TRANSITION SERVICES AGREEMENT
Exhibit
99.3
EXECUTION COPY
This TRANSITION SERVICES AGREEMENT (this “Agreement”) is made as of the
14th day of April, 2009, by and among Clinical Data, Inc., a Delaware corporation
(“Parent”), Cogenics, Inc., a Delaware corporation (“Cogenics”), Epidauros
Biotechnologie, Aktiengesellschaft, a company organized under the laws of the Republic of Germany
(“Epidauros”) and Cogenics Genome Express, S.A., a French société anonyme (“CGE”
and together with Cogenics and Epidauros, the “Recipients”). Parent and the Recipients are
sometimes referred to herein collectively, as the “Parties” and individually, each a
“Party”.
RECITALS
WHEREAS, Parent and its wholly owned subsidiary, Clinical Data, B.V. (“BV”), and
Xxxxxxx Xxxxxxx, Inc. (“Purchaser”) and its Affiliate, Xxxxxxx Xxxxxxx GmbH (“BC
Germany”), have entered into that certain Stock Purchase Agreement, dated April 1, 2009 (the
“Purchase Agreement”), pursuant to which Parent and BV have agreed to sell and Purchaser
and BC Germany have agreed to purchase all of the issued and outstanding shares of capital stock of
each of (i) Cogenics, (ii) Cogenics Genome Express, S.A., a French société anonyme and (iii)
Epidauros; and
WHEREAS, following the Closing (as defined in the Purchase Agreement), Parent shall provide
the Recipients certain services that Parent, or an Affiliate of Parent, provided to the Business
(as defined in the Purchase Agreement) prior to the Closing, and Parent is willing to provide or
procure such services to the Recipients for a limited period, subject to the terms and conditions
set forth herein; and
WHEREAS, following the Closing (as defined in the Purchase Agreement), the Recipients shall
provide the Parent, or an Affiliate of Parent, certain services described in Exhibit B
attached hereto, and the Recipients are willing to provide or procure such services to the Parent,
for a limited period, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the representations, warranties and
mutual covenants contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties intending to be legally bound, agree as
follows:
1. | Definitions. Capitalized terms used herein and not defined shall have the meanings ascribed to them in the Purchase Agreement. | |
2. | Transition Services; Payment. |
a. | Following the Closing, Parent shall provide, and the Recipients shall accept and pay for, (i) those transition services that are set forth on Exhibit A attached hereto and made a part hereof and (ii) such other services reasonably requested by the Recipients from time to time during the Transition Period that are services that have been provided by Parent on a regular basis to the Business during the twelve (12) month period prior to the date hereof (each, a “Parent Service” and |
collectively, the “Parent Services”). Prior to the provision of such Services identified in subsection (ii) of the previous sentence, the Parties shall mutually agree upon such modifications of Exhibit A as shall be necessary to set the costs and scope of such Parent Services. Following the Closing, the Recipients shall provide, and Parent shall accept and pay for, those transition services that are set forth on Exhibit B attached hereto and made a part hereof (each, a “Recipient Service”, collectively, the “Recipient Services”; the Parent Services and the Recipient Service are collectively referred to herein as the “Services”). The Parties agree to be bound by any additional conditions, covenants and obligations for a specific Service as set forth in Exhibit A or Exhibit B describing such Service. For the purposes of this Agreement, with respect to any Service, “Receiving Party” shall mean the Party that is receiving such Service and “Providing Party” shall mean the Party that is providing such Service. | |||
b. | Each Service shall be provided for the period specified in Exhibit A or Exhibit B. The cost charged to the Recipients for the Parent Services shall be the amount set forth for such Service on Exhibit A, and the cost charged to the Parent for Recipient Services shall be the amount set forth for such service on Exhibit B. Costs for Services provided by third parties that a Providing Party arranges or incurs on behalf of a Receiving Party (“Third Party Services”) shall be charged at the direct third-party cost (the “Pass Through Costs”); provided that the use of any third party for the provision of any Service hereunder shall be subject to the approval of the Receiving Party, in its sole discretion. | ||
c. | Each Party shall invoice the other Party with respect to the cost incurred for all the Services (the “Invoiced Amount”) within thirty (30) days after the end of each month. Pass Through Costs (if any) shall also be included in the monthly invoice issued following the date on which they were incurred. All such invoices shall be paid within thirty (30) days after receipt by the Receiving Party; provided, however, that if the Receiving Party disagrees with any such charge, the Receiving Party shall send written notice to the Providing Party within fifteen (15) days of receipt of such invoice specifying the reason for such disagreement (but shall pay any part of the Invoiced Amount with which they agree), and the Parties shall negotiate in good faith to promptly resolve any such disagreement. The Providing Party agrees to afford the Receiving Party, upon reasonable notice, access to such information, records and documentation of Providing Party as the Receiving Party may reasonably request in order to verify the Invoiced Amount. The Receiving Party shall bear its own costs incurred in connection with the verification of the Invoiced Amounts and in consuming the Services or performing activities. | ||
