EXHIBIT 10.30
TRANSITION SERVICES AGREEMENT
BY AND AMONG
ROYAL GROUP, INC.,
RSUI GROUP, INC.
AND
ROYAL SPECIALTY UNDERWRITING, INC.
DATED: July 1, 2003
TABLE OF CONTENTS
ARTICLE I PURPOSE............................................................................................ 1
SECTION 1.1 PURPOSE................................................................................ 1
ARTICLE II SERVICES.......................................................................................... 2
SECTION 2.1 SCOPE OF SERVICES...................................................................... 2
SECTION 2.2 TERM OF SERVICES....................................................................... 2
SECTION 2.3 LIMITATION ON OBLIGATION TO PROVIDE SERVICES........................................... 3
SECTION 2.4 INABILITY TO PERFORM SERVICES.......................................................... 4
SECTION 2.5 SERVICE STANDARDS; LEVEL OF SERVICE.................................................... 5
SECTION 2.6 REQUEST FOR ADDITIONAL SERVICES........................................................ 5
ARTICLE III PERSONNEL........................................................................................ 5
SECTION 3.1 PERSONNEL; SUBCONTRACTING.............................................................. 5
ARTICLE IV AMOUNTS DUE....................................................................................... 6
SECTION 4.1 PRICING; BILLING AND CASH SETTLEMENT................................................... 6
SECTION 4.2 OFFSET................................................................................. 6
SECTION 4.3 UNDERPERFORMANCE OF SERVICE LEVELS..................................................... 6
ARTICLE V COVENANTS.......................................................................................... 6
SECTION 5.1 COVENANTS.............................................................................. 6
ARTICLE VI TERMINATION....................................................................................... 7
SECTION 6.1 TERMINATION............................................................................ 7
ARTICLE VII INDEMNIFICATION.................................................................................. 7
SECTION 7.1 INDEMNIFICATION........................................................................ 7
SECTION 7.2 INDEMNIFICATION PROCEDURE.............................................................. 8
ARTICLE VIII ARBITRATION..................................................................................... 8
SECTION 8.1 ARBITRATION............................................................................ 8
SECTION 8.2 NOTICE OF ARBITRATION.................................................................. 8
SECTION 8.3 ARBITRATION PANEL...................................................................... 8
SECTION 8.4 SUBMISSION OF BRIEFS................................................................... 9
SECTION 8.5 ARBITRATION BOARD'S DECISION........................................................... 9
SECTION 8.6 JURISDICTION........................................................................... 9
SECTION 8.7 EXPENSES............................................................................... 10
SECTION 8.8 PRODUCTION OF DOCUMENTS AND WITNESSES.................................................. 10
SECTION 8.9 RELIEF AVAILABLE....................................................................... 10
SECTION 8.10 CONSOLIDATION.......................................................................... 10
ARTICLE IX MISCELLANEOUS..................................................................................... 10
SECTION 9.1 NOTICES................................................................................ 10
SECTION 9.2 ASSIGNMENT............................................................................. 12
SECTION 9.3 CONFIDENTIALITY........................................................................ 12
SECTION 9.4 COOPERATION............................................................................ 12
SECTION 9.5 GOVERNING LAW.......................................................................... 13
SECTION 9.6 DISCLAIMER............................................................................. 13
SECTION 9.7 OTHER.................................................................................. 13
SCHEDULE A Royal Transition Services/Information
SCHEDULE B RSUI Transition Services
SCHEDULE C Mutual Transition Services
SCHEDULE D Excluded Services
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") is made
and entered into as of this 1st day of July, 2003 by and among Royal Group,
Inc., a Delaware corporation ("Seller"), RSUI Group, Inc., a Delaware
corporation ("RSUI Group") and Royal Specialty Underwriting, Inc., a Georgia
company ("RSUI"). Capitalized terms used and not otherwise defined in this
Agreement shall have the meaning ascribed thereto in the Acquisition Agreement
(as defined below).
