TRANSITION SERVICES AGREEMENT
dated as of September 22, 2008
LEHMAN BROTHERS HOLDINGS INC.
BARCLAYS CAPITAL INC.
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement, dated September 22, 2008 (this “ Agreement ”), is made by and between Barclays Capital Inc., a Connecticut corporation (“ BarCap ”), and Lehman Brothers Holdings Inc., a Delaware corporation (“ LBHI ”).
WHEREAS, LBHI, Lehman Brothers Inc., LB 745 LLC and BarCap have entered into that certain Asset Purchase Agreement, dated as of September 16, 2008 (as amended and supplemented, the “ Purchase Agreement ”);
WHEREAS, it is contemplated by the Purchase Agreement that (a) BarCap shall provide, or cause to be provided, to LBHI (and/or its Affiliates on the date hereof including the IMD Entities, collectively hereinafter referred to as the “ LBHI Entities ”) certain services, use of facilities and other assistance on a transitional basis and in accordance with the terms and subject to the conditions set forth herein and (b) LBHI shall provide, or cause to be provided, to BarCap (and/or its Affiliates on the date hereof, collectively hereinafter referred to as the “ BarCap Entities ”) certain services, use of facilities and other assistance on a transitional basis and in accordance with the terms and subject to the conditions set forth herein; and
WHEREAS, the Purchase Agreement contemplates execution and delivery of this Agreement by BarCap and LBHI.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1.01 Certain Defined Terms . Unless otherwise defined herein, any capitalized term used herein shall have the same meaning as in the Purchase Agreement.
The following capitalized terms used in this Agreement shall have the meanings set forth below:
“ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, control by a general partner, by contract or otherwise; provided that such other Person shall no longer be deemed an Affiliate once such control ceases.
“ Benchmark Period ” means the twelve-month period prior to the Closing Date.
“ Force Majeure ” means, with respect to a Person, an event beyond the control of such Person (or any Person acting on its behalf), including acts of God, storms, floods, riots, fires, sabotage, labor stoppage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources or of Internet or telecommunications services.
“ IMD Entities ” means (i) the entities that, on the date hereof, conduct the investment management business of LBHI and its Affiliates and (ii) in each case solely to the extent permitted under Section 9.10, their successors and assigns with respect to such business.
“ Information Systems ” means computing, telecommunications or other digital operating or processing systems or environments, including computer programs, data, databases, computers, computer libraries, communications equipment, networks and systems. When referenced in connection with the Services, Information Systems shall mean the Information Systems accessed and/or used in connection with the Services.
“ Prime Rate ” means the prime rate published in the Eastern Edition of The Wall Street Journal or a comparable newspaper if The Wall Street Journal shall cease to publish the prime rate.
“ Provider ” means the party hereto or its subsidiary or Affiliate providing a Service or an Additional Service under this Agreement.
“ Recipient ” means a party hereto or its subsidiary or Affiliate to whom a Service or any Additional Service is being provided under this Agreement.
“ Representative ” of a Person means any director, officer, employee, agent, consultant, accountant, auditor, attorney or other representative of such Person.
“ Termination Charges ” shall mean any portion of any fees or expenses payable to any unaffiliated, third-party provider as a result of any early termination or reduction of a Service that cannot reasonably be avoided by the Provider.
“ Virus ” shall mean any computer instructions (i) that adversely affect the operation, security or integrity of a computing, telecommunications or other digital operating or processing system or environment, including without limitation, other programs, data, databases, computer libraries and computer and communications equipment, by altering, destroying, disrupting or inhibiting such operation, security or integrity; (ii) that without functional purpose, self-replicate without manual intervention; and/or (iii) that purport to perform a useful function but which actually perform either a destructive or harmful function, or perform no useful function and utilize substantial computer, telecommunications or memory resources.
Section 2.01 Services; Scope .
