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Exhibit 10.33
TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement is made as of September 30, 1999
(the "Closing") by and among Xxxxxx Automation, Inc., a Delaware Corporation
("Buyer") and Jenoptik AG, a corporation organized under the laws of the Federal
Republic of Germany ("Jenoptik").
WHEREAS, the parties have entered into a Master Purchase Agreement,
dated as of September 9, 1999 (the "MPA") by and among the parties and certain
direct and indirect subsidiaries of Jenoptik and Buyer, pursuant to which Buyer
has agreed to purchase the Infab Business in exchange solely for shares of
Buyer's Common Stock, par value $.01 per share, subject to the terms and
conditions set forth in the MPA;
WHEREAS, the MPA requires that the parties shall enter into an
agreement relating to certain services to be provided by Jenoptik or a
subsidiary of Jenoptik to Buyer or a subsidiary of Buyer with respect to certain
activities after the Closing under the MPA.
NOW, THEREFORE, in consideration of the MPA and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, it is hereby agreed by and between the parties as
follows:
ARTICLE I DEFINITIONS
For purposes of this Agreement capitalized terms not otherwise defined
herein shall have the meanings given them in the MPA. All references to Buyer or
Jenoptik shall include any relevant direct or indirect Subsidiaries of Buyer and
Jenoptik respectively.
ARTICLE II TERM
The term of this Agreement shall commence on the Closing and shall
continue for one year (the "Initial Interim Period"). However, with respect to
any applicable lease term terminating prior to the expiration of the Initial
Interim Period ("Expired Facility Lease") this Agreement shall only apply to
such lease for the term of such lease. Apart from any Shared Facility (as
hereinafter defined) subject to an Expired Facility Lease, Buyer shall be
entitled to extend the Agreement for two additional one year periods (the
"Extended Interim Period") on the same terms and conditions. The Initial Interim
Period and any Extended Interim Period shall together be referred to as the
Interim Period. Buyer shall give notice of its election to extend the Agreement
within ninety (90) days prior to the end of the Initial Interim Period or any
Extended Interim Period. The Agreement may be terminated pursuant to the terms
of Article V.
ARTICLE III THE SHARED FACILITIES
3.1 OPERATING COSTS. Jenoptik agrees to grant Buyer the use at Buyer's
election of those facilities listed on Schedule A attached hereto (the "Shared
Facilities") throughout the Interim Period. Buyer agrees to share in all of the
costs of operating the Shared Facilities
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(excluding costs of personnel), including, but not limited to, rent, personal or
real property taxes, common area maintenance charges, utilities (excluding any
utility used exclusively by either Buyer or Jenoptik), building security and
building or janitorial services (together, the "Operating Costs").
3.2 TRANSITIONAL SERVICES.
(a) In connection with the Buyer's occupation of the Shared Facilities,
during the Interim Period, Jenoptik agrees to provide Buyer, at Buyer's
election, use of those services described on Schedule B attached hereto and
those services listed on Schedule 5.13(a) paragraph (ii) under the caption Infab
(Germany) to the MPA (together, the "Transitional Services").
(b) The Transitional Services are based on Jenoptik's and Buyer's
understanding of the support, and other services reasonably required to be
provided by Jenoptik to Buyer in connection with the Shared Facility in Jena
(the "Jena Facility") as of the date of this Agreement and are intended to be
illustrative. If, following the Closing, Jenoptik and Buyer reasonably determine
that additional services should be provided by Jenoptik to Buyer for purposes of
operating the Infab Business, the parties agree to appropriately modify this
Agreement with respect to such additional Transitional Services; provided,
however, that any such additional services shall be provided on a basis
substantially consistent with the recent historical practices of Jenoptik. All
individuals providing services on behalf of Jenoptik pursuant to this Agreement
shall remain employees of Jenoptik and shall not be deemed for any purpose to be
employed by Buyer. Buyer shall have no liability to such individuals with
respect to any matter arising out of or relating to their employment by
Jenoptik, including, without limitation, claims for wages, salaries, benefits or
severance.
