TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "AGREEMENT") is entered into as of
December 3, 2001 (the "EFFECTIVE DATE"), between Rhythms NetConnections Inc., a
Delaware corporation (the "SELLER"), and MCI WorldCom Network Services, Inc.
(the "BUYER"). Each of Buyer and Seller is sometimes referred to herein as a
"PARTY" and, together, as the "PARTIES."
RECITALS
WHEREAS, Buyer and Seller (along with certain of its subsidiaries) are
parties to that certain Asset Purchase Agreement, dated September 24, 2001 (the
"PURCHASE AGREEMENT"), providing for the sale, assignment and transfer by
Seller, and the acquisition and assumption by Buyer, of the Acquired Assets and
Assumed Liabilities (as defined in the Purchase Agreement) (the "WCOM
TRANSACTION"); and
WHEREAS, following the Closing of the WCOM Transaction, Seller will
continue to operate its remaining business pending (1) the completion of the
sale of its remaining assets, (2) the resolution of claims, if any, asserted by
third parties against Seller, (3) resolution of claims asserted against third
parties by Seller, (4) the satisfaction of its remaining liabilities and (5) the
wind down and liquidation of Seller (the "WIND DOWN"); and
WHEREAS, one of the acquired Assets to be transferred to Buyer is Seller's
lease for the premises located at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 (the "SUBLEASED PREMISES"); and
WHEREAS, at Seller's request, following the Closing of the WCOM
Transaction, Buyer has agreed to permit Seller to occupy certain space located
within the Subleased Premises while Seller completes the Wind Down (the
"SUB-SUBLEASED PREMISES"), which agreement is memorialized in that certain
Sub-Sublease Agreement, of even date herewith, by and between Buyer and Seller,
as defined therein (the "SUB-SUBLEASE," a copy of which is attached hereto as
EXHIBIT A); and
WHEREAS, at Seller's request, following the Closing of the WCOM
Transaction, Buyer has agreed to provide certain transition services to Seller
while Seller completes the Wind Down, on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the representations and warranties and
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows.
AGREEMENT
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Purchase Agreement.
2. TRANSITION SERVICES AND COOPERATION.
a. During the Transition Period (as defined below), Buyer shall, on
the terms and subject to the conditions of this Agreement, provide to Seller the
services described in EXHIBIT B attached hereto and incorporated herein, as
amended at any time and from time to time in a writing executed and delivered by
Buyer and Seller (the "TRANSITION SERVICES").
b. All Transition Services provided by Buyer to Seller shall be of
the same general commercial type and of equivalent commercial quality used by
Buyer in the operation of its own business at the Leased Premises, taking into
account operational differences between Seller's and Buyer's businesses, the
difference in sizes of Buyer's and Seller's businesses following the Effective
Date, the difference in number of employees in Buyer's and Seller's business
following the Effective Date.
c. Following the Closing of the WCOM Transaction, Buyer and Seller
shall cooperate with each other, to the extent commercially reasonable, with
respect to other post-Closing matters to assist (i) the Buyer in the timely and
cost effective transition of the Business to Buyer and (ii) the Seller in the
timely and cost effective Wind Down of the Seller's business.
d. Within 3 business days following the Closing of the WCOM
Transaction, Buyer and Seller shall each appoint one transition representative
who shall be responsible for identifying, communicating about, coordinating and
resolving disputes concerning transition matters that arise during the
Transition Period.
e. The Transition Services will be available only for the purpose of
the operation of the Wind Down and not for the benefit of any third party.
f. Buyer shall not be required to provide any Transition Service to
the extent that the performance of such Transition Service becomes impracticable
as a result of a cause or causes outside the reasonable control of Buyer,
including unfeasible technological requirements, or to the extent the
performance of such Transition Services would require Buyer to violate
applicable laws, rules, or regulations, court orders, arbitration orders, etc.,
or would result in the breach of any contract, agreement, license, arrangement,
or other applicable document.
g. In performing Transition Services hereunder, Buyer shall not be
obligated to (a) hire any additional employees; (b) maintain the employment of
any specific employee; (c) purchase, lease or license any additional equipment
or software; or (d) pay any costs related to the transfer or conversion of
Seller's data to Buyer or any alternative supplier of Transition Services.
