EXHIBIT 10.14
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TRANSITION SERVICES AGREEMENT
by and between
▇▇▇▇▇▇ WORLDWIDE, INC.
and
SAMCO HOLDINGS, INC.
Dated ____________, 2006
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TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (the "Agreement") is entered into
as of _________________, 2006 by and between SAMCO Holdings, Inc., a Texas
corporation ("SHI") and ▇▇▇▇▇▇ Worldwide, Inc. ("PWI"), a Delaware corporation.
RECITALS:
A. SHI is the parent company of SAMCO Capital Markets, Inc.
("SCMI"), SAMCO BD LLC ("SBD"), SAMCO Financial Advisors, Inc ("SFAI") and SAMCO
Financial Services, Inc. ("SFSI", and collectively with SHI, SCMI, SBD and SFAI,
the "SAMCO Companies").
B. PWI is the parent of a group of companies including ▇▇▇▇▇▇
Financial Services, Inc ("PFSI" and collectively with PWI and its other
subsidiaries, the "▇▇▇▇▇▇ Group").
C. In preparation for the initial public offering of PWI stock (the
"IPO"), PWI and certain of its subsidiaries determined to reorganize certain of
their non-core business operations pursuant to that certain SAMCO Reorganization
Agreement (the "Reorganization Agreement"), of even date herewith, among PWI,
SHI, SCMI and certain other members of the ▇▇▇▇▇▇ Group. Capitalized terms not
defined herein shall have the meaning provided in the Reorganization Agreement.
D. As an independent group newly-formed pursuant to the
Reorganization Agreement, the SAMCO Companies do not yet have a full complement
of management, administrative and other services to replace those previously
available to them as subsidiaries of PWI.
E. In order to support the operations of the SAMCO Companies
following the closing of the reorganization (the "Closing"), the parties are
entering into this Agreement, pursuant to which PWI will provide, or cause to be
provided, certain services that were provided by the ▇▇▇▇▇▇ Group to the SAMCO
Companies or the SCM Business prior to the Closing.
G. The parties also propose to enter into certain subleases (the
"Lease Agreements") pursuant to which members of the ▇▇▇▇▇▇ Group will sublease
certain premises occupied by the SCM Business prior to the Closing.
NOW, THEREFORE, in furtherance of the foregoing premises and in
consideration of the mutual covenants and obligations set forth in the
Reorganization Agreement and hereinafter, the parties hereto, intending to be
legally bound hereby, do agree as follows:
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1. EFFECTIVE DATE.
This Agreement shall become effective immediately upon the Closing
and prior to the S-1 Registration Statement in respect of PWI's IPO becoming
effective.
2. SERVICES TO BE PROVIDED BY PWI.
2.1 List of Services. Subject to the terms and conditions of this
Agreement, PWI shall provide, or procure the provision, to the SAMCO Companies
of the services listed in the Schedules hereto (each a "Service" and
collectively, the "Services") for the periods set forth in the applicable part
of the Schedule therefor (as such Schedules may be revised in accordance with
Section 3 below).
3. TERMS OF SERVICE.
3.1 Amendment of Schedules. The attached Schedules of Services are
subject to change with the parties' mutual written consent.
3.2 Additional Services. Should SAMCO Companies after the Closing
identify additional services which are necessary to the operation of SAMCO
Companies, SAMCO Companies may request the addition of such services to the
Schedules. PWI shall consider any such request in good faith and may, in its
sole discretion, agree to the addition of such services. Any such additional
services shall be provided on the basis of the terms mutually agreed by the
parties.
3.3 Provider of Services. PWI agrees that it will provide, or cause
to be provided, the Services called for by this Agreement. In its sole
discretion PWI may cause other members of the ▇▇▇▇▇▇ Group or third party
contractors to perform any or all of the Services. References to "PWI" in this
Agreement in the context of the provision of Services shall be deemed to include
such other persons to the extent they are providing the Services.
3.4 Cooperation and Access. Each party agrees to cooperate as
reasonably requested by the other party in order to effectuate the provision of
the Services. SAMCO Companies shall provide PWI's employees, agents and
contractors with access to and accommodations within SAMCO Companies' facilities
as may be reasonably appropriate to enable PWI, its employees, agents and
contractors to perform the Services.
4. PERFORMANCE OF SERVICES.
4.1 PWI will provide the Services hereunder in a manner consistent
with past practice for the provision of such Services to the SAMCO Companies and
SCM Business prior to the Closing.
