TRANSITION SERVICES agreement
by and between
TMP WORLDWIDE inc.
and
Xxxxxx Highland Group, Inc.
Dated as of March 31, 2003
Table of Contents
Page
ARTICLE 1
DEFINITIONS
1.01 Definitions............................................................1
ARTICLE 2
PURCHASE AND SALE OF SERVICES
2.01 Purchase and Sale of Services..........................................2
2.02 Additional Services....................................................3
ARTICLE 3
SERVICE COSTS; OTHER CHARGES
3.01 Service Costs Generally................................................3
3.02 Agreed Billing.........................................................4
3.03 Pass-Through Billing...................................................4
3.04 Invoicing and Settlement of Costs......................................4
ARTICLE 4
THE SERVICES
4.01 General Standard of Service............................................5
4.02 Limitation of Liability................................................5
4.03 Indemnification of TMP by HHGI.........................................6
4.04 Indemnification of HHGI by TMP.........................................7
4.05 Notice of Certain Matters..............................................7
ARTICLE 5
TERM AND TERMINATION
5.01 Term...................................................................8
5.02 Termination............................................................8
5.03 Effect of Termination..................................................8
ARTICLE 6
MISCELLANEOUS
6.01 Confidential Information...............................................9
6.02 Prior Agreements.......................................................9
6.03 Future Litigation and Other Proceedings................................9
6.04 No Agency.............................................................10
6.05 Subcontractors........................................................10
6.06 Force Majeure.........................................................10
6.07 Information...........................................................10
6.08 Notices...............................................................11
6.09 Severability..........................................................11
6.10 Amendments; No Waivers................................................12
6.11 Successors and Assigns................................................12
6.12 Governing Law.........................................................12
6.13 Counterparts; Effectiveness...........................................12
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Table of Contents
(continued)
Page
6.14 Entire Agreement......................................................12
6.15 Jurisdiction..........................................................12
6.16 Captions..............................................................13
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TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is entered into as of
March 31, 2003 by and between TMP Worldwide Inc., a Delaware corporation
("TMP"), and Xxxxxx Highland Group, Inc., a Delaware corporation ("HHGI").
W I T N E S S E T H:
WHEREAS, TMP owned 100% of the outstanding common stock of HHGI prior to
the consummation of the Distribution (as defined below);
WHEREAS, TMP will no longer own any of the outstanding common stock of HHGI
after the consummation of the Distribution; and
WHEREAS, TMP has heretofore directly or indirectly provided certain
administrative, legal, tax and other services to the HHGI Entities (as defined
below) and HHGI has heretofore directly or indirectly provided certain
administrative and other services to the TMP Entities (as defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TMP and HHGI, for themselves,
their successors and assigns, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.01 Definitions. The following terms, as used herein, have the following
meanings:
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"Common Stock" means the common stock, par value $.001 per share, of HHGI.
"Confidential Information" has the meaning assigned thereto in the
Distribution Agreement.
"Distribution" has the meaning assigned thereto in the Distribution
Agreement.
"Distribution Agreement" means the Distribution Agreement, dated as of the
date hereof, between TMP and HHGI.
"Distribution Date" has the meaning assigned thereto in the Distribution
Agreement.
"HHGI Entities" means HHGI and its Subsidiaries, and "HHGI Entity" shall
mean any of the HHGI Entities.
"HHGI Services" means the various services described in the Schedules to be
provided by HHGI Entities to TMP Entities or to be procured by HHGI Entities on
behalf of TMP Entities.
"Person" means any individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
governmental or political subdivision or any agency or instrumentality thereof.
"Schedules" means the Schedules attached hereto.
"Service" means any HHGI Service or TMP Service, as the context may
require, and "Services" means the HHGI Services or the TMP Services, as the
context may require.
"Subsidiary" means, with respect to any Person, any other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"TMP Entities" means TMP and its Subsidiaries, and "TMP Entity" shall mean
any of the TMP Entities.
"TMP Services" means the various services described in the Schedules to be
provided by TMP Entities to HHGI Entities or to be procured by TMP Entities on
behalf of HHGI Entities.
