REVERSE TRANSITION SERVICES
AGREEMENT
This Reverse
Transition Services Agreement (this “Agreement”), dated
as of ___, 2006 (the “Signing Date”), is entered
between ALLTEL Corporation., a Delaware corporation (“AT
Co.”), and Alltel Holding Corp, a Delaware corporation and
wholly-owned subsidiary of AT Co.
(“Spinco”).
WHEREAS, AT Co.
and Spinco are parties to that certain Distribution Agreement dated
as of ___, 2005 (the “Distribution Agreement”;
capitalized terms used herein but not defined herein shall have the
meanings set forth in the Distribution Agreement), pursuant to
which, among other things, AT Co. will distribute to its
stockholders all of the outstanding shares of common stock of
Spinco (the “Distribution”); and
WHEREAS, in
connection with the Distribution, the parties desire that Spinco
and its Affiliates provide certain services to AT Co. and its
Affiliates on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the foregoing and the mutual representations,
warranties, covenants and agreements contained in this Agreement,
the parties agree as follows:
ARTICLE 1
TRANSITION SERVICES
1.1 Transition
Services . This Agreement sets forth the terms and conditions
for the provision by Spinco to AT Co. of various transition
services described herein and in the service attachment (the
“Service Attachment”) attached hereto as
Exhibit A (collectively, the “Transition
Services”), pursuant to the terms hereof.
1.2 Provision
of Transition Services . Commencing on the date hereof and
continuing through the Term (as defined in Article 2 of this
Agreement), Spinco will provide the Transition Services to AT Co.,
unless (a) otherwise indicated on the Service Attachment,
(b) automatically modified by termination of a Transition
Service by AT Co. in accordance with the terms and conditions
hereof, (c) otherwise mutually agreed to by the parties in
writing, or (d) this Agreement is terminated in accordance
with the terms and conditions hereof.
1.3 Purchase of
Additional or Modified Transition Services . From time to time,
AT Co. may request that Spinco provide additional or modified
services that relate to the transition of ownership and operation
of the AT Co. Business but are not described in the Service
Attachment. Spinco will use, and will cause each of its Affiliates
to use, its reasonable best efforts to accommodate any reasonable
requests by AT Co. to provide additional or modified services
relating to the transition of ownership and operations of the AT
Co. Business. In order to initiate a request for such additional or
modified services, AT Co. shall submit a written
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request to
Spinco specifying the nature of the requested additional or
modified services and requesting an estimate of the Transition
Services Costs (as defined in Section 3.1) applicable to such
additional or modified services. Spinco shall respond to such
request within 10 Business Days following Spinco’s receipt of
such request; provided that, subject to the second sentence of
Section 1.3, such 10 Business Day period shall be subject to a
reasonable extension if, due to the volume, frequency or type of
requests submitted by AT Co., Spinco’s preparation of
responses to such requests is materially interfering with, or is
likely to materially interfere with, Spinco’s normal business
activities. If Spinco can, subject to the second sentence of this
Section 1.3, accommodate AT Co.’s request to provide
such additional or modified services, and if AT Co. accepts the
terms and conditions set forth in Spinco’s response to such
request, then such additional or modified services shall be
provided hereunder subject to the terms and conditions of
Spinco’s response and such other terms and conditions as may
be agreed to by the parties in a written amendment to this
Agreement. If Spinco agrees to any modification to the physical
facilities that is requested by AT Co. in accordance with the terms
and conditions of this Section, such modification shall be done
solely at AT Co.’s cost and expense and shall be coordinated
by the parties to minimize interference with Spinco’s normal
business activities. No representative of AT Co. shall have
authority to make decisions with respect to Spinco and its
responsibilities under this Agreement; and no representative of
Spinco shall have authority to make decisions with respect to AT
Co. and its responsibilities under this Agreement.
1.4 Appointment
of Transition Teams . Each party shall designate one or more
persons who have practical knowledge and experience in each area of
Spinco’s operations that relate to the Transition Services
and are authorized to make decisions with respect to the Transition
Services (each a “Transition Team”); provided that any
such decisions that individually or in the aggregate, would
materially and adversely affect the economic benefits as a whole to
be derived by the Company in the Merger shall require the
affirmative consent of a person designated by the Company (the
“Company Designee”). Without limiting the generality of
the foregoing, and subject to the foregoing proviso each Transition
Team will include persons from such party and its Affiliates whose
experience includes the following areas: (a) information
technology systems, (b) billing, (c) human resources,
(d) customer service, (e) accounting and finance,
(f) engineering and network, (g) sales and marketing,
(h) operations, (i) real estate, (j) branding, and
(k) capital asset management. Each party shall designate a
member of its Transition Team as the leader of its Transition Team
(each a “Team Leader”). Each Team Leader shall
coordinate the assignment of persons to its Transition Team and
shall assess and monitor the performance of the Transition
Services. Prior to the initial joint meeting described in
Section 1.5 of this Agreement, each party shall submit to the
other party a written list identifying its initial Team Leader and
the initial members of its Transition Team including each
person’s title, areas of expertise and relevant telephone,
fax and email information, and the Company shall provide such
information to each party with respect to the Company Designee. If
a Transition Team member or Team Leader shall be unavailable to
work on the Transition Services for more than five
(5) Business Days, then he or she shall appoint a temporary or
permanent replacement. The Transition Teams shall provide updates
from time to time as reasonable requested by the Company
Designee.