(a) Subject to the terms and conditions set forth in this Agreement, (i) BarCap shall provide, or cause to be provided, to the LBHI Entities those services (the “ BarCap Services ”) that were being provided (x) by any Subsidiary of LBHI that is acquired by BarCap or one of its Affiliates pursuant to the Purchase Agreement or a vendor of such Subsidiary, or (y) by the LBHI Entities or a vendor thereof through the use of the Purchased Assets or the Transferred Employees, to the IMD Business and any other businesses of the LBHI Entities prior to the Closing that were not acquired by BarCap under the Purchase Agreement (each such business, a “ Retained LBHI Business ”), and (ii) LBHI shall provide, or cause to be provided, to the BarCap Entities those services that were being provided by an LBHI Entity or a vendor thereof prior to the Closing to the businesses acquired by BarCap under the Purchase Agreement (the “ LBHI Services ” and collectively with the BarCap Services, the “ Services ”). If, for any reason, BarCap is unable to provide any BarCap Service to the LBHI Entities pursuant to the terms of this Agreement, BarCap shall provide to the applicable LBHI Entity a substantially equivalent service (a “ BarCap Substitute Service ”) in accordance with the terms of this Agreement, which such service shall be considered a BarCap Service for purposes of this Agreement. The scope of each BarCap Service shall be substantially the same as the scope of such services provided by the applicable LBHI Entity to the applicable Retained LBHI Business in the ordinary course during the Benchmark Period (in each case, to the extent such BarCap Service was provided using Purchased Assets or by Transferred Employees), and the use of each BarCap Service by an LBHI Entity shall include use by such LBHI Entity’s contractors in substantially the same manner as used by such contractors in the ordinary course, during the Benchmark Period. If, for any reason, an LBHI Entity is unable to provide any LBHI Service to the BarCap Entities pursuant to the terms of this Agreement, LBHI shall provide to the applicable BarCap Entity a substantially equivalent service (an “ LBHI Substitute Service ”) in accordance with the terms of this Agreement, which such service shall be considered an LBHI Service for purposes of this Agreement. The scope of each LBHI Service shall be substantially the same as the scope of such service provided by the applicable Retained LBHI Business to the applicable LBHI Entity in the ordinary course during the Benchmark Period, and the use of each LBHI Service by a BarCap Entity shall include use by such BarCap Entity’s contractors in substantially the same manner as used by such contractors in the ordinary course, during the Benchmark Period. All Services shall be for the sole use and benefit of the respective Recipient, including any of such Recipient’s customers or clients of the type who received the use and benefit of the equivalent services in the ordinary course during the Benchmark Period; provided , however , that the Recipient agrees that it shall not re-market or act as a service provider with respect to any of the Services hereunder to a third party.
(b) Each Service shall include, and the Service Charges reflect charges for, such maintenance, support, error correction, updates and enhancements normally and customarily provided by the relevant Provider to its subsidiaries that receive such service. Each Service shall include all functions, responsibilities, activities and tasks, and the materials, documentation, resources, rights and licenses to be used, granted or provided by the relevant
Provider that are not specifically described in this Agreement as a part of such Service, but are incidental to, and would normally be considered an inherent part of, or necessary subpart included within, such Service or are otherwise necessary for such Provider to provide, or the Recipient to receive, such Service.
(c) Throughout the term of this Agreement, (i) each Provider and each Recipient of any Service shall cooperate with one another and use their good faith and commercially reasonable efforts to effect the efficient, timely and seamless provision and receipt of such Service and (ii) the Recipient shall use its good faith and commercially reasonable efforts to transition away and wind down its use of the Services.
(d) This Agreement shall not assign any rights to Technology or Intellectual Property between the parties hereto.
(e) Notwithstanding anything to the contrary herein, for the avoidance of doubt, Lehman Brothers Holdings plc, Lehman Brothers Limited, LB UK RE Holdings Limited and Lehman Brothers International (Europe) shall not be deemed LBHI Entities hereunder.
Section 2.02 Conversion Services .
(a) During the term of this Agreement, the parties shall provide, or cause to be provided, the following information and support to the other party, as applicable, which support shall be included within the Services described herein or in the Schedules hereto:
(i) current and reasonably available historical data owned by the Provider and related to the Services and predecessor services thereto as reasonably required by the relevant Recipient in connection with the conduct of the Business (in the case of BarCap) or the Retained LBHI Business (in the case of the LBHI Entities) or for litigation or regulatory purposes, in a manner and within a time period as mutually agreed by the parties; and
(ii) on commercially reasonable terms, which will be added to the Service Charges, the services of the employees and contractors of the relevant Provider whose assistance, expertise or presence is necessary to assist the Recipient’s transition team in establishing a fully functioning stand-alone environment (it being understood that the services of employees and contractors pursuant to this clause (ii) are not intended to be a substitute for the services of its own employees and third party consultants and advisors to be engaged by the relevant Recipient in connection with such transition or similar services, but instead to facilitate coordination with such individuals).
Section 2.03 Transition Services Managers .