ARTICLE 2
PURCHASE AND SALE OF SERVICES
2.01 Purchase and Sale of Services.
(a) On the terms and subject to the conditions of this Agreement and
in consideration of the Service Costs described below:
(i) TMP agrees to provide to HHGI, or procure the provision to
HHGI of, and HHGI agrees to purchase from TMP, the TMP Services; and
(ii) HHGI agrees to provide to TMP, or procure the provision to
TMP of, and TMP agrees to purchase from HHGI, the HHGI Services.
(b) Unless otherwise specifically agreed by TMP and HHGI, the TMP
Services to be provided or procured by TMP hereunder shall be substantially
similar in scope, quality, and nature to those customarily provided to, or
procured on behalf of, HHGI prior to the Distribution Date, and the HHGI
Services to be provided or procured by HHGI hereunder shall be
substantially similar in scope, quality, and nature to those customarily
provided to, or procured on behalf of, TMP prior to the Distribution Date.
(c) It is understood that:
(i) TMP Services to be provided to HHGI under this Agreement
shall, at HHGI's request, be provided to Subsidiaries of HHGI, and TMP
may satisfy its obligation to
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provide or procure TMP Services hereunder by causing one or more of
its Subsidiaries to provide or procure such TMP Services;
(ii) HHGI Services to be provided to TMP under this Agreement
shall, at TMP's request, be provided to Subsidiaries of TMP, and HHGI
may satisfy its obligation to provide or procure HHGI Services
hereunder by causing one or more of its Subsidiaries to provide or
procure such HHGI Services;
(iii) with respect to TMP Services provided to, or procured on
behalf of, any Subsidiary of HHGI, HHGI agrees to pay on behalf of
such Subsidiary all amounts payable by or in respect of such TMP
Services pursuant to this Agreement; and
(iv) with respect to HHGI Services provided to, or procured on
behalf of, any Subsidiary of TMP, TMP agrees to pay on behalf of such
Subsidiary all amounts payable by or in respect of such HHGI Services
pursuant to this Agreement.
2.02 Additional Services. To the extent that TMP and HHGI may mutually
agree:
(a) in addition to the TMP Services to be provided or procured by TMP
in accordance with Section 2.01, if requested by HHGI, TMP shall provide
additional services (including services not provided by TMP to the HHGI
Entities prior to the Distribution Date) to HHGI; and
(b) in addition to the HHGI Services to be provided or procured by
HHGI in accordance with Section 2.01, if requested by TMP, HHGI shall
provide additional services (including services not provided by HHGI to the
TMP Entities prior to the Distribution Date) to TMP.
The scope of any such additional services, as well as the term, costs,
and other terms and conditions applicable to such services, shall be as mutually
agreed by TMP and HHGI, and shall be reflected in an additional Schedule to this
Agreement (in substantially the form attached hereto) executed by TMP and HHGI.
ARTICLE 3
SERVICE COSTS; OTHER CHARGES
3.01 Service Costs Generally. The Schedules hereto indicate, with respect
to the respective Services listed therein, whether the costs to be charged to
HHGI or TMP for such Services are to be determined by (i) the agreed billing
method described in Section 3.02 ("Agreed Billing") or (ii) the pass-through
billing method described in Section 3.03 ("Pass-Through Billing"). The Agreed
Billing and Pass-Through Billing methods applicable to Services provided to HHGI
or TMP are collectively referred to herein as the "Service Costs." HHGI agrees
to pay to TMP in the manner set forth in Section 3.04 the Service Costs
applicable to each of the TMP Services provided or procured by TMP, and TMP
agrees to pay to HHGI in the manner set forth in Section 3.04 the Service Costs
applicable to each of the HHGI Services provided or procured by HHGI.
