced amount shall be deemed to be
accurate and correct and shall not be subject to dispute or contest by
AT
Co. or
any Affiliate thereof. The parties shall use their reasonable best efforts
to
resolve the dispute prior to the payment due date. Spinco
shall
reimburse AT
Co.
within 30 days following, as applicable (a) agreement by the
4
parties
of any excess payment made by AT
Co. in
respect of Transition Services, or (b) resolution of any disputed amounts paid
in excess of the amount of Transition Services Costs, in either case, with
interest from and after the date payment was made by AT
Co.
through,
but excluding, the date of reimbursement by Spinco,
at the
rate per annum equal to the Prime Rate on the date payment was made by
AT
Co.
3.3 Taxes. All
charges and fees to be paid by AT Co. under this Agreement are exclusive of
any
applicable withholding, sales, use, value added, excise, services or other
United States or foreign tax which may be assessed on the provision of the
Transition Services. In the event that a withholding, sales, use, value added,
excise, value added services or other United States or foreign tax is assessed
on the provision of any of the Transition Services provided to AT Co. under
this
Agreement, AT Co. will pay directly, reimburse or indemnify Spinco for such
taxes, as well as any applicable interest and penalties. The parties will
cooperate with each other in determining the extent to which any tax is due
and
owing under the circumstances, and shall provide and make available to each
other any resale certificates, information regarding out-of-state or country
use
of materials, services or sale, and other exemption certificates or information
reasonably requested by either party. This section shall have no application
to
any tax based upon the income of Spinco.
ARTICLE
4
RELATIONSHIP
TO OTHER DOCUMENTS
4.1 Controlling
Provisions. If
there is any conflict or inconsistency between the terms and conditions set
forth in the main body of this Agreement and any of the Exhibits to this
Agreement, the provisions of the Exhibits shall control with respect to the
rights and obligations of the parties regarding the Transition Services.
If
there is any conflict or inconsistency between the terms and conditions of
this
Agreement and the Distribution Agreement, the provisions of this Agreement
shall
control solely with respect to the rights and obligations of the parties
regarding the Transition Services.
ARTICLE
5
DISPUTE
RESOLUTION
5.1 Dispute
Resolution Procedures.
If a
dispute arises between the parties with respect to the terms and conditions
of
this Agreement, or any subject matter governed by this Agreement (excluding
disputes regarding a party’s compliance with the applicable confidentiality
provisions or in the case of suit to compel compliance with this dispute
resolution process or with the provisions of this Article) (a “Dispute”) the
parties agree to use and follow this dispute resolution procedure before
initiating any judicial action. At such time as the Dispute is resolved under
this Article, interest (at the Prime Rate) shall be paid to the party receiving
any disputed monies to compensate for the lapsed time between the date such
disputed amount originally was paid or should have been paid through the date
monies are paid in settlement of the Dispute.
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5.2 Claims
Procedures.
The
Transition Teams shall escalate any Dispute to the Team Leaders for resolution.
Upon receipt of any such escalated matter, the Team Leaders shall discuss and
attempt to resolve the matter within 15 Business Days immediately following
the
escalation. If by the end of the fifteenth Business Day, the matter has not
been
resolved to the satisfaction of both Team Leaders, then the party that initiated
the claim shall provide written notification to the other party in accordance
with Section 10.3 of this Agreement, in the form of a claim identifying the
issue or amount disputed and including a detailed reason for the claim. The
party against whom the claim is made shall respond in writing to the claim
within 15 Business Days from the date of receipt of the claim document. The
party filing the claim shall have an additional 15 Business Days after the
receipt of the response to either accept any resolution offered by the other
party or request implementation of the procedures set forth in Section 5.3
(the
“Escalation Procedures”). Failure to meet the time limitations set forth in this
Section may result in the implementation of the Escalation
Procedures.
5.3 Escalation
Procedure.
Upon
receipt of the written notice of a party involved in the Dispute and in
compliance with Section 5.2, each party shall appoint a knowledgeable,
responsible representative to negotiate in good faith to resolve any unresolved
disputes or claims arising under this Agreement. The parties intend that these
negotiations be conducted by experienced business representatives empowered
to
decide the issues. The business representatives shall meet and attempt to
resolve the Dispute within 15 Business Days of receiving the written request.
