展覽2.02
執行版本
過渡服務協議
本轉讓服務協議日期爲2024年10月30日（以下簡稱“協議”),由一方爲FSE Diya Inc.，一家特拉華州公司（以下簡稱“買方”），另一方爲CVG FSE, LLC，一家特拉華州有限責任公司（以下簡稱“賣方”），以及Commercial Vehicle Group, Inc.，一家特拉華州公司（以下簡稱“母公司。
”與賣方一起，合稱“各賣方方代理爲「賣方方代理方」；
”）。 買方和賣方各自在本文件中被稱爲“方方當事人”。 在本文件中使用的大寫詞彙，除非另有定義，否則應具有資產購買協議（下稱「該協議」）中所賦予的含義，該協議日期爲與本協議相同日期（下稱“購買協議買方和賣方訂約方之間。
前言
鑑於，在採購協議所預期的交易完成過程中，各方已同意簽署本協議，根據該協議，賣方將在過渡期內向買方提供特定服務，買方將在過渡期內向賣方提供特定服務，每一方均應遵守本協議中規定的條款和條件（在提供此類服務時，買方或賣方應如本處所稱爲“"服務提供者”及在接收此類服務時，賣方方或買方方應如本處所稱爲“服務接收方”).
協議
鑑於以下承諾和相互約定，買方和賣方各方特此同意如下：
第一部分。服務的提供.
(a)賣方雙方同意提供上面規定的服務 附錄 A （這個”員工租賃服務”）和 附錄 B （這個”其他服務”，再加上員工租賃服務，”賣家服務”) 此處僅供適用之用 其中規定的期限（可根據以下規定提前終止 第 2 (b) 節 要麼 第 2 (c) 節），根據本協議中規定的其他條款和條件向買方提供。根據本協議向買方提供員工租賃服務的期限在本協議中稱爲”員工租賃期。”買方同意提供上面列出的服務 附錄 C （這個”買家服務” 並與” 合併賣家服務”，”服務”) 在這裏 (附錄 A, 附錄 B 和 附錄 C 此處統稱爲”服務時間表”）在其中規定的適用期限內（可根據以下規定提前終止 第 2 (b) 節 要麼 第 2 (c) 節），根據本協議中規定的其他條款和條件向賣方雙方。服務的提供應 (i) 本着誠意提供，如果適用，其方式和時間框架與服務提供商曆史上提供的與業務運營相關的服務基本一致，並以與服務提供商曆史上在業務運營方面提供的謹慎標準基本相同，但在任何情況下都不低於符合良好商業慣例的合理謹慎標準；(ii) 遵守所有適用法律；以及 (iii) 符合適用的規定服務計劃中規定的規範（如果有）。不管怎樣
相反，在此情況下，（x）服務提供商不需要提供任何服務，只要提供此類服務將要求服務提供商違反與提供此類服務相關的任何適用法律（在這種情況下，服務提供商應盡商業上的合理努力安排一種替代方法來交付此類服務，該方法不違反適用法律，並在適用法律、軟件許可證或其他協議下最大程度地實現本服務協議關於此類服務的意圖），以及（y）如果相關人員從買方辭職或因原因被解僱，則買方不需要提供與Timothy Wright和/或Minja Zahirovic相關的買方服務。
(b)除非明確規定 第1(a)項本權證，各方未對提供的服務做出任何形式的陳述或擔保，包括但不限於適銷性或特定用途的任何擔保，明示或默示，這些擔保明確不被承認。儘管本協議或任何附表中的任何條款與其他情況相牴觸，任何一方、其關聯公司或各自的代表均不應對任何間接、特別、附帶或後果性的損害負責（在每種情況下的除外情況包括但不限於（i）支付給第三方和/或（ii）由此產生或由此帶來的欺詐或故意違反其在本處的義務），無論基於合同、侵權行爲（包括過失和嚴格責任）或任何其他法律理論，在任何保修下或其他起因於或涉及服務的情況下。 爲了避免疑問，本處使用的「損失」一詞應按照購買協議中規定的含義，但受前述限制所約束。 除支付本協議項下所欠金額外，每方對於任何原因並基於任何訴因，除違約外，均應始終併合計金額受到限制，該限制不適用於各方的 第8部分各方的賠償義務規定 第6部分，或在任何一方欺詐、故意不當行爲或重大過失的情況下，任何原因和依據的任何賠償請求，始終一貫被限制在此協議項下之前由該方支付或向該方支付的金額。
第二部分。條款和終止.
(a)本協議自即日起生效，並在提供本協議項下的所有服務到期或終止之日起繼續有效； 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；，本協議未根據此提前終止 第2節.
