EXHIBIT 10.1
FORM OF
TRANSITIONAL SERVICES AGREEMENT
THIS AGREEMENT is made ___________ ___, 2000 (the "EFFECTIVE
DATE"), by and between Motorola, Inc., a Delaware corporation ("MOTOROLA") and
Propel, Inc., a Delaware corporation ("PROPEL") (Propel and Motorola are
referred to individually as a "PARTY" and collectively
as the "PARTIES").
WHEREAS, Motorola and Propel are parties to the Master
Separation Agreement (the "SEPARATION AGREEMENT") and other agreements (the
"ANCILLARY AGREEMENTS") entered into in connection with the separation of Propel
from Motorola (the "SEPARATION"), dated as of the date hereof; and
WHEREAS, prior to such Separation, Motorola has previously
provided certain services to Propel and in connection with such Separation,
Propel has requested from Motorola that certain Transitional Services (as
defined below) continue to be provided and Motorola has agreed to provide these
Transitional Services on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, Motorola and Propel agree
as follows:
1. TRANSITIONAL SERVICES.
(a) SERVICES PROVIDED.
(i) Upon the terms and subject to the conditions set
forth in this Agreement, Motorola will provide to Propel those administrative
and support services listed in the attached Appendix A (individually a
"TRANSITIONAL SERVICE" and collectively the "TRANSITIONAL SERVICES"), during the
time period for each Transitional Service set forth in Appendix A (the "TIME
PERIODS" for all of the Transitional Services and the "TIME PERIOD" for each
Transitional Service).
(ii) Motorola shall perform the Transitional Services
exercising the same degree of care as it exercises in performing the same or
similar services for its own account, with priority equal to that provided to
its own businesses or those of any of its affiliates, subsidiaries or divisions.
Nothing in this Agreement shall require Motorola to favor Propel over Motorola's
businesses or those of any of its affiliates, subsidiaries or divisions.
(iii) Unless otherwise specifically set forth in Appendix A
attached hereto, it is the intention of the Parties that Propel's use of any
Transitional Service shall not be higher than the level of use required prior to
the Effective Date and Motorola will not be required to provide special studies,
training, or the like or the advantage of systems, equipment, facilities or
training above the levels provided to Propel prior to the Effective Date. In no
event will Propel be entitled to any new
service or to increase its use of any of the Transitional Services above that
level of use without the prior written consent of Motorola, in its sole
discretion.
(iv) In addition to being subject to the terms and
conditions of this Agreement for the provision of the Transitional Services,
Propel agrees that the Transitional Services provided by third parties shall be
subject to the terms and conditions of any existing agreements between Motorola
and such third parties, but that Propel has the right to reasonably consent to
any new arrangements with third-party providers.
(b) PROPRIETARY RIGHTS; SOFTWARE AND IT SERVICES
(i) THIRD-PARTY SOFTWARE. In addition to the
consideration set forth elsewhere herein, Propel shall also pay any amounts that
are required to be paid to any licensors of software that is used primarily in
connection with the provision of any Transitional Services, and any amounts that
are required to be paid to any such licensors to obtain the consent of such
licensors to provide any of the Transitional Services. Subject to the
immediately preceding sentence, Motorola will use commercially reasonable
efforts to obtain any consents that may be required from such licensors in order
to provide any of the Transitional Services.
(ii) MOTOROLA SOFTWARE. Any software, development tools,
know-how, methodologies, processes, technologies or algorithms owned by Motorola
and which may during the term of this Agreement be operated or used by Motorola
in connection with the performance of the Transitional Services or provided to
Propel by Motorola under this Agreement will remain Motorola's property and
Propel will have no rights or interests therein.
(iii) USE OF TRADEMARKS. No Party will use the
trademarks or service marks of the other without prior written consent to
such use. Use of such trademarks or service marks shall be in accordance with
the guidelines set forth by such Party with all proper indicia of ownership.
No Party will have any rights to use any trademarks or service marks of the
other, other than in accordance with this Agreement and shall not acquire any
interest therein by such use.
(iv) IT SERVICES.