d. | The term of this Agreement shall commence on the Closing Date and shall continue with respect to each Service for the time period provided in Exhibit A or Exhibit B, as applicable (the “Transition Period”). | ||
e. | The Receiving Party shall be entitled to utilize the Services, and the levels thereof, that it needs; provided, however, that (i) with respect to the Parent |
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Services, Parent shall not be obligated to provide such Parent Services at a level greater than the level of Parent Services used by the Business during the twelve (12) months preceding the Closing and (ii) with respect to the Recipient Services, Recipients shall only be obligated to provide such Recipient Services at the level described in Exhibit B. The Parent shall provide the Parent Services in a professional and workmanlike manner consistent in all material respects with that provided by such Party during the 12-month period immediately prior to the date of the Purchase Agreement. Recipients shall provide the Recipients Services in a professional and workmanlike manner consistent in all material respects with that provided by Recipients internally to their own businesses. Except as otherwise provided in Exhibit A, the quantity of each Parent Service shall be that which the Recipients reasonably require for the operation of their respective businesses in the ordinary course consistent in all material respects with the operation of such business during the 12-month period immediately prior to the date of the Purchase Agreement. Each Service shall only be made available for, and the Receiving Party shall only be entitled to utilize such Service for, the benefit of its respective businesses. | |||
f. | Notwithstanding anything contained herein to the contrary, any and all such Services provided hereunder may be earlier terminated by the Receiving Party upon fifteen (15) days’ prior written notice to the Providing Party. For a termination of Services provided by the Providing Party that occurs other than at an applicable billing cut-off date, the Receiving Party shall pay the prorated fees through the date such Services were ceased. The Providing Party agrees and acknowledges that after partial termination of this Agreement by the Receiving Party, and payment of the applicable prorated fees by the Receiving Party, with respect to any particular Service, the Receiving Party shall no longer have any payment obligations pursuant to Section 2(c) hereof with respect to such Service and that a partial termination of this Agreement by a Receiving Party with respect to any particular Service will have no affect on the Providing Party’s obligation to perform any other Services hereunder. |
3. | Service Availability. |
a. | The Parties shall cooperate and use commercially reasonable efforts to obtain the consent of any licensors of software or any other third party that may be required in connection with the provision of any of the Services hereunder. If any such third party requires a payment in order to make any service available to a Receiving Party, the Providing Party shall promptly notify the Receiving Party of this additional cost and the Parties shall negotiate in good faith to develop an alternative service that does not require such third party consent. In any such case, the Receiving Party shall have the option to elect (i) to pay any amounts that are required to be paid to any third party to obtain the consent of such third party in order to receive any of the Services hereunder or (ii) to terminate any of the Services associated with the required consent, and in either case there will be a corresponding reduction in the fee payable to the party providing such Service. |
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b. | If a Providing Party is or becomes aware that it will be unable to deliver any of the Services, in whole or in part, (whether or not such inability was foreseeable or within the contemplation of any Party to this Agreement) by reason of fire, flood, storm, riot, civil commotion, war, act of terrorism or other causes beyond the reasonable control of the Providing Party, the Providing Party shall notify the Receiving Party in writing as soon as practicable of such inability. Such notice shall provide an assessment of the likely scope and duration of such lapse in the Service. In such event, upon thirty (30) days prior written notice to the Receiving Party, the Providing Party shall be entitled, in its sole discretion, to obtain such Services