(b)服務接收方可隨時終止本協議項下的一個或多個服務項目，需在生效日前至少提前三十（30）天書面通知服務提供方。爲避免疑義，如果服務接收方交付
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如果在某月的第一天之前的不足三十（30）天內發出終止通知，則服務項目的終止將在該月後緊隨的月份的第一天生效，除非服務提供者同意更早終止該服務。
(c)各方得以在對方未能如本協議所規定的那樣認真遵守或履行，或對方在實質上違反本協議規定的該方的任何契約、義務或協議的情況下，提供書面通知以有原因地終止本協議，該等未能繼續持續未得到糾正的期間爲30天（如能夠糾正則進行）。
(d)The Parties understand and agree that Sections 1(b), 3, 4 (with respect to compensation accrued prior to such termination), 5, 7, 8 and 9 hereof shall survive the termination or expiration of this Agreement indefinitely.
Section 3.Responsibility for Wages and Fees. For such time as any employees of the Service Provider are providing the Services to the Service Recipient under this Agreement, (a) such employees will remain Form W-2 employees of the Service Provider, and shall not be deemed to be employees of the Service Recipient for any purpose, and (b) subject to Section 4, the Service Provider shall be solely responsible for the payment and provision of all wages, bonuses and commissions, employee benefits, including severance, and worker’s compensation and the withholding and payment of applicable Taxes relating to such employment. Subject to the requirement that the Service Recipient reimburse the Service Provider for Out-of-Pocket Expenses as set forth in Section 4(b), if the Service Provider employs any third-party service providers or subcontractors to provide any of the Services, the Service Provider shall be solely responsible for the payment of all fees and other amounts owed to such third-party service providers or subcontractors in connection with the provision of such Services.
Section 4.Compensation.
(a)Employee Leasing Services.
i.The amounts to be paid by Buyer for the Employee Leasing Services shall consist of (i) the Payroll Employee Costs (as defined below) and (ii) the Non-Payroll Employee Cost (as defined below). “Payroll Employee Costs” means the following direct expenses incurred by the Seller Parties with respect to each Leased Employee during the Employee Leasing Period (as defined in Exhibit B) (without duplication): (i) all compensation payable to the Leased Employees, including but not limited to, all salary, wages and bonus payments; (ii) actual payroll taxes and employment-related taxes incurred by the Seller Parties with respect to the compensation described in clause (i); (iii) all health, life, accident and disability insurance premiums or charges and all insurance expenses whatsoever; (iv) all 401(k) or other retirement or savings plan contributions made by the Seller Parties; and (v) third-party workers’ compensation premiums; provided that (x) Payroll Employee Costs shall
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only include such costs incurred with respect to the Leased Employees for the Employee Leasing Period, (y) any payments (including annual bonuses) and costs that are determined on an annual basis, or otherwise cover the period prior to the Employee Leasing Period and the Employee Leasing Period, shall be prorated between such periods based on the number of calendar days, and (z) for the avoidance of doubt, Payroll Employee Costs shall not include any transaction bonus, change of control bonus, acceleration of awards, retention bonuses or other similar payments. “Non-Payroll Employee Costs” shall mean the following expenses incurred by the Seller Parties with respect to each Leased Employee during the Employee Leasing Period (without duplication): (i) reasonable and documented out of pocket third party expenses incurred in administering or defending any workers’ compensation claims that arise in connection with an accident or incident occurring during the Employee Leasing Period; (ii) all unemployment compensation charges; (iii) all business, travel, and employment-related expenses incurred by any Leased Employees in performing Services for Buyer during the Employee Leasing Period; (iv) to the extent not provided for above, the total cost to the Seller Parties of employee benefits to such Leased Employees during the Employee Leasing Period pursuant to the employee benefit plans of the Seller Parties; and (v) to the extent not provided above, all other reasonable and documented out-of-pocket external costs and expenses paid to third parties, if any, incurred by the Seller Parties arising from the Seller Parties’ continued employment of the Leased Employees during the Employee Leasing Period for the purpose of providing Employee Leasing Services under the Agreement; provided that (w) Non-Payroll Employee Costs shall only include such costs incurred with respect to the Leased Employees for the Employee Leasing Period, (x) any payments or costs that are determined on an annual basis, or otherwise cover the period prior to the Employee Leasing Period and cover the Employee Leasing Period, shall be prorated between such periods based on the number of calendar days and (y) for the avoidance of doubt, Non-Payroll Employee Costs shall not include any internal costs (including, without limitation, the cost of providing internal resources and payroll costs of employees of the Seller Parties other than the Leased Employees). Payroll Employee Costs and Non-Payroll Employee Costs are referred to herein collectively as “Employee Costs”.
ii. Payroll Employee Costs shall be the actual amount of each payroll for the Leased Employees during the Employee Leasing Period and shall be invoiced separately from the Non-Payroll Employee Costs.
iii. The Seller Parties shall invoice Buyer for the Payroll Employee Costs on Tuesday before each pay date, and Buyer shall pay each such invoice by Wednesday before each pay date in immediately available
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funds. The Seller Parties shall invoice Buyer monthly for Non-Payroll Employee Costs and Buyer shall pay each such invoice within five (5) Business Days after receiving the invoice in immediately available funds, except to the extent disputed in good faith by Buyer.
