TRANSITION SERVICES AGREEMENT
Exhibit 10.1
This
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 as of
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 AT Co. and its
Affiliates provide certain services to Spinco 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
TRANSITION SERVICES
1.1 Transition Services. This Agreement sets forth the terms and conditions for the
provision by AT Co. to Spinco 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), AT Co. will provide the Transition
Services to Spinco, unless (a) otherwise indicated on the Service Attachment, (b) automatically
modified by termination of a Transition Service by Spinco 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, Spinco
may request that AT Co. provide additional or modified services that relate to the transition of
ownership and operation of the Spinco Business but are not described in the Service Attachment. AT
Co. will use, and will cause each of its Affiliates to use, its reasonable best efforts to
accommodate any reasonable requests by Spinco to provide additional or modified services relating
to the transition of ownership and operations of the Spinco Business. In order to initiate a
request for such additional or modified services, Spinco shall submit a written request to AT Co.
specifying the nature of the requested additional or modified services and
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requesting an estimate of the Transition Services Costs (as defined in Section 3.1) applicable to
such additional or modified services. AT Co. shall respond to such request within 10 Business Days
following AT Co.’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 Spinco, AT Co.’s preparation of responses to
such requests is materially interfering with, or is likely to materially interfere with, AT Co.’s
normal business activities. If AT Co. can, subject to the second sentence of this Section 1.3,
accommodate Spinco’s request to provide such additional or modified services, and if Spinco accepts
the terms and conditions set forth in AT Co.’s response to such request, then such additional or
modified services shall be provided hereunder subject to the terms and conditions of AT Co.’s
response and such other terms and conditions as may be agreed to by the parties in a written
amendment to this Agreement. If AT Co. agrees to any modification to the physical facilities that
is requested by Spinco in accordance with the terms and conditions of this Section, such
modification shall be done solely at Spinco’s cost and expense and shall be coordinated by the
parties to minimize interference with AT Co.’s normal business activities. No representative of
Spinco shall have authority to make decisions with respect to AT Co. and its responsibilities under
this Agreement; and no representative of AT Co. shall have authority to make decisions with respect
to Spinco 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 AT Co.’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 AT
Co.’s Team Leader, the members of AT Co.’s Transition Team shall not have the legal authority to
make or to modify any obligation or to waive any right on behalf of AT Co. The Team
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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, Spinco may request
that AT Co. make available to Spinco a resource of AT Co. that has expertise in the subject matter
(which must be directly related to the systems and procedures utilized by AT Co. and its Affiliates
in connection with the Spinco Business) specified by Spinco in such request. Within 5 Business
Days after receipt by AT Co. of a reasonable request by Spinco that a specified subject matter
expert be made available, AT Co. shall make, and shall cause its Affiliates to make, such subject
matter experts (including, without limitation, technical and operational personnel) available to
Spinco’s Transition Team or other subject matter experts during AT Co.’s normal business hours.
For purposes of determining the reasonableness of any such request by Spinco, AT Co. 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. AT Co. 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 AT Co., if any; provided,
however, if AT Co. 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 AT Co. shall obtain Spinco’s prior written approval of any additional cost or expense that AT
Co. expects to incur in connection with such increase in capacity, and Spinco shall pay any such
additional cost or expense incurred by AT Co. to provide such increased capacity to the extent so
approved by Spinco.
1.9 General Cooperation. Subject to the terms and conditions set forth in this
Agreement, AT Co. and Spinco 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 Spinco makes
any change in the processes, procedures, practices, networks, equipment, configurations, or
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systems pertaining to the Spinco Business, and such change has an adverse impact on AT Co.’s
ability to provide any of the Transition Services, then AT Co. shall be excused from performance of
any such affected Transition Services until Spinco mitigates the adverse impact of such change, and
Spinco shall be responsible for all direct expenses incurred by AT Co. in connection with the
cessation and, if applicable, the resumption of the affected Transition Services.
ARTICLE 2
TERM
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 Spinco
shall have the right to extend the Term for an additional 30 days by providing written notice to AT
Co. at least 60 days prior to the expiration of the Term indicating Spinco’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. Spinco
may extend the period of time for which a particular Service will be required by an additional 30
days if Spinco delivers written notice of such election to AT Co. 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 Spinco may exercise
this extension right only once as to any particular Service.