from a third party (which third party shall be subject to the approval of the Receiving Party) or to discontinue such Services if the Providing Party does so for its other businesses during the term of this Agreement. In the event that the Providing Party continues to supply some level of affected Services during the duration of such lapse, it shall reasonably allocate such affected Services among the Receiving Party and the Providing Party’s other customers (including internal customers). Subject to the limitations on liability set forth herein, the Providing Party acknowledges that notwithstanding any delegation of its responsibilities under this Agreement it shall remain responsible and liable for the provision of the Services it is obligated to provide hereunder. |
4. | Warranty. |
a. | The Parent shall use commercially reasonable efforts to ensure that all Parent Services performed are performed with a degree of care, and are of a quality that is substantially similar to the manner, degree of care and quality of those comparable services that were rendered to the Business by Parent, or its Affiliates (other than those acquired by Purchaser pursuant to the Purchase Agreement), during the twelve (12) months immediately preceding the Closing. Parent’s performance under this Agreement will comply in all respects with applicable Laws and government rules and regulations. | ||
b. | Recipients shall use commercially reasonable efforts to ensure that all Recipient Services performed are performed with a degree of care, and are of a quality that is substantially similar to the manner, degree of care and quality of those comparable services that Recipients render internally to its own business. Recipients’ performance under this Agreement will comply in all respects with applicable Laws and government rules and regulations. | ||
c. | EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT ARE FURNISHED “AS IS, WHERE IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PARENT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY OR ADEQUACY OF THE SERVICES FOR ANY PURPOSE OR USE. |
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5. | Additional Services. If the Receiving Party reasonably determines that additional transition services of the type previously provided by the Providing Party to the Business are necessary to complete the transition (“Additional Services”) the Providing Party will use commercially reasonable efforts to provide such Additional Services on the terms specified herein and for the term such Additional Services are required, provided that the charges for any particular Additional Service shall be equal to the direct, incremental costs and expenses incurred by the Providing Party in providing such Additional Service. For purposes of the foregoing sentence, “incremental” shall mean the amount by which the costs and expenses incurred by Parent in providing the Additional Service to the Receiving Party exceed the costs and expenses which are already being incurred by Providing Party or its Affiliates in maintaining such Additional Service for itself or its Affiliates. Prior to the provisioning of any of the proposed Additional Services, Providing Party shall prepare and deliver to the Receiving Party a good faith estimate of the direct costs and expenses associated with such proposed Additional Services. Any such Additional Services mutually agreed to and the fees thereof shall be effective as of the date of execution of an amendment to this Agreement by duly authorized representatives of the Parties. | |
6. | Indemnification; Limitation of Liability. |
a. | The Recipients shall jointly and severally indemnify, and hold harmless, Parent, its Affiliates, and their respective directors, officers and employees, against all losses and reasonable costs and expenses that might arise or result from the Recipients’ use of the Parent Services, including, without limitation, any third party claims resulting from the performance or provision of such Parent Services, except to the extent such losses are attributable to the gross negligence, willful misconduct or bad faith of, or a breach of this Agreement, by Parent or its Affiliates. At the options of the Recipients, the Recipients may but are not obligated to assume the defense of any action or proceeding that is subject to indemnification pursuant to the provisions of this paragraph; provided that no such action shall be settled without the prior written consent of Parent, unless the settlement involves only the payment of monetary damages that are solely discharged by the Recipients. | ||
b. | Parent shall indemnify, and hold harmless, the Recipients, their Affiliates, and their respective directors, officers and employees, against all losses and reasonable costs and expenses that might arise or result from Parent’s use of the Recipient Services, including, without limitation, any third party claims resulting from the performance or provision of such Recipient Services, except to the extent such losses are attributable to the gross negligence, willful misconduct or bad faith of, or a breach of this Agreement, by the Recipients or their Affiliates. At the option of Parent, Parent may but is not obligated to assume the defense of any action or proceeding that is subject to indemnification pursuant to the provisions of this paragraph; provided that no such action shall be settled without the prior written consent of the Recipients, unless the settlement involves only the payment of monetary damages that are solely discharged by Parent. |
