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Exhibit 10.11
TRANSITIONAL SERVICES AGREEMENT
THIS TRANSITIONAL SERVICES AGREEMENT ("Agreement") is entered into as
of the 31st day of October, 1999 (the "Effective Date"), by and among SHILOH
INDUSTRIES, INC., a Delaware corporation (the "Parent"), SHILOH AUTOMOTIVE,
INC., an Ohio corporation ("Buyer"), and MTD PRODUCTS INC, an Ohio corporation
("Seller").
RECITALS
WHEREAS, Seller is in the business of manufacturing and marketing
engineered stamped products for the automotive industries (the "Business")
through a non-incorporated division (the "Division") of Seller; and
WHEREAS, Parent, Buyer and Seller have entered into an Asset Purchase
Agreement dated as of June 21, 1999, as amended, by and between Parent, Buyer
and Seller ("Asset Purchase Agreement") with regard to the sale of specified
assets of the Division from Seller to Buyer and the assumption of certain
liabilities; and
WHEREAS, the parties desire to set forth the terms and conditions by
which Seller, during the Term (as defined in Section 9), will (i) provide to
Buyer information management and related services necessary to operate the
Business consistent with past practice and (ii) assist Buyer in its transition
from the Business's current information management systems to information
management systems implemented or to be implemented by Buyer (collectively, the
"Transitional Services").
NOW THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein, and of the mutual benefits to be
derived hereby, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. TRANSITIONAL SERVICES. (a) Subject to and upon the terms and
conditions set forth in this Agreement, during the Term, Seller
shall provide or cause to be provided to Buyer the Transitional
Services, including, without limitation, the services referred to on
Schedule One attached hereto and incorporated herein by reference.
During the Term, Seller shall provide Buyer with the same level of
support with respect to the Transitional Services that Seller
provided to the Division prior to the Effective Date, which level of
support Seller covenants shall be sufficient to operate the Business
during the Term consistent with past practice. In addition, during
the Term, Seller shall assist (which assistance shall include, among
other things, data conversion, mapping and troubleshooting system
startups and/or migrations to new systems) Buyer in connection with
Buyer's implementation of its own systems and services to replace
the systems and services previously provided by Seller, which
assistance shall be of the same type Seller has historically
provided for such conversion and implementation issues for the
Division.
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(b) During the Term, Seller shall maintain at Buyer's facilities, at
Seller's sole cost and expense, three full-time employees of Seller
(the "Transition Employees") to assist Seller in providing
Transitional Services to Buyer. The determination of the initial
Transition Employees shall be made by Seller and Buyer. If, during
the Term, a Transition Employee shall no longer be employed by
Seller or Seller otherwise desires to substitute a new Transition
Employee, Seller shall use its reasonable efforts to replace such
person with another person with similar experience relating to the
Division and the services and systems constituting the Transitional
Services, which person shall be reasonably acceptable to Buyer.
During the Term, the Transition Employees shall be instructed to
provide their full time and attention to providing Transitional
Services to Buyer and facilitating Buyer's implementation of its
own systems and services to replace those previously provided by
Seller.
(c) During the Term, Seller shall maintain in full force and effect any
and all leases, licenses, maintenance agreements and other
agreements relating to the Business's information management
systems and related services existing as of the Effective Date
(individually, an "IT Agreement" and collectively, the "IT
Agreements"). Buyer shall reimburse Seller for all out-of-pocket
costs associated with the maintenance of such IT Agreements
provided that (i) the Seller provides Buyer with supporting
documentation, in form and substance reasonably satisfactory to
Buyer, evidencing Seller's costs therefor and (ii) such costs were,
in the ordinary course of business, directly billed by Seller or
the applicable vendor to the Division prior to the Closing Date.