RECITALS:
WHEREAS, pursuant to the Acquisition Agreement ("Acquisition
Agreement"), dated as of June 6, 2003, by and between Seller and Alleghany
Insurance Holdings LLC, a Delaware limited liability company and the sole
stockholder of RSUI Group ("AIHL"), AIHL agreed to purchase from Seller, and
Seller agreed to sell to AIHL, all of the issued and outstanding shares of
common stock of RSUI;
WHEREAS, pursuant to the Assignment and Assumption Agreement
dated as of June 30, 2003 (the "Assignment Agreement"), AIHL assigned to RSUI
Group, and RSUI Group assumed from AIHL, all of AIHL's rights and obligations
under the Acquisition Agreement and the Ancillary Agreements;
WHEREAS, pursuant to the terms of the Acquisition Agreement
and the Assignment and Assumption Agreement, Seller, RSUI Group and RSUI have
agreed to enter into this Agreement;
WHEREAS, pursuant to the terms and conditions of this
Agreement, each of Seller and RSUI shall provide specified services to each
other in connection with the execution and implementation of the transactions
described in the Acquisition Agreement;
NOW, THEREFORE, in consideration of these premises and the
terms and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURPOSE
SECTION 1.1 PURPOSE. Seller, RSUI Group and RSUI desire to provide for
the orderly transfer of responsibility for all matters that support or relate to
the functions that are the subject of any Transition Services (as such term is
defined below) with the ultimate goal being for each of Seller, on the one hand,
and RSUI Group and/or RSUI, on the other hand, to assume responsibility for such
Transition Services being provided to it as soon as practicable after the
Closing Date.
ARTICLE II
SERVICES
SECTION 2.1 SCOPE OF SERVICES.
(a) Subject to the terms and conditions set forth in this
Agreement, (i) Seller and its Affiliates shall provide to RSUI reasonable
services requested by RSUI Group and/or RSUI of the type which were provided by
Seller and its Affiliates to RSUI prior to the Closing Date as listed on
SCHEDULE A (collectively, the "Royal Transition Services"), (ii) RSUI shall
provide to Seller and its Affiliates, reasonable services requested by Seller of
the type which were provided by RSUI to Seller or its Affiliates prior to the
Closing Date as listed on SCHEDULE B hereto (collectively, the "RSUI Transition
Services") and (iii) either party, as applicable, shall provide services of the
type which were provided prior to the Closing Date for the mutual benefit of
Seller and its Affiliates and RSUI as listed on SCHEDULE C hereto (collectively,
the "Mutual Transition Services", together with the Royal Transition Services
and the RSUI Transition Services, the "Transition Services"); provided, however,
that each party shall only be required to provide such services to the other
party to the extent that such services were provided by Seller or its Affiliates
and RSUI as of the Closing Date. Notwithstanding anything to the contrary in
this Agreement, Seller and its Affiliates shall not be required to provide any
of the Excluded Services.
(b) For purposes of this Agreement, "Excluded Services" shall
mean any type or kind of service that includes the services listed on SCHEDULE
D.
(c) The parties shall further (i) use the Transition Services
for substantially the same purposes and in substantially the same manner as
Seller and its Affiliates, on the one hand, and RSUI, on the other hand, had
used the Transition Services prior to the date of this Agreement and (ii) not
resell any of the Transition Services to any Person whatsoever or permit the use
of the Transition Services by any Person other than, in the case of the Royal
Transition Services, in connection with the conduct of the Business in the
ordinary course consistent with past practice.
(d) The scope of the Transition Services covered by this
Transition Services Agreement is not intended to include any type or kind of
service which is explicitly provided for under one or more of the other
Ancillary Agreements being entered into by the parties pursuant to the
Acquisition Agreement.
SECTION 2.2 TERM OF SERVICES.