3. TRANSITION PERIOD AND COOPERATION.
a. The term of this Agreement shall commence on the Effective Date
and shall continue until the earlier to occur of (i) the 12 month anniversary of
the Effective Date, or (ii) the 30th day after the date upon which either Party
gives written notice of termination in accordance with the notice provisions of
Section 12(b) of this Agreement; PROVIDED, HOWEVER, that, as to any Transition
Service or Additional Transition Service (as defined below) other than
Continuing Access Services (as defined below), the term of this Agreement as to
such Transition Service shall end on the date of termination of the
Sub-Sublease, in accordance with its terms (the "INITIAL TERM").
b. The Parties may mutually agree in writing to extend the Initial
Term on such terms and conditions and for such period of time as they mutually
agree (any such extension is an "EXTENDED TERM").
c. The Initial Term and all Extended Terms are collectively referred
to herein as the "TRANSITION PERIOD."
d. The Transition Period shall terminate automatically upon the
termination of the Sub-Sublease Agreement.
e. Upon termination of this Agreement, the Parties' rights,
benefits, privileges, duties, obligations and responsibilities hereunder shall
immediately terminate; PROVIDED, HOWEVER, that notwithstanding the foregoing,
Sections 4, 5, 6, 7 and 8 hereof shall survive the termination of this
Agreement.
4. TRANSITION SERVICES FEES AND COSTS.
a. INITIAL TERM FEE. On the first day of each fiscal quarter during
the Transition Period, Seller shall prepay to Buyer, in immediately available
funds, $9,000 representing the transition services fee for the Initial Term (the
"INITIAL TERM FEE").
b. SHARED PERSONNEL FEE. Within 5 business days following the last
day of each calendar month during the Transition Period, Seller shall reimburse
Buyer for the shared personnel expenses, including apportioned payroll expense,
benefits, and tax withholdings (the "SHARED PERSONNEL FEE") for the shared
employees identified on EXHIBIT B or any supplement to Exhibit B that Seller
delivers to Buyer (the "SHARED EMPLOYEES"). In the event a Shared Employee
ceases to be employed by Buyer or a subsidiary of Buyer for any reason during
the Transition Period, Seller shall pay to Buyer for the month in which such
termination occurs only the daily pro rated amount representing the portion of
the Shared Personnel Fee attributable to such Shared Employee for the period
prior to his termination by Buyer or Buyer's subsidiary. Buyer shall be
responsible for paying with respect to all Shared Employees all (i) payroll
obligations, (ii) employee benefits, including but not limited to insurance
premiums and (iii) federal, state and local tax and all other employee and
employer withholdings, whether required by law or at the request of an employee.
The Seller's will not be obligated to reimburse Buyer for Shared Personnel Fees
under this Section 4(b), with respect to a Shared Employee, if that Shared
Employee shall cease to work at least a majority of his time for Buyer at 0000
Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Buyer and Seller agree to negotiate
in good faith an adjustment to the Shared Personnel Fee for any month during the
Transition Period in which Buyer is unable, for reasons due to the operation of
its own business, to provide all of the Shared Personnel services described on
EXHIBIT B.
c. EXTENDED TERM FEE. On or before the first day of each Extended
Term, Seller shall prepay to Buyer, in immediately available funds, the entire
fee for Transition Services for each Extended Term, in an amount equal to the
Initial Term Fee divided by the number of months in the Initial Term multiplied
by the number of months in the applicable Extended Term (the "EXTENDED TERM
FEE").
d. ADDITIONAL TRANSITION SERVICES FEE. Seller and Buyer shall
negotiate in good faith the cost of any Transition Service requested by Seller
that is not included on EXHIBIT B attached hereto (an "ADDITIONAL TRANSITION
SERVICE"); PROVIDED, that Buyer shall have no obligation to provide any
Additional Transition Service for less than 125% of the actual cost to Buyer of
providing such Additional Transition Service.