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c. | Except in the case of a Providing Party’s gross negligence, willful misconduct or bad faith, such Providing Party shall have no liability for any losses (including lost time or data), damages, expenses or costs resulting from delays, errors, faults or omissions in providing any Services (including any emergency response services), or any utility outages, errors in transmission, unavailability, delays or any other failure of the computer, software or communications systems or support or resources utilized in the provision of the Services. | ||
d. | EXCEPT IN THE CASE OF THIRD-PARTY CLAIMS OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENTS OR GOODWILL) OR PUNITIVE DAMAGES RELATING TO THE SALE, DELIVERY, PROVISION OR USE OF THE SERVICES OR ANY BREACH OF THIS AGREEMENT. |
7. | Confidentiality. |
a. | In the process of providing and receiving the Services or otherwise in connection with this Agreement, a Party may have access to Confidential Information (as hereinafter defined) of another Party. Without limiting the applicability of any other obligation of confidentiality to which the Parties or their Affiliates may be bound, each Party agrees to keep (and cause its Affiliates and its and their respective employees, agents and independent contractors to keep) any Confidential Information of the other Party strictly in confidence, not to disclose it to any third party without prior written approval of the other Party and to use it only for the purposes set forth in this Agreement, except (a) as required by law, in which case the relevant Party shall notify the other Party prior to disclosing such Confidential Information and shall use its commercially reasonable efforts to obtain a protective order or otherwise prevent or minimize disclosure of such Confidential Information, or (b) with the express prior written approval of the other Party. | ||
b. | For purposes of this Agreement, “Confidential Information” means any confidential information with respect to, including, without limitation, methods of operation, customers, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. The obligation of confidentiality set forth in Section 7(a) above shall not extend to: (a) information that at the time of disclosure was in the public domain or thereafter comes into the public domain without breach of this Agreement by the receiving Party; (b) information that was known to the receiving Party prior to disclosure by the disclosing Party as substantiated by dated documentation in the files of the receiving Party; and (c) information that becomes known to the receiving Party from a source other than the disclosing Party without breach of this Agreement by the receiving Party. |
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8. | Independent Contractor. With respect to each Service, the Providing Party shall be deemed to be an independent contractor of the Receiving Party, and not an employee, agent, partner or joint venture partner of the Receiving Party in the performance of its obligations hereunder. The Providing Party shall be solely responsible for compensation and benefits to its personnel assigned to perform the Services hereunder, including, but not limited to, worker’s compensation, disability benefits, unemployment insurance and withholding, employment or any other taxes imposed or assessed on such employees. | |
9. | Ingress and Egress. The Providing Party shall at all times during the term of this Agreement have the right of reasonable ingress to and egress from the Receiving Party’s premises, during the Receiving Party’s regular business hours and upon reasonable prior notice, for any purposes required for the delivery of Services under, the exercise of any right under, or the performance of any obligations required by this Agreement. | |
10. | Office Space. For a period of six (6) months from the Closing Date, Cogenics hereby grants to Parent and to the officers, employees, agents and guests of Parent, a non-exclusive, revocable license to occupy the office space described on Exhibit C attached hereto (the “Office Space”), subject to the terms and conditions governing Cogenics’ occupancy of such space and such other reasonable terms and conditions as the lessor or Cogenics shall impose. Parent acknowledges and agrees (i) that Cogenics may revoke such license if Parent fails to perform its obligations to Cogenics pursuant to this Agreement in any material respect; (ii) no property interest is granted to Parent by this Section 11; and (iii) the license granted hereby may not ripen into an irrevocable license or easement by the payment of money or the passage of time, or both of the foregoing. In exchange for such license, Parent shall pay to Cogenics a royalty in the amounts set forth in Exhibit C for each full week during which Parent’s personnel occupy the Office Space. For each partial week during which any personnel of Parent of its Affiliates occupy the Office Space, such royalty shall be prorated on a calendar day basis. Cogenics shall make available to Parent the following at no additional charge, with respect to the Office Space: access cards, identification cards, utilities, telephone handsets, office furniture, and janitorial service. | |