(a) The Transition Services shall continue for terms to be
mutually agreed and/or specified in Schedule A and Schedule B for each such
Royal Transition Services and RSUI Transition Services; provided, however, that
no Transition Services shall be required to be provided by Seller or RSUI more
than 12 months after the Closing Date, unless the term of such Transition
Services for any period greater than 12 months is expressly provided in
Schedules A, B or C or unless the parties specifically agree to an
2
extension of the terms for provision of Transition Services as contemplated by
Section 2.6 hereof.
(b) During the term the services are provided under this
Agreement, both Seller and RSUI shall use reasonable best efforts to assume
responsibility for such Transition Services being provided to them as soon as
practicable.
(c) Any Transition Service may be terminated or reduced by the
recipient of such service for any reason and at any time during the term of this
Agreement by delivery of written notice to the provider of such service not less
than 45 days prior to the effective date of such termination as specified in
such notice. The termination of any particular Transition Service shall not
affect the continued provision of any other Transition Service then being
provided. Once a Transition Service is terminated in accordance with the
foregoing provision of this Agreement, the party receiving such Transition
Service may request that such Transition Service be resumed pursuant thereto;
provided, however, the party providing such Transition Service shall not be
required to resume any such terminated Transition Service.
(d) Nothing in this Agreement shall prevent Seller or RSUI
during the term of this Agreement from obtaining any services which are
Transition Services from any other Person.
SECTION 2.3 LIMITATION ON OBLIGATION TO PROVIDE SERVICES.
(a) Notwithstanding any of the obligations imposed on the
parties pursuant to this Agreement, no party shall be under the obligation to
obtain any license, systems, personnel or operations to provide or comply with
the obligations set forth in this Agreement. In no event shall a party have any
liability under this Agreement arising from the failure to obtain any additional
license, systems, personnel or operations.
(b) If any Affiliate of Seller or RSUI receiving any
Transition Services ceases to be an Affiliate of such entity, any Transition
Services provided to the Affiliate shall automatically terminate.
(c) Seller shall not be deemed to be in violation of this
Agreement if it is prevented from performing any of the Royal Transition
Services for any reason beyond its reasonable control, including, without
limitation, acts of God, nature, or of public enemy, strikes, or limitations of
law, regulations or rules of the Federal or of any state or local government or
of any agency thereof. Upon the occurrence of any such event which results in,
or will result in, delay or failure to perform according to the terms of this
Agreement, Seller will promptly notify RSUI Group and/or RSUI of such occurrence
and the effect and/or anticipated effect of such occurrence. Seller will use its
reasonable efforts to minimize disruptions in its performance and to resume
performance of its obligations under this Agreement as soon as practical. If, by
reason of any such event, Seller is excused from performance, then to the extent
the services are not provided to RSUI, in the manner or at the times required
under this Agreement, RSUI may obtain the
3
same or similar services from other sources without liability or obligation for
payment to Seller for the provision of such services to RSUI.
(d) Each of RSUI Group and RSUI shall not be deemed to be in
violation of this Agreement if RSUI is prevented from performing any of the RSUI
Transition Services for any reason beyond its reasonable control, including,
without limitation, acts of God, nature, or of public enemy, strikes, or
limitations of law, regulations or rules of the Federal or of any state or local
government or of any agency thereof. Upon the occurrence of any such event which
results in, or will result in, delay or failure to perform according to the
terms of this Agreement, RSUI Group and/or RSUI will promptly notify Seller of
such occurrence and the effect and/or anticipated effect of such occurrence.
RSUI will use its reasonable efforts to minimize disruptions in its performance
and to resume performance of its obligations under this Agreement as soon as
practical. If, by reason of any such event, RSUI is excused from performance,
then to the extent the services are not provided to the other party, in the
manner or at the times required under Transition Services Agreement, Seller may
obtain the same or similar services from other sources without liability or
obligation for payment to RSUI Group and/or RSUI for the provision of such
services to Seller.