5. CONTINUING TRANSITION SERVICES.
a. CONTINUED ACCESS. Notwithstanding anything contained herein to
the contrary, during the Transition Period and for the 3 year period following
the termination of the Transition Period (the "ACCESS PERIOD"), and after 3 days
written notice to Buyer, Buyer shall (i) provide Seller's employees, agents and
representatives ("SELLER REPRESENTATIVES") reasonable access to the business
records, data, information and materials that exist electronically or in paper
form that are identified on Exhibit C hereto (the "Continued Access Materials")
during normal business hours, and (ii) permit Seller Representatives to copy,
download, duplicate or otherwise export the Continued Access Materials , and
Buyer shall instruct its employees and agents to cooperate with any such access
and/or copying, downloading or duplication of Continued Access Materials (the
"Continued Access Services"). Such Continued Access Materials shall be made
available to Seller Representatives by Buyer pursuant to this Section 5
regardless of whether such Continued Access Materials exist on paper or
electronically, and regardless of whether such Continued Access Materials exist
at the Subleased Premises or not.
b. ACCESS FEE. For each day after the termination of the Transition
Services Period in which a Seller Representative actually accesses, copies,
downloads, duplicates or otherwise exports Continued Access Materials Seller
shall pay to Buyer a fee in the amount of 1/30 (.0333) of the monthly portion of
the Initial Term Fee or the Extended Term Fee, whichever is in force as of the
termination of the Transition Services Period.
6. INDEPENDENT CONTRACTOR.
a. Buyer and its employees that provide the Transition Services
described herein shall be independent contractors in the performance of Buyer's
obligations hereunder, shall not be employees of Seller or have any right to
become employees of Seller and shall have no authority to assume or create any
obligation or liability, express or implied, on behalf of
Seller or any of its affiliates, or to bind Seller or such affiliates in any
manner whatsoever, without the express prior written consent of Seller. Buyer
shall use commercial reasonableness in performing the Transition Services.
b. This Agreement is not intended to create and shall not be
construed as creating between Buyer and Seller the relationship of principal and
agent, joint venturers, partners or any other similar relationship, and the
existence of any such relationship is expressly denied.
7. CONFIDENTIALITY. Each Party will hold, and will cause its employees,
consultants, advisors and agents to hold, in confidence the terms of this
Agreement and any information concerning the Transition Services provided
pursuant to this Agreement or in connection with the negotiation hereof.
Notwithstanding the preceding provision, a Party may disclose such information
to the extent required by an applicable law (including disclosure required in
connection with any judicial or administrative proceeding of any governmental
authority), but the Party proposing to disclose such information will first
notify and consult with the other Party concerning the proposed disclosure, to
the extent reasonably feasible. Each Party also may disclose such information to
employees, consultants, advisors, agents and actual or potential lenders whose
knowledge is necessary to facilitate the consummation of the transactions
contemplated by this Agreement. Each Party's obligation to hold information in
confidence will be satisfied if it exercises the same care with respect to such
information as it would exercise to preserve the confidentiality of its own
similar information.
8. CERTAIN SUBLEASE PROVISIONS. Notwithstanding anything in the
Sub-Sublease to the contrary, Buyer and Seller agree that Seller shall not be
obligated to make any payments under the Prime Lease or the Sublease (as those
terms are defined in the Sub-Sublease), including but not limited to the payment
of utilities, taxes or additional rent.
9. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and
warrants to each of the other Parties as follows:
a. DUE ORGANIZATION. The Party is a corporation duly organized,
validly existing and in good standing under the laws of the State of its
formation or incorporation, as the case may be. The Party has all requisite
power and authority to enter into this Agreement and to perform all of its
obligations hereunder. The Party is duly qualified to do business and is in good
standing in all jurisdictions where the conduct of its business or the ownership
of its assets makes such qualifications necessary, except where failure to be so
qualified would not have a material adverse effect on the Party or its financial
condition or the transactions contemplated hereby.
b. POWER AND AUTHORITY; NO VIOLATION. The Party has full power and
authority to execute, deliver and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of the Party, and this Agreement constitutes
a legal, valid and binding obligation of the Party enforceable against the Party
in accordance with its terms, except to the extent such enforceability may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization or other similar laws from time to time in effect affecting or
relating to the enforcement of creditors' rights generally or by principles
governing the availability of equitable remedies. Neither the execution,
delivery or performance of this Agreement by the Party nor the consummation of
the transactions contemplated herein by the Party will, with or without the
giving of notice or the passage of time, or both, conflict with, breach, result
in a default or loss of rights (or give rise to any rights of termination,
cancellation or acceleration) under, or result in the creation of any lien,
pursuant to (a) any provision of the articles (or certificate) of incorporation,
as the case may be, or other constituent documents of the Party; (b) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which the Party is a party or by
which the Party's properties may be bound or affected; or (c) any legal
requirements to which the Party is a party or by which the Party's properties
are bound or affected. No permit, consent, approval, authorization,
qualification or registration of, or declaration to or filing with any
governmental authority or third party is required to be obtained or made by the
Party in connection with the execution and delivery of this Agreement by the
Party or the consummation by the Party of the transactions contemplated hereby
in order to render this Agreement or the transactions contemplated hereby valid
and effective.
c. LEGAL MATTERS. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative or
tax proceeding, nor any order, writ, injunction, decree or judgment of any
court, governmental authority or arbitration tribunal, in progress or pending,
or to the knowledge of the Party threatened, against or relating to the right of
the Party to perform its obligations under this Agreement, nor does the Party
know or have reason to be aware of any basis for the same. There are outstanding
no orders which would, individually or in the aggregate, have a material adverse
effect on the ability of the Party to perform its duties and obligations
hereunder or on the transactions contemplated by this Agreement other than
orders involving the telecommunications industry in general.
EXCEPT AS SET FORTH IN THIS SECTION 9, NOTHING CONTAINED IN THIS AGREEMENT OR IN
THE SCHEDULES HERETO SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY OF OR BY
ANY OF SELLER OR BUYER OR THEIR SUBSIDIARIES AND AFFILIATES.
10. COVENANTS. Buyer shall keep all records and data received from Seller
pursuant to the Purchase Agreement in a manner consistent with Buyer's past
practice and such records and data shall not be destroyed until the third
anniversary of the termination of the Transition Services Period; PROVIDED,
HOWEVER, that Buyer shall notify Seller of its intent to destroy any such
records or data at least 60 days prior to the scheduled date of destruction, and
if so requested in writing by Seller, deliver the records or data to be
destroyed to Seller at Seller's expense. Seller shall have the right to make
copies of any such records, PROVIDED that any such access or copying shall be
had or done (i) at Seller's expense, (ii) in such a manner not to interfere with
the normal conduct of the Buyer's business, and (iii) Seller shall not disclose
or divulge confidential or proprietary information about the Business without
Buyer's written consent. In the event of a proposed disposition of such records
or data by the Buyer, directly or indirectly, to any party
other than a subsidiary of Buyer shall be treated as a proposed destruction of
such records or data.
11. INDEMNIFICATION. To the fullest extent not prohibited by law, Seller
shall protect, defend, indemnify and hold harmless Buyer (including its
subsidiaries and affiliates) and each of its representatives (collectively, the
"BUYER INDEMNITEES") from and against any and all losses, claims, demands,
costs, damages, liabilities, expenses of any nature (including reasonable
attorneys' fees and disbursements), judgments, fines, settlements, and other
amounts (collectively "LOSSES"), by reason of any proceeding initiated by any
third person, arising or alleged to have arisen out of the performance by Buyer
of its duties and obligations under and/or in accordance with this Agreement,
except, in the case of any Buyer Indemnitee, to the extent such losses result
directly from the actual fraud, intentional misconduct, a willful violation of
law by or gross negligence of such Buyer Indemnitee. In the event any proceeding
is brought against any Buyer Indemnitee with respect to which Seller may have
liability under any indemnity contained herein, Seller shall have the right, at
its sole cost and expense, to defend such proceeding in the name and on behalf
of the Buyer Indemnitee and in connection with any such proceeding, the Parties
agree to render to each other such assistance as may reasonably be required in
order to insure the proper and adequate defense of any such proceeding. The
Buyer Indemnitee shall have the right to participate, at its own expense and
with counsel of its choosing, in the defense of any proceeding against which it
is indemnified hereunder and it shall be kept fully informed with respect
thereto.