4.2 In no event shall PWI, or any other member of the ▇▇▇▇▇▇ Group,
in providing the Services hereunder be obligated to (i) hire any additional
employees, (ii) maintain the employment of any specific employees, (iii)
maintain any specific level of staffing, or (iv) purchase, lease or license any
additional equipment, software or assets. SAMCO Companies
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shall be responsible for providing PWI with reasonable advance notice of its
requirements for Services and for liaising with PWI for the provision thereof.
4.3 Except as otherwise expressly set forth herein, PWI PROVIDES ALL
SERVICES AND LICENSES ALL SOFTWARE "AS IS," WITHOUT ANY WARRANTY OF ANY KIND.
PWI EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES RELATED TO THE SERVICES AND
SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT THERETO.
5. INDEMNIFICATION.
5.1 PWI hereby agrees at its own expense to indemnify, defend and
hold harmless SAMCO Companies, their directors, officers, employees, and agents
from and against any and all loss, cost, liability or expense (including
reasonable costs and fees of legal counsel) (collectively "Losses") arising out
of, or in connection with a breach by PWI of this Agreement in the provision of
the Services, to the extent such Losses are caused by the gross negligence or
willful misconduct of PWI, its employees, agents or independent contractors.
5.2 Each of the SAMCO Companies hereby agrees at its own expense to
indemnify, defend and hold harmless PWI, any other member of the ▇▇▇▇▇▇ Group
providing Services and any of their respective directors, officers, employees,
agents and independent contractors, from and against any and all Losses arising
out of, or in connection with the provision of Services hereunder (except to the
extent covered by the indemnity from PWI in Section 5.1 above).
6. TERM AND TERMINATION.
6.1 The term of this Agreement shall begin on the Closing Date and
shall continue until December 31, 2008 (the "Initial Term"), unless earlier
terminated by mutual agreement or as otherwise provided in this Agreement. At
the end of the Initial Term (or if applicable a renewal period), this Agreement
shall automatically renew for an additional one (1) year period unless either
party gives written notice of termination to the other at least 30 days prior to
the end of the Initial Term, or the end of any additional one year renewal
period, as applicable.
6.2 Subject to the provisions of the Schedules, the SAMCO Companies
may terminate all or any Services provided pursuant to this Agreement on thirty
(30) days prior written notice to PWI; provided that to the extent any Services
are expressed to be provided as a package in any Schedule, any such termination
must be as to the full package of Services not individual Services within the
package. SAMCO Companies shall no longer be obligated to pay PWI the fee
attributable to such cancelled Services following the effective termination date
of such Services. SAMCO Companies shall be liable for any outstanding purchase
orders placed with third parties or other out of pocket costs incurred by PWI on
any SAMCO Company's behalf prior to PWI's receipt of the aforesaid written
notice of termination.
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6.3 Subject to the provisions of the Schedules, in the event of a
material breach under this Agreement, the non-defaulting party may terminate the
specific Service(s) to which such breach relates if the defaulting party fails
to cure such breach within thirty (30) days of its receipt of a written notice
from the non-defaulting party of such breach, provided that the duties and
obligations of the defaulting party which have accrued prior to the termination
of such Service shall not be released or discharged by such termination. Should
the SAMCO Companies have failed to pay any amounts payable pursuant to Section 6
and such default shall have continued for 30 days, PWI shall be entitled to
terminate its obligation to provide any Services hereunder.
6.4 The provisions of Sections 4.3, 5, 7, 8 and 9 shall survive
termination of this Agreement.
6.5 Upon termination of this Agreement PWI shall return to the SAMCO
Companies any records or information provided by SAMCO Companies to PWI for the
purposes of providing the Services and shall deliver to the SAMCO Companies any
records, to the extent they relate to the SAMCO Companies, generated by PWI in
the course of the provision of the Services. PWI shall be entitled to retain a
copy of any such information or records for its files.
7. CONSIDERATION.
7.1 Price for Services. Prices to be paid by the SAMCO Companies for
Services rendered by PWI hereunder are set forth in the Schedules hereto. Costs
to support the separation of the SAMCO Companies and the ▇▇▇▇▇▇ Group and for
the implementation of the SAMCO Companies' own independent systems and services
will be paid entirely by SHI.
7.2 Invoice Processing. PWI shall invoice SHI monthly for the
Services, itemizing the basis for each invoice amount. The amounts payable by
SHI to PWI set forth in the Schedules do not include state or federal sales,
use, excise, personal property, or other Taxes which may be levied or assessed
in connection with this Agreement or the Services provided hereunder. SAMCO
Companies shall be responsible for payment of and shall indemnify PWI against
all such Taxes, excluding only Taxes based on PWI's net income.