(e) The parties to this Agreement may modify or change the
Transition Services so long as such changes are made in the ordinary course of
business and do not materially diminish the Transition Services.
(f) The failure of one party to this Agreement to timely
provide the Transition Services in accordance with the provisions of this
Agreement to the extent resulting from the failure of another party (including
such other party's Affiliates) to meet its obligations under this Agreement, the
Acquisition Agreement or any of the Ancillary Agreements, shall not be deemed a
breach of this Agreement.
(g) The parties hereto agree that Seller shall be obligated to
provide the Royal Transition Service relating to the preparation of statutory
statements only after RSUI Group has notified Seller no later than 45 days'
prior to the year end of the year for which the preparation of such statutory
statements are requested. Seller may hire third parties to assist in the
preparation of such statutory statements and in the event Seller hires such
third parties, RSUI Group shall be obligated to reimburse Seller for all costs
and expenses incurred by Seller in connection therewith.
SECTION 2.4 INABILITY TO PERFORM SERVICES. In the event that either
Seller or any of its Affiliates, on the one hand, or RSUI, on the other hand,
shall be unable to perform services as required by this Agreement for any reason
for a period that can reasonably be expected to exceed three Business Days, the
party unable to provide its service(s) shall cooperate with the other party in
obtaining an alternative means of providing such services; provided that both
parties shall use reasonable efforts to mitigate such inability or the adverse
impact of such inability. The party unable to perform its service(s) will be
responsible for all costs incurred in either restoring services or obtaining an
alternative source of services, except to the extent that such party's failure
to
4
perform is due to a breach by the other party of any representation or covenant
under the Acquisition Agreement, this Agreement, or any other Ancillary
Agreement.
SECTION 2.5 SERVICE STANDARDS; LEVEL OF SERVICE.
(a) Seller shall provide the Royal Transition Services and the
Mutual Transition Services, if any, at a level of service substantially
identical to that being provided to the Business prior to the Closing Date.
(b) RSUI Group shall cause RSUI to provide the RSUI Transition
Services and the Mutual Transition Services, if any, at a level substantially
identical to that being provided to all the relevant businesses of Seller or its
Affiliates by RSUI prior to the Closing Date.
(c) No party shall be obligated during the term of this
Agreement to provide services at a level in excess of the level of service
provided prior to the Closing Date.
SECTION 2.6 REQUEST FOR ADDITIONAL SERVICES. If RSUI Group, Seller or
RSUI reasonably requests that the other party perform additional services not
included within the scope of the Transition Services or increase the current
Transition Services or extend the terms for provision of Transition Services,
then the parties will promptly negotiate in good faith regarding whether such
additional services or increased services shall be added to the Transition
Services or whether Transition Services shall be performed for such extended
period.
ARTICLE III
PERSONNEL
SECTION 3.1 PERSONNEL; SUBCONTRACTING.
(a) Both Seller, on the one hand, and RSUI Group and/or RSUI,
on the other hand, will retain and employ a staff with experience, skill,
diligence and expertise that it believes will be reasonably necessary to perform
the Transition Services in accordance with the service standards referred to in
Sections 2.5 and 5.1; provided, however, notwithstanding any other provision to
the contrary set forth herein, neither party shall be obligated to hire
additional staff, pay "stay bonuses" or incur similar extraordinary expenses in
order to retain particular employees.
(b) Seller may subcontract or renew any existing subcontract
so long as its terms are not less advantageous for RSUI for the performance of
any Royal Transition Services; provided, however, that Seller shall retain
responsibility for the Royal Transition Services provided by subcontractors.
(c) RSUI may subcontract or renew any existing subcontract so
long as its terms are not less advantageous for Seller or any of its Affiliates
for the performance
5
of any RSUI Transition Services; provided, however, that RSUI Group and/or RSUI
shall retain responsibility for the RSUI Transition Services provided by
subcontractors.
ARTICLE IV
AMOUNTS DUE
SECTION 4.1 PRICING; BILLING AND CASH SETTLEMENT.
