Exhibit 10.3
INTERIM SERVICES AGREEMENT
This Interim Services Agreement is made as of the _____ day of
September, 1999, between ▇▇▇▇▇▇ Communications, Inc., a Delaware corporation
("▇▇▇▇▇▇"), and Ventiv Health, Inc., a Delaware corporation ("Ventiv").
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Distribution Agreement, dated as
of September__, 1999, by and between ▇▇▇▇▇▇ and Ventiv (the "Distribution
Agreement").
In consideration of the premises and mutual covenants herein contained
and intending to be legally bound thereby, the parties hereto agree as follows:
1. PURPOSES.
1.1 Pursuant to the Distribution Agreement and certain other agreements to
be executed among ▇▇▇▇▇▇, Ventiv and certain Subsidiaries thereof, ▇▇▇▇▇▇ will
transfer its healthcare services business to Ventiv, and thereafter, ▇▇▇▇▇▇ will
distribute to holders of ▇▇▇▇▇▇ Common Stock on the Distribution Date one share
of Common Stock of Ventiv for every three shares of ▇▇▇▇▇▇ Common Stock held by
such holders of record on the Record Date. ▇▇▇▇▇▇ will distribute in the
Distribution all of the issued and outstanding shares of capital stock of
Ventiv, and thereafter, Ventiv will be a corporation independent of ▇▇▇▇▇▇.
1.2 Prior to the Distribution Date, ▇▇▇▇▇▇ provided certain services to and
on behalf of its healthcare services business.
1.3 After the Distribution Date, Ventiv will require for a limited term
that ▇▇▇▇▇▇ provides certain administrative and support services to Ventiv and
its Subsidiaries until Ventiv and its Subsidiaries are able to otherwise
contract or arrange for such services.
2. TERM. Subject to the provisions of Section 5 hereof, this Agreement shall
be effective on the Distribution Date and shall continue until the earlier of
(i) eighteen (18) months following the Distribution Date, and (ii) termination
of all Services (as herein defined) pursuant to Section 5 of this Agreement
("Term").
3. AGREEMENT TO PERFORM SELECTED SERVICES.
3.1 Subject to all of the terms and conditions hereof, ▇▇▇▇▇▇ and Ventiv
hereby agree that ▇▇▇▇▇▇ shall make available to Ventiv and its Subsidiaries
during the Term those services described on Schedule A hereto (the "Services").
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Services heretofore provided by ▇▇▇▇▇▇ to Ventiv will be provided on a
basis consistent with prior practice. Services to be provided hereunder that
were not heretofore provided by ▇▇▇▇▇▇ shall be provided on a reasonably timely
basis. Charges for Services shall be as set forth in Section 4 hereof.
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3.2 If Ventiv elects to utilize any available Services not previously
utilized prior to the Distribution Date, it shall notify ▇▇▇▇▇▇ in writing of
those Services it elects to use. If no such notice is given by the Distribution
Date, ▇▇▇▇▇▇ shall have no further obligation to furnish such new Services.
4. CHARGES FOR SERVICES; PAYMENT.
4.1 It is the intention of the parties hereto that the charges for Services
requested and provided hereunder shall consist of fully allocated direct and
indirect costs of providing Services but without any profit to ▇▇▇▇▇▇.
4.2 ▇▇▇▇▇▇ shall ▇▇▇▇ Ventiv monthly for all charges for Services
provided hereunder, which ▇▇▇▇ shall be accompanied by reasonable documentation
or explanation supporting such charges, and Ventiv shall pay ▇▇▇▇▇▇ in full for
all charges for Services within thirty (30) days after receipt of such ▇▇▇▇ and
other documentation or explanation.
5. REDUCTION IN SERVICES; TERMINATION.
5.1 The parties recognize that during the Term hereof the requirements of
Ventiv for certain Services will decrease and that Ventiv intends to reduce or
completely phase out any Services no longer required. Accordingly, at any time
after the Distribution Date, Ventiv may request termination of all or any part
of the Services received from ▇▇▇▇▇▇ (including termination of any part of any
individual Service) by giving ▇▇▇▇▇▇ not less than ninety (90) days' advance
notice in writing of any anticipated termination of any Services or part thereof
and, to the extent practicable, the parties will agree to an orderly reduction
or phase-out of such Services. Once a Service is discontinued, ▇▇▇▇▇▇ shall not
again be obligated to later reinstate such Service.
5.2 Following the termination or discontinuance of any Service as
provided herein, to the extent ▇▇▇▇▇▇ is thereafter requested to provide any
terminated or discontinued Service, including any transition-related assistance
necessary for Ventiv to perform the terminated or discontinued Service, and
▇▇▇▇▇▇ consents to perform such Service, ▇▇▇▇▇▇ shall be entitled to
compensation reflecting incurred costs in accordance with Section 4.1 herein.
6. MUTUAL COVENANT. Except to the extent otherwise provided herein,
▇▇▇▇▇▇ covenants and warrants that the charges for Services hereunder are and
shall be determined in a fair and equitable manner.
7. FORCE MAJEURE. If either party is unable to perform any of its duties or
fulfill any of its covenants or obligations under this agreement as a result of
causes beyond its control and without its fault or negligence, including but not
limited to acts of god or government, fire, flood, war, governmental controls,
and labor strife, then such party shall not be deemed to be in default of this
agreement during the continuance of such events which rendered it unable to
perform; such party shall have such additional
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time thereafter as is reasonably necessary to enable it to resume performance of
its duties and obligations under this agreement; and ventiv shall not be
required to pay ▇▇▇▇▇▇ for any service to the extent that ▇▇▇▇▇▇ is unable to
perform. notwithstanding the foregoing, if the suspension of a party's
obligation to perform under this agreement is of such a nature or duration as to
substantially frustrate the purpose of this agreement, then ▇▇▇▇▇▇ or ventiv, as
the case may be, shall have the right to terminate this agreement by giving to
the other thirty (30) days' prior written notice of termination, in which case
termination shall be effective upon the expiration of such thirty (30) day
period unless performance is resumed prior to such expiration.
8. COMPLETE AGREEMENT. This Agreement, the Exhibits and Schedules hereto and
the agreements and other documents referred to herein shall constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and shall supersede all previous negotiations, commitments and writings
with respect to such subject matter.
9. SEVERABILITY. The invalidity of any provision of this agreement as
determined by a court of competent jurisdiction in no way shall affect the
validity of any other provision hereof. if a provision is determined to be
invalid, the parties shall negotiate in good faith in an effort to agree upon a
suitable and equitable alternative provision to effect the original intent of
the parties.
10. TIME OF THE ESSENCE. The parties hereto agree that with respect to the
performance of all terms, conditions and covenants of this agreement, time is of
the essence.
11. CAPTIONS. Section captions are not a part hereof and are merely for the
convenience of the parties.
12. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof, this
agreement shall bind the parties, their successors and assigns. this agreement
shall be governed by the laws of the state of delaware without reference to the
conflict or choice of law provisions thereof.
13. ASSIGNMENT. Neither party shall assign or sublease this agreement or any
service to be provided hereunder without the prior written consent of the other,
which consent shall not be unreasonably withheld. notwithstanding the
foregoing, consent shall not be required for an assignment or sublease of this
agreement or any service provided hereunder by ▇▇▇▇▇▇ to a subsidiary of ventiv
or to any third party vendor or third party recordkeeper who had been providing
all or a material portion of the services to or on behalf of ▇▇▇▇▇▇ prior to the
distribution date.
14. AMENDMENT. This agreement may not be amended without the express written
agreement of all parties hereto.
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15. NOTICES. All notices under this agreement must be in writing and delivered
personally or sent by united states mail, postage prepaid, addressed as follows,
except that any party by written notice given as aforesaid, may change its
address for subsequent notices to be given hereunder.
If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ Communications, Inc.
Two Democracy Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Ventiv:
Ventiv Health, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Notice sent by U.S. mail will be deemed given when deposited with the U.S.
postal service.
16. LIABILITY FOR NONPERFORMANCE. ▇▇▇▇▇▇ shall not have any liability to
Ventiv for failure to perform its obligations hereunder unless such failure
arises out of, directly or indirectly, the willful misconduct on the part of
▇▇▇▇▇▇. ▇▇▇▇▇▇ shall not be required to perform any Service (or any part of any
Service) to the extent that performance of such Service (or such part of such
Service) would violate any law, rule or regulation. In no event shall ▇▇▇▇▇▇ be
liable for any Services provided or the failure to provide any Services for an
amount in excess of the compensation payable to ▇▇▇▇▇▇ in respect of such
Services pursuant to Section 4.1 hereof. In no event shall any party be liable
hereunder for consequential, incidental or punitive damages.
17. INDEPENDENT ENTITIES. In carrying out the provisions of this agreement,
ventiv and ▇▇▇▇▇▇ are and shall be deemed to be for all purposes, separate and
independent entities. ▇▇▇▇▇▇ shall select its employees and agents, and such
employees and agents shall be under the exclusive and complete supervision and
control of ▇▇▇▇▇▇. ▇▇▇▇▇▇ hereby acknowledges responsibility for full payment
of wages and other compensation to all employees and agents engaged in the
performance of its services under this agreement. it is the express intent of
this agreement that the relationship of ventiv to ▇▇▇▇▇▇ and ▇▇▇▇▇▇ to ventiv
shall be solely that of separate and independent companies and not that of a
joint venture, partnership or any other joint relationship.
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18. NONFIDUCIARY STATUS. In carrying out the provisions of this agreement,
neither party shall be a fiduciary (as defined in section 3(21) of erisa) with
respect to any employee benefit plan, program or arrangement maintained by or on
behalf of the other party. ▇▇▇▇▇▇ will provide services pursuant to the terms
and conditions of this agreement in accordance with the directions, guidelines
and/or procedures established by ventiv, or the plan administrator (as defined
in section 3(16) of erisa) of each party's employee benefit plans or
arrangements.
19. THIRD PARTY BENEFICIARIES. The provisions of this agreement are solely for
the benefit of the parties and are not intended to confer upon any person except
the parties any rights or remedies hereunder. there are no third party
beneficiaries of this agreement, and this agreement shall not provide any third
person with any remedy, claim, liability, reimbursement, action or other right
in excess of those existing prior to such date.
20. CONSTRUCTION. for purposes of this agreement, references to ventiv, with
respect to events or periods prior to the distribution date, shall mean and
include, where appropriate, ▇▇▇▇▇▇'▇ healthcare services business as it existed
prior to such date.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date set forth above, each of which shall, for all purposes,
be deemed an original and all of which shall evidence but one agreement between
the parties hereto.
▇▇▇▇▇▇ COMMUNICATIONS, INC., VENTIV HEALTH, INC.,
a Delaware corporation a Delaware corporation
By: By:
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Name: Name:
Title: Title:
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