1.5 Transition
Team Meetings . Within 30 Business Days after the Signing Date,
the appropriate representatives of the Transition Teams shall
conduct an initial joint meeting for the
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purpose of
defining roles, responsibilities, scope and timelines related to
the Transition Services. Thereafter, the Transition Teams shall
convene meetings on a mutually agreed upon periodic basis as
required. It is the expectation of the parties that the Transition
Team members shall communicate directly with one another and work
directly with one another to ensure that all Transition Services
are completed on a timely and complete basis; provided that, except
for Spinco’s Team Leader, the members of Spinco’s
Transition Team shall not have the legal authority to make or to
modify any obligation or to waive any right on behalf of Spinco The
Team Leaders shall meet, at least weekly, or on such other mutually
agreed upon periodic basis as required, to discuss the status of
the Transition Services, as well as to answer questions, gather
information and resolve disputes that may occur from time-to-time.
All meetings pursuant to this Section 1.5 may be face-to-face,
video or telephonic meetings as may be agreed upon by the parties.
Each party and the Company Designee shall bear its own costs of
attending or participating in Transition Team meetings.
1.6 Oversee
Completion of Transition Services . The Transition Teams will
be accountable for overseeing the completion of the Transition
Services in accordance with the terms and conditions hereof. Unless
otherwise provided in the Service Attachment, the parties will use
their reasonable best efforts to respond to requests for
information within 5 Business Days after receipt of each such
request.
1.7
Availability of Subject Matter Experts . From time to time,
AT Co. may request that Spinco make available to AT Co. a resource
of Spinco that has expertise in the subject matter (which must be
directly related to the systems and procedures utilized by Spinco
and its Affiliates in connection with the AT Co. Business)
specified by AT Co. in such request. Within 5 Business Days after
receipt by Spinco of a reasonable request by AT Co. that a
specified subject matter expert be made available, Spinco shall
make, and shall cause its Affiliates to make, such subject matter
experts (including, without limitation, technical and operational
personnel) available to AT Co.’s Transition Team or other
subject matter experts during Spinco’s normal business hours.
For purposes of determining the reasonableness of any such request
by AT Co., Spinco shall consider the specified subject matter
expert’s other duties and then-current schedule as well as
the availability of other individuals with the same skills as the
specified subject matter expert.
1.8 Equipment
and Software . Spinco shall keep the equipment and software
used to provide the Transition Services in working order with
sufficient capacity to perform the Transition Services concurrent
with the equipment’s and software’s other use for
Spinco, if any; provided, however, if Spinco is required to
increase the capacity of its equipment or software (for example,
because previously shared hardware capacity must be duplicated) to
perform the Transition Services, then Spinco shall obtain AT
Co.’s prior written approval of any additional cost or
expense that Spinco expects to incur in connection with such
increase in capacity, and AT Co. shall pay any such additional cost
or expense incurred by Spinco to provide such increased capacity to
the extent so approved by AT Co.
1.9 General
Cooperation . Subject to the terms and conditions set forth in
this Agreement, Spinco and AT Co. shall each use reasonable best
efforts to provide information and documentation sufficient for
each party to perform the Transition Services as they
were
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performed
before the date of this Agreement, and make available, as
reasonably requested by the other party, sufficient resources and
timely decisions, approvals and acceptances in order that each
party may accomplish its obligations under this Agreement in a
timely and efficient manner.
1.10
Modifications . Unless otherwise provided for in this
Agreement, if AT Co. makes any change in the processes, procedures,
practices, networks, equipment, configurations, or systems
pertaining to the AT Co. Business, and such change has an adverse
impact on Spinco’s ability to provide any of the Transition
Services, then Spinco shall be excused from performance of any such
affected Transition Services until AT Co. mitigates the adverse
impact of such change, and AT Co. shall be responsible for all
direct expenses incurred by Spinco in connection with the cessation
and, if applicable, the resumption of the affected Transition
Services.