(a) The fee, rate or amount to be charged for the Transition
Services will reflect the fact that each of Seller and RSUI, respectively, shall
provide their Royal Transition Services and RSUI Transition Services at a cost
equal to their actual expenses for such service. The expense charged for such
services shall equal 135% of the applicable hourly rate paid to employees who
are necessary to provide such services. Amounts billed for such services shall
be on an hourly basis.
(b) Unless otherwise agreed by the parties, billing and cash
settlement for Transition Services shall occur on a monthly basis.
(c) Each of Seller and RSUI shall keep accurate books and
records, consistent with its customary accounting and business practices, which
relate directly to the performance of the Transition Services provided by such
party under this Agreement. As part of its performance of Transition Services,
each party shall, upon the other party's request, provide the other party
reasonable supporting documentation of all costs incurred in connection with
providing Transition Services completed through such time.
SECTION 4.2 OFFSET. Each of the parties acknowledges that it shall have
no right under this Agreement to offset any amounts due and owing (or to become
due or owing) to the other party under this Agreement against any amounts due
and owing by Seller or any of its Affiliates to RSUI Group and/or RSUI or any of
their Affiliates, or by RSUI Group and/or RSUI or any of their Affiliates to
Seller or any of its Affiliates, in either case, under the Acquisition Agreement
or any other Ancillary Agreement.
SECTION 4.3 UNDERPERFORMANCE OF SERVICE LEVELS. Seller and RSUI shall
agree on cure periods and the amount of credits, fees, rates or amounts
previously paid under this Agreement or that otherwise would subsequently be
due, for underperformance of the service levels referred to in Section 2.5. The
cure periods and amounts of credit shall be reasonable.
ARTICLE V
COVENANTS
SECTION 5.1 COVENANTS.
6
(a) Seller agrees that Seller will use the same standard of
care when providing the Royal Transition Services under this Agreement that
Seller used when providing services to RSUI prior to the Closing Date. Seller
agrees to assign sufficient resources, facilities and qualified personnel to
provide the Royal Transition Services as are reasonably required to perform the
Royal Transition Services in accordance with the standard set forth in the
preceding sentence.
(b) RSUI Group agrees that it will cause RSUI to use the same
standard of care when providing the RSUI Transition Services under this
Agreement that RSUI used when providing services to Seller prior to the Closing
Date. RSUI Group agrees it will cause RSUI to assign sufficient resources,
facilities and qualified personnel to provide the RSUI Transition Services as
are reasonably required for RSUI to perform the RSUI Transition Services in
accordance with the standard set forth in the preceding sentence.
ARTICLE VI
TERMINATION
SECTION 6.1 TERMINATION.
(a) This Agreement shall be terminated at a date no later than
the end of the last term specified for a Transition Service as set forth under
Section 2.2 hereto, but shall terminate at an earlier date in the event that all
Transition Services provided for hereunder have been terminated.
(b) In the event that RSUI Group and/or RSUI, on the one hand,
or Seller, on the other hand, becomes or is declared bankrupt or insolvent, then
the other party may immediately terminate this Agreement without any prior
notice.
(c) Upon any termination of this Agreement, all monies owing
from one party to the other party, and all refunds of disputed amounts owing by
one party to the other party under this Agreement, shall be due and payable, and
each party shall cease providing Transition Services to the other party.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION.
(a) Seller shall indemnify RSUI Group and/or RSUI against, and
shall hold RSUI Group and/or RSUI harmless from any damages suffered by RSUI
Group and/or RSUI or arising from any third-party claims, costs, liabilities,
judgments or awards resulting from the gross negligence, recklessness or willful
misconduct of Seller or any of its Affiliates in connection with the performance
of the Royal Transition Services, including any enforcement of this indemnity,
after notice and opportunity to cure any
7
breach or nonfulfillment by Seller of, or any failure by Seller to perform, any
of the covenants, terms or conditions of, or any duties or obligations under
this Agreement.