If, during the Term, any IT Agreement expires or is terminated,
then (i) Seller shall, at its sole cost and expense, in the case of
expiration, renew such IT agreement or, in the case of expiration
or termination, replace such IT Agreement with an IT Agreement
containing substantially similar terms (each, a
"Renewal/Replacement IT Agreement"), (ii) if requested by Buyer,
Seller shall use its reasonable efforts to cause each
Renewal/Replacement IT Agreement to permit assignment of such
agreement to Buyer at the end of the Term and (iii) if requested by
Buyer, Seller shall use its reasonable efforts to facilitate the
assignment of any or all Renewal/ Replacement IT Agreements to
Buyer. Buyer and Seller agree to work together in good faith during
the Term to (i) determine whether to renew or replace IT Agreements
that expire or have been terminated and (ii) select the entity or
person(s) to provide services under any Renewal/Replacement IT
Agreements which entity or person(s) shall in all cases be
reasonably acceptable to Buyer.
(d) Buyer acknowledges and agrees that any IT Agreements which perform
functions not available with IT Agreements in effect as of the
Effective Date will be purchased by Buyer at its own expense
provided that Seller will provide reasonable assistance with the
implementation of any such IT Agreements (including hardware
purchased or leased by Buyer).
2. COMPENSATION. Subject to earlier termination as set forth in Section
8 of this Agreement, as compensation for such Transitional Services, Buyer shall
pay to Seller the following:
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(a) Subject to any adjustments pursuant to Section 2(d) below, during
the first year commencing on the Effective Date, the aggregate
amount of Six Hundred Thousand Dollars ($600,000) (the "Base Rate")
payable in equal monthly installments of Fifty Thousand Dollars
($50,000) for each month that Transitional Services are provided.
Payment shall be made on the first day of each applicable month,
commencing November 1, 1999;
(b) Subject to any adjustments pursuant to Section 2(d) below, during
the second year commencing after the Effective Date, the amount of
compensation payable to Seller for the Transitional Services shall
increase to an amount equal to the sum of the Base Rate payable by
Buyer for the immediately preceding year (the "Year One Base Rate")
plus an amount equal to the Year One Base Rate multiplied by the
percentage that the CPI (hereinafter defined) as of October 2000
has increased from the CPI as of October 1999 (the "Adjusted Base
Rate"). The term "Consumer Price Index" and the term "CPI" when
used herein means the Consumer Price Index - U.S. Averages for
Urban Earners and Clerical Workers, all Items (1982-1984 = 100), of
the United States Bureau of Labor Statistics. If the Consumer Price
Index shall be substantially revised (including, but not limited
to, a change from using the 1982-1984 averages as the Base Index of
100) or becomes unavailable to the public, Seller and Buyer will in
good faith substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer
dollar;
(c) For years commencing after expiration of the initial Term, the
parties shall negotiate in good faith a revised rate of
compensation mutually agreeable to the parties; and
(d) If, during the Term, Buyer shall implement any services internally
("Newly Implemented Services") such that it no longer requires
Seller to provide the Newly Implemented Services, then (i) Buyer
shall provide Seller with written notice of the implementation of
the Newly Implemented Services, specifying in detail the services
no longer required from Seller and the date on which Seller shall
cease to provide such services and (ii) Buyer and Seller shall
negotiate in good faith to reduce the Base Rate or the Adjusted
Base Rate, as the case may be, to give effect to such reduction in
services provided by Seller. Likewise, if, during the Term, the
Buyer requests Seller to provide any additional services, then (i)
Buyer and Seller shall agree on the nature and scope of such
additional services and amend Schedule One hereto accordingly and
(ii) Buyer and Seller shall negotiate in good faith the amount of
any increase in the Base Rate or the Adjusted Base Rate, as the
case may be, resulting from Seller providing such additional
services.
(e) Buyer will utilize reasonable efforts to implement conversion to
its own systems such that Buyer will convert to Buyer's BAAN
operating system from Seller's MAPICS operating system not later
than the end of the Term and will undertake reasonable efforts to
commence such conversion process not later than 18 months after the
Effective Date.