Unless terminated
earlier in accordance with Article 8 of this Agreement, the
term of this Agreement shall expire on the one-year anniversary of
the Signing Date (the “Term”), except AT Co. shall have
the right to extend the Term for an additional 30 days by
providing written notice to Spinco at least 60 days prior to
the expiration of the Term indicating AT Co.’s election to
extend the Term.
ARTICLE 3
COMPENSATION AND PAYMENT ARRANGEMENTS FOR TRANSITION
SERVICES
3.1
Compensation for Transition Services . Subject to the terms
and conditions of this Agreement, the total compensation payable by
AT Co. to Spinco for each and every Transition Service provided
pursuant to the Service Attachment shall be set forth in the
Services Attachment (the “Transition Services
Costs”).
3.2 Payment
Terms . Within 30 days after the end of each calendar
month during the Term, or extension thereof, Spinco shall bill AT
Co. in arrears for the Transition Services Costs that apply to the
Transition Services performed by Spinco Each of Spinco’s
invoices shall describe in reasonable detail the Transition
Services upon which the applicable Transition Services Costs are
based. Within 30 days after AT Co.’s receipt of each of
Spinco’s invoices, AT Co. shall pay Spinco the amount of such
invoice. If such payment is not received by Spinco within such
30-day period, AT Co. shall also pay Spinco interest from and after
the last date of the calendar month in respect of such invoice, but
excluding the date of payment by AT Co., at a rate per annum equal
to the Prime Rate on the last day of the calendar month in respect
of such invoice. If AT Co. disputes in good faith any portion of
the amount due on any invoice, AT Co. shall notify Spinco in
writing of the nature and basis of the dispute within 10 Business
Days after AT Co.’s receipt of such invoice. Otherwise the
invoiced amount shall be deemed to be accurate and correct and
shall not be subject to dispute or contest by AT Co. or any
Affiliate thereof. The parties shall use their reasonable best
efforts to resolve the dispute prior to the payment due
date.
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Spinco shall
reimburse AT Co. within 30 days following, as applicable
(a) agreement by the parties of any excess payment made by AT
Co. in respect of Transition Services, or (b) resolution of
any disputed amounts paid in excess of the amount of Transition
Services Costs, in either case, with interest from and after the
date payment was made by AT Co. through, but excluding, the date of
reimbursement by Spinco, at the rate per annum equal to the Prime
Rate on the date payment was made by AT Co.
ARTICLE 4
RELATIONSHIP TO OTHER DOCUMENTS
4.1 Controlling
Provisions . If there is any conflict or inconsistency between
the terms and conditions set forth in the main body of this
Agreement and any of the Exhibits to this Agreement, the provisions
of the Exhibits shall control with respect to the rights and
obligations of the parties regarding the Transition Services. If
there is any conflict or inconsistency between the terms and
conditions of this Agreement and the Distribution Agreement, the
provisions of this Agreement shall control solely with respect to
the rights and obligations of the parties regarding the Transition
Services.
ARTICLE 5
DISPUTE RESOLUTION
5.1 Dispute
Resolution Procedures . If a dispute arises between the parties
with respect to the terms and conditions of this Agreement, or any
subject matter governed by this Agreement (excluding disputes
regarding a party’s compliance with the applicable
confidentiality provisions or in the case of suit to compel
compliance with this dispute resolution process or with the
provisions of this Article) (a “Dispute”) the parties
agree to use and follow this dispute resolution procedure before
initiating any judicial action. At such time as the Dispute is
resolved under this Article, interest (at the Prime Rate) shall be
paid to the party receiving any disputed monies to compensate for
the lapsed time between the date such disputed amount originally
was paid or should have been paid through the date monies are paid
in settlement of the Dispute.
5.2 Claims
Procedures . The Transition Teams shall escalate any Dispute to
the Team Leaders for resolution (and, to the extent applicable in
accordance with Section 1.4 hereof, the Company Designee).
Upon receipt of any such escalated matter, the Team Leaders (and,
to the extent applicable in accordance with Section 1.4
hereof, the Company Designee) shall discuss and attempt to resolve
the matter within 15 Business Days immediately following the
escalation. If by the end of the fifteenth Business Day, the matter
has not been resolved to the satisfaction of both Team Leaders
(and, to the extent applicable in accordance with Section 1.4
hereof, the Company Designee), then the party that initiated the
claim shall provide written notification to the other party in
accordance with Section 10.3 of this Agreement, in the form of
a claim identifying the issue or amount disputed and including a
detailed reason for the claim. The party against whom the claim is
made shall respond in writing to the claim within 15 Business Days
from the date of receipt of the claim document. The party filing
the claim shall have an additional 15 Business Days after the
receipt
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