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3.02 Agreed Billing. The costs of Services as to which the Agreed Billing
method applies shall be equal to (i) the costs described in the Schedules hereto
(it being understood that from and after the Distribution Date, such costs with
respect to TMP Services may be increased by TMP in the exercise of its
reasonable judgment, and such costs with respect to HHGI Services may be
increased by HHGI in the exercise of its reasonable judgment), plus (ii) any
applicable federal, state and local sales, use or similar taxes. Notwithstanding
the foregoing, any third-party expenses as well as out-of-pocket expenses
incurred by TMP in connection with the provision of any TMP Services as to which
the Agreed Billing method applies shall be passed through to HHGI, or incurred
by HHGI in connection with the provision of any HHGI Services as to which the
Agreed Billing method applies shall be passed through to TMP.
3.03 Pass-Through Billing. The costs of Services as to which the
Pass-Through Billing method applies shall be equal to the aggregate amount of
third-party, out-of-pocket costs and expenses incurred by any TMP Entity on
behalf of any HHGI Entity or by any HHGI Entity on behalf of any TMP Entity
(which costs shall include, but not be limited to, the costs incurred in
connection with obtaining the consent of any party to a contract or agreement to
which, in the case of TMP Services, any TMP Entity is a party, or in the case of
HHGI Services, any HHGI Entity is a party, where such consent is related to and
reasonably required for the provision of any Service). If a TMP Entity incurs
any such costs or expenses on behalf of any HHGI Entity as well as businesses
operated by TMP, or if a HHGI Entity incurs any such costs or expenses on behalf
of any TMP Entity as well as businesses operated by HHGI, TMP (in the case of
such costs or expenses incurred by a TMP Entity) or HHGI (in the case of such
costs or expenses incurred by a HHGI Entity) shall allocate any such costs or
expenses in good faith between the various businesses on behalf of which such
costs or expenses were incurred as such party hereto shall determine in the
exercise of its reasonable judgment. Such party hereto shall apply usual and
accepted accounting conventions in making such allocations, and such party
hereto or its agents shall keep and maintain such books and records as may be
reasonably necessary to make such allocations. Such party hereto shall make
copies of such books and records available to the other party hereto upon
request and with reasonable notice.
3.04 Invoicing and Settlement of Costs. (a) Except as otherwise provided in
the Schedules with respect to any Service, TMP shall invoice the Chief Financial
Officer of HHGI on a monthly basis (not later than the tenth day of each month)
for the Service Costs for TMP Services, and HHGI shall invoice the Chief
Financial Officer of TMP on a monthly basis (not later than the tenth day of
each month) for the Service Costs for HHGI Services. In connection with the
invoicing described in this Section 3.04(a), TMP shall provide to HHGI such
billing data and level of detail as may be reasonably requested by HHGI, and
HHGI shall provide to TMP such billing data and level of detail as may be
reasonably requested by TMP.
(a) Each party hereto agrees to pay on or before 30 days after the
date on which the other party hereto invoices it for Service Costs (or the
next Business Day, if such day is not a Business Day) (each, a "Payment
Date"), by wire transfer of immediately available funds payable to the
order of the invoicing party, all amounts invoiced by such invoicing party
pursuant to Section 3.04(a) during the preceding calendar month. If the
party receiving the invoice fails to pay any monthly payment within 30 days
of the relevant Payment Date, such party shall be obligated to pay, in
addition to the amount due on such Payment Date, interest on
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such amount at the prime rate as reported in The Wall Street Journal on the
Payment Date (or the next Business Day on which The Wall Street Journal is
published, if such day is not a Business Day on which The Wall Street
Journal is published) compounded monthly from the relevant Payment Date
through the date of payment. If more than one prime rate is reported, the
invoicing party may choose the highest rate. If The Wall Street Journal
ceases publication or to publish the prime rate, the invoicing party may
use the prime rate published in any other newspaper of general circulation,
or the invoicing party may substitute a similar reference rate in its sole
discretion.