ARTICLE 3
COMPENSATION AND PAYMENT ARRANGEMENTS FOR TRANSITION SERVICES
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 Spinco to AT Co. 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, AT Co. shall xxxx Spinco in arrears for the Transition Services Costs
that apply to the Transition Services performed by AT Co. Each of AT Co.’s invoices shall describe
in reasonable detail the Transition Services upon which the applicable Transition Services Costs
are based. Within 30 days after Spinco’s receipt of each of AT Co.’s invoices, Spinco shall pay AT
Co. the amount of such invoice. If such payment is not received by AT Co. within such 30-day
period, Spinco shall also pay AT Co. interest from and after the last date of the calendar month in
respect of such invoice, but excluding the date of payment by Spinco, at a rate per annum equal to
the Prime Rate on the last day of the calendar month in respect of such invoice. If Spinco
disputes in good faith any portion of the amount due on any invoice, Spinco shall notify AT Co. in
writing of the nature and basis of the dispute within 10 Business Days after Spinco’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 Spinco or any Affiliate thereof. The parties shall use
their reasonable best efforts to resolve the dispute prior to the payment due date. AT Co. shall
reimburse Spinco within 30 days following, as applicable (a)
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agreement by the parties of any excess payment made by Spinco 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 Spinco
through, but excluding, the date of reimbursement by AT Co., at the rate per annum equal to the
Prime Rate on the date payment was made by Spinco.
3.3 Taxes. All charges and fees to be paid by Spinco 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
Spinco under this Agreement, Spinco will pay directly, reimburse or indemnify AT Co. 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 AT Co.
ARTICLE 4
RELATIONSHIP TO OTHER DOCUMENTS
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
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.
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
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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
INDEMNIFICATION
6.1 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 AT Co.
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
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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 AT Co. hereunder.
6.2 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 AT Co.
hereunder. For the avoidance of doubt, in the case of Indemnifiable Losses 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 AT Co. 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, AT Co.’s sole responsibility to Spinco 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
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
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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
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
TERMINATION
8.1 Termination of Transition Services and Agreement for Convenience. Subject to the
limitations set forth in the Services Attachment, Spinco shall have the right to terminate any
Transition Service, in whole or in part, upon 30 days prior written notice to AT Co. If all
Transition Services shall have been migrated or terminated under this provision prior to the
expiration of this Agreement, then Spinco shall have the right to terminate this Agreement upon
written notice to AT Co.
8.2 Termination for Default. In the event: (i) Spinco shall fail to pay for
Transition Services in accordance with the terms of this Agreement (and such payment is not
disputed by Spinco 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 AT Co. and Spinco 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 AT Co. and its Affiliates in connection with
the Spinco Business to those systems and procedures to be utilized by Spinco and its Affiliates in
connection with the Spinco Business after Closing.
8.4 Return of Material. As a Transition Service is migrated or terminated, whichever
is earlier, each of AT Co. and Spinco 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 AT Co. and Spinco
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
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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, Spinco shall
cease all access to AT Co.’s information, data, systems and other assets that are not Spinco
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
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 AT Co. 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. AT Co. represents and warrants that AT Co. 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 AT Co. and its Affiliates in providing the same or similar
services to the Spinco Business prior to the execution of the Distribution Agreement.
9.3 Books and Records. AT Co. or its Affiliates will maintain complete and accurate
books and records pertaining to its provision of the Transition Services. AT Co. or its Affiliates
will provide Spinco, 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
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 Spinco
and AT Co. are not partners or joint ventures, and nothing contained herein is intended to create
an agency relationship or a partnership or joint venture. 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
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any of its Affiliates as to any matters, except as authorized in this Agreement or in writing by
Spinco from time to time. 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. 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.
10.2 Employees of the Parties. 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. 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.
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 AT Co., to:
ALLTEL Corporation
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Chief Legal Officer
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Chief Legal Officer
If to Spinco, to:
Prior to Merger:
Alltel Holding Corp.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Following Merger:
or to such other Person or contact information as either party may from time to time designate for
itself by like notice.
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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 Spinco or AT Co. (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 Spinco and AT Co. 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,
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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; 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) 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
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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(a) will survive the termination or
expiration of this Agreement.
(b) 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 law.
The obligations of Spinco 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]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first above written.
| ALLTEL CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and General Counsel | |||
| ALLTEL HOLDING CORP. |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Executive Vice President and General Counsel | |||