(b)Other Services and Buyer Services. The applicable Service Recipient shall reimburse the applicable Service Provider for all reasonable and documented out-of-pocket expenses payable to third parties incurred by the Service Provider in the provision of any Other Service or Buyer Service (the “Out-of-Pocket Expenses”); provided that the Service Recipient shall not be responsible for any individual expense in excess of $5,000 unless the Service Provider obtains prior written consent (e-amil being sufficient) of the Service Recipient, which consent shall not be unreasonably withheld, conditioned or delayed; provided further that if Service Recipient does not consent to any such expense, the Service Provider shall not have any obligation to provide the Service related to the expense for which consent was not provided. The applicable Service Provider shall provide the Service Recipient with a monthly invoice setting forth the amount of any Out-of-Pocket Expenses. The applicable Service Recipient shall pay any such invoice within ten (10) Business Days of receipt of such invoice in immediately available funds to an account specified by the applicable Service Provider. Except for the reimbursement of Out-of-Pocket Expenses, the Services set forth on Exhibit B and Exhibit C shall be provided at no charge to the Service Recipient.
(c)Payment Dispute. If the applicable Service Recipient disputes in good faith any amounts invoiced by the Service Provider pursuant to Section 4(a) or Section 4(b), the Service Recipient shall notify the Service Provider of the amounts in dispute and provide the Service Provider with an explanation of the basis of the dispute. Upon reasonable request by the Service Recipient, the Service Provider shall furnish to the Service Recipient reasonable documentation to substantiate the amounts billed, including listings of the dates and amounts of the Services in question where applicable and reasonably practicable. Upon delivery of such documentation, and before commencing any Action relating to such dispute, the Parties shall first attempt to resolve it by engaging in good faith discussions between representatives of such Parties for a period of 15 days.
Section 5.Indemnification.
(a)Each Party will indemnify, defend and hold harmless the other Parties, their Affiliates and their respective employees, officers, directors, shareholders, members, partners, agents and representatives, from and against any and all Losses arising out of, relating to or resulting from (i) such Party’s material breach of this Agreement and (b) such Party’s gross negligence or willful misconduct in the performance of the Services, except to the extent such Losses are caused by the Service Recipient’s or its Affiliate’s gross negligence or willful misconduct.
(b)In connection with the Employee Leasing Services, Buyer shall indemnify, defend and hold harmless the Seller Parties and their Affiliates and their respective employees, officers, directors, shareholders, members, partners, agents and representatives, from and against any and all Losses arising out of, relating to, or resulting from (i) the negligence or
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willful misconduct of Buyer or its agents or employees in connection with the Leased Employees during the Employee Leasing Period; (ii) all injuries or damages to persons or property which relate to or arise out of the Leased Employees and which occurs during the Employee Leasing Period; (iv) the action or inaction of any of the Leased Employees during the Employee Leasing Period; (iii) the failure of any of the Leased Employees to comply with applicable law during the Employee Leasing Period; (iv) all Liabilities asserted by any of the Leased Employees with respect to the Employee Leasing Period, including but not limited to claims by Leased Employees with respect to the Employee Leasing Period under state, federal or local discrimination laws; state, federal or local wage and hour laws; state, federal or local leave laws; state, federal or local workplace safety laws and any other state, federal or local employment laws, and (v) the operation of Buyer’s business by any of the Leased Employees during the Employee Leasing Period, and the performance or non-performance by any of the Leased Employees of any duties or functions by or on behalf of Buyer during the Employee Leasing Period
(c)In connection with the provision of the Other Services, Buyer shall indemnify, defend and hold harmless the Seller Parties and their Affiliates and their respective employees, officers, directors, shareholders, members, partners, agents and representatives, from and against any and all Losses arising out of, related to or resulting from any Third-Party Claim by the applicable licensor alleging violation or breach of the Seller Parties’ license agreement with respect to AutoCAD as a result of providing Buyer with access to AutoCAD hereunder.