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3. USE OF SYSTEMS BY SELLER. During the Term, Seller shall have the
right to continue to have access (physically and through off-site access) to
utilize the computer equipment, software and related items provided hereunder in
connection with Seller's use of information systems processes to operate the
business of Seller. Parent and Buyer recognize that the compensation rates set
forth in the Agreement include such right of continuing use and access by
Seller.
4. DISPUTE RESOLUTION PROCESS. If, during the Term, any issue or issues
arise regarding the Transitional Services or the terms or interpretation of this
Agreement, employees of Seller shall contact Xxxxxx X. Xxxxx (or his successor
designee) (the "Seller Initial Representative") and employees of Buyer shall
contact Xxxxx Xxxxxxxxx (or his successor designee) (the "Buyer Initial
Representative," and together with the Seller Initial Representative, the
"Initial Representatives") regarding such issue or issues. Upon receipt of
notice of an issue or issues from their respective employees, the Initial
Representative receiving such notice shall contact the other Initial
Representative and in good faith attempt to resolve such issue or issues. If the
Initial Representatives are unable to resolve such issue or issues to their
mutual satisfaction or if resolution of such issue or issues is beyond the scope
of the Initial Representatives' authority as representatives of Seller or Buyer,
then the Initial Representatives shall notify Xxxxxx X. Xxxxxx (or his successor
designee) (the "Seller Senior Representative") and Xxxxx X. Xxxxx (or his
successor designee) (the "Buyer Senior Representative," and together with the
Seller Senior Representative, the "Senior Representatives") regarding the issue
or issues. The Senior Representatives shall in good faith attempt to resolve the
issue or issues. The parties agree that the Initial Representatives and the
Senior Representatives shall attempt to resolve any and all issues under or
relating to this Agreement in a manner consistent with the parties' intent and
purpose in entering this Agreement (i.e., to enable Buyer during the Term to
operate the information technology aspects of the Business consistent with past
practice and to transition the Business to new information management systems
for a flat annual fee equal to the Base Rate in the first year and the Adjusted
Base Rate in the second year regardless of the cost incurred by Seller in
providing such services to Buyer).
5. CONDITION PRECEDENT. This Agreement shall be effective only upon
consummation of the transactions contemplated by the Asset Purchase Agreement.
6. POSTPONEMENT OF PERFORMANCE. Performance under this Agreement by
either party may be postponed or extended automatically to the extent that a
party is prevented from performing its obligations by any cause beyond its
reasonable control, such as acts of God, strikes, labor disputes, equipment
and/or telecommunications failures, supply disruptions, governmental regulations
superimposed after the fact, fire, acts of war, riots, or other force majeure
events, provided such cause does not arise from the performing party's
intentional or grossly negligent action, and provided further that the party
unable to perform promptly notifies the other party of the commencement, nature
and projected duration of the cause.
7. LIMITATION OF LIABILITY. In no event shall Seller be liable for any
special, incidental or consequential damages, whether a claim for such recovery
is based on theories of contract, negligence or tort (including strict
liability), even if Seller has knowledge of the possibility of the potential
loss or damage. Seller's aggregate liability for damages to Parent and Buyer for
any cause whatsoever shall be limited to the total compensation paid or payable
to Seller by Parent and Buyer during the term of this Agreement. Parent and
Buyer hereby waive,
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for themselves and their successors and assigns, any and all claims of
negligence or strict liability that are for special, incidental or consequential
damages. Parent and Buyer recognize that the provisions of this section are a
material factor in Seller's provision to them of the services set forth herein.
8. SCOPE OF AGREEMENT. Parent and Buyer acknowledge and agree that
except as otherwise set forth in the Asset Purchase Agreement, Seller is not
selling or transferring title to software licenses, equipment or machinery which
may be utilized in providing the services under this Agreement. In addition,
except as otherwise set forth in the Asset Purchase Agreement, Parent and Buyer
acknowledge and agree that pursuant to this Agreement, Seller is not subleasing
or sublicensing any agreements to which Seller is a lessee or licensee.
