Exhibit 10.20
TRANSITION SERVICES
AGREEMENT
THIS TRANSITION SERVICES AGREEMENT
(this “Agreement”), dated as of August 16, 2005,
between Fortune Brands, Inc., a Delaware corporation
(“Fortune”) and ACCO World Corporation, a Delaware
corporation (“ACCO”).
W I
T N E S S E T
H :
WHEREAS, the Board of Directors of
Fortune has determined that it is appropriate and desirable to
distribute all outstanding shares of common stock of ACCO Brands
Corporation (“ACCO Brands”) on a pro rata basis to the
holders of Fortune’s common stock pursuant to a Distribution
Agreement, dated as of March 15, 2005 (the “Distribution
Agreement”), by and between Fortune and ACCO; and
WHEREAS, the parties hereto deem it
to be appropriate and in the best interests of Fortune and ACCO
that Fortune and ACCO, respectively, provide or shall procure the
provision of certain services to Fortune and ACCO, respectively, on
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements, provisions and covenants
contained in this Agreement, the parties hereto hereby agree as
follows:
1. Description of Fortune
Services . Subject to and conditional upon the Distribution (as
defined in the Distribution Agreement) becoming effective, Fortune
shall, subject to the terms and provisions of this Agreement,
provide to ACCO or a Subsidiary or Affiliate (as such terms are
defined in the Distribution Agreement) of ACCO, or procure the
provision to ACCO those services described on Exhibit A
hereto (the “Fortune Services”). ACCO may, at its
option, upon not less than thirty (30) days prior written
notice (or such other period provided in Exhibit A for
a particular service or as the parties may otherwise mutually agree
in writing), direct Fortune to no longer provide or procure the
provision of all or any category of such services.
2. Consideration for Fortune
Services . ACCO shall pay Fortune in accordance with
Sections 7 and 8 of this Agreement and Fortune shall accept as
consideration for the services to be rendered to ACCO hereunder the
charges set forth on Exhibit A .
3. Provision of Fortune
Services .
(a) Fortune shall be responsible for
ensuring that it complies with all applicable statutes, regulations
and laws relevant to the provision of the Fortune Services.
(b) For the avoidance of doubt, it is
acknowledged that, subject to its obligations to Fortune under the
provisions of this Agreement, ACCO shall be free at any time (and
without obligation to notify or inform Fortune) to arrange for any
service identical to or similar to the Fortune Services to be
provided to it by any person whatsoever.
(c) Fortune shall exercise reasonable
care to ensure that the manner in which it performs or provide the
Fortune Services does not have any adverse effect on the name,
trading image, goodwill or business of ACCO.
(d) ACCO shall provide Fortune with
such advice, assistance and information in connection with the
performance of the Fortune Services as Fortune may from time to
time reasonably require. Fortune and ACCO shall also liaise as
appropriate to ensure that the Fortune Services are carried out in
accordance with the provisions of Exhibit A hereto and
where reasonably practicable Fortune shall comply with any
instructions that ACCO shall reasonably issue from time to time
concerning the methods of operation by which the Fortune Services
shall be provided to ACCO.
(e) ACCO and Fortune shall each use
reasonable best efforts to keep each other informed of any special
requirements applicable to the carrying out of the Fortune
Services. To the extent reasonably necessary and appropriate
Fortune shall promptly take steps where reasonably practicable to
comply with such special requirements. In the event that these
steps shall result in any increase or reduction in the actual cost
to Fortune of providing the relevant Fortune Services then the fees
payable pursuant to Section 2 above shall be increased or
reduced accordingly.
4. Description of ACCO
Services . Subject to and conditional upon the Distribution (as
defined in the Distribution Agreement) becoming effective, ACCO
shall, subject to the terms and provisions of this Agreement,
provide to Fortune or a Subsidiary or Affiliate (as such terms are
defined in the Distribution Agreement) of Fortune, or procure the
provision to Fortune those services described on
Exhibit B hereto (the “ACCO Services”).
Fortune may, at its option, upon not less than thirty
(30) days prior written notice (or such other period provided
in Exhibit B for a particular service or as the parties
may otherwise mutually agree in writing), direct ACCO to no longer
provide or procure the provision of all or any category of such
services.
5. Consideration for ACCO
Services . Fortune shall pay ACCO in accordance with
Sections 7 and 8 of this Agreement and ACCO shall accept as
consideration for the services to be rendered to Fortune hereunder
the charges set forth on Exhibit B .
6. Provision of ACCO
Services .
(a) ACCO shall be responsible for
ensuring that it complies with all applicable statutes, regulations
and laws relevant to the provision of the ACCO Services.
(b) For the avoidance of doubt, it is
acknowledged that, subject to its obligations to ACCO under the
provisions of this Agreement, Fortune shall be free at any time
(and without obligation to notify or inform ACCO) to arrange for
any service identical to or similar to the ACCO Services to be
provided to it by any person whatsoever.
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(c) ACCO shall exercise reasonable
care to ensure that the manner in which it performs or provide the
ACCO Services does not have any adverse effect on the name, trading
image, goodwill or business of Fortune or any member of Fortune
Group (as defined in the Distribution Agreement).
(d) Fortune shall provide ACCO with
such advice, assistance and information in connection with the
performance of the ACCO Services as ACCO may from time to time
reasonably require. ACCO and Fortune shall also liaise as
appropriate to ensure that the ACCO Services are carried out in
accordance with the provisions of Exhibit B hereto and
where reasonably practicable ACCO shall comply with any
instructions that Fortune shall reasonably issue from time to time
concerning the methods of operation by which the ACCO Services
shall be provided to Fortune.