(A) While using any data processing or
communications services of Motorola (whether or not identified in this
Agreement), Propel shall adhere in all respects to Motorola's corporate
information policies (including policies with respect to protection of
proprietary information and other policies regarding the use of
computing resources) as in effect from time to time and provided to
Propel.
(B) Propel will develop a detailed systems
conversion plan for review with Motorola within three months of the
Effective Date. Motorola agrees to assist Propel to meet the mutually
agreed upon milestones, timelines and resource requirements identified
in the final detailed systems conversion plan. Following this process
the plan will be considered
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firm and will be used by both Motorola and Propel to synchronize their
own related project efforts. Any schedule modifications occurring after
the plan is firm will require joint approval by Propel and Motorola.
(c) REPRESENTATIVES. Motorola and Propel shall each nominate a
representative to act as the primary contact person for the coordination of
all of the Transitional Services (collectively, the "PRIMARY COORDINATORS").
The initial Primary Coordinators shall be Xxx Xxxxxxx for Propel and
for Motorola. The initial coordinators for each
Party for each Transitional Service shall be the individuals named in the
description of such Transitional Service in Appendix A (the "SERVICE
COORDINATORS"). Each Party shall advise the other Party in writing of any
change in the Primary Coordinators and any Service Coordinator. Motorola and
Propel agree that all communications relating to the provision of the
Transitional Services shall be directed to both the respective Service
Coordinators and Primary Coordinators for such Transitional Service.
(d) PERSONNEL.
(i) Motorola will have the right, in its sole discretion,
to designate which personnel it will assign to perform the Transitional
Services. Motorola also will have the right, in its sole discretion, to remove
and replace any such personnel at any time or designate a third-party provider.
In the event that personnel with the designated level of experience are not then
employed by Motorola or its affiliates, as applicable, Motorola will substitute
such personnel or third party personnel having an adequate level of experience;
PROVIDED, HOWEVER, that Motorola will have no obligation to retain any
individual employee for the sole purpose of providing the applicable
Transitional Services.
(ii) Propel agrees that in the provision of the
Transitional Services, Motorola shall be entitled to use a reasonable amount of
the services of those former employees of Motorola, who will be employed by
Propel following the initial public offering by Propel of shares of Propel
common stock (the "IPO"), which employees shall be made available by Propel to
Motorola for this purpose, provided that Motorola's use of such employees shall
not unreasonably interfere with the duties of such employees for Propel.
(e) NO OBLIGATION TO CONTINUE TO USE TRANSITIONAL SERVICES.
(i) Propel shall have no obligation to continue to use
any of the Transitional Services and may terminate any Transitional Service by
providing to Motorola the written notice described in SECTION 1(e)(ii) below. If
any Transitional Service is terminated by Propel, Motorola and Propel shall
discuss in good faith whether to discontinue any related Transitional Services.
(ii) For the purposes of this SECTION 1(e), unless
otherwise specifically set forth in Appendix A, written notice of the
termination of a Transitional Service must be provided by Propel ten (10)
Business Days (as defined below) prior to the effective date of such
termination; PROVIDED, HOWEVER, that Propel shall reimburse Motorola for any
extraordinary costs incurred by
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Motorola resulting from early termination of a Transitional Service being
provided by a third-party provider. "BUSINESS DAY" means any day other than a
Saturday, a Sunday, or a day on which banking institutions located in Chicago,
Illinois are authorized or obligated by law or executive order
to close.
(iii) If any Transitional Service is terminated by Propel
under this SECTION 1(e), Propel does not have the right to unilaterally
reinstitute such Transitional Service.
(f) MOTOROLA ACCESS. To the extent reasonably required for
Motorola's personnel to perform the Transitional Services, Propel shall provide
Motorola's personnel with access to its office space and any other areas and
equipment necessary for the provision of the Transitional Services; provided,
that such access shall not unreasonably interfere with Propel's conduct of its
business.
(g) COMPENSATION FOR TRANSITIONAL SERVICES.