(b) RSUI Group shall indemnify Seller against, and shall hold
Seller harmless from any damages suffered by Seller itself or any Affiliate of
Seller or arising from any third-party claims, costs, liabilities, judgments or
awards resulting from the gross negligence, recklessness or willful misconduct
of RSUI or any of its Affiliates in connection with the performance of the RSUI
Transition Services, including any enforcement of this indemnity, after notice
and opportunity to cure any breach or nonfulfillment by RSUI Group and/or RSUI
of, or any failure by RSUI Group and/or RSUI to perform, any of the covenants,
terms or conditions of, or any duties or obligations under this Agreement.
SECTION 7.2 INDEMNIFICATION PROCEDURE. In the event either Seller, on
one hand, or RSUI Group and RSUI, on the other, shall have a claim for indemnity
against the other party under the terms of this Agreement, the parties shall
follow the procedures set forth in the Acquisition Agreement.
ARTICLE VIII
ARBITRATION
SECTION 8.1 ARBITRATION. As a condition precedent to any cause of
action, any and all disputes between Seller, on the one hand, and RSUI Group
and/or RSUI, on the other hand, arising out of, relating to, or concerning this
Agreement, whether sounding in contract or tort and whether arising during or
after termination of this Agreement, including whether the dispute is subject to
arbitration, shall be submitted to the decision of a board of arbitration
composed of two arbitrators and an umpire ("Board") meeting at a site in
Wilmington, Delaware. The arbitration shall be conducted under the Federal
Arbitration Act and shall proceed as set forth below.
SECTION 8.2 NOTICE OF ARBITRATION. A notice requesting arbitration, or
any other notice made in connection therewith, shall be in writing and shall be
sent certified or registered mail, return receipt requested to the affected
parties. The notice requesting arbitration shall state in particulars all issues
to be resolved in the view of the claimant, shall appoint the arbitrator
selected by the claimant and shall set a tentative date for the hearing, which
date shall be no sooner than ninety (90) days and no later than one hundred
fifty (150) days from the date that the notice requesting arbitration is mailed.
Within thirty (30) days of receipt of claimant's notice, the respondent shall
notify claimant of any additional issues to be resolved in the arbitration and
of the name of its appointed arbitrator.
SECTION 8.3 ARBITRATION PANEL. Unless otherwise mutually agreed, the
members of the Board shall be impartial and disinterested and shall be active or
former executive officers of property-casualty insurance companies, reinsurance
companies, or Lloyd's Underwriters or active or inactive lawyers with at least
twenty (20) years of experience in insurance and reinsurance. Seller, on the one
hand, and RSUI Group
8
and/or RSUI, on the other hand, shall each appoint an arbitrator and the two (2)
arbitrators shall choose an umpire before instituting the hearing. If the
respondent fails to appoint its arbitrator within thirty (30) days after having
received claimant's written request for arbitration, the claimant is authorized
to and shall appoint the second arbitrator. If the two arbitrators fail to agree
upon the appointment of an umpire within thirty (30) days after notification of
the appointment of the second arbitrator, within ten (10) days thereof, the two
(2) arbitrators shall request the American Arbitration Association ("AAA") to
appoint an umpire for the arbitration with the qualifications set forth in this
Article. If the AAA fails to name an umpire, either party may apply to the court
named below to appoint an umpire with the above required qualifications. The
umpire shall promptly notify in writing all parties to the arbitration of his
selection and of the scheduled date for the hearing. Upon resignation or death
of any member of the Board, a replacement shall be appointed in the same fashion
as the resigning or deceased member was appointed.
