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TRANSITION SERVICES
AGREEMENT
by and between
PROQUEST COMPANY
and
SNAP-ON INCORPORATED
Dated as of November 28, 2006
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES
AGREEMENT, dated as of November 28, 2006 (this "
Agreement "), is by and between ProQuest Company, a Delaware
corporation (" Seller "), and Snap-on Incorporated, a
Delaware corporation (" Buyer "). Seller and Buyer may be
referred to in this Agreement individually as a " Party " or
collectively as " Parties ." Capitalized terms used herein
shall have the meanings set forth in Article I unless
otherwise defined herein.
WHEREAS, Seller and Buyer entered
into a Stock and Asset Purchase Agreement, dated as of
October 20, 2006, as amended November 1, 2006 (the "
Purchase Agreement "), pursuant to which Buyer agreed to
acquire the Acquired Business from Seller;
WHEREAS, Seller’s operations
other than the Acquired Business currently provide certain services
to the Acquired Business, and the Acquired Business currently
provides certain services to Seller and its Subsidiaries;
WHEREAS, (i) Buyer wishes
that Seller or one of its Subsidiaries continue to provide certain
of such services to Buyer after the Closing so that Buyer may
operate the Acquired Business in all material respects in the
manner in which the Acquired Business was run by Seller prior to
Closing, and Seller wishes to provide such services or cause such
services to be provided for a limited duration, all as more fully
set forth herein and (ii) Seller wishes that Buyer or one of
its Subsidiaries to provide certain of such services to Seller
after the Closing and Buyer wishes to provide such services or
cause such services to be provided for a limited duration, all as
more fully set forth herein; and
NOW THEREFORE, in consideration of
the premises and the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions . As used
in this Agreement, the following terms have the meanings set forth
or referenced below:
" Affiliates " shall mean,
with respect to any Person, any other Person that controls, is
controlled by, or is under common control with such Person. The
term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, by ownership of securities, contract, credit
arrangement or otherwise.
" Agreement " means this
Transition Services Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms
hereof.
" Buyer " has the meaning
set forth in the introductory paragraph of this Agreement.
" Buyer Services " has the
meaning set forth in Section 2.2.
" Business Day " means any
day, excluding Saturday, Sunday and any other day on which
commercial banks in New York, New York are authorized or required
by Law to close.
" Force Majeure " has the
meaning set forth in Section 7.12.
" Governmental Authority "
shall mean any foreign, federal, state, provincial or local
governmental or regulatory commission, board, bureau, agency, court
or regulatory or administrative body.
" Law " shall mean any
foreign, federal, state or local law, statute, ordinance,
regulation, rule, constitution, code, order or treaty of any
Governmental Authority.
" Person " means an
individual, a corporation, a limited liability company, a
partnership, an association, a trust or other entity.
" Providing Party " means
(a) Seller, with respect to its provision of the Seller
Services hereunder, and (b) Buyer, with respect to its
provision of the Buyer Services hereunder.
" Purchase Agreement " has
the meaning set forth in the first "Whereas" clause.
" Recipient Party " means
(a) Buyer, with respect to Seller’s provision of the
Seller Services hereunder, and (b) Seller, with respect to
Buyer’s provision of the Buyer Services hereunder.
" Seller " has the meaning
set forth in the introductory paragraph of this Agreement.
" Seller Services" has the
meaning set forth in Section 2.1.
" Service " or "
Services " means either the Buyer Services or the Seller
Services.
" Service Provider " means
(a) Seller or a Subsidiary which is providing to or obtaining
for Buyer, or any Subsidiary, the particular Seller Service
pursuant to Section 2.1, (b) Buyer or a Subsidiary which
is providing to or obtaining for Seller, or any Subsidiary the
particular Buyer Service pursuant to Section 2.2, or
(c) any third party that is providing any Service to either
Party, which third party is to provide pursuant to Section 2.1
or Section 2.2.