(c) Upon termination of this Agreement, Jenoptik will cooperate in
transferring to Buyer, and, at Buyer's request and cost, erasing from Jenoptik's
centralized computer system all proprietary information and data of Buyer stored
on Jenoptik's centralized computer system.
3.3 STORAGE AND DELIVERY OF PURCHASED ASSETS.
Buyer and Jenoptik agree that during the Interim Period, the
machinery, equipment and other personal property included among the Purchased
Assets and located at the Shared Facilities, may remain at such premises. During
the Interim Period, Buyer shall have the right to, at its expense, crate, remove
and transport the Purchased Assets or any property or goods developed,
manufactured or created with the aid of any of the Purchased Assets from the
Shared Facilities without damage to Jenoptik's property, provided that Jenoptik
shall reasonably cooperate with Buyer in effecting such process.
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ARTICLE IV ALLOCATION OF COSTS.
4.1 PAYMENT OF SHARED FACILITIES COSTS.
(a) Unless otherwise provided in Schedule A, Buyer's proportionate
share of the Operating Costs allocable to any particular Shared Facility shall
be based upon Buyer's proportionate square meter use of such Shared Facility.
The costs for the Transitional Services incurred in connection with any Shared
Facility shall be divided between Jenoptik and Buyer in the manner set forth on
Schedule B. The Operating Costs and the costs for the Transitional Services
shall together be referred to as the "Shared Facilities Costs". Jenoptik shall
not increase the Shared Facilities Costs during the term of the Interim Period.
However, insofar as any costs included in the Shared Facilities Costs are
increased by a third party not affiliated with Jenoptik, Buyer shall be
responsible for its proportionate share of any such increase.
(b) Buyer shall pay to Jenoptik its share of any rental portion of
the Operating Costs as reflected on Schedule A on a monthly basis commencing one
month from the date of this Agreement. Buyer shall pay its share of all other
costs included within the Shared Facilities Costs within twenty (20) days of the
date Jenoptik has given Buyer notice that it has made a payment together with a
copy of the relevant invoice billed to Jenoptik by the utility, landlord or
service provider. If however, any cost for Transitional Services is payable
directly to Jenoptik, Buyer shall pay such cost within twenty (20) days after
Jenoptik has given Buyer notice that such payment is owed. On an annual basis,
for purposes of verifying the accuracy of charges for Transitional Services
supplied hereunder and to verify the proper performance of Transitional Services
by Jenoptik and its agents hereunder, Buyer shall be entitled, with respect to
any charges paid hereunder during such previous year, on reasonable notice and
during normal business hours to inspect the records of Jenoptik and its agents
providing services hereunder as may be reasonably necessary for such purpose.
(c) Apart from the Shared Facilities Costs, Buyer has no obligation
or liability with respect to any costs associated with any other facility or
premises maintained or used by Jenoptik.
4.2 CONDUCT OF BUSINESS. Jenoptik shall maintain insurance in
reasonable amounts insuring its operations, all in a manner that will comply
with any lease of a Shared Facilities and all material applicable laws and
regulations. Absent a written agreement signed by authorized representatives of
Jenoptik and Buyer prior to the incurrence of a cost outside the control of
Jenoptik, neither Jenoptik nor Buyer shall be required to share in any facility
costs incurred by the other outside of the ordinary course of business or
consistent with past practice, including, without limitation, build-out or
relocation costs, or HVAC or utility costs directly attributable to the work of
either Jenoptik or Buyer.
4.3 MAINTENANCE; REPAIRS; AND YIELD-UP. Jenoptik shall be responsible
for making any structural or other repairs that require replacement of any
component or system.