If
they can resolve the Dispute within that time period, it will be memorialized
in
a written settlement and release agreement, executed within five Business Days
thereafter. If they can not resolve the Dispute within that time period, then
the parties may resort to judicial action or other remedies. The parties may
vary the duration and form of these Escalation Procedures by mutual written
agreement.
ARTICLE
6
INDEMNIFICATION
6.1 Indemnification
by Spinco
(a) Spinco
shall
indemnify, defend and hold harmless each AT Co. Indemnitee (as defined in the
Distribution Agreement), against and in respect of any and all Indemnifiable
Losses incurred or suffered by any AT Co. Indemnitee that result from, relate
to
or arise out of any default by Spinco
in the
performance of its obligations under this Agreement or any third party claim
against any AT Co. Indemnitee based upon the negligence, gross negligence or
willful misconduct of any of the Spinco Indemnitees that arise out of or result
from any default by Spinco
in the
performance of its obligations under this Agreement, except to the extent that
any such Indemnifiable Losses arise out of or result from the negligence, gross
negligence or willful misconduct of any AT Co. Indemnitee.
(b) In
the
case of Indemnifiable Losses incurred by AT Co. Indemnitees that arise out
of or
result from any default by Spinco
in the
performance of its obligations under this Agreement based upon the negligence
of
any of the Spinco Indemnitees, indemnification shall be limited to actual
damages which in no event shall exceed the total amount of compensation payable
to Spinco
hereunder. For the avoidance of doubt, in the case of Indemnifiable Losses
6
incurred
by the AT Co. Indemnitees that arise out of or result from any default by
Spinco
in the
performance of its obligations under this Agreement based upon the gross
negligence or willful misconduct of any of the Spinco Indemnitees,
indemnification shall be limited to actual damages without regard to the total
amount of compensation payable to Spinco
hereunder.
6.2 Indemnification
by AT
Co.
(a) AT
Co.
shall
indemnify, defend and hold harmless each Spinco Indemnitee (as defined in the
Distribution Agreement), against and in respect of any and all Indemnifiable
Losses incurred or suffered by any Spinco Indemnitee that result from, relate
to
or arise out of any default by AT
Co.
in the
performance of its obligations under this Agreement or any third party claim
against any Spinco Indemnitee based upon the negligence, gross negligence or
willful misconduct of any of the AT Co. Indemnitees that arise out of or result
from any default by AT
Co.
in the
performance of its obligations under this Agreement, except to the extent that
any such Indemnifiable Losses arise out of or result from the negligence, gross
negligence or willful misconduct of any Spinco Indemnitee.
(b) In
the
case of Indemnifiable Losses incurred by Spinco Indemnitees that arise out
of or
result from any default by AT
Co.
in the
performance of its obligations under this Agreement based upon the negligence
of
any of the AT Co. Indemnitees, indemnification shall be limited to actual
damages which in no event shall exceed the total amount of compensation payable
to Spinco
hereunder. For the avoidance of doubt, in the case of Indemnifiable Losses
incurred by the Spinco Indemnitees that arise out of or result from any default
by AT
Co.
in the
performance of its obligations under this Agreement based upon the gross
negligence or willful misconduct of any of the AT Co. Indemnitees,
indemnification shall be limited to actual damages without regard to the total
amount of compensation payable to Spinco
hereunder.
6.3 Limitations.
(a) In
no
event shall either party hereto be liable for indirect, special, consequential
or punitive damages arising out of this Agreement, regardless of the form of
action, whether in contract, warranty, strict liability or tort, including
negligence of any kind, whether active or passive, and regardless of whether
the
other party knew of or was advised at the time of breach of the possibility
of
such damages.
(b) Except
as
otherwise provided in this Article 6, Spinco’s
sole
responsibility to AT
Co.
for
errors or omissions in providing the Transition Services shall be to re-perform
such Transition Services properly in a diligent manner, at no additional cost
or
expense; provided, however, that each party shall use reasonable best efforts
to
detect any such errors or omissions and promptly advise the other party or
parties of any such error or omission of which it becomes aware.