(d)With respect to any Third-Party Claims which are subject to the indemnification provisions set forth in the foregoing clauses (a)-(c), the provisions of Section 6.3 of the Purchase Agreement shall apply, mutatis mutandis.
Section 6.Cooperation. The Parties agree to cooperate with each other in connection with the provision of the Services hereunder, and each Party agrees to use commercially reasonable efforts in good faith to cooperate with the other Parties in all matters relating to the provision and receipt of such Services.
Section 7.Force Majeure. The obligations of the Service Provider under this Agreement shall be suspended during the period and to the extent that such Party is prevented or hindered from complying therewith by any causes or beyond its reasonable control including, without limitation: (i) acts of God, (ii) weather conditions, fire or explosion, (iii) war, invasion, riot or other civil unrest, (iv) actions, embargoes or blockades in effect on or after the date of this Agreement, (v) national or regional emergency, (vi) strikes, labor stoppages or slowdowns or other industrial disturbances, (vii) pandemics, and/or (viii) shortage of adequate power or transportation facilities. In such event, the Party whose obligations are suspended shall give notice of suspension as soon as reasonably practicable to the Party to which such obligations are owed stating the date and extent of such suspension and the cause thereof, and shall resume the performance of such obligations as soon as reasonably practicable after the removal of the cause.
Section 8.Confidentiality.
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(a)During the term of this Agreement and for five (5) years thereafter, the Parties shall maintain in confidence and not disclose the other Party’s financial, technical, sales, marketing, development, personnel, and other information, records, or data, including, without limitation, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications or any other proprietary or confidential information, however recorded or preserved (any such information, “Confidential Information”). Each Party shall use the same degree of care, but no less than reasonable care, to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature. Unless otherwise authorized in any other agreement between the Parties (including the Purchase Agreement), any Party receiving any Confidential Information of the other party (the “Receiving Party”) may use Confidential Information only for the purposes of fulfilling its obligations under this Agreement, the Purchase Agreement and/or the Transaction Documents or enforcing its rights thereunder (the “Permitted Purpose”). Any Receiving Party may disclose such Confidential Information only to its Affiliates and their respective employees, contractors or other representatives (collectively “Representatives”) who have a need to know such information for the Permitted Purpose and who have been advised of the terms of this Section 8 and the Receiving Party shall be liable for any breach of these confidentiality provisions by such Persons. Notwithstanding the foregoing, any Party may disclose the Confidential Information of another Party in the following circumstances, provided that such Party shall, to the extent reasonably possible and permitted by applicable law, first promptly notify the other Party of such intended disclosure and shall cooperate in seeking any limitations on such disclosure and/or protective measures for disclosed information: (a) in response to a court order or formal discovery request; (b) if a request is made by any governmental authority; and (c) as otherwise required by applicable law.
(b)Notwithstanding the foregoing, “Confidential Information” shall not include any information that the Receiving Party can demonstrate: (i) was publicly known at the time of disclosure to it, or becomes publicly known through no act of the Receiving Party or its Affiliates or Representatives in breach of this Section 8; (ii) was rightfully received from a third party without a duty of confidentiality; or (iii) was developed by it independently without any reliance on the Confidential Information. Confidential Information may not be reproduced, except as required for the Permitted Purpose. Upon demand by the disclosing party at any time following termination or expiration of an applicable service, or upon expiration or termination of this Agreement, the Receiving Party agrees promptly to return or destroy, at the disclosing party’s option, all materials that disclose or embody Confidential Information. The Receiving Party agrees not to remove any proprietary-rights legend from, and upon the disclosing party’s reasonable request, shall add such legend to materials disclosing or embodying Confidential Information. If such Confidential Information is destroyed, an authorized officer of the Receiving Party shall certify to such destruction in writing.
Section 9.Miscellaneous. The provisions of Article 7 of the Purchase Agreement are hereby incorporated by reference and shall apply to this Agreement mutatis mutandis; provided that any references to “this Agreement” therein shall refer to this Agreement.
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Section 10.Counterparts. This Agreement may be executed in several counterparts (any of which counterparts may be delivered by facsimile, portable document format (pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (including DocuSign)), each of which shall be deemed an original and all of which shall together constitute one and the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by all of the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Parties, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, will be disregarded in determining a Party’s intent or the effectiveness of such signature.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused this Transition Services Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
FSE Diya Inc.
By: /s/ Vijay Mony
Name: Vijay Mony
Title: Chief Executive Officer
Name: Vijay Mony
Title: Chief Executive Officer
CVG FSE, LLC
COMMERCIAL VEHICLE GROUP, INC.
Signature Page to Transition Services Agreement