SECTION 8.4 SUBMISSION OF BRIEFS. The claimant and respondent shall
each submit initial briefs to the Board outlining the issues in dispute and the
basis, authority and reasons for their respective positions within thirty (30)
days of the date of notice of appointment of the umpire. The claimant and the
respondent may submit reply briefs to the Board within ten (10) days after
filing of the initial brief(s). Initial and reply briefs may be amended by the
submitting party at any time, but not later than ten (10) days prior to the date
of commencement of the arbitration hearing. Reasonable responses shall be
allowed at the arbitration hearing to new material contained in any amendments
filed to the briefs but not previously responded to.
SECTION 8.5 ARBITRATION BOARD'S DECISION. The Board shall make a
decision and award with regard to the terms of this Agreement and the original
intentions of the parties to the extent reasonably ascertainable. The Board's
decision and award shall be in writing and shall state the factual and legal
basis for the decision and award. The decision and award shall be based upon a
hearing in which evidence shall be allowed and which the formal rules of
evidence shall not strictly apply but in which cross examination and rebuttal
shall be allowed. At its own election or at the request of the Board, either
party may submit a post-hearing brief for consideration of the Board within
twenty (20) days of the close of the hearing. The Board shall make its decision
and award within thirty (30) days following the close of the hearing or the
submission of post-hearing briefs, whichever is later, unless the parties
consent to an extension. Every decision by the Board shall be by a majority of
the members of the Board and each decision and award by the majority of the
members of the Board shall be final and binding upon all parties to the
proceeding.
SECTION 8.6 JURISDICTION. Either party may apply to the Chancery Court
of the State of Delaware for an order compelling arbitration or confirming any
decision and the award; a judgment of that Court shall thereupon be entered on
any decision or award. If such an order is issued, the attorneys' fees of the
party so applying and court costs will be paid by the party against whom
confirmation is sought. The Board may award interest calculated from the date
the Board determines that any amounts due the prevailing party should have been
paid to the prevailing party.
9
SECTION 8.7 EXPENSES. Each party shall bear the expense of the one
arbitrator appointed by it and shall jointly and equally bear with the other
party the expense of any stenographer requested, and of the umpire.
SECTION 8.8 PRODUCTION OF DOCUMENTS AND WITNESSES. Subject to customary
and recognized legal rules of privilege, each party participating in the
arbitration shall have the obligation to produce those documents and as
witnesses to the arbitration those of its employees as any other participating
party reasonably requests providing always that the same witnesses and documents
be obtainable and relevant to the issues before the arbitration and not be
unduly burdensome or excessive. The parties may mutually agree as to pre-hearing
discovery prior to the arbitration hearing and in the absence of agreement, upon
the request of any party, pre-hearing discovery may be conducted as the Board
shall determine in its sole discretion to be in the interest of fairness, full
disclosure, and a prompt hearing, decision and award by the Board. The Board
shall be the final judge of the procedures of the Board, the conduct of the
arbitration, of the rules of evidence, the rules of privilege and production and
of excessiveness and relevancy of any witnesses and documents upon the petition
of any participating party. To the extent permitted by law, the Board shall have
the authority to issue subpoenas and other orders to enforce their decisions.
SECTION 8.9 RELIEF AVAILABLE. Nothing herein shall be construed to
prevent any participating party from applying to the Chancery Court of the State
of Delaware to issue a restraining order or other equitable relief to maintain
the "status quo" of the parties participating in the arbitration pending the
decision and award by the Board or to prevent any party from incurring
irreparable harm or damage at any time prior to the decision and award of the
Board. The Board shall also have the authority to issue interim decisions or
awards in the interest of fairness, full disclosure, and a prompt and orderly
hearing and decision and award by the Board.
SECTION 8.10 CONSOLIDATION. In the event that there is a dispute among
Seller, RSUI Group and RSUI which implicates the provisions of this Agreement,
the parties hereby agree to consolidate any such disputes under such agreements
in a single arbitration proceeding.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
(which is confirmed), by courier (delivery of which is confirmed) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties to this RIC Administrative Services Agreement as follows:
10
If to Seller:
Xxxxx X. Xxxxxxxx, Esq.
General Counsel
Royal Group, Inc.