11. | Entire Agreement; Amendment. Other than the Purchase Agreement, this Agreement constitutes the entire Agreement between the Parties concerning the subject matter of this Agreement. It supersedes all previous representations, negotiations, warranties, understandings and agreements in respect of the provision of Services by Parent to the Recipients. No modification of this Agreement or waiver of any of its terms or conditions shall be of any force or effect unless made in writing and signed by both Parties hereto. No modification of this Agreement shall be effected by the acknowledgment or acceptance of a purchase order or other standard form of either Party (or Affiliate thereof) or any other document containing terms and conditions at variance with or in addition to those set forth herein, all such varying or additional terms being hereby objected to. | |
12. | Waiver. The failure of any Party to require the performance of any term or condition of this Agreement or the waiver by either Party of any breach under this Agreement shall not prevent a subsequent enforcement of such term or condition nor be deemed a waiver |
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of any subsequent breach. | ||
13. | Governing Law; Consent to Jurisdiction |
a. | This Agreement shall be construed and interpreted according to the laws of the State of New York, without regard to the conflicts of law rules thereof. | ||
b. | Each of the parties hereto, in respect of itself and its properties, (i) irrevocably submits to the personal jurisdiction of any United States federal or state court sitting in New York, New York, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in respect of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated herein, (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such courts, and (iii) waives any defense of inconvenient forum to the maintenance of the suit, action or proceeding so brought. | ||
c. | EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) IT MAKES SUCH WAIVER VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14. |
14. | Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile or electronic mail (with written confirmation of transmission) or (iii) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision): |
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If to The Recipients: | c/o Beckman Xxxxxxx, Inc. Attention: General Counsel 0000 X. Xxxxxx Xxxx. X.X. Xxx 0000 Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 |
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With a copy (which shall not constitute notice) to: |
c/o Beckman Xxxxxxx, Inc. Attention: Patent Counsel 000 Xxxxx Xxxxxxx Xxxx, XX 00000 Facsimile No.: (000) 000-0000 |
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With a copy (which shall not constitute notice) to: |
Hunton & Xxxxxxxx LLP Attention: X. Xxxx Xxxxx, II Bank of America Plaza 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 Facsimile No.: (000) 000-0000 |
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If to Parent: | Clinical Data, Inc. Attention: Xxxxxx X. Xxxxxx, Executive Vice President and Chief Legal Officer Xxx Xxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx, XX 00000 Facsimile No.: (000) 000-0000 |
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With a copy (which shall not constitute notice) to: |
Xxxxxx Godward Kronish LLP Attention: Xxxx X. Xxxxx The Prudential Tower 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxx, XX 00000 Facsimile No.: (000) 000-0000 |
15. | Assignment. Neither Party shall assign or delegate any of the rights or obligations under this Agreement to a third party without the prior written consent of the other Party (which will not be unreasonably withheld. |
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16. | Parties in Interest. Nothing in this Agreement is intended to provide any rights or remedies to any Person other than the Parties. | |
17. | Specific Performance. The Parties hereto agree that irreparable damage could occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that, subject to the terms hereof, the parties hereto may be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. | |
18. | Survival. Sections 2, 4, 6, 7, and 11 through 19 and any other sections of this Agreement that expressly so provide, shall survive and continue in full force and effect following any termination of this Agreement. | |
19. | Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which, when taken together, shall constitute one agreement. |
[Signature Page Follows.]