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4.4 ENVIRONMENTAL. Jenoptik shall be responsible for the entire cost of
any remediation (including, without limitation, all costs and expenses,
including reasonable attorney fees) of any environmental problem affecting any
Shared Facility no matter when caused or discovered unless such environmental
problem is proved to be solely the result of Buyer's acts occurring from and
after the date of this Agreement.
4.5 INDEMNITY. Buyer shall indemnify Jenoptik against, and hold
Jenoptik free and harmless from all claims, losses, costs or damages (including
attorneys fees and costs) hereafter asserted against Jenoptik by any third party
with respect to the Shared Facilities (including, without limitation, any
employee, visitor, agent, invitee, vendor, customer and consultant of Buyer)
under any theory of law or equity whatsoever which are in any way based upon
acts, omissions or occurrences arising out of or in the course of this
Agreement; provided, however, the foregoing indemnity shall not apply to any
claims which arise principally due to the negligence or willful misconduct of
Jenoptik. Any sums payable by Buyer under this Section 4.5 shall be net of the
amount of any insurance proceeds, indemnity or contribution actually received by
Jenoptik and Jenoptik shall use commercially reasonable efforts to recover such
amounts. The indemnification provisions in this Section 4.5 shall,
notwithstanding any provision to the contrary contained elsewhere in this
Agreement, survive for a period of three (3) years following any termination of
this Agreement. The term "Jenoptik" as used in this Section 4.5 shall refer to
Jenoptik AG, and its subsidiaries and affiliates, and their successors, assigns,
officers, directors, employees and shareholders.
ARTICLE V TERMINATION
5.1 Buyer may, at any time, terminate this Agreement immediately upon
thirty days written notice to Jenoptik.
5.2 If Buyer shall fail adequately to perform in any material respect
any of its obligations under this Agreement, whether voluntarily or
involuntarily or as a result of any law or regulation or otherwise, Jenoptik
may, without prejudice to any other right which it may have, terminate this
Agreement provided that such breach shall not have been cured within thirty (30)
days of delivery to Buyer of written notice of such breach.
ARTICLE VI NOTICES
All notices, requests, demands and other communications shall be given
in accordance with the provisions contained in the MPA.
ARTICLE VII GENERAL
7.1 Neither Jenoptik nor Buyer shall act as an agent or representative
of the other without prior authorization. Jenoptik shall be free to exercise its
discretion and independent judgment as to the method and means of performance of
the Transitional Services contained in this Agreement.
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7.2 This Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of the parties hereto. In addition,
Jenoptik shall not sell, lease or assign any of the Shared Facilities (with the
exception of those situated in Germany) without the prior written consent of
Buyer, such consent not to be unreasonably withheld.
7.3 This Agreement constitutes the entire agreement of the parties with
respect to the occupancy of the Shared Facilities and the provision of the
Transitional Services. This Agreement may be amended or modified and any of the
terms or conditions hereof may be waived only by a written instrument executed
by the parties, or in the case of a waiver, by the party or parties waiving
compliance. Any waiver by a party of any condition, or of the breach of any
provision or term in any one or more instance, shall not be deemed to be nor
construed as a further or continuing waiver of any such condition, or of the
breach of any provision or term of this Agreement.
7.4 Nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than Jenoptik
or Buyer and their respective successors and permitted assigns. Nothing in this
Agreement is intended to relieve or discharge the obligations or liability of
any third person to Jenoptik or Buyer. No provision of this Agreement shall give
any third persons any right of subrogation or action over or against Jenoptik or
Buyer.
7.5 This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts (without regard to the laws that might be applicable under
principles of conflicts of law, and without regard to the jurisdiction in which
any action or special proceedings may be instituted) as to all matters,
including, but not limited to, matters of jurisdiction, validity, construction,
effect and performance.
7.6 The section headings in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
7.7 This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in multiple counterparts as of the date set forth above by their duly
authorized representatives.
XXXXXX AUTOMATION, INC.
By:
---------------------------------
Name:
Title:
JENOPTIK AG
By:
---------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in multiple counterparts as of the date set forth above by their duly
authorized representatives.