(i) CONSIDERATION. As consideration for the Transitional
Services, Propel shall pay to Motorola the amount specified for each
Transitional Service in Appendix A. Upon the termination of any Transitional
Service in accordance with SECTION 1(e)(ii) above, the consideration to be paid
for such Transitional Service shall be eliminated for future periods. All
charges based on a monthly or other time basis will be prorated based on actual
days elapsed during the period of service. Propel acknowledges that on an annual
basis Motorola reviews cost allocations for the purchased services, which
include certain of the Transitional Services, as part of its budgetary cycle and
the cost allocation method or cost amounts for the Transitional Services,
depending on how allocated, may increase or decrease from year to year, but in
no event shall they increase in the aggregate more than 10% in any year over the
prior year (taking into account any decreases due to termination of any
Transitional Services by Propel).
(ii) TAXES.
(A) INCOME, PROFITS AND CAPITAL GAINS TAXES.
Motorola shall pay all income and profits taxes and taxes on
capital gains, and related fines, penalties and interest
assessed or levied against Motorola by any government
authority or any political subdivision or by the government of
any other country against Motorola or Motorola's
subcontractors in respect of the Transitional Services
performed under this Agreement, unless the obligation to make
such payment results solely from the action or inaction of
Propel.
(B) OTHER TAXES. All other taxes (other than
those specified in SECTION 1(g)(ii)(a) above), assessed on the
provision of Transitional Services shall be paid by Propel.
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(iii) INVOICING AND PAYMENT. Propel shall pay all
undisputed amounts contained in Motorola's invoices within thirty (30) days
after receipt (the "PAYMENT DUE DATE") less any amount Propel is required by law
to withhold or deduct. Such payment shall not prejudice Propel's right to
subsequently dispute any part of an invoice. In the event Propel disputes an
item billed, Propel shall, within fifteen (15) days of receipt of Motorola's
invoice, notify Motorola in writing of the item in dispute, specifying Propel's
complaint. Propel may withhold payment of items in dispute without interest
until the dispute is resolved. The undisputed amount, however, shall be paid
without delay.
(iv) Motorola will pay for all personnel expenses,
including wages, of its employees performing the Transitional Services. Any
required travel and travel-related expenses of any Motorola employee required to
perform the Transitional Services will be at Propel's cost.
(h) LIMITATION OF LIABILITY AND WARRANTY.
(i) In the absence of gross negligence or reckless or
willful misconduct on Motorola's part, and whether or not it is negligent,
Motorola shall not be liable for any claims, liabilities, damages, losses,
costs, expenses (including, but not limited to, settlements, judgments, court
costs and reasonable attorneys' fees), fines and penalties, arising out of any
actual or alleged injury, loss or damage of any nature in providing or failing
to provide the Transitional Services to Propel. Notwithstanding anything to the
contrary in this Agreement, in the event Motorola commits an error with respect
to or incorrectly performs or fails to perform any Transitional Service, at
Propel's request, Motorola shall use reasonable efforts to correct such error,
re-perform or perform such Transitional Service at no additional cost to Propel.
(ii) Motorola's liability for damages to Propel for any
cause, and regardless of the form of action, whether in contract or in tort,
including negligence, gross negligence or willful misconduct, shall be limited
to the payments made under this Agreement for the specified Transitional Service
that allegedly caused the damage during the period in which the alleged damage
was incurred by Propel. In no event shall Motorola be liable for any damages
caused by Propel's failure to perform Propel's responsibilities under this
Agreement. Motorola will not be liable to Propel for any act or omission of any
other entity (other than due to a default by Motorola in any agreement between
Motorola and such other entity) furnishing any Transitional Service.
(iii) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT OR AT LAW OR IN EQUITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION
OR ANY OTHER LOSS) ARISING FROM OR RELATING TO ANY CLAIM MADE UNDER THIS
AGREEMENT OR REGARDING THE PROVISION OF OR THE FAILURE TO PROVIDE THE
TRANSITIONAL SERVICES.
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2. CONFIDENTIALITY.
(a) OBLIGATION.
(i) In addition to any obligations of confidentiality
under other agreements between the Parties, without the prior written consent of
the other Party, each Party shall hold in confidence and not disclose to any
third party any confidential information received by it from the other Party
during the provision of the Transitional Services, including, without
limitation, information which is not related to the Transitional Services.
(ii) Each Party agrees that it shall only use the
confidential information received by it from the other Party in connection with
the provision or receipt of the Transitional Services, and for no other purpose.
(iii) For the purposes of this Agreement, confidential
information shall not include information (A) which is or becomes part of the
public domain other than through breach of this Agreement or through the fault
of the receiving Party; (B) which is or becomes available to the receiving Party
from a source other than the disclosing Party, which source has no obligation of
confidentiality to the disclosing Party; (C) which is required to be disclosed
by law or governmental order; or (D) the disclosure of which is mutually agreed
to by the Parties.
(b) EFFECTIVENESS. This confidentiality obligation shall be in
effect during the term of this Agreement including any extensions and for a
period of three (3) years after the termination or expiration of this Agreement.
(c) CARE AND INADVERTENT DISCLOSURE. With respect to any
confidential information, each Party agrees as follows:
(i) it shall use the same degree of care in safeguarding
said information as it uses to safeguard its own information which must be held
in confidence; and
(ii) upon the discovery of any inadvertent disclosure or
unauthorized use of said information, or upon obtaining notice of such a
disclosure or use from the other Party, it shall take all necessary actions to
prevent any further inadvertent disclosure or unauthorized use, and, subject to
the provisions of SECTION 1 above, such other Party shall be entitled to pursue
any other remedy which may be available to it.
3. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective on the Effective
Date and shall remain in force until the earlier of (i) the expiration of the
last Time Period, (ii) Propel's termination of all of the Transitional Services
in accordance with SECTION 1(e) above, or (iii) the termination of this
Agreement under SECTION 3(b), SECTION 14 or SECTION 18, below.
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(b) TERMINATION.
(i) If a Party (the "DEFAULTING PARTY") shall fail to
perform or default in the performance of any of its obligations under any
applicable Transitional Service (other than as described in subsection (ii)
below), the other Party (the "NON-DEFAULTING PARTY") may give written notice to
the Defaulting Party specifying the nature of such failure or default and
stating that the Non-Defaulting Party intends to terminate any affected
Transitional Service if such failure or default is not cured within forty-five
(45) days of such written notice. If any failure or default so specified is not
cured within such forty-five (45) day period, the Non-Defaulting Party may elect
to immediately terminate the affected Transitional Services; PROVIDED, HOWEVER,
that if the failure or default relates to a good faith dispute by the Defaulting
Party, the Non-Defaulting Party may not terminate any such Transitional Service
pending the resolution of such dispute. Such termination shall be effective upon
giving a written notice of termination from the Non-Defaulting Party to the
Defaulting Party and shall be without prejudice to any other remedy which may be
available to the Non-Defaulting Party against the Defaulting Party.
(ii) Either Party may immediately terminate this Agreement
by written notice to the other Party without any prior notice upon the
occurrence of any of the following events:
(A) the other Party enters into proceedings in
bankruptcy or insolvency;
(B) the other Party shall make an assignment for
benefit of creditors;
(C) a petition shall be filed against the other
Party under a bankruptcy law, a corporate reorganization law,
or any other law for relief as a debtor (or similar law in
purpose or effect); or
(D) the other Party enters into liquidation or
dissolution proceedings.
(c) ADMINISTRATIVE AND SUPPORT SERVICES.
(i) Propel acknowledges that Motorola is providing the
Transitional Services as an accommodation to Propel to allow Propel a period of
time to obtain its own administrative and support services for its businesses.
During the term of this Agreement, Propel agrees that it shall take all
reasonable steps necessary to obtain its own administrative and support services
prior to the expiration of the Time Period for each Transitional Service.
(ii) Motorola shall have no liability of any kind or
nature (including, without limitation, indirect, consequential, special,
incidental or punitive damages) to Propel, or to anyone claiming by or through
Propel, for Motorola ceasing to provide (or having a third party provide) any
Transitional Service upon the expiration of the Time Period. Propel shall hold
Motorola harmless and waives any and all rights, at law or in equity, that it
may have to bring any suit, including, but not limited to, injunctive relief, or
to any claims, damages, loss, costs (including attorney fees),
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actions, or liability against Motorola or Motorola's employees, agents,
assignees, subsidiaries or affiliates arising out of Motorola's ceasing to
provide any Transitional Service upon the expiration of the Time Period for such
Transitional Service or the termination of this Agreement.
(d) SURVIVAL OF CERTAIN OBLIGATIONS. Without prejudice to the
survival of the other agreements of the Parties, the following obligations shall
survive the termination of this Agreement: (i) for the periods set forth, the
obligations of each Party under SECTIONS 2 and 4, and (ii) Motorola's right to
receive the compensation for the Transitional Services provided, and
reimbursement of the costs and expenditures described in SECTION 1(g) above,
incurred prior to the effective date of termination.
(e) CONDITIONS. Consummation of the transactions provided in this
Agreement are conditioned upon and shall only be effected after the closing of
the IPO.
4. INDEMNITIES.
(a) INDEMNITY BY PROPEL. Subject to the limitation set forth in
SECTION 1(h) above, Propel shall indemnify, defend and hold Motorola harmless
against any and all claims, liabilities, damages losses, costs, expenses
(including, but not limited to, settlements, judgments, court costs and
reasonable attorneys' fees), fines and penalties arising out of any injury or
death, and any loss or damage of any nature (including, without limitation, loss
of or damage to property, or damage to the environment) due or relating to the
operations and activities of Propel, except for losses, liabilities,
obligations, costs, expenses or damages which are the direct and sole result of
gross negligence or willful misconduct of the personnel of Motorola and/or any
contract personnel who are managed and directed by Motorola.
(b) INDEMNITY BY THE PARTIES FOR CLAIMS BY EMPLOYEES. Motorola and
Propel mutually agree to defend, indemnify and hold harmless each other from and
against any and all claims or causes of action for injury to or death of their
respective employees which may arise in connection with the performance of this
Agreement, except where the negligence of the non-employing Party is the sole
proximate cause of the injury or death.
(c) TERM OF INDEMNITY AND FILING OF ACTIONS. The indemnities
contained in this SECTION 4 shall survive for a period of three (3) years after
the termination of this Agreement for any reason, and any claim for indemnity
under this Article must be made by written notice to the indemnifying Party
within one (1) year after discovery.
5. ENTIRE AGREEMENT. This Agreement, the Separation Agreement and all
other Ancillary Agreements and all other Exhibits and Schedules attached hereto
and thereto constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersede all prior written and oral
and all contemporaneous oral agreements and understandings with respect to the
subject matter hereof and thereof.
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6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
7. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered in person, by
telecopy with answer back, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
if to Motorola:
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer and Chief Accounting Officer
Telecopy: (000) 000-0000
if to Propel or its subsidiaries:
Propel, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
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with a copy to:
Propel, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery. Any notice or communication sent by telecopy shall be deemed effective
on the day at the place such notice or communication is received if confirmed by
return facsimile. Any notice or communication sent by air courier shall be
deemed effective on the day at the place at which such notice or communication
is received if delivery is confirmed by the air courier. Any notice or
communication sent by registered or certified mail shall be deemed effective on
the fifth Business Day at the place from which such notice or communication was
mailed following the day on which such notice or communication was mailed.
8. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their legal representatives and
successors and each affiliate of the parties hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall constitute one
and the same agreement.
10. ASSIGNMENT. This Agreement may not be assigned by any party hereto;
PROVIDED, HOWEVER, that Motorola may assign this Agreement in connection with
the sale of all or substantially all of its assets.