(a) BarCap shall appoint an individual, by giving written notice thereof to LBHI within three Business Days following the date hereof, to act as its initial services manager (the “ BarCap Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the BarCap Services and have authority to act on BarCap’s behalf with respect to matters relating to this Agreement. The BarCap Services Manager will work with the personnel of BarCap to periodically address issues and matters raised by LBHI relating to this Agreement. Notwithstanding the requirements of Section 9.05 , all communications from LBHI
to BarCap pursuant to this Agreement regarding routine matters involving the BarCap Services shall be made through the BarCap Services Manager, or such other individual as specified by the BarCap Services Manager in writing and delivered to LBHI by email or facsimile transmission with receipt confirmed. BarCap shall reasonably promptly notify LBHI of the appointment of a different BarCap Services Manager, if necessary, in accordance with Section 9.05 .
(b) LBHI shall appoint an individual, by giving written notice thereof to BarCap within three Business Days following the date hereof, to act as its initial services manager (the “ LBHI Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the LBHI Services and have authority to act on LBHI’s behalf with respect to matters relating to this Agreement. The LBHI Services Manager will work with the personnel of LBHI to periodically address issues and matters raised by BarCap relating to this Agreement. Notwithstanding the requirements of Section 9.05 , all communications from BarCap to LBHI pursuant to this Agreement regarding routine matters involving the Services shall be made through the LBHI Services Manager, or such other individual as specified by the LBHI Services Manager in writing and delivered to BarCap by email or facsimile transmission with receipt confirmed. LBHI shall reasonably promptly notify BarCap of the appointment of a different LBHI Services Manager, if necessary, in accordance with Section 9.05 .
Section 2.04 Personnel; Authorized Signatories . The Provider will have the right, in its sole discretion, to (i) designate which personnel or third party service providers it will assign to perform Services, and (ii) remove and replace such personnel or third party service providers at any time.
Section 2.05 Performance and Receipt of Services . The following provisions shall apply to the Services:
(a) Security and Privacy . Each Provider and Recipient shall at all times comply with its own then in-force security guidelines and policies applicable to the performance, access and/or use of the Services and Information Systems. Where a Provider or Recipient receives access to the other party’s Information Systems, then it shall also comply with such other party’s security guidelines and policies. The parties acknowledge that historically the Services governed by this Agreement have been rendered within a single group of related entities and a shared security environment, and that in order for Services to be rendered among and between the BarCap Entities and the LBHI Entities as unrelated entities additional systems, procedures, guidelines and policies may need to be established to render the Services in compliance with Law, regulation, and applicable privacy and security policies. Each of the LBHI Entities and the BarCap Entities shall use its reasonable efforts to establish such additional systems, procedures, guidelines and policies in a manner that will not disrupt the rendering of Services or the LBHI Retained Businesses or the Business, respectively. Recipient shall bear all of its own costs and expenses in connection with such an effort; Provider’s costs and expenses in connection with such an effort will be included in the Service Charges to the extent directly related to providing the Services.
(b) No Viruses . Each of LBHI and BarCap shall take commercially reasonable measures to ensure that no Viruses or similar items are coded or introduced into the Services or Information Systems. If a Virus is found to have been introduced into the Services or
Information Systems, the parties hereto shall use their commercially reasonable efforts to cooperate and to diligently work together to eliminate the effects of such Virus.
(c) Reasonable Care . Each Provider and Recipient shall exercise reasonable care in providing and receiving the Services to (i) prevent access to the Services or Information Systems by unauthorized Persons and (ii) not damage, disrupt or interrupt the Services or Information Systems.
Section 2.06 Termination Services . Each Provider shall reasonably cooperate with the Recipient of each Service, upon request and on commercially reasonable terms (which will be added to the Service Charges), to facilitate such Recipient’s transition to provision of such services by a replacement provider or by its own employees.
Section 2.07 Superseding Provisions . Notwithstanding anything to the contrary contained in this Agreement:
(a) no Provider shall be required hereunder to take any action (including by providing any Services) that would constitute, or that the Provider reasonably believes would constitute, (i) a violation of applicable Law, including any requirement of any Governmental Body, (ii) a breach of such Provider’s contractual obligations or (iii) any other violation of a third party’s rights; provided that in each of the foregoing circumstances the Provider shall use reasonable efforts to work around the impediment and endeavor to provide Services in a manner that does not violate Law, contractual obligations or third party rights;
(b) no Provider shall be required hereunder to fund the Services or otherwise provide financial support, benefits or other consideration on the Recipient’s behalf to third parties, or to take custody of, settle, clear or handle securities, in connection with the Services, and the obligation to perform any Service involving funds shall be subject to the Recipient having previously made such funds available to the Provider specifically for such purpose;
(c) any obligation to provide Services or otherwise undertake activities hereunder shall be limited to the party’s use of good faith and commercially reasonable efforts; and
(d) the Provider shall not be responsible for any failure to provide Services hereunder to the extent arising from (i) the Recipient’s operations or systems or otherwise by the acts or omissions of the Recipient or individuals acting on its behalf or (ii) a third party’s failure to provide such Services or (iii) the failure of Recipient or its Affiliates to provide Services to Provider.