ARTICLE 4
THE SERVICES
4.01 General Standard of Service. Except as otherwise agreed by TMP and
HHGI or described in this Agreement, and provided that neither TMP nor HHGI is
restricted by contract with third parties or by applicable law, TMP and HHGI
each agree that the nature, quality, and standard of care applicable to the
delivery of the respective Services to be delivered by each of them hereunder
shall be substantially the same as that of the Services which TMP and HHGI
provide from time to time throughout their respective businesses. Subject to
TMP's and HHGI's express obligations under this Agreement, the management of and
control over the provision of the TMP Services shall reside solely with TMP, and
the management and control over the provision of the HHGI Services shall reside
solely with HHGI. Without limiting the generality of the foregoing, (i) all
labor matters relating to employees of TMP and its Subsidiaries (including,
without limitation, employees involved in the provision of TMP Services to HHGI)
shall be within the exclusive control of TMP, and no HHGI Entity shall take any
action affecting such matters, and (ii) all labor matters relating to employees
of HHGI and its Subsidiaries (including, without limitation, employees involved
in the provision of HHGI Services to TMP) shall be within the exclusive control
of HHGI, and no TMP Entity shall take any action affecting such matters.
4.02 Limitation of Liability.
(a) (i) HHGI agrees that none of the TMP Entities and their
respective directors, officers, agents, and employees (each, a "TMP
Indemnified Person") shall have any liability, whether direct or indirect,
in contract or tort or otherwise, to any HHGI Entity or any other Person
for or in connection with the TMP Services rendered or to be rendered by
any TMP Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any TMP Indemnified Person's actions or inactions in
connection with any such TMP Services or transactions, except for damages
which have resulted from such TMP Indemnified Person's gross negligence or
willful misconduct in connection with any such TMP Services, actions or
inactions.
(ii) TMP agrees that none of the HHGI Entities and their
respective directors, officers, agents, and employees (each, a "HHGI
Indemnified Person") shall have any liability, whether direct or
indirect, in contract or tort or otherwise, to any TMP Entity or any
other Person for or in connection with the HHGI Services rendered or
to be rendered by any HHGI Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any HHGI
Indemnified Person's
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actions or inactions in connection with any such HHGI Services or
transactions, except for damages which have resulted from such HHGI
Indemnified Person's gross negligence or willful misconduct in
connection with any such HHGI Services, actions or inactions.
(b) Notwithstanding the provisions of Section 4.02(a), none of the
TMP Entities shall be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) in any way due to, resulting from or arising
in connection with any of the TMP Services or the performance of or failure
to perform TMP's obligations under this Agreement, and none of the HHGI
Entities shall be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) in any way due to, resulting from or arising
in connection with any of the HHGI Services or the performance of or
failure to perform HHGI's obligations under this Agreement. This disclaimer
applies without limitation (i) to claims arising from the provision of the
TMP Services (in the case of a claim against TMP) or the HHGI Services (in
the case of a claim against HHGI) or any failure or delay in connection
therewith; (ii) to claims for lost profits; (iii) regardless of the form of
action, whether in contract, tort (including negligence), strict liability,
or otherwise; and (iv) regardless of whether such damages are foreseeable
or whether TMP (in the case of a claim against TMP) or HHGI (in the case of
a claim against HHGI) has been advised of the possibility of such damages.
(c) In addition to the foregoing, HHGI agrees that it shall, in all
circumstances, use commercially reasonable efforts to mitigate and
otherwise minimize its damages and those of the other HHGI Entities,
whether direct or indirect, due to, resulting from or arising in connection
with any failure by TMP to comply fully with its obligations under this
Agreement, and TMP agrees that it shall, in all circumstances, use
commercially reasonable efforts to mitigate and otherwise minimize its
damages and those of the other TMP Entities, whether direct or indirect,
due to, resulting from or arising in connection with any failure by HHGI to
comply fully with its obligations under this Agreement.
(d) Notwithstanding the foregoing provisions of this Section 4.02,
(i) in the event of a substantial and continuing failure on the part of TMP
to provide or procure any material TMP Services, where such failure is
reasonably expected to have a material adverse effect on HHGI and its
Subsidiaries, considered as a whole, HHGI shall be entitled to seek
specific performance to cause TMP to provide or procure such TMP Services,
and (ii) in the event of a substantial and continuing failure on the part
of HHGI to provide or procure any material HHGI Services, where such
failure is reasonably expected to have a material adverse effect on TMP and
its Subsidiaries, considered as a whole, TMP shall be entitled to seek
specific performance to cause HHGI to provide or procure such HHGI
Services.