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IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement to be executed in
its name by a duly authorized officer as of the day and year first above written.
CLINICAL DATA, INC. |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Executive Vice President, Chief Legal Officer and Secretary |
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COGENICS, INC. |
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By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President | |||
EPIDAUROS BIOTECHNOLOGIE, AKTIENGESELLSCHAFT |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Geschäftsführer | |||
COGENICS GENOME EXPRESS, S.A. |
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By: | /s/ Xxxx-Xxxxxx Vaugon | |||
Name: | Xxxx-Xxxxxx Vaugon | |||
Title: | Managing Director | |||
EXHIBIT A
Clinical | Xxxxxxx Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
Web-Site Link/ Web-Site Hosting |
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Service: Parent will place
on Parent’s website (i) a
statement indicating that the
Cogenics division is under
new ownership and (ii) a
direct link to Cogenics’
website.
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Xxxxxx Xxxxx | Xxxxx Xxxx | $0 | |||
Term: For a period of 6
months following the date
hereof. |
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Service: Parent will maintain
website hosting for the
Acquired Companies under the
existing hosting agreement
held by Parent and shall as
promptly as practical
transfer website hosting as
directed by Purchaser.
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Xxxxxx Xxxxx (through a third party provider G3) |
Xxxxx Xxxx | $150.00 per month of hosting or part thereof | |||
Term: Website hosting to
continue until hosting is
transferred. Hosting to be
transferred as soon as
practicable but not later
than 3 months following the
date hereof |
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HR Payroll |
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Service: Within 2 weeks
following the date hereof,
Parent will separate the 3
year historical HR/payroll
data relating to the Acquired
Companies and transfer that
data in Microsoft excel
format setting forth the
fields set forth in
Exhibit D.
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Xxxx Xxxxxxxx VP Human Resources |
Xxxxxxx Xxxxxxxx | $0 | |||
Benefits |
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Parent shall continue to
provide benefits to employees
of the Acquired Companies
under the following Employee
Benefit Plans as listed on
Schedule 3.20 of the Purchase
Agreement that are designated
as United States plans: all
Medical Benefit plans, Dental
Insurance Benefits, Life
Insurance and Accidental
Death and Dismemberment
Insurance, Long Term
Disability Insurance, Short
Term Disability and
Supplemental Life Insurance,
and Employee Assistance
Program. Term: Until April 30, 2009. |
Xxxx Xxxxxxxx VP Human Resources |
Xxxxxxx Xxxxxxxx | Actual out-of-pocket incremental costs incurred for carrying employees from the Closing through the end of April; it being acknowledged and agreed that there is no |
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Clinical | Xxxxxxx Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
incremental cost for heath and dental. | ||||||
Tax Reporting |
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Service: Parent shall assist
Acquired Companies with the
preparation and filing of
their respective tax returns
and provide the requisite
access to such historical
financial, operational and
other data as may be
desirable or necessary in
connection with the
preparation of such tax
returns.
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C. Xxxx Xxxxxxxxxx
CFO |
Xxx Xxxxxxxxx | $0 | |||
Term: For a period of 12
months following the date
hereof. |
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E-mail |
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Service: Parent will continue
to route Xxxxxxxx.xxx e-mail
to various sites from the
master server. Term: For a period of 6 months following the date hereof |
C. Xxxx Xxxxxxxxxx
CFO |
Xxxxx Xxxx | One-half of the third party Microsoft migration (RMSource) costs | |||
Active Directory & Network Access |
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Service: Parent shall
maintain current user
accounts and network access
privileges through their
Active Directory servers.
Parent will facilitate timely
separation of Active
Directory, e-mail and network
access privileges. Term: For a period of 6 months following the date hereof. |
Xxxxx Xxxxxxx / Xxx Xxxxxxxx PGxHealth Director Technology & Former Cogenics VP Technology |
Xxxxx Xxxx | One-half of the third party Microsoft migration (RMSource) costs | |||
Solomon |
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Service: Parent shall
provide access to the Solomon
financial reporting programs.