XXXXXX AUTOMATION, INC.
By:
---------------------------------
Name:
Title:
JENOPTIK AG
By:
---------------------------------
Name:
Title:
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TRANSITIONAL SERVICE AGREEMENT SCHEDULE A - SHARED FACILITIES
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No Location Jenoptik Entity Facility provision cost
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1 Jena Goeschwitzerstrasse M+W Xxxxxx XX Provide office, storage and rent costs fixed for 12 months;
GmbH manufacturing space (based on increase of rent in next 12 month
M+W Xxxxxx XX GmbH overview period up to max 3%; additional costs
Sept 24, 1999). Sufficient parking calculated at this time as the
lots for employees (approx. 130 maximum cost (re-pay at the end of
max), visitors and management year based on real costs).
(2) and 2 company vehicles for
Mfg/Stores/Service provided cost
free
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2 Colorado Springs, Colorado Jenoptik Infab, Inc. Per lease agreement dated Per lease agreement dated February
February 24, 1999 and referenced 24, 1999 and referenced in the MPA
in the MPA until lease until lease assignment properly
assignment properly executed executed and delivered
and delivered
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total
operating
space in rent per add cost total per costs per
No building m2 m2 per m2 m2 month
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Bau 9 (office and lab) 410 8.00 DM 6.00 DM 14.00 DM 5,740.00 DM
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Bau 9 (stores) 345 5.00 DM 6.00 DM 11.00 DM 3,795.00 DM
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1 Bau 13 (office) 81 10.00 DM 16.00 DM 26.00 DM 2,106.00 DM
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Bau 13 (stores) 34 9.00 DM 10.00 DM 19.00 DM 646.00 DM
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Bau 13 (aircon) 664 9.00 DM 30.00 DM 39.00 DM 25,896.00 DM
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Bau 13 (cleanroom) 155 11.00 DM 30.00 DM 41.00 DM 6,355.00 DM
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Bau 14 (office) 2187 11.00 DM 5.60 DM 16.60 DM 36,304.00 DM
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TOTAL 3876 80,842.20 DM
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TRANSITIONAL SERVICE AGREEMENT SCHEDULE B - ERP (SAP R3) SYSTEM
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Jenoptik
No Location Entity provision operating cost
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1 Jena Jenoptik AG Jenoptik AG (Systemhaus) will provide the cost per user (currently approx. 35
(Systemhaus) current used SAP R3 system to Xxxxxx users over the year) up to the
with Oct 1, 1999. System will run in a JO maximum current monthly amount of
AG data processing centre or at the data DM 30.000, - for total SAP R3 usage
processing centre of the current JO AG
MIS service partner Siemens AG, SBI,
Nuernberg
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No initial cost explanation
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all data transfer and all necessary structure/body under this provision we understand the SAP
data to run SAP R3 as an separate legal entity to R3 modules to run the following functions:
1 be performed and established by JO AG without Finance, Controlling, Costing,
cost for Xxxxxx. Cost for special Xxxxxx Planning/Scheduling, Purchasing, Quality
requirements are to be covered by Xxxxxx. Assurance, Manufacturing, Stores
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TRANSITIONAL SERVICE AGREEMENT SCHEDULE B - CONT'X - XXXXXXXX + XXXXX XXXXXX FRAME RELATED NETWORK PROVIDED TO XXXXXX AUTOMATION
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JENOPTIK
NO LOCATION ENTITY PROVISION
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Jena, Colorado, Austin, M+W Xxxxxx Until Dec 31, 1999 M+W Xxxxxx Stuttgart provides Xxxxxx (the
1 Fremont, Japan, Stuttgart former INFAB part and employees as per Oct 1, 1999) access to
Taiwan. the M+W Xxxxxx Frame related network to access Internet and to
send/receive emails
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OPERATING COST INITIAL/TERMINATION COST EXPLANATION
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cost per user (currently DM 77. - per no initial cost; no termination cost XXXXXX will operate their own Internet
month based on 1998 invoice) per end of Dec 99 access and world-wide network latest with
Jan 1, 2000. Termination agreed with M+W
Xxxxxx and already in process