4.03 Indemnification of TMP by HHGI. HHGI agrees to indemnify and hold
harmless each TMP Indemnified Person from and against any damages, and to
reimburse each TMP Indemnified Person for all reasonable expenses as they are
incurred (i) in investigating, preparing, pursuing, or defending any claim,
action, proceeding, or investigation, whether or not in connection with pending
or threatened litigation and whether or not any TMP Indemnified Person is a
party (collectively, "TMP Actions"), arising out of or in connection with TMP
Services rendered or to be rendered by any TMP Indemnified Person pursuant to
this Agreement, the transactions contemplated hereby or any TMP Indemnified
Person's actions or inactions in
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connection with any such TMP Services or transactions; provided that HHGI shall
not be responsible for any damages of any TMP Indemnified Person that have
resulted from such TMP Indemnified Person's gross negligence or willful
misconduct in connection with any of the advice, actions, inactions, or Services
referred to above (it being understood and agreed that the provision by any TMP
Entity of any of the TMP Services contemplated by the Schedules hereof without
obtaining the consent of any party to any contract or agreement to which any TMP
Entity is a party as of the date hereof shall not constitute gross negligence or
willful misconduct by any TMP Entity; provided that the relevant TMP Entity has
used commercially reasonable efforts to obtain the relevant consent), and (ii)
in investigating, preparing, or defending any HHGI Action (as defined below),
arising out of the gross negligence or willful misconduct of any HHGI
Indemnified Person in connection with the HHGI Services rendered or to be
rendered pursuant to this Agreement.
4.04 Indemnification of HHGI by TMP. TMP agrees to indemnify and hold
harmless each HHGI Indemnified Person from and against any damages, and to
reimburse each HHGI Indemnified Person for all reasonable expenses as they are
incurred (i) in investigating, preparing, pursuing, or defending any claim,
action, proceeding, or investigation, whether or not in connection with pending
or threatened litigation and whether or not any HHGI Indemnified Person is a
party (collectively, "HHGI Actions"), arising out of or in connection with HHGI
Services rendered or to be rendered by any HHGI Indemnified Person pursuant to
this Agreement, the transactions contemplated hereby or any HHGI Indemnified
Person's actions or inactions in connection with any such HHGI Services or
transactions; provided that TMP shall not be responsible for any damages of any
HHGI Indemnified Person that have resulted from such HHGI Indemnified Person's
gross negligence or willful misconduct in connection with any of the advice,
actions, inactions, or HHGI Services referred to above (it being understood and
agreed that the provision by any HHGI Entity of any of the HHGI Services
contemplated by Schedules hereof without obtaining the consent of any party to
any contract or agreement to which any HHGI Entity is a party as of the date
hereof shall not constitute gross negligence or willful misconduct by any HHGI
Entity; provided that the relevant HHGI Entity has used commercially reasonable
efforts to obtain the relevant consent), and (ii) in investigating, preparing,
or defending any TMP Action, arising out of the gross negligence or willful
misconduct of any TMP Indemnified Person in connection with the TMP Services
rendered or to be rendered pursuant to this Agreement.