Parent shall maintain an
access point for and
connectivity for a dedicated
T1 line to be maintained by
Cogenics that will allow
Cogenics to seamlessly access
the Solomon financial system.
Parent shall assist with any
data export needed for
historical financial
information from January 2006
to the Closing Date. Until
such time as the necessary
connectivity is established,
Parent shall leave the
Solomon server in its present
location in
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Xxxxx Xxxxxxx | Xxxxx Xxxx | $0 |
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Clinical | Xxxxxxx Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
Morrisville,
North Carolina. |
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Parent will maintain systems
administration access rights
and privilege granting rights
users of the Acquired
Companies. |
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Term: For a period of 6
months following the date
hereof. |
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Service: Parent shall provide
continuing access to all
historical financial
information relating to the
Acquired Companies held on
the Solomon financial
reporting programs; it being
acknowledged and agreed that
this service shall not
require the maintenance of
any T1 line or other
electronic means of
connectivity to the Solomon
programs.
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Xxxxx Xxxxxxx | Xxxxx Xxxx / Art Xxxxxxx |
$0 | |||
Term: For a period of two
year following the date
hereof. |
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Cell Phones |
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Service: Parent shall
facilitate the transfer of
the existing service to
Xxxxxxx Xxxxxxx contracts. Term: For a period of 3 months following the date hereof. |
Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$0 (other than Pass Through Costs) |
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WAN |
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Service: Parent will maintain
current WAN connectivity and
shall also facilitate
transfer of the existing
service to Xxxxxxx Xxxxxxx
Contracts.
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Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$0 (other than Pass Through Costs) |
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Term: For a period equal the
earlier of (i) the date of
transfer or (ii) six months
following the date hereof. |
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Regulatory Support |
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Service: Parent shall
provide, from time to time,
such regulatory advice by
phone for the Acquired
Companies as Purchaser may
reasonably request, including
access to the Regulatory
Head/Manager.
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Xxx Xxxxx | $0 | ||||
Term: For a period of 6
months following the date
hereof. |
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Clinical | Xxxxxxx Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
Microsoft Licensing; Contracts |
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Service: Parent will
facilitate the transfer of
Microsoft licensing to
support the software
applications and hardware
used by the Acquired
Companies in the operation of
their respective businesses.
Parent shall also facilitate
the transfer of any vendor
contracts such as local phone
service, ISP providers and
other Information Technology
vendors to support operating
the business of the Acquired
Companies independently from
Parent.
|
Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$0 (other than Pass Through Costs) |
|||
Term: For a period of 12
months following the data
hereof |
||||||
Information Technology |
||||||
Service: Parent shall
provide I.T. support during
normal business hours to the
Acquired Companies to support
the integrated Solomon and
E-mail systems.
|
Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$75 per hour of time provided | |||
Term: For a period of 6 months |
15
EXHIBIT B
Beckman | ||||||
Clinical | Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
HR |
||||||
Service: Recipient will
prepare W2’s for all Cogenics
employees during the period
January 1, 2009 through
December 31, 2009.
|
Xxxxxxx Xxxxxxxx | $0 (other than Pass Through Costs) |
||||
SEC Compliance |
||||||
Service: Recipients shall
provide Parent access during
reasonable business hours to
appropriate Cogenics
financial personnel to
prepare Parent’s consolidated
financial statements and
supporting schedules in
preparation of Parent’s
fiscal year-end reporting
packages and SEC filings,
provided in no event shall
Purchaser, any Acquired
Company or any of its
employees provide any
certification as to the
effectiveness of internal
controls nor the conformity
of the financial statements
to GAAP.