Section 3.01 Computer-Based Resources . Commencing on the Closing Date, and for ninety (90) days thereafter, each party (the “ Accessing Party ”) shall continue to have access to the Information Systems of the other party (the “ Providing Party ”), to the extent such access to such Information Systems was available to the Accessing Party immediately prior to
the Closing and remains necessary for the Accessing Party to operate its business; provided , that (a) the BarCap Entities may take reasonable measures to restrict access by the LBHI Entities to any systems or data unrelated to the Retained LBHI Business to which the LBHI Entities are not entitled to access, (b) the LBHI Entities may take reasonable measures to restrict access by the BarCap Entities, to any systems or data unrelated to the Business to which the BarCap Entities are not entitled to access, and (c) such continued access shall be subject to the Accessing Party complying with all reasonable security measures implemented by the Providing Party as deemed necessary by such Providing Party to protect its Information Systems. Commencing no later than ten Business Days after the Closing Date, representatives of BarCap and LBHI with authority in the area of Information Systems (the “ IT Committee ”) shall meet at such reasonable time, place and manner as they may agree, to develop a plan for migrating from the Information System infrastructure as deployed as of the Closing Date, to a final Information Systems infrastructure satisfactory to both BarCap and LBHI (the “ IT Migration Plan ”). The parties shall use reasonable efforts to enter into an IT Migration Plan no later than one month after the Closing Date and shall include, among other provisions, a time line for completing the migration of Information Services and a final migration deadline after which neither BarCap nor any LBHI Entity shall have access to all or any part of the Information Systems of the other party, except to the extent reasonably necessary for the receipt of the Services (subject to the accessing party complying with all reasonable security measures implemented by the providing party as deemed necessary by such providing party to protect its Information Systems), or as otherwise agreed in a separate agreement. When finalized in writing and executed by the authorized representatives of BarCap and the LBHI Entities, the IT Migration Plan shall be deemed to be incorporated into this Agreement as an amendment and addition hereto.
Section 3.02 Termination of Support . BarCap shall provide the IMD Entities with notice a reasonable period in advance of ceasing to support any material software contained within the Purchased Assets that directly supports the IMD Business. Following receipt of such notice, if the IMD Entities so elect in writing, BarCap shall use reasonable efforts provide the IMD Entities with a copy of such software in source code and object code form and any associated documentation for their use pursuant to Section 8.9 of the Purchase Agreement; provided , however , that following such receipt, the IMD Entities shall endeavor to support their own services through the use of such software and if the IMD Entities are successful in doing so, then BarCap shall no longer be obligated to provide the Service to the extent previously supported by such software.
Section 3.03 Point System . Until the earlier of the first anniversary of the Closing Date and the date on which BarCap and the relevant IMD Entity enter into an arms length agreement on mutually agreeable terms, the IMD Entities will have the option to become “enterprise level” clients at prevailing market rates of the Point System application/service.
Section 3.04 Access . BarCap or LBHI, as the case may be, will allow the relevant Provider and its Representatives reasonable access to the facilities and personnel of the relevant Recipient, and shall provide such other reasonable cooperation and assistance, at the Recipient’s cost, necessary for the performance of the Services for the Provider to fulfill its obligations under this Agreement.
Section 3.05 Schedules . The parties acknowledge and agree that the Services contemplated to be provided hereunder are not enumerated, defined or described in detail. For purposes of illustration, the Services may include (or include aspects of) operational, financial, corporate, human resources, information technology and other services. The parties shall cooperate in good faith to create Schedules to this Agreement, within thirty days following the Closing Date, that will contain a specific list of certain of the Services to be provided pursuant hereto, including, with respect to the IMD Business, potential additional specificity on the pricing model. For the avoidance of doubt, but subject to Section 3.07, none of the Services shall require the relevant Provider to provide the legal services of any attorney to the Recipient in connection with any such Service (unless otherwise agreed in writing by the parties hereto).