12. MISCELLANEOUS.
a. HEADINGS. The headings in this Agreement are provided for
convenience only and will not affect the construction or interpretation of this
Agreement.
b. NOTICE. All notices to be provided under this Agreement shall be
provided as follows:
To Buyer:
WorldCom, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: K. Xxxxxxx Xxxxxxx, Xx.
Fax: (000) 000-0000
WorldCom, Inc.
0000 00xx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To Seller:
Rhythms NetConnections Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
Xxxxxxxxxx Xxxxx & Xxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxx@xxxx.xxx
All notices required or permitted to be given under this Agreement shall be
in writing and shall be delivered by hand delivery or sent by registered mail,
certified mail or express mail service, postage prepaid and return receipt
requested, or by nationally utilized overnight delivery service (such as Federal
Express) or by telephone facsimile transmission, PROVIDED that an original copy
of any facsimile transmission shall be delivered to the addressee by hand
delivery or by a nationally utilized overnight delivery service on the business
day following such transmission. Facsimile notices shall be deemed given on the
date of transmission. Any other notice shall be deemed given when delivery is
received or refused, as the case may be. For purposes hereof, (i) a notice that
is delivered during business hours shall be deemed delivered when actually
delivered and (ii) a notice that is delivered outside of business hours shall be
deemed to have been delivered at the beginning of business hours or the
immediately succeeding business day.
A party may change its address by giving the other party notice of the new
address, PROVIDED that the new address must be a place in the Continental United
States where the mails, telegrams, mailgrams, facsimile transmissions, hand
deliveries and deliveries by private delivery services are regularly received.
The change of address shall be effective on the date specified
therefor in the notice, PROVIDED that the effective date shall be not sooner
than 5 days or later than 30 days after notice thereof is delivered.
c. APPLICABLE LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado. The Parties
agree that any dispute pertaining to or arising under this Agreement shall be
commenced and prosecuted either in the state or federal courts located in the
State of Colorado.
d. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns,
subject to the restrictions upon assignment and subletting set forth herein.
Neither Party shall assign any of its rights or delegate any of its duties under
this Agreement (by operation of law or otherwise) without the prior written
consent of the other Party, not to be unreasonably withheld; PROVIDED that Buyer
(as indicated) may assign its rights hereunder to any affiliate or subsidiary of
Buyer, PROVIDED that Buyer shall remain responsible for the performance of all
of its duties, obligations and responsibilities hereunder following such
assignment. Any other assignment of rights or delegation of duties under this
Agreement by a Party without the prior written consent of the other Party, if
such consent is required hereby, shall be void.
e. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the exhibits,
riders, and/or addenda, if any, set forth the entire agreement between the
parties. Any prior or contemporaneous conversations or writings are merged
herein, superseded and extinguished. Buyer and Seller acknowledge that neither
Party has relied upon any oral or written representations, warranties or
agreements in connection with this Agreement other than those expressly written
in this Agreement. No subsequent amendment to this Agreement shall be binding
upon Buyer or Seller unless it is reduced to writing and signed by Buyer and
Seller.
f. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which is an original and all of which, taken together,
constitute one and the same instrument.
g. PARTIAL INVALIDITY. If a provision of this Agreement or
application thereof to a person or circumstance is invalid or unenforceable, the
remainder of this Agreement or the application of the provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
h. RULES OF CONSTRUCTION. Unless the context clearly indicates
otherwise, the terms defined in this Agreement shall have the meanings specified
herein for all purposes of this Agreement and the Schedules hereto. The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms, and male, female and
neuter genders of such terms, whenever and wherever necessary or appropriate.