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to (which shall not constitute notice to Insurer
for purposes of this Section 9.1):
Xxxxxx X. Xxxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
If to RSUI Group:
Xx. Xxxxx X. Xxxxxxx
Executive Vice President
RSUI Group, Inc.
c/o Royal Specialty Underwriting, Inc.
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
With copies to (which shall not constitute notice to the
Administrator for purposes of this Section 9.1):
Xxxxxx X. Xxxx, Esq.
General Counsel
Alleghany Corporation
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx Xxxxxxxxxx LLP
11
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. In
no event shall the provision of notice pursuant to this Section 9.1 constitute
notice for service of any writ, process or summons in any suit, action or other
proceeding.
SECTION 9.2 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests and obligations of the parties hereunder may be assigned by any of the
parties thereto without the prior written consent of the other parties thereto,
except that (a) RSUI Group may assign its rights and obligations under this
Agreement to any Affiliate of RSUI Group without the prior written consent of
Seller, (b) Seller may assign any of its rights and obligations hereunder to any
of its wholly owned subsidiaries organized in the United States without the
prior written consent of RSUI Group and/or RSUI and (c) an assignment by
operation of law in connection with a merger or consolidation shall not require
the consent of the other party thereto. Notwithstanding the foregoing, each of
Seller, RSUI Group and RSUI shall remain liable for all of their respective
obligations under this Agreement. Subject to the first sentence of this Section
9.2, the Transition Agreement shall be binding upon and inure to the benefit of
the parties thereto and their respective successors and assigns and no other
person shall have any right, obligation or benefit hereunder. Any attempted
assignment or transfer in violation of this Section 9.2 shall be void.
SECTION 9.3 CONFIDENTIALITY. Each party hereto will hold, and will use
its reasonable best efforts to cause its Affiliates, and their respective
representatives to hold, in strict confidence from any Person (other than any
such Affiliates or representatives), except with the prior written consent of
the other party or unless (i) compelled to disclose by judicial or
administrative process (including without limitation in connection with
obtaining the necessary approvals of this Agreement and the transactions
contemplated hereby of governmental or regulatory authorities) or by other
requirements of Applicable Law or (ii) disclosed in an action or proceeding
brought by a party hereto in pursuit of its rights or in the exercise of its
remedies hereunder, this Agreement, the terms and conditions hereof, and all
documents and information concerning the other party or any of its Affiliates
furnished to it by the other party or such other party's representatives in
connection with the transactions contemplated hereby, except to the extent that
such documents or information can be shown to have been (a) previously known by
the party receiving such documents or information, (b) in the public domain
(either prior to or after the furnishing of such documents or information
hereunder) through no fault of such receiving party or (c) later acquired by the
receiving party from another source if the receiving party is not aware that
such source is under an obligation to another party hereto to keep such
documents and information confidential.
SECTION 9.4 COOPERATION. Seller, RSUI Group and RSUI shall share
information and otherwise cooperate to the extent necessary to facilitate the
provision of
12
services under this Agreement. The parties will cooperate in a commercially
reasonable manner in order that the respective obligations of the parties under
this Agreement will be effectively, efficiently and promptly discharged. Each
party shall, at all reasonable times under the circumstances, make available to
the other party properly authorized personnel for the purpose of consultation
and decision.
SECTION 9.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
SECTION 9.6 DISCLAIMER. The parties shall make no representations or
warranties, express or implied, with respect to the Transition Services to be
provided and the implied warranties or merchantability and fitness for a
particular purpose shall be specifically excluded with respect to the Transition
Services.
SECTION 9.7 OTHER. There shall be no representations and warranties in
this Agreement.
13
IN WITNESS WHEREOF, this Transition Services Agreement has
been duly executed by a duly authorized officer of each party hereto as of the
date first above written.
ROYAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
ALLEGHANY INSURANCE HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
ROYAL SPECIALTY UNDERWRITING,
INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman
