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EXHIBIT 10.33
TRANSITIONAL SERVICES AGREEMENT
BY AND BETWEEN
JNI CORP.
A DELAWARE CORPORATION
AND
JAYMARK, INC.
A DELAWARE CORPORATION
SEPTEMBER 1, 1999
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TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement (the "AGREEMENT") is entered
into as of September 1, 1999 by and between JNI Corp., a Delaware corporation
("JNI"), and Jaymark, Inc., a Delaware corporation ("JAYMARK").
W I T N E S S E T H :
WHEREAS, JNI is a subsidiary of Jaymark, and JNI intends to make an
initial public offering of its securities (the "Offering"), after which JNI and
Jaymark intend to separate their operations.
WHEREAS, each party has requested that the other party provide
certain transitional services and each party is willing to provide such
transitional services, subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises, the mutual
agreements hereinafter contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, JNI and Jaymark
(collectively, the "PARTIES") hereby agree as follows:
1. Services to be provided to JNI by Jaymark. Jaymark shall provide the
following services (the "SERVICES") to JNI:
(a) Accounting and Administrative Services. Jaymark shall provide
accounting and other administrative services to JNI in accordance with past
practices; and
(b) Consulting Services. If JNI gives Jaymark written notification
that JNI no longer requires the Services described in Section 1(a), then from
the effective date of such notification through December 31, 2001, if and as
requested by JNI, Jaymark will provide consulting services to JNI regarding the
Services described in Section 1(a).
2. Compensation for Services.
(a) As compensation for services rendered pursuant to Section 1(a),
JNI shall compensate Jaymark in an amount determined in accordance with
Jaymark's historical practice of allocation of expenses to JNI on a payroll
basis.
(b) As compensation for services rendered pursuant to Section 1(b),
JNI shall compensate Jaymark for services rendered on an hourly basis at a rate
and on terms consistent with Jaymark's billing practices with respect to its
government contracting operations.
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3. Term of Services.
(a) Jaymark shall provide the Services described in Section 1(a) for
the period commencing on the effective date of the Offering and continuing until
the earlier of (i) December 31, 2000, or (ii) the date specified by JNI in a
written notification that such Services are no longer required.
(b) Jaymark shall provide the Services described in Section 1(b) for
the period commencing on the effective date of any termination made in
accordance with Section 3(a) until the earlier of (i) December 31, 2000, or (ii)
the date specified by JNI in a written notification that such Services are no
longer required.
4. Level of Services.
Jaymark shall use the same degree of care, but in no event less than
reasonable care, in rendering Services under this Agreement as it utilized in
rendering such services in the ordinary course, consistent with past practice
and as conducted prior to the effective date of the Offering. Jaymark shall not
be liable for any lost profits or special, incidental, consequential or
exemplary damages as a result of the performance of the Services contemplated to
be performed by Jaymark pursuant to this Agreement.
5. Limitation on Jaymark's Liability.
Jaymark and JNI hereby acknowledge that Jaymark is not in the
business of providing the Services and that such Services are being provided
pursuant to this Agreement solely as an accommodation to JNI. JNI's sole and
exclusive remedy and Jaymark's sole and exclusive liability for any failure by
Jaymark to provide, and for any losses of JNI attributable to the provision of,
the Services in the manner specified in Section 1 shall be reperformance of such
services. Jaymark disclaims all warranties with respect to the Services.
6. Inability to Perform.
Each party shall be excused from its non-monetary obligations under
this Agreement, and shall have no liability for any resulting loss or damage,
but only in the event and to the extent that its performance is delayed or
prevented by any circumstance reasonably beyond its control, including, but not
limited to, fire, flood, epidemic, explosion, act of any government in its
sovereign capacity, act of God or of the public enemy, strike, walkout or other
labor dispute, and riot or civil disturbance. Neither party shall be required to
pay for any Services which are not being performed hereunder for any of the
above reasons.
7. Assignment.
No Party shall convey, assign or otherwise transfer any of its
rights or obligations under this Agreement without the express written consent
of the other Party, except that any Party may (without obtaining any such
consent) assign, in whole or in part, its rights to receive or to provide
Services hereunder to any entity acquiring or otherwise succeeding to all or
substantially all of any of its businesses. Any conveyance, assignment or
transfer requiring the express written consent of the other Party which is made
without such consent shall be void ab
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initio. No assignment of this Agreement shall relieve the assigning Party of its
obligations hereunder.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of California applicable to contracts made and to
be performed entirely within such State, without regard to the conflicts of law
principles of such State.
9. Cooperation; Further Assurances.
Each Party shall cooperate and use its reasonable efforts to have
its officers and employees cooperate with the other Party and provide such
information as such Party may require or reasonably request in connection with
performance of the Services. From time to time, as and when requested by any
Party, the other Party will execute and deliver, or cause to be executed and
delivered, all such documents and instruments and will take, or cause to be
taken, all such actions, as such other Party may reasonably deem necessary or
desirable to consummate the transactions contemplated by this Agreement.
10. Entire Agreement.
This Agreement shall constitute the entire agreement among the
Parties with respect to the subject matter hereof and thereof and supersede all
other prior agreements, understandings, representations and warranties, both
written and oral, between the Parties relating thereto.
11. Captions.
The section titles and captions herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof. Unless otherwise
specified, all references herein to numbered sections are to sections of this
Agreement.
12. Counterparts.
This Agreement may be executed in separate counterparts, each such
counterpart being deemed an original instrument, and all such counterparts shall
together constitute the same agreement.
13. No Third Party Beneficiaries.
This Agreement is binding upon and is for the benefit of the
Parties and their respective successors and permitted assigns. This Agreement is
not made for the benefit of any person not a party hereto and no person, other
than the Parties or their respective successors and permitted assigns will
acquire or have any benefit, right, remedy or claim under or by reason of this
Agreement.
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14. Severability.
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby. If the economic or legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party as a result thereof, the parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
15. Independent Contractors.
The relationship between Jaymark and JNI under this Agreement is
that of independent contractors. Nothing contained in this Agreement or
otherwise shall be construed to constitute or create a partnership, agency,
relationship, joint venture, equity interest or lease between the Parties. No
Party has the power or authority to act on behalf of the other party, except as
expressly set forth in this Agreement or as authorized in writing by the other
Party.
16. Modification or Amendment.
This Agreement cannot be amended, modified or supplemented except
by a written agreement executed by Jaymark and JNI.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
Jaymark, INC.
By: /s/ Xxxxx Xxxxxxx
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Name:
Title:
JNI CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title:
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