" Term " has the meaning
set forth in Section 3.1.
" Termination Date " has
the meaning set forth in Section 3.1.
1.2 Interpretation and Rules of
Construction . In this Agreement, except to the extent
otherwise provided or that the context otherwise requires:
(a) when
a reference is made in this Agreement to an Article, Section or
Attachment, such reference is to an Article or Section of, or an
Attachment to, this Agreement unless otherwise indicated;
(b) the
headings for this Agreement are for reference purposes only and do
not affect in any way the meaning or interpretation of this
Agreement;
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(c) whenever
the words "include," "includes" or "including" are used in this
Agreement, they are deemed to be followed by the words "without
limitation";
(d) the
words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Agreement, refer to this Agreement as a
whole and not to any particular provision of this Agreement;
(e) all
terms defined in this Agreement have the defined meanings when used
in any certificate or other document made or delivered pursuant
hereto, unless otherwise defined therein;
(f) the
definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms;
(g) references
to a Person are also to its successors and permitted assigns;
(h) the
use of "or" is not intended to be exclusive unless expressly
indicated otherwise; and
(i) all
capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed to such terms in the Purchase
Agreement, which meanings are incorporated herein by reference.
ARTICLE II
SERVICES
2.1 Seller Services . On
the terms and conditions of this Agreement, Seller hereby agrees to
provide or cause one or more of its Subsidiaries or Affiliates or a
Service Provider that is providing a Service to Seller or any such
Subsidiary or Affiliate to provide the services listed on
Attachment A (the " Seller Services ") to Buyer for
the Term of this Agreement with respect to each Seller Service.
2.2 Buyer Services . On the
terms and conditions of this Agreement, Buyer hereby agrees to
provide or cause one or more of its Subsidiaries or Affiliates or a
Service Provider that is providing a Service to the Acquired
Business to provide the services listed on Attachment B (the
" Buyer Services ") to Seller and its Subsidiaries or
Affiliates for the Term of this Agreement with respect to each
Buyer Service.
2.3 Consent of Service
Providers . Each Party’s obligation to deliver any
Service is conditioned upon such Party’s obtaining the
consent, where necessary, of any relevant third party Service
Provider. If that consent cannot reasonably be obtained, the
Parties will use reasonable efforts to arrange for alternative
methods of delivering any such Service.
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ARTICLE III
TERM
3.1 Term . Subject to the
terms herein, this Agreement shall commence on the Closing Date and
shall terminate with respect to each Service on that date which is
one (1) year after the Closing Date, except (a) if
Attachment A or Attachment B expressly identifies a
different expiration date for a particular Service, such particular
Service shall terminate on the identified different expiration
date, and (b) as terminated pursuant to Article VI (the "
Termination Date "); provided , however , that
this Agreement shall continue until the last Termination Date of a
Service. The Parties may extend a Termination Date for a particular
Service upon mutual written agreement. With respect to each
Service, the period from the Effective Date to the Termination Date
collectively with any extension, the " Term ").
3.2 Effect of Termination .
Neither the termination of this Agreement with respect to a Service
pursuant to Article VI nor the expiration of this Agreement
with respect to a Service pursuant to Section 3.1 shall affect
(i) the liability of a Party for breach of this Agreement,
(ii) the obligations of a Party to make payments when due
hereunder or (iii) the provisions contained in Articles IV, V,
VI and VII and the related definitions, each of which shall survive
the termination or expiration of this Agreement.
ARTICLE IV
PRICING AND PAYMENT
4.1 Pricing . Subject to
Sections 4.2 and 4.3, each Service rendered pursuant to this
Agreement shall be charged to and payable by the Recipient Party
monthly at the price set forth in the completed Attachment A
or Attachment B , as the case may be, related to such
Service.
4.2 Changes . During the
Term with respect to each Service, in the event that a Recipient
Party asks the Providing Party to (a) make any change to a
Service provided by the Providing Party which w
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