(e) Fortune and ACCO shall each use
reasonable best efforts to keep each other informed of any special
requirements applicable to the carrying out of the ACCO Services.
To the extent reasonably necessary and appropriate ACCO shall
promptly take steps where reasonably practicable to comply with
such special requirements. In the event that these steps shall
result in any increase or reduction in the actual cost to ACCO of
providing the relevant ACCO Services then the fees payable pursuant
to Section 5 above shall be increased or reduced
accordingly.
7. Terms of Payment .
Each party shall submit in writing an invoice covering its charges
to the other party for services rendered hereunder. Such invoice
shall be submitted on a monthly basis and shall contain a summary
description of the charges and services rendered. Payment shall be
made not later than thirty (30) days after the invoice date.
Except as otherwise provided in this Agreement, the amount of any
monthly service fee shall be pro-rated in the event that the
corresponding services were provided for only a portion of a given
month.
8. Method of Payment .
All amounts payable by ACCO for the services described on
Exhibit A shall be remitted to Fortune in United States
dollars to a bank to be designated in the invoice or otherwise in
writing by Fortune, unless otherwise provided for and agreed upon
in writing by the parties. All amounts payable by Fortune for the
services described on Exhibit B shall be remitted to ACCO in
United States dollars to a bank to be designated in the invoice or
otherwise in writing by ACCO, unless otherwise provided for and
agreed upon in writing by the parties. Detailed billing information
will be provided upon request.
9. Taxes . All amounts
expressed in this Agreement as being payable by Fortune or ACCO are
expressed exclusive of any value added tax or other similar Tax (as
defined in the Distribution Agreement) which may be properly
chargeable thereon.
10. WARRANTIES . THIS IS
A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
THERE ARE NO EXPRESS WARRANTIES OR GUARANTIES AND THERE ARE NO
IMPLIED WARRANTIES OR GUARANTIES, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A
PARTICULAR PURPOSE.
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11. Limitation on
Liability .
(a) In no event shall either party
have any liability, whether based on contract, tort (including,
without limitation, negligence), warranty or any other legal or
equitable grounds, for any punitive, consequential, special,
indirect or incidental loss or damage suffered by the other party
or any of their respective Subsidiaries or Affiliates (as such
terms are defined in the Distribution Agreement) arising from or
related to this Agreement, including without limitation, loss of
data, profits (excluding profits under this Agreement), interest or
revenue, or use or interruption of business, even if such party is
advised of the possibility of such losses or damages.
(b) The limitations set forth in
Section 11(a) above shall not apply to liabilities which may arise
as the result of fraud, willful misconduct, bad faith, gross
negligence or willful default of Fortune, ACCO or anyone performing
services on their behalf pursuant to this Agreement, or the
reckless disregard or breach by Fortune or ACCO of its obligations
and duties contained in or arising as a result of or in connection
with this Agreement.
12. Termination . This
Agreement shall terminate on completion of all Fortune Services and
ACCO Services, but may be terminated earlier in accordance with the
following:
(a) upon the mutual written agreement
of the parties;
(b) by either ACCO or Fortune for
material breach of any of the terms hereof by Fortune or ACCO, as
the case may be, if the breach is capable of being remedied and is
not corrected within thirty (30) calendar days after written
notice of the breach has been delivered to the defaulting party;
provided that if the breach is not capable of being remedied, the
Agreement may be terminated immediately; provided, further, that
such termination shall only apply to those services in respect of
which the defaulting party is in material breach and shall be
without prejudice to the provision or receipt of all other Fortune
Services and ACCO Services pursuant to this Agreement which shall
remain in full force and effect notwithstanding such
termination;
(c) by either ACCO or Fortune
forthwith, upon written notice to Fortune or ACCO, as the case may
be, if Fortune or ACCO, as the case may be, shall become insolvent
or shall make an assignment for the benefit of creditors, or shall
be placed in receivership, reorganization, liquidation whether
compulsory or voluntary (except for the purposes of a bona fide
reconstruction or amalgamation with the consent of the other party,
such consent not to be unreasonably withheld or delayed) or
bankruptcy;
(d) by Fortune forthwith, upon
written notice to ACCO, if, for any reason, the ownership or
control of ACCO, General Binding Corporation or any of their
respective business operations which receive or provide services
under this Agreement, becomes vested in, or is made subject to the
control or direction of, any direct competitor of Fortune’s
consumer products businesses, or any governmental or regulatory
authority; provided, however, that termination in the event of a
change of ownership or control of a
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business
operation of ACCO or General Binding Corporation shall only apply
to the services received by or provided to such business operation
and shall be without prejudice to the provision or receipt of all
other Fortune Services and ACCO Services pursuant to this Agreement
which shall remain in full force and effect notwithstanding
termination of the provision of Fortune Services or ACCO Services
to such business operation; or
(e) by ACCO forthwith, upon written
notice to Fortune, if for any reason, the ownership or control of
Fortune or any of its business operations which receive or provide
services under this Agreement, becomes vested in, or is made
subject to the control or direction of, any direct competitor of
ACCO, or any governmental or regulatory authority; provided, howeve
r , that termination in the event of a change of ownership
or control of a business operation of
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