4.05 Notice of Certain Matters. If either party hereto at any time believes
that the other party hereto is not in full compliance with its obligations under
Section 4.01 of this Agreement, it shall so notify the other party in writing
promptly (but not later than 30 days) after becoming aware of such possible
non-compliance by the other party. Such notice (a "Non-Compliance Notice") shall
set forth in reasonable detail the basis for the notifying party's belief as
well as the notifying party's view as to the steps to be taken by the notified
party to address the possible non-compliance. For the 30 days after receipt of
such a notice, appropriate representatives of each party shall work in good
faith to develop a plan to resolve the matters referred to in the Non-Compliance
Notice. In the event such matters are not resolved through such discussions, the
notifying party may elect to terminate the notified party's obligation to
provide or procure, and its obligation to purchase, the Service or Services
referred to in its Non-Compliance Notice in accordance with Section 5.02. In the
event such matters are resolved through such discussions
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and the notifying party does not elect to terminate such Service or Services
within 60 days of the end of the 30-day period referred to in the third sentence
of this Section 4.05, the notifying party shall not be entitled to deliver
another Non-Compliance Notice or pursue other remedies with respect to same or
any substantially similar matter so long as the notified party complies in all
material respects with the terms of such resolution. In no event shall any
termination of this Agreement pursuant to this Section 4.05 limit or affect
either party's right to seek remedies in accordance with Section 6.15 in respect
of any breach by the other party of any of its obligations under this Agreement
prior to such termination.
ARTICLE 5
TERM AND TERMINATION
5.01 Term. Except as otherwise provided in this Article 5, in Section 6.06,
in the Schedules hereto or as otherwise agreed in writing by the parties, (a)
this Agreement shall have a term of one year from the Distribution Date, (b)
TMP's obligation to provide or procure, and HHGI's obligation to purchase, any
TMP Service shall cease as of the applicable date set forth in the applicable
Schedule or such earlier date determined in accordance with Section 5.02 and (c)
HHGI's obligation to provide or procure, and TMP's obligation to purchase, any
HHGI Service shall cease as of the applicable date set forth in the applicable
Schedule or such earlier date determined in accordance with Section 5.02.
5.02 Termination. (a) Except as otherwise provided in any Schedule hereto,
(i) HHGI may from time to time terminate this Agreement with respect to one or
more of the TMP Services, in whole or in part, upon giving at least 30 days'
prior notice to TMP, (ii) TMP may from time to time terminate this Agreement
with respect to one or more of the HHGI Services, in whole or in part, upon
giving at least 30 days' prior notice to HHGI and (iii) either party hereto may
terminate this Agreement at any time upon 30 days' written notice.
(a) TMP may terminate any TMP Service or any HHGI Service at any time
if HHGI shall have failed to perform any of its material obligations under
this Agreement relating to any such Service, TMP has notified HHGI in
writing of such failure and such failure shall have continued for a period
of 30 days after receipt of HHGI of written notice of such failure.
(b) HHGI may terminate any HHGI Service or any TMP Service at any
time if TMP shall have failed to perform any of its material obligations
under this Agreement relating to any such Service, HHGI has notified TMP in
writing of such failure and such failure shall have continued for a period
of 30 days after receipt of TMP of written notice of such failure.
5.03 Effect of Termination. (a) Other than as required by law, upon
termination of any Service pursuant to Section 5.02, or upon termination of this
Agreement in accordance with its terms, the party obligated to render such
Service hereunder prior to such termination shall have no further obligation to
provide the terminated Service (or any Service, in the case of termination of
this Agreement) and the party entitled to receive such Service hereunder prior
to such termination shall have no obligation to pay any fees relating to such
Service or make any other payments hereunder; provided that notwithstanding such
termination, (i) each party hereto that received Services from the other party
hereto shall remain liable to the other party hereto for fees
8
owed and payable in respect of such Services provided prior to the effective
date of the termination and (ii) the provisions of Articles 4, 5 and 6 shall
survive any such termination indefinitely.
(b) Following termination of this Agreement with respect to any TMP
Service, TMP and HHGI agree to cooperate in providing for an orderly
transition of such TMP Service to HHGI or to a successor service provider.
Following termination of this Agreement with respect to any HHGI Service,
TMP and HHGI agree to cooperate in providing for an orderly transition of
such HHGI Service to TMP or to a successor service provider.
ARTICLE 6
MISCELLANEOUS
6.01 Confidential Information. HHGI and TMP hereby covenant and agree to
hold in trust and maintain confidential all Confidential Information relating to
the other party or any of such other party's Subsidiaries as provided in Section
6.06 of the Distribution Agreement.