Section 3.06 Assignment of Shared Purchased Contracts . With respect to Purchased Contracts that relate both to (i) the business acquired by BarCap under the Purchase Agreement and (ii) Retained LBHI Businesses (“ Shared Purchased Contracts ”):
(a) where BarCap has the contractual right to assign the portion of its rights under such agreements that relate to any of the Retained LBHI Businesses (while retaining the portion of such rights that relate to the Business), with no additional payment to the counterparty thereof, it shall exercise such right. If BarCap has the contractual right to make such partial assignment but only upon payment to the counterparty thereof, it shall notify LBHI of the amount of the required payment and shall exercise such right upon receipt of payment by LBHI of the amount required to be paid to the counterparty; and
(b) where BarCap does not have the contractual right to assign the portion of its rights under such agreements, BarCap shall cooperate in good faith with LBHI in LBHI’s efforts to enter into a replacement agreement on comparable terms; provided that BarCap shall have no obligation to pay anything of value with respect to such cooperation; and
(c) the recipient of such partial assignment or counterparty to such replacement agreement shall be, as applicable, LBHI or the assignee of the relevant Retained LBHI Business.
Section 3.07 Further Access .
(a) For a period of two years after the Closing Date, the BarCap Entities shall provide, or use reasonable efforts to cause to be provided to, the LBHI Entities at no charge (other than BarCap’s out-of-pocket costs and expenses including contractor fees) with reasonable access to all individuals who were employees or contractors of the LBHI Entities prior to the Closing Date (and are employees or contractors of the BarCap Entities at the time of requested access), and who have material knowledge about the Retained LBHI Businesses or the Excluded Liabilities, and BarCap shall use reasonable efforts to provide such individuals’ cooperation therewith. As part of the foregoing, for a period of ninety (90) days after the Closing, (i) such employees shall provide reasonably necessary assistance to the LBHI Entities in the unwinding of the Retained LBHI Business and (ii) such employees that are attorneys shall provide reasonably necessary legal services in the unwinding of the Retained LBHI Business, provided that such assistance in (i) and (ii) shall be deemed Services as to which the Service Charges
apply and in all instances shall be subject to any confidentiality, professional or ethical obligations or restrictions (including without limitation any potential conflicts).
(b) For a period of two years after the Closing Date, the LBHI Entities shall provide, or use reasonable efforts to cause to be provided to, the BarCap Entities at no charge (other than LBHI’s out-of-pocket costs and expenses including contractor fees) with reasonable access to all individuals who were employees or contractors of the LBHI Entities prior to the Closing Date (and are employees or contractors of the LBHI Entities at the time of requested access), and who have material knowledge about the Business or the Services to be provided by the BarCap Entities, and LBHI shall use reasonable efforts to provide such individuals’ cooperation therewith.
(c) The parties recognize and understand that there will be substantial efforts in the period following the Closing Date in the integration of the Transferred Employees and the Purchased Assets into BarCap’s operations and the operation of the Business, and the continuing efforts of LBHI to divest the remaining assets and wind down the Retained LBHI Business while maintaining the continuity thereof. As such, the parties will work together to reasonably accommodate each other in such efforts while balancing BarCap’s needs for integration and operation with LBHI’s needs for information and support.
Section 3.08 Data Centers . To the extent BarCap is assuming material data center contracts as part of the Purchased Assets, the parties will negotiate in good faith a post-Closing data center strategy to reasonably address such issues as part of this Agreement.
Section 3.09 IMD Employees . During the thirty-day period following the Closing Date, the parties shall cooperate in good faith to develop a reasonable procedure (a) pursuant to which BarCap will endeavor to provide notice to LBHI prior to terminating the employment of any Transferred Employees during the six months following the Closing Date who are dedicated (or primarily dedicated) to the IMD Business, to the extent permitted under applicable confidentiality and privacy obligations and (b) to identify any Transferred Employees whose functions prior to the Closing Date were unrelated to the Business (if any).
Section 3.10 Notices . If any of the LBHI Entities receive any notices related to the Business it shall promptly forward them to BarCap and if any of the BarCap Entities receive any notices related to the Retained LBHI Businesses it shall promptly forward them to LBHI.
Section 3.11 Software . For a period of ninety days following the Closing Date, upon the request of LBHI, the parties will cooperate in good faith to identify any software included in the Purchased Assets for which there is no third party vendor or service provider that can reasonably provide compara