|
C. Xxxx Xxxxxxxxxx
CFO |
Xxx Xxxx | $0 | |||
Term: Until June 15, 2009 |
||||||
Tax Reporting |
||||||
Service: Recipients shall
assist Parent with the
preparation and filing of
their respective tax returns
and provide the requisite
access to such historical
financial, operational and
other data as may be
desirable or necessary in
connection with the
preparation of such tax
returns. Term: For a period of 12 months following the date hereof. |
C. Xxxx Xxxxxxxxxx
CFO |
Xxx Xxxxxxxxx | $0 | |||
VPN Access |
||||||
Service: Recipients shall
provide VPN access to
PGxHealth employees who
remain in the Morrisville NC
facility to access the
PGxHealth System from the
Morrisville, NC facility. It
is acknowledged and agreed
that Parent shall provide any
required hardware.
|
Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$0 | |||
Term: During the period
during which PGxHealth
employees remain in the
Morrisville NC site. |
||||||
Tape Libraries |
||||||
Service: Purchaser will maintain historical back-
|
Xxxxx Xxxxxxx | Xxxxx Xxxx / | $0 (other than |
16
Xxxxxxx | ||||||
Clinical | Xxxxxxx | |||||
Service Description and Terms | Data Contact | Contact | Cost | |||
up tapes in accordance with
Purchaser’s customary
business practices and when
necessary provide Parent
reasonable access during
normal business hours to that
portion of the access tapes
unrelated to the business of
the Acquired Companies.
|
Xxx Xxxxxxxx | Pass Through Costs) | ||||
Term: For a period of 1 year
following the date hereof. |
||||||
Information Technology |
||||||
Service: Recipients shall
make Xxx Xxxxxxxx available
to provide I.T. support
during normal business hours
to the Parent at reasonable
times and in a manner that
does not materially interfere
with his duties to the
Acquired Companies. This
Service shall automatically
terminate in the event that
Xxx Xxxxxxxx leaves his
position with Cogenics.
|
Xxxxx Xxxxxxx | Xxxxx Xxxx / Xxx Xxxxxxxx |
$80.53 per hour of Xx. Xxxxxxxx’x time provided | |||
Term: For a period of 6 months |
17
EXHIBIT C
The following office space located at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxx, XX 00000. Such office
shall be comprised of the following:
• | 1 Small office without windows needed until May 30, 2009 [C. Snow] $40.75/week | ||
• | 2 Cubicles needed until April 30, 2009 [X. Xxxxxx ($19.50/week) and X. Xxxxxxxx ($19.50/week)] Total $39/week | ||
• | Undetermined move date (but no more than six (6) months following the Closing: | ||
• | 1 Cubicle [X. Xxxxx] $34.25/week | ||
• | 1 Large office with windows [X. Xxxxxxx] $54.25/week | ||
• | 4 Small offices, no windows [X. Xxxxxxxxxx ($38.75/week), X. Xxxxxx ($38.75/week), X. Xxxxxxxxx($38.75/week), X. Xxxxxx($38.75/week)] Total $170.50/week |
18
EXHIBIT D
All Currently Used Cogenics Payroll Codes to be Included in the 2009
Year-to-Date Report
Earnings Types
Gross Earnings-total of all earnings types
Regular earnings
OT earnings
Commission Earnings
Bonus Earnings-Other than commission
Shift Differential Earnings
Vacation payout (to termed employees)
Car Allowance
Regular earnings
OT earnings
Commission Earnings
Bonus Earnings-Other than commission
Shift Differential Earnings
Vacation payout (to termed employees)
Car Allowance
Hours Types (If Needed)
Regular Hours
OT hours
OT hours
Tax Types
FIT-federal taxes
SS-Social Security taxes
Med-medicare taxes
State — state taxes
SUI/DI
SS-Social Security taxes
Med-medicare taxes
State — state taxes
SUI/DI
Deductions
Pre-tax (all)
Medical
Dental
Dental
Pre-tax (federal, state and local only)
401K
After-Tax
Xxxx 401K
Short term disability
Loan-401K loan repayment
Life
Expense reimbursement- a negative deduction which works as a refund payment
Short term disability
Loan-401K loan repayment
Life
Expense reimbursement- a negative deduction which works as a refund payment
(Other) Memo Codes- formula driven types
401km- 401K company match contributions
GTL-Group term life insurance income inclusion
GTL-Group term life insurance income inclusion
19