7.3 Expenses Incurred by PWI. Any out-of-pocket expense paid by PWI
to a third party on behalf of any SAMCO Company in the course of providing
Services shall be invoiced separately in reasonable detail and reimbursed by SHI
to PWI. The foregoing reimbursement shall be in addition to the fees provided
for in Section 7.1 above.
7.4 Payment Terms. Unless otherwise provided in the Schedules,
payment terms are net thirty (30) days from date of invoice and payments shall
be made in United States Dollars in immediately available funds.
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8. CONFIDENTIALITY.
The exchange and disclosure of confidential, technical and/or
proprietary information of the parties under this Agreement shall be governed by
the terms of the Confidentiality Agreement.
9. LIABILITY LIMITATIONS.
9.1 Total Liability. PWI'S TOTAL LIABILITY FOR ANY KIND OF LOSS,
DAMAGE OR LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER
ANY THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY SHI TO
PWI PURSUANT TO SECTION 7.1 OF THIS AGREEMENT.
9.2 Exclusion of Damages. IN NO EVENT SHALL ANY PARTY BE LIABLE TO
THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
9.3 Failure of Essential Purpose. The limitations specified in this
Article 9 shall survive and apply even if any limited remedy specified in this
Agreement is found to have failed of its essential purpose.
10. GENERAL.
10.1 Amendment. Except as otherwise provided in Section 3.1, this
Agreement may be modified only by a written document signed by duly authorized
representatives of each party.
10.2 Force Majeure. Each party shall be excused from performance of
its obligations under this Agreement for any period and to the extent that the
party is prevented from performing any such obligation in whole or in part as a
result of delays caused by the other party, an act of God, war, civil
disturbance, court order, labor dispute (other than one between a party and its
staff), third party non-performance or other cause whether similar or dissimilar
beyond that party's reasonable control, including without limitation, failures
or fluctuations in electrical power, heat, light, air-conditioning or
telecommunications equipment and such non-performance shall not be a default.
The party concerned shall use all reasonable efforts to resume full performance
in the event of any such delay.
10.3 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of each party's successors and assigns. SAMCO Companies may
not assign any of their rights or obligations hereunder without the prior
written consent of PWI. Any purported assignment or delegation in violation of
this Section 10.3 shall be void.
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10.4 Joint and Several Liability. The liability of the SAMCO
Companies with respect to the Services and this Agreement shall be joint and
several.
10.5 Choice of Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES, SHALL BE INTERPRETED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS, WITHOUT REFERENCE TO PROVISIONS REGARDING CONFLICTS OF LAW.
10.6 Waiver. Should either of the parties fail to exercise or
enforce any provision of this Agreement, or waive any right in respect thereto,
such failure or waiver shall not be construed as constituting a waiver or a
continuing waiver of its rights to enforce any other provision or right.
10.7 Severability. If any provision of this Agreement or the
application thereof to any situation or circumstance shall be invalid or
unenforceable, the remainder of this Agreement shall not be affected, and each
remaining provision, or portion thereof, shall be valid and enforceable to the
fullest extent.
10.8 Effect of Headings. The headings and sub-headings contained
herein are for information purposes only and shall have no effect upon the
intended purpose or interpretation of the provisions of this Agreement.
10.9 Integration. This Agreement and Schedules hereto and thereto,
along with the Reorganization Agreement and Ancillary Agreements (as defined in
the Reorganization Agreement), constitute the entire agreement and understanding
between the parties with respect to the subject matter of this Agreement and
integrate all prior discussions and proposals (whether oral or written) between
them related to the subject matter hereof. To the extent that there is any
conflict between this Agreement and the Reorganization Agreement, the provisions
of this Agreement shall prevail. To the extent there is any conflict between
this Agreement and an Ancillary Agreement, the provisions of the Ancillary
Agreements shall prevail.
10.10 No Partnership or Agency Created. The relationship of the
▇▇▇▇▇▇ Group and the SAMCO Companies shall be that of independent contractors
only. Nothing in this Agreement shall be construed as (i) making one party an
agent or legal representative of the other or otherwise (except to the extent
part of the Services) as having the power or authority to bind the other in any
manner (except to the extent part of the Services), or (ii) creating any
partnership, joint venture or other joint commercial enterprise between the
▇▇▇▇▇▇ Group and the SAMCO Companies.
10.11 Notices. Any notice to be made in connection with this
Agreement, shall be provided to the address and in the manner, and shall be
effective as, provided for in Section 10.01 of the Reorganization Agreement.
10.12 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have had this Transition Services
Agreement executed by their respective authorized officers on the date written
below.
▇▇▇▇▇▇ WORLDWIDE, INC. SAMCO HOLDINGS, INC.
By: By:
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Its: Its:
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Date: Date:
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[Signature Page to Transition Services Agreement]