9. TERM OF AGREEMENT. (a) This Agreement shall commence as of the
Effective Date and continue in effect for a period of two years
(the "Term"). Thereafter, the parties agree to negotiate in good
faith the extension of this Agreement on terms and conditions
mutually agreeable to the parties. Notwithstanding the above, from
time to time Parent and Buyer may reduce or increase the scope of
Transitional Services as set forth in this Agreement in which event
the provisions of Section 2 (d) below shall apply.
(b) Parent and Buyer may terminate this Agreement at any time effective
on the first day of the month commencing 30 days after delivery of
written notice to Seller of such termination. Parent and Buyer may
terminate this Agreement if Seller breaches or otherwise fails to
perform any of its obligations under this Agreement which breach or
failure to perform is not cured within thirty days after written
notice of such breach or failure to perform or such additional
period of time as Seller is diligently pursuing remediation of the
breach or failure to perform. Parent and Buyer shall continue to
pay the amount of compensation due until the termination is
effective.
(c) Seller may terminate this Agreement if Parent and/or Buyer fail to
pay amounts due under this Agreement within five days after written
notice of non-payment when due. Seller may also terminate this
Agreement if Parent and/or Buyer breach other provisions of this
Agreement which are not cured within thirty days after receipt of
written notice of such breach or such additional period of time as
Parent and/or Buyer are diligently pursuing remediation of the
breach.
10. POST-TERMINATION MATTERS. Upon termination of this Agreement for
any other reason other than default by Parent and/or Buyer, Seller shall
negotiate with Buyer to sell and transfer to Buyer the computer equipment,
software and other information systems property which Buyer determines to be
necessary to operate the Business and which Seller does not require for the
operation of its business. The purchase price shall be an amount equal to the
fair market value of such equipment as the parties mutually determine based on
good faith negotiations. To the extent Seller needs to retain certain
information systems property, Seller shall negotiate in good faith the terms and
condition of the lease or sublease of such properties if such can be achieved.
If not sold, subleased or sublicensed to Buyer, as the case may be, Seller shall
have the right to obtain possession at end of term of any computer equipment and
operating software of the Seller in the possession of Buyer at the expiration of
this Agreement. Such
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possession will be processed in coordination with Buyer so as to not materially
interfere with Buyer's operation of its business.
11. INDEPENDENT CONTRACTORS. The relationship established between
Parent and Buyer, on the one hand, and Seller, on the other hand, by this
Agreement is that of vendor and vendee and nothing herein contained shall be
deemed to establish or otherwise create a relationship of principal and agent
between the parties. Each party is an independent contractor and shall not be
deemed an agent of the other party for any purpose whatsoever. Neither party,
nor any of its agents or employees shall have any right or authority to assume
or create any obligation of any kind, whether express or implied, on behalf of
the other party. Neither party shall make warranties or representations on
behalf of the other party to customers or to the trade with respect to any of
the Transitional Services, except as may be expressly approved in writing in
advance by the other party.
12. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight mail or
delivery or (d) sent by telecopy or telegram:
if to the Parent or Buyer to:
Shiloh Industries, Inc.