6.4 A
party
that is seeking indemnification pursuant to Section 6.1 or 6.2 shall notify
the
other party thereof and shall specify in reasonable detail the event(s) giving
rise to such claim for indemnification within 15 Business Days after the
indemnified party has actual knowledge of such event(s), except that any failure
to give such notice will not waive any rights of the
7
indemnified
party unless the rights of the indemnifying party are actually and materially
prejudiced thereby. The indemnifying party shall have the right to undertake
the
defense of any claim upon delivery of notice to the indemnified party with
respect to such claim. Such defense shall be made with counsel reasonably
acceptable to the indemnified party. If the indemnifying party fails to
undertake the defense of the indemnified party within such time period, the
indemnified party may retain its own counsel for such defense (which shall
be
reasonably acceptable to the indemnifying party), and the indemnified party’s
reasonable attorney’s fees and expenses related to such claim shall be paid by
the indemnifying party. Neither party shall, without the consent of the other
party, agree to any non-monetary settlement of the indemnified
claim.
(a) Upon
a
determination of liability by final and non-appealable court judgment or order
in respect of Section 6.1 or 6.2, the appropriate party shall pay the other
party the amount so determined (subject to the limitations of Section 6.3)
within 15 Business Days after the date of determination of liability by Final
Judgment (such fifteenth Business Day, the “Due Date”). If there should be a
dispute as to the amount or manner of determination of any indemnity obligation
owed under Section 6.1 or 6.2, the indemnifying party shall nevertheless pay
when due such portion, if any, of the obligation as shall not be subject to
dispute. The difference, if any, between the amount of the obligation ultimately
determined as properly payable under this Agreement and the portion, if any,
theretofore paid shall bear interest as provided below in Section 6.4(b). Upon
the payment in full of any claim, the indemnifying party or other Person making
payment shall be subrogated to the rights of the indemnified party against
any
Person with respect to the subject matter of such claim. For purposes of this
Section 6.4, “Final Judgment” means a judicial or other determination as to
which no appeal or other review is pending or in effect and any deadline for
filing any such appeal or review that may be designated by statute, rule,
stipulation or other agreement has passed.
(b) If
all or
part of any indemnification obligation under Section 6.1 or 6.2 of this
Agreement is not paid on the Due Date, then the indemnifying party shall pay
the
indemnified party interest on the unpaid amount of the obligation for each
calendar day from the Due Date until payment in full, payable on demand, at
a
rate per annum equal to the Prime Rate on the Due Date.
ARTICLE
7
FORCE
MAJEURE
Except
for payment of amounts due, neither party shall be held liable for any delay
or
failure in performance of any part of this Agreement, including the Service
Attachment, from any cause beyond its reasonable control and not primarily
attributable to its fault or negligence, including, but not limited to, acts
of
God, acts of civil or military authority, embargoes, epidemics, war, terrorist
acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, strikes, or disruptions in Internet and other telecommunication networks
and backbones, power and other utilities. Upon the occurrence of a condition
described in this Article, the party whose performance is prevented shall
provide written notice to the other party, and the parties shall promptly
confer, in good faith, on what action may be taken to minimize the impact,
on
both parties, of such condition.
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ARTICLE
8
TERMINATION
8.1 Termination
of Transition Services and Agreement for Convenience.
Subject
to the limitations set forth in the Services Attachment, AT
Co.
shall have the right to terminate any Transition Service, in whole or in part,
upon 30 days prior written notice to Spinco
If all
Transition Services shall have been migrated or terminated under this provision
prior to the expiration of this Agreement, then AT
Co.
shall
have the right to terminate this Agreement upon written notice to Spinco
8.2 Termination
for Default.