References to "Sections,"
"Subsections," "Exhibits" and "Schedules" are to the Sections and Subsections
of, and Exhibits and Schedules to, this Agreement, respectively, unless
otherwise specifically provided. Unless the context of this Agreement clearly
indicates otherwise, the terms "include," "includes" and "including" shall be
deemed to be followed by the words "without limitation." Unless the context of
this Agreement clearly indicates otherwise, any reference to this Agreement
herein, in the Purchase Agreement or in any of the other documents referenced in
this Agreement and in the Purchase Agreement shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions and supplements hereto and thereto, as applicable, made in
accordance with the terms hereof or thereof, respectively.
[The remainder of this page left intentionally blank.]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first written above.
BUYER:
MCI WorldCom Network Services, Inc.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SELLER:
Rhythms NetConnections Inc.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
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[SIGNATURE PAGE TO TRANSITION SERVICES AGREEMENT]
EXHIBIT A
SUB-SUBLEASE AGREEMENT
See attached.
A-1
EXHIBIT B
TRANSITION SERVICES
Buyer shall provide to Seller the following corporate, operational and
infrastructure services:
1. OFFICE SERVICES:
a. Telephone;
b. Fax equipment;
c. Computers;
d. Office furniture, fixtures and other equipment;
e. Utilities;
f. Building access cards;
g. Building security;
h. Files storage;
i. Shared MIS access;
j. Shared accounting services and data;
k. Shared HR services and data;
l. Shared payroll services and data;
m. Other shared data services and files;
n. Shared server support;
o. Shared business software applications;
p. Shared hardware;
q. Any other reasonable services requested by Seller from Buyer in
connection with the Wind Down.
r. All necessary insurance that Buyer will carry in the ordinary course
of business as tenant of such premises.
2. SHARED PERSONNEL:
Sharing Formula: [NAME] will devote ___% of his regular 40-hour work week
with WorldCom to assisting Seller in the Wind Down. [NAME] will report directly
to ____________ of Seller. [NAME]'s base salary with Buyer is $_________ per
month. Seller will reimburse Buyer for ____% of [NAME]'s base salary in
accordance with Section 4(b) of the Transition Services Agreement.
The schedule of Shared Employees and his/her base salary is attached
hereto.
NONE OF BUYER'S FURNITURE, FIXTURES, EQUIPMENT, INTELLECTUAL PROPERTY, SYSTEMS,
OTHER TANGIBLE OR INTANGIBLE ASSETS OR EMPLOYEES BEING USED BY SELLER OR MADE
AVAILABLE FOR USE BY SELLER OR USED BY BUYER IN PROVIDING TRANSITION SERVICES TO
SELLER UNDER THIS AGREEMENT ("BUYER'S PROPERTY") IS BEING TRANSFERRED TO SELLER
HEREBY, SELLER IS NOT ACQUIRING ANY OWNERSHIP INTEREST IN ANY OF BUYER'S
PROPERTY AND SELLER AGREES TO RETURN ALL OF BUYER'S PROPERTY TO SELLER AT THE
END OF THE TRANSITION PERIOD in the same condition in which it was provided at
the inception of the Agreement, reasonable wear and tear excepted. SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES REGARDING ANY OF THE TRANSITION SERVICES OR ANY
OF BUYER'S PROPERTY LISTED ABOVE.
EXHIBIT C
CONTINUING TRANSITION SERVICES
The Continuing Transition Services include the following:
1. Customer files which relate or related to the Business;
2. Personnel files which relate or related to the Business;
3. MIS and data which relate or related to the Business;
4. accounting services and data which relate or related to the Business;
5. Human Resource services and data which relate or related to the
Business;
6. Payroll services and data which relate or related to the Business;
7. All other information data bases, files, storage facilities, data
services and other reasonable services requested by Seller in
connection with the Wind Down which relate or related to the Business,
whether stored on paper, electronically or otherwise, where ever
located.