X.X.Xxx 0000
Xxxxxxxxx, Xxxx 00000
Attention: President
Fax Number: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
if to Seller to:
MTD Products Inc
X.X. Xxx 000000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Financial Officer
Fax Number: (000) 000-0000
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with a copy to:
Wegman, Hessler, Xxxxxxxxxx & X'Xxxxx
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax Number: (000) 000-0000
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, (z) if by telecopy or telegram, on the next day
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
13. HEADINGS. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
14. ENTIRE AGREEMENT. This Agreement and the Asset Purchase Agreement
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
16. GOVERNING LAW, ETC. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of Ohio, without giving effect to the conflict of laws rules
thereof. Any controversy arising under or out of this Agreement shall be settled
by arbitration in accordance with the governing rules of the American
Arbitration Association as administered through the Cleveland, Ohio office. The
commercial arbitration rules of the American Arbitration Association shall apply
and the controversy shall be governed by the laws of the State of Ohio. The
arbitrator shall be selected by the parties by mutual agreement at the time a
claim is submitted for arbitration. The award rendered by the arbitrator shall
be final and judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof, including a federal district court,
pursuant to the Federal Arbitration Act. In preparation for the arbitration
hearing, each party may utilize all methods of discovery authorized by the Ohio
Rules of Civil procedure, and may enforce the right to such discovery in the
manner provided by said rules and/or by the Ohio Arbitration Law. The arbitrator
may order a pre-hearing exchange of information by the parties, including
without limitation, production of requested documents, exchange of summaries of
testimony of proposed witnesses and examination by deposition of witnesses and
parties. Unresolved discovery disputes may be brought to the attention of the
arbitrator and may be disposed of by the arbitrator. The arbitration hearing
shall be conducted in Cleveland, Ohio. The arbitrator shall have the authority
to award any remedy or relief a court of the State of Ohio could order or grant,
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including, without limitation, specific performance of any obligation created
under this Agreement, the awarding of the issuance of an injunction or the
imposition of sanctions of abuse of frustration of the arbitration process.
Judgment upon the award of the arbitrator may be entered in any court of
competent jurisdiction and enforced with full judicial effect thereafter. All
fees and expenses of the arbitration shall be borne by the parties equally,
however, each party shall bear the expense of its own counsel, experts,
witnesses, and preparation and presentations. The arbitrator is authorized to
award any party such sums as shall be deemed proper for the time, expense and
inconvenience of arbitration, including arbitration fees and attorney fees.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
18. ASSIGNMENT. This Agreement shall not be assignable or otherwise
transferable by any party hereto without the prior written consent of the other
party hereto, PROVIDED that Buyer may assign this Agreement to any Subsidiary of
the Parent, PROVIDED, FURTHER, that no assignment shall in any way affect
Parent's and Buyer's obligations or liabilities under this Agreement.
19. AMENDMENT. Neither party may amend this Agreement without the prior
written consent of the other party.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date set forth above.
SHILOH INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
SHILOH AUTOMOTIVE, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
MTD PRODUCTS INC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
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SCHEDULE ONE TO TRANSITIONAL SERVICES AGREEMENT
BY AND AMONG SHILOH INDUSTRIES, INC.,
SHILOH AUTOMOTIVE, INC.
AND MTD PRODUCTS INC
1. ELECTRONIC DATA INTERCHANGE: Includes data mapping and translation,
problem resolution, trading partner administration, maintaining Future 3
software, business process integration, and maintaining all compute hardware and
all telecommunications hardware required to support the EDI processes.
2. DESKTOP AND SOFTWARE SUPPORT: Includes maintaining all hardware and
software in good working condition and all licenses at the appropriate levels.
3. TELECOMMUNICATIONS, INCLUDING TELEPHONE, FACSIMILE TRANSMISSIONS AND
EMAIL, AND ALL DATA NETWORKS: Includes maintaining all local area networks,
frame relay network, shop floor communications and performing all adds, changes
and moves for the phone system.
4. SHOP FLOOR DATA COLLECTION: Includes maintaining all hardware and
software associated with the shop floor systems.
5. LABOR DATA COLLECTION: Includes completing the installation of the
shop floor system and fully training all users in the use of these systems.
6. PAYROLL: Includes maintaining all payroll functions for both hourly
and salaried employees.
7. INVENTORY SYSTEMS: Includes providing hardware and software support.
8. ENGINEERING SYSTEMS: Includes providing hardware and software
support.
In addition to the foregoing, the Seller shall provide or cause to be
provided help desk functions to the Division during the Term. Also, the Seller
shall provide Parent and Buyer with assistance with respect to any of the
foregoing or any other computer processing or operational system of the Division
to the extent reasonably requested consistent with past practices.