In the
event: (i) AT Co. shall fail to pay for Transition Services in accordance with
the terms of this Agreement (and such payment is not disputed by AT Co. in
good
faith in accordance with Section 3.2); (ii) either party shall default, in
any
material respect, in the due performance or observance by it of any of the
other
terms, covenants or agreements contained in this Agreement; or (iii) either
party shall become or be adjudicated insolvent and/or bankrupt, or a receiver
or
trustee shall be appointed for either party or its property or a petition for
reorganization or arrangement under any bankruptcy or insolvency law shall
be
approved, or either party shall file a voluntary petition in bankruptcy or
shall
consent to the appointment of a receiver or trustee, any non-defaulting party
shall have the right, at its sole discretion, (A) in the case of a default
under
clause (iii), to immediately terminate its participation with the defaulting
party under this Agreement, and (B) in the case of a default under clause (i)
or
(ii), to terminate its participation with the defaulting party under this
Agreement if the defaulting Party has failed to (x) cure the default within
30
days of written notice of default or if the default (except for defaults as
a
result of failure to make payment) is such that it will take more than 30 days
to cure, within an extended time period which shall be not longer than what
is
reasonably necessary to effect performance or compliance or (y) diligently
pursue the curing of the default.
8.2 Termination
of Distribution
Agreement.This
Agreement shall automatically terminate upon termination of the Distribution
Agreement.
8.3 Transitional
Cooperation.
Each of
Spinco
and
AT
Co.
will,
and will cause their respective Affiliates to cooperate with the other party
and
its Affiliates to assure an orderly transition from the systems and procedures
utilized by Spinco
and its
Affiliates in connection with the AT Co. Business to those systems and
procedures to be utilized by AT
Co.
and its
Affiliates in connection with the AT Co. Business after Closing.
8.4 Return
of Material.
As a
Transition Service is migrated or terminated, whichever is earlier, each of
Spinco
and
AT
Co.
will,
and will cause their respective Affiliates to, return all material and property
owned by the other party and its Affiliates, including, without limitation,
any
and all material and property of a proprietary nature involving the other party
and its Affiliates relevant to the provision of that Transition Service and
no
longer needed regarding the performance of other Transition Services under
this
Agreement within 30 days after the applicable migration or termination. Upon
termination of this Agreement, each of Spinco
and
AT
Co.
will,
and will cause their respective Affiliates to, return any and all material
and
property of a proprietary nature involving the other party and its Affiliates,
in its possession or control
9
within
30
days after the termination of this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, upon the termination or expiration of
this
Agreement, AT
Co.
shall
cease all access to Spinco’s
information, data, systems and other assets that are not AT Co. Assets.
8.5 Effect
of Termination.
The
provisions of Articles 3, 4, 5, 6, 7, 8 and 10 shall survive the termination
or
expiration of this Agreement.
ARTICLE
9
OTHER
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 Compliance
with Laws.
Each
party shall comply, at its own expense, with the provisions of all Laws
applicable to the performance of its obligations under this Agreement.
Notwithstanding the description of the Transition Services in this Agreement,
neither Spinco
nor any
of its Affiliates shall provide any services that would involve the rendering
of
legal, regulatory or tax advice or counsel.
9.2 Performance.
Spinco represents and warrants that Spinco and its Affiliates, as the case may
be, will provide the Transition Services in a timely and professional manner
generally consistent with the past practices of Spinco and its Affiliates
in
providing the same or similar services to the AT Co. Business prior to the
execution of the Distribution Agreement.
9.3 Books
and Records.
Spinco
or its
Affiliates will maintain complete and accurate books and records pertaining
to
its provision of the Transition Services. Spinco
or its
Affiliates will provide AT
Co.,
upon
reasonable notice and during normal business hours, with access to such books
and records. All such information shall be subject to the terms of the
confidentiality provisions set forth in Section 10.16 hereof.
9.4 No
Other Representations or Warranties.
EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY ON BEHALF OF EITHER PARTY WITH RESPECT TO THE
TRANSITION SERVICES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, WITH
RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY SUCH
OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
ARTICLE
10
MISCELLANEOUS
10.1 Relationship
of the Parties.