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Transitional Service Agreement Schedule B - Cont'd - Communication Services
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No Location Jenoptik Entity provision operating cost initial/termination cost explanation
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
to provide Xxxxxx GmbH the
possibility of operating
1 Jena Jenoptik AG Jenoptik AG provides an an own switchboard Xxxxxx
(alsad) internal telephone network, external communic- need a switchboard tele-
the end-user terminals and ation cost per phone terminal maximum Xxxxxx GmbH will operate
the telephone mainframe, user and monthly 1,000 DM and the set-up an own switchboard
the JO AG switchboard telecom xxxx in the mainframe means no
service and the voicemail new terminal but own
service per telephone number maximum cost 1,000
number DM system. No costs for
Xxxxxx GmbH to provide
this by JO AG
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
Jenoptik AG receives all
2 Jena Jenoptik AG invoices for German mobile stay with this because of
(alsad) phones (GSM phones) and as per invoice none better conditions for JO
submit the invoice on a AG and Xxxxxx GmbH (volume
monthly basis to Xxxxxx based)
Automation GmbH
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Transitional Service Agreement Schedule B - Cont'd
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No Location Jenoptik Entity provision operating cost initial/termination cost explanation
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
1 Jena Jenoptik AG Hourly services for patent JO AG, Xxxx Xxxxxxx will
work for INFAB in all 180 DM plus filing none be the contact person
countries and regions of fees and expenses further on taking care of
interest (additional all Filing related issues
representation outside INFAB for Xxxxxx Xxxx products
appropriate to our accounting
per hour.
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
2 Jena Jenoptik AG Provide copy service for format A0=DM 12.- as currently provided by
drawings and documentation and format none Jenoptik AT
A4=DM 0.40
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
From Jan 1, 2000 on
content and price will be
adjusted as Xxxxxx
3 Jena BGJ Provide personnel and per employee and Automation GmbH will have
payroll services month DM 97.- none an own person taking care
for some of the personnel
issues. Payroll will stay
with BGJ in anyway.
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
cleaning schedule as
4 Jena Jenoptik AG Cleaning of offices, stores none as included none currently operated. Any
and mfg areas in rental costs changes up/down will
reflect in rent
adjustments
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
Mail service to distribute
"yellow mail" and courier as per external
5 Jena Jenoptik AG mail (FedEx) from central cost; additional none
point to one defined Jena DM 1500.- per
office of Xxxxxx Automation month for JO AG
GmbH and vice versa efforts
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
Maintaining and filing of all
6 Jena Jenoptik AG CAD drawings at a central DM 1500.- per none JO AT
point month
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
central maintenance
7 Jena Jenoptik AG of article number system DM 1125.- per none JO AT
(MARA) month
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
same cost for JO AG provides via an
8 Jena Jenoptik AG Use of the canteen for Xxxxxx employees none external company canteen
Xxxxxx employees as for JO services (Dussmann). Per
employees menu Xxxxxx have to pay
DM 2.- as backing
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
9 Jena Jenoptik AG Environmental and work DM 10.913.- per 6 none provided by JO AG QS dept
security control services months
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
10 Jena Jenoptik AG onsite doctors service DM 1480.- per none
quarter
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
DM 150.- per hour
11 Jena Jenoptik AG provision of legal and for financial and none
financial services on DM 180.- per hour
request for legal services
---- -------- --------------- ----------------------------- ------------------ -------------------------- --------------------------
DM 85.- per hour
(normally 2 hours goods receiving services
12 Jena Jenoptik AG internal transportation and per day) for none due to volume might be
goods receiving services internal transpor- changed to do it by Xxxxxx
tation and goods itself
receiving
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