6.02 Prior Agreements. In the event there is any inconsistency between the
provisions of this Agreement, on the one hand, and provisions of prior services
agreements (other than commercial agreements entered into between any TMP Entity
and any HHGI Entity as of the Distribution Date), if any, between any TMP Entity
and any HHGI Entity (the "Prior Agreements"), on the other hand, the provisions
of this Agreement shall govern and such provisions in the Prior Agreements are
deemed to be amended so as to conform with this Agreement.
6.03 Future Litigation and Other Proceedings. In the event that HHGI (or
any of its Subsidiaries or any of its or their officers or directors) or TMP (or
any of its Subsidiaries or any of its or their officers or directors) at any
time after the date hereof initiates or becomes subject to any litigation or
other proceedings before any governmental authority or arbitration panel with
respect to which the parties have no prior agreements (as to indemnification or
otherwise), the party (and its Subsidiaries and its and their officers and
directors) that has not initiated and is not subject to such litigation or other
proceedings shall comply, at the other party's reasonable expense, with any
reasonable requests by the other party for assistance in connection with such
litigation or other proceedings (including by way of provision of information
and making available of employees as witnesses). In the event that HHGI (or any
of its Subsidiaries or any of its or their officers or directors) and TMP (or
any of its Subsidiaries or any of its or their officers or directors) at any
time after the date hereof initiate or become subject to any litigation or other
proceedings before any governmental authority or arbitration panel with respect
to which the parties have no prior agreements (as to indemnification or
otherwise), each party (and its officers and directors) shall, at their own
expense, coordinate their strategies and actions with respect to such litigation
or other proceedings to the extent such coordination would not be detrimental to
their respective interests and shall comply, at the reasonable expense of the
requesting party, with any reasonable requests of the other party for assistance
in connection therewith (including by way of provision of information and making
available of employees as witnesses).
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6.04 No Agency. Nothing in this Agreement shall constitute or be deemed to
constitute a partnership or joint venture between the parties hereto or
constitute or be deemed to constitute any party the agent or employee of the
other party for any purpose whatsoever and neither party shall have authority or
power to bind the other or to contract in the name of, or create a liability
against, the other in any way or for any purpose.
6.05 Subcontractors. Either party hereto may hire or engage one or more
subcontractors to perform all or any of its obligations under this Agreement;
provided that, subject to Section 4.02, TMP shall in all cases remain primarily
responsible for all obligations undertaken by it in this Agreement with respect
to the scope, quality and nature of the TMP Services and HHGI shall in all cases
remain primarily responsible for all obligations undertaken by it in this
Agreement with respect to the scope, quality and nature of the HHGI Services.
6.06 Force Majeure. (a) For purposes of this Section, "Force Majeure" means
an event beyond the control of either party, which by its nature could not have
been foreseen by such party, or, if it could have been foreseen, was
unavoidable, and includes without limitation, acts of God, storms, floods,
riots, fires, sabotage, civil commotion or civil unrest, interference by civil
or military authorities, acts of war (declared or undeclared) and failure of
energy sources.
(a) Without limiting the generality of Section 4.02(a), neither party
shall be under any liability for failure to fulfill any obligation under
this Agreement, so long as and to the extent to which the fulfillment of
such obligation is prevented, frustrated, hindered, or delayed as a
consequence of circumstances of Force Majeure; provided that such party
shall have exercised all due diligence to minimize to the greatest extent
possible the effect of Force Majeure on its obligations hereunder.
(b) Promptly on becoming aware of Force Majeure causing a delay in
performance or preventing performance of any obligations imposed by this
Agreement (and termination of such delay), the party affected shall give
written notice to the other party giving details of the same, including
particulars of the actual and, if applicable, estimated continuing effects
of such Force Majeure on the obligations of the party whose performance is
prevented or delayed. If such notice shall have been duly given, and actual
delay resulting from such Force Majeure shall be deemed not to be a breach
of this Agreement, and the period for performance of the obligation to
which it relates shall be extended accordingly; provided that if Force
Majeure results in the performance of a party being delayed by more than 60
days, the other party shall have the right to terminate this Agreement with
respect to any Service affected by such delay forthwith by written notice.