The
parties declare and agree that each party is engaged in a business that is
independent from that of the other party and each party shall perform its
obligations as an independent contractor. It is expressly understood and agreed
that AT
Co.
and
Spinco
are not
partners or joint ventures, and nothing contained herein is intended to create
an agency relationship or a partnership or joint venture. Neither Spinco
nor any
of its Affiliates is an agent of AT
Co.
or any
of its Affiliates and has no authority to represent AT
Co.
10
or
any of
its Affiliates as to any matters, except as authorized in this Agreement or
in
writing by AT
Co.
from
time to time. Neither AT
Co.
nor any
of its Affiliates is an agent of Spinco
or any
of its Affiliates and has no authority to represent Spinco
or any
of its Affiliates as to any matters, except as authorized in this Agreement
or
in writing by Spinco
from
time to time.
10.2 Employees
of the Parties.
Spinco
shall be
solely responsible for payment of compensation to its employees and for any
injury to them in the course of their employment. Spinco
shall
assume full responsibility for payment of all federal, state and local taxes
or
contributions imposed or required under unemployment insurance, social security
and income tax laws with respect to such persons. AT
Co.
shall be
solely responsible for payment of compensation to its employees and for any
injury to them in the course of their employment. AT
Co.
shall
assume full responsibility for payment of all federal, state and local taxes
or
contributions imposed or required under unemployment insurance, social security
and income tax laws with respect to such persons.
10.3 Notices.
All
notices and other communications required or permitted hereunder may be
telephonic, by electronic mail or in writing and will be deemed to have been
given when provided to the appropriate party in accordance with the contact
information specified below:
If
to
Spinco, to:
Prior
to
Merger:
Alltel
Holding Corp.
0000
Xxxxxx Xxxxxx Xxxx
Xxxxxx
Xxxx, XX 00000
Attention:
General Counsel
Following
Merger:
Windstream
Corporation
0000
Xxxxxx Xxxxxx Xxxx
Xxxxxx
Xxxx, XX 00000
Attention:
General Counsel
If
to
AT
Co.,
to:
ALLTEL
Corporation
Xxx
Xxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Attention:
Chief Legal Officer
or
to
such other Person or contact information as either party may from time to time
designate for itself by like notice.
11
10.4 Governing
Law.
(a) This
Agreement shall be construed in accordance with, and governed by, the internal
Laws of the State of Delaware without giving effect to principles of conflicts
of law.
(b) The
parties hereby irrevocably waive any and all right to trial by jury in any
legal
proceeding arising out of or related to this Agreement.
10.5 Assignment.
(a) Neither
this Agreement nor any of the rights, benefits or obligations hereunder may
be
assigned or delegated by AT Co. or Spinco (whether by operation of law or
otherwise) without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided, however (i) this Agreement shall
be binding upon and inure to the benefit of Windstream Corporation, as the
successor corporation in the merger of Spinco with and into the Company as
part
of the Merger without the consent or other action by any party hereto and (ii)
in all other cases no such consent shall be required for an assignment or
delegation by any party hereto to a successor to all or a substantial portion
of
the assets or the business of such party so long as such assignee or delegee
executes a written assumption of such party’s obligations hereunder with respect
to the rights or obligations assigned or delegated, and delivers such written
assumption to the other party within a reasonable period of time after the
effective date of such assignment or delegation. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of and
be
enforceable by AT Co. and Spinco and their respective successors and permitted
assigns
10.6 Entire
Agreement.
This
Agreement (including the Schedules and Exhibits attached hereto) constitutes
the
entire agreement between the parties pertaining to the subject matter hereof
and
supersedes all prior and contemporaneous agreements, arrangements and
understandings of the parties with respect to such subject matter.
10.7 Amendments
and Waivers.
Any
provision of this Agreement may be amended if, and only if, such amendment
is in
writing and signed by both parties. Any provision of this Agreement may be
waived to the extent permitted by applicable Law if, and only if, such waiver
is
in writing and signed by the party granting the waiver. No failure or delay
by
any party in exercising any right, remedy, 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, remedy, power or privilege.
10.8 Headings.
The
headings of the Articles and Sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or
to affect the construction hereof.