11. AMICABLE RESOLUTION.
(a) Motorola and Propel mutually desire that friendly
collaboration will develop between them. Accordingly, they will try to resolve
in an amicable manner all disagreements and misunderstandings connected with
their respective rights and obligations under this Agreement, including any
amendments hereto. In furtherance thereof, in the event of any dispute or
disagreement between Motorola and Propel as to the interpretation of any
provision of this Agreement executed in connection herewith (or the performance
of obligations hereunder or thereunder), the matter, upon written request of
either party, will be referred for resolution to a steering committee
established pursuant to the Separation Agreement (the "Steering Committee"). The
Steering Committee will have two members, one of which will be appointed by
Motorola and one of which will be appointed by Propel. The initial members of
the Steering Committee will be
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the individuals named on Schedule 5.7 of the Separation Agreement. Each of
Motorola and Propel will use its good faith reasonable efforts to avoid
replacing the initial members of the Steering Committee with another of their
representatives for the first year after the Effective Date. Thereafter,
Motorola and Propel will, to the extent practicable, honor the other's
reasonable objections to any replacements of Steering Committee members. While
any person is serving as a member of the Steering Committee, such person may not
designate any substitute or proxy for purposes of attending or voting at a
Steering Committee meeting. The Steering Committee will make every good faith
effort to promptly resolve all disputes or disagreements referred to it. Upon a
unanimous vote, Steering Committee decisions will be binding on Motorola and on
Propel. If the Steering Committee does not agree to a resolution of the dispute
or disagreement within ninety (90) days after the reference of the matter to it,
each of Motorola and Propel will be free to exercise the remedies available to
it under applicable law, subject to SECTION 12. Notwithstanding anything to the
contrary in this SECTION 11, no amendment to the terms of this Agreement will be
effected except in writing signed by an authorized officer of both parties. The
Steering Committee will be self-regulating.
(b) Between the Effective Date and the first anniversary of the
Effective Date, the Steering Committee will hold meetings every six (6) weeks on
dates established at the organizational meeting of the Steering Committee, which
will be held as promptly as practicable after the Effective Date. Such meeting
dates may be rescheduled by the Steering Committee if it becomes reasonably
impracticable to hold such a meeting. After the first anniversary of the
Effective Date, the Steering Committee will hold regularly scheduled meetings as
determined by the Steering Committee.
12. MEDIATION AND ALTERNATE DISPUTE RESOLUTION.
(a) To the extent that any misunderstanding or dispute with
respect to one or more of the terms of this Agreement ("DISPUTE") cannot be
resolved in a friendly manner as set forth in SECTION 11, the parties intend
that such Dispute be resolved by an alternative dispute resolution process
("ADR"), which shall require the escalation of any Dispute, first, to the level
of one senior executive of each of Motorola and Propel (the "SENIOR OFFICERS")
and then to the head of Motorola's Communications Enterprise (or its successor)
and the CEO of Propel in an attempt to resolve any such Dispute by negotiation.
If the head of Motorola's Communications Enterprise and the Propel CEO are
unable to resolve the Dispute within ten (10) days after the matter is referred
to them, either Motorola or Propel may demand mediation of the Dispute by
written notice to the other. The two parties shall select a mediator within ten
(10) days after the demand and neither of the parties may unreasonably withhold
consent to the selection of the mediator and both parties shall share the cost
of mediation equally. The parties may agree to replace mediation with some other
form of non-binding ADR such as neutral fact finding or mini-trial. Nothing in
this paragraph shall prevent either Motorola or Propel from commencing formal
litigation proceedings if (i) good faith efforts to resolve the Dispute under
these procedures have been unsuccessful, or (ii) any delay resulting from
efforts to mediate such dispute could result in serious and irreparable injury
to either Motorola or Propel. The use of any ADR procedures will not be
construed under the doctrines of laches, waiver or estoppel to affect adversely
the rights of either party.
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(b) Each of Motorola and Propel will bear its costs of mediation
or ADR, but both parties shall share the costs of the mediation or ADR equally.
13. JURISDICTION. In the event a Dispute under this Agreement is to be
submitted to judicial proceedings, each of Motorola and Propel consents to the
exclusive jurisdiction of the federal or state courts of Illinois for any such
legal action, suit or proceeding and agrees that any such action, suit, or
proceeding may be brought only in such courts. Each of Motorola and Propel
further waives any objection to the laying of venue for any suit, action or
proceeding in such courts. Each party also waives its rights to a trial by jury.
Each party agrees to accept and acknowledge service of any and all process that
may be served in any suit, action or proceeding. Each party agrees that any
service of process upon it mailed by registered or certified mail, return
receipt requested to such party at the address provided in SECTION 7 above will
be deemed in every respect effective service of process upon such party in any
such suit, action or proceeding. Each party agrees to waive any right it might
have to a trial by jury in any such suit, action or proceeding.
14. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the fullest extent
possible. Notwithstanding the foregoing, if the portion of this Agreement which
is declared invalid has the effect of reducing the compensation due under this
Agreement, preventing the reimbursement of the costs and expenditures described
in SECTION 1(G) above, Motorola, in its sole discretion, may terminate upon
thirty (30) days' notice to Propel, any Transitional Service for which
compensation has been so reduced, unless Propel agrees to pay for such
Transitional Service in accordance with the terms of this Agreement.
15. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. Subject to SECTION 11, all rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
16. AMENDMENT. No change, amendment or waiver will be made to this
Agreement, except by an instrument in writing signed on behalf of each of the
parties hereto.
17. AUTHORITY. Each of the parties hereto represents to the other that (a)
it has the corporate or other requisite power and authority to execute, deliver
and perform this Agreement, (b) the execution, delivery and performance of this
Agreement by it have been duly authorized by all
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necessary corporate or other action, (c) it has duly and validly executed and
delivered this Agreement, and (d) this Agreement is a legal, valid and binding
obligation, enforceable against it in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
18. FORCE MAJEURE. Any failure or omission by a Party in the performance of
any obligation under this Agreement shall not be deemed a breach of this
Agreement or create any liability, if the same arises from any cause or causes
beyond the control of such Party, including, but not limited to, the following,
which, for purposes of this Agreement shall be regarded as beyond the control of
each of the Parties: acts of God, fire, storm, flood, earthquake, governmental
regulation or direction, acts of the public enemy, war, rebellion, insurrection
riot, invasion, strike or lockout; PROVIDED, HOWEVER, that such Party shall
resume the performance whenever such causes are removed. However, if such Party
cannot perform under this Agreement for a period of forty-five (45) days due to
such cause or causes, either Party may terminate this Agreement by providing
written notice to the other Party.
19. RELATIONSHIP OF THE PARTIES. It is expressly understood and agreed that
in rendering the Transitional Services, Motorola is acting as an independent
contractor and that this Agreement does not constitute either Party as an
employee, agent or other representative of the other Party for any purpose.
Neither Party has the right or authority to enter into any contract, warranty,
guarantee or other undertaking in the name or for the account of the other
Party, or to assume or create any obligation or liability of any kind, express
or implied, on behalf of the other Party, or to bind the other Party in any
manner, or to hold itself out as having any right, power or authority to create
any such obligation or liability on behalf of the other or to bind the other
Party in any manner (except as to any actions taken by either Party at the
express written request and direction of the other Party).
20. SETOFF. Subject to SECTION 1(g)(iii), if Propel fails to pay any amount
owing to Motorola when due, Motorola is authorized, without notice to Propel
(any such notice being expressly waived by Propel), to set off and apply (or
cause any affiliate of Motorola to set off and apply) any and all amounts at any
time held and any indebtedness at any time owing by Motorola or such affiliate
to or for the credit of the account of Propel, against any or all of such
amounts, and any amount due under this Agreement, any promissory note or
otherwise, irrespective of whether or not Motorola shall have made any demand
and although such obligations may be unmatured. The rights stated in this
SECTION 20 are in addition to other rights and remedies (including, without
limitation, other rights of set-off or lien) that Motorola may have.
21. CONFLICT. In case of conflict between the terms and conditions of this
Agreement and any Appendix, Schedule or Exhibit, the terms and conditions of
such Appendix, Schedule or Exhibit shall control and govern as it relates to the
Transitional Service to which those terms and conditions apply.
22. INTERPRETATION. The headings contained in this Agreement, in any
Exhibit or Schedule hereto and in the table or contents to this Agreement are
for reference purposes only and shall not
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affect in any way the meaning or interpretation of this Agreement. Any
capitalized term used in any Schedule or Exhibit but not otherwise defined
therein, shall have the meaning assigned to such term in this Agreement. When a
reference is made in this Agreement to an Article or a Section, Exhibit or
Schedule, such reference shall be to an Article or Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated.
* * * *
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS, the Parties have executed this Transitional Services
Agreement on the Effective Date.
MOTOROLA, INC. PROPEL, INC.
By _______________________________ By _______________________________
Its ______________________________ Its ______________________________
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APPENDIX A
Transitional Services
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