6.07 Information. Subject to applicable law and privileges, each party
hereto covenants and agrees to provide the other party with all information
regarding itself and transactions under this Agreement that the other party
reasonably believes are required to comply with all applicable federal, state,
county and local laws, ordinances, regulations and codes, including, but not
limited to, securities laws and regulations.
10
6.08 Notices. All notices and other communications to any party hereunder
shall be in writing (including facsimile or similar writing) and shall be deemed
given when received addressed as follows:
If to TMP, to:
TMP Worldwide Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxx
With a copy to:
TMP Worldwide Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx
Xxxxxxxxx & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to HHGI, to:
Xxxxxx Highland Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxx
With a copy to:
Xxxxxx Highland Group, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Any party may, by written notice so delivered to the other parties, change the
address to which delivery of any notice shall thereafter be made.
6.09 Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not render the entire
Agreement invalid.
11
Rather, the Agreement shall be construed as if not containing the particular
invalid or unenforceable provision, and the rights and obligations of each party
shall be construed and enforced accordingly.
6.10 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by TMP and HHGI, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, 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, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
6.11 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that neither party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of the other parties hereto.
6.12 Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York, without regard to the
conflicts of laws rules thereof.
6.13 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other parties hereto.
6.14 Entire Agreement. This Agreement (including the Schedules constituting
a part of this Agreement) constitutes the entire understanding of the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter hereof. Neither this Agreement nor any provision
hereof is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder.
6.15 Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought only in the
United States District Court for the Southern District of New York or any other
New York State court sitting in New York County, and each of the parties hereby
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the
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world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 6.08 shall be deemed effective service of process on such
party.
6.16 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Transition Services
Agreement to be duly executed by their respective authorized officers as of the
date first above written.
TMP WORLDWIDE INC.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Chairman and CEO
XXXXXX HIGHLAND GROUP, INC.
By: /s/ Xxx X. Xxxxx
----------------------------
Name: Xxx X. Xxxxx
Title: Chairman, President and CEO
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Schedules for Services
Effective as of the Distribution Date
Schedule # Service Provider Functional Area
---------- ---------------- ---------------
1 TMP/HHGI Tax services
2 TMP Legal services
3 TMP/HHGI Information technology
4 TMP Insurance
5 HHGI Accounting, payroll & administrative
6 HHGI Facilities
7 HHGI Information technology
8 TMP Insurance, human resources,
workplace health and safety
9 TMP Secretarial, property and administrative
10 TMP Facilities
11 TMP Accounting services
12 TMP Facilities
13 TMP Facilities
14 TMP Information technology
15 TMP Accounting services
16 TMP Legal services
17 HHGI Insurance
18 HHGI Human resources
19 TMP Legal services
The Schedules to this Agreement have been omitted. The Schedules to this
Agreement will be furnished to the Securities and Exchange Commission
supplementally upon request.
TRANSITION SERVICES SCHEDULE
--------------------------------------------------------------------------------
Schedule #:
Service provider: |_| TMP Worldwide |_| Xxxxxx Highland
Functional area: |_| Insurance |_| Tax Services |_| Legal Services
|_| Facilities |_| Human Resources |_| Information
|_| Other (describe): Technology
Start/end date:
Summary of Services to be provided (describe in appropriate detail):
--------------------------------------------------------------------------------
S-1
--------------------------------------------------------------------------------
Estimated total Service Costs to service provider:
Describe Service Cost methodology and factors affecting total Service Costs:
Describe how Service Costs will be adjusted in the event of an increase/decrease
in Services provided:
Additional information:
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have executed and delivered the foregoing
Transition Services Schedule, which is hereby deemed incorporated into and made
part of that certain Transition Services Agreement between TMP Worldwide Inc.
and Xxxxxx Highland Group, Inc.
Date:
TMP WORLDWIDE INC.
By:
Name:
Title:
XXXXXX HIGHLAND GROUP, INC.
By:
Name:
Title:
S-2