10.9 Severability.
Each
term or provision of this Agreement shall be interpreted in such manner as
to be
effective and valid under applicable Law, but in case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be ineffective
to
the extent but only to the extent of such invalidity, illegality or
unenforceability, without rendering invalid or unenforceable the remainder
of
such provision or provisions of this Agreement; provided,
12
however,
that if the removal of such offending provision materially alters the burdens
or
benefits of either of the parties under this Agreement, the parties agree to
negotiate in good faith such modifications to this Agreement, if any, as are
appropriate to ensure that the burdens and benefits of each party under such
modified Agreement are reasonably comparable to the burdens and benefits
originally contemplated herein.
10.10 No
Third-Party Beneficiaries.
With
the exception of the parties to this Agreement and their respective successors
and permitted assigns, and there shall exist no right of any person to claim
a
beneficial interest in this Agreement or any rights arising out of this
Agreement; provided, however, that with respect to Section 1.4 and Section
5.2
only, the Company is and shall be a stated and intended third party
beneficiary.
10.11 Remedies
Cumulative.
Except
as otherwise provided herein, all rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any right, power or remedy by a party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such
party.
10.12 Expenses.
Except
as otherwise provided in this Agreement, the parties shall bear their own
expenses (including all time and expenses of counsel, financial advisors,
consultants, actuaries and independent accountants) incurred in connection
with
this Agreement.
10.13 Counterparts.
This
Agreement may be executed in one or more counterparts, which may be delivered
by
facsimile, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
10.14 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event that
any
of the provisions of this Agreement were not performed in accordance with their
specific terms or any covenant set forth in this Agreement is otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to enforce specifically the performance of this
Agreement in accordance with its terms and provisions and to prevent breaches
of
covenants set forth in this Agreement. The foregoing right is in addition to,
and not in lieu of, any other rights a party hereto may have in respect of
a
breach of this Agreement, whether at law or in equity.
10.15 No
Set-Off.
The
obligations under this Agreement shall not be subject to set-off for
non-performance or any monetary or non-monetary claim by any party or any of
their respective Affiliates under any other agreement between the parties or
any
of their respective Affiliates.
10.16 Confidentiality.
(a) Spinco
and its
Affiliates and their respective officers, directors, partners, managers,
shareholders, employees, agents and representatives will not disclose any
confidential information about AT
Co.
or any
of its Affiliates obtained as a result of the exercise of its rights or
performance of its obligations under this Agreement unless disclosure is
compelled by judicial or administrative process or, based on advice of such
Person’s counsel, by other requirements of
13
law.
The
obligations of Spinco
under
this Section 10.16(a) will survive the termination or expiration of this
Agreement.
(b) AT
Co.
and its
Affiliates and their respective officers, directors, partners, managers,
shareholders, employees, agents and representatives will not disclose any
confidential information about Spinco
or any
of its Affiliates obtained as a result of the exercise of its rights or
performance of its obligations under this Agreement unless disclosure is
compelled by judicial or administrative process or, based on advice of such
Person’s counsel, by other requirements of law. The obligations of AT
Co.
under
this Section 10.16(b) will survive the termination or expiration of this
Agreement.
10.17 Facilities
and Systems Security.
If
either party or its personnel will be given access to the other party’s
facilities, premises, equipment or systems, such party will comply with all
such
other party’s written security policies, procedures and requirements made
available by each party to the other, and will not tamper with, compromise,
or
circumvent any security or audit measures employed by such other party. Each
party shall use its reasonable best efforts to ensure that only those of its
personnel who are specifically authorized to have access to the facilities,
premises, equipment or systems of the other party gain such access, and to
prevent unauthorized access, use, destruction, alteration or loss in connection
with such access.
[SIGNATURE
PAGE FOLLOWS]
14
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
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ALLTEL
CORPORATION
|
|
|
By:
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Executive Vice President - General Counsel and
Secretary
|
|
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ALLTEL
HOLDING CORP.
|
|
|
By:
/s/ Xxxx X. Xxxxxxxx
|
|
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Name:
Xxxx X. Xxxxxxxx
|
|
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Title:
Executive Vice President and General
Counsel
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15
