EXHIBIT 10.19
SERVICES AGREEMENT
SERVICES AGREEMENT (this "Agreement") dated as of June___, 2000,
between Xxxxxxx.xxx Inc., a Delaware corporation ("Webhelp"), and Webhelp S.A.,
a French societe anonyme (the "Company").
W I T N E S S E T H :
WHEREAS, Webhelp has developed an integrated solution for the
provision of certain real-time human assistance network services and is ready,
willing and able to provide access to such network services and license certain
related know-how relating to the provided services to Company.
WHEREAS Webhelp has verified that such solution can be
technologically customized and adapted to work in French speaking markets;
WHEREAS, the Company desires to establish a Web site and to
provide similar services in the French language;
WHEREAS, simultaneously herewith, Webhelp and the Company are
entering into a Technology and Trademark Agreement (the "Technology and
Trademark Agreement") whereby Webhelp is licensing certain technology and access
to certain of Webhelp's computer systems in connection with such services; and
WHEREAS, Webhelp and the Company desire to enter into an agreement
whereby Webhelp shall provide the Company with certain services in connection
with the Company's business;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and set forth in the Technology and Trademark
Agreement, the parties hereto hereby agree as follows:
1. SERVICES. Webhelp shall provide to the Company the services
described on Schedule I hereto.
2. WEBHELP SERVICE FEES. As consideration for the services rendered
pursuant to this Services Agreement, the following amounts shall be payable by
the Company:
(a) Nineteen and nine-tenths percent (19.9%) of the total issued
and outstanding common shares of the Licensee pursuant to the
Subscription Agreement dated as of the date hereof (the
"Subscription Agreement") among the Licensee, Webhelp and
Europe@web and in accordance with the Shareholders Agreement
dated as of the date hereof (the "Shareholders Agreement"; and
together with this Agreement, the Services Agreement and the
Subscription Agreement, the
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"Documents") among the Licensee, Xxxxxxxx Xxxxxxx, Xxxxxxx
Xxxx, EUROPE@WEB B.V. and Webhelp, which shall be fully earned
on the date hereof;
(b) during first 12-months of the Initial Term, the Licensee shall
pay to Webhelp US $3,500,000 in cash, US $ 1,000,000 of which
has been paid on behalf of the Licensee by EUROPE@WEB B.V., US
$2,000,000 of which is payable on September 30, 2000 by wire
transfer to an account designated by Webhelp, and US $500,000
of which is payable on December 31, 2000 by wire transfer to
an account designated by Webhelp. Notwithstanding the
foregoing, in the event that Company is unable to arrange
further financing by September 30, 2000, the September 30th
payment stipulated above shall be postponed until the date of
such further financing but in no event, shall the payment be
postponed beyond December 31, 2000 regardless of available
financing.
(c) A monthly service fee shall be payable by Company as
consideration for the continuing services provided by Webhelp
under this Services Agreement (the "Service Fees") which shall
be calculated in the following manner:
(i) For the initial 12 month period: 0% of Gross Revenue;
(ii) For the following 12 month period (year 2 of the Agreement),
5% of Gross Revenue;
(iii) For the following 12 month period (year 3) 4% of Gross
Revenue;
(iv) For the following 12 month period (year 4) 4% of Gross
Revenue;
Gross Revenue shall be defined as the total consideration actually received by
Company or accruing to the benefit of the Company in accordance with French GAAP
and in accordance with the annual financial statements prepared by Company for
its shareholders. Without limiting the generality of the foregoing,
consideration can include non-monetary consideration provided such non-monetary
consideration can be valued monetarily. Company shall have the obligation to
account and remit to Webhelp the Service Fees set out above, 15 days following
each month end.
During the Term of this Agreement and for two (2) years thereafter, Company
agrees to keep all usual and proper records and books of account and all usual
and proper entries relating to Company's revenue and Webhelp shall have the
right to cause an audit and/or inspection to be made of the applicable records
and books in order to verify statements issued by Company and Company's
compliance with the terms of this Agreement. Any such audit shall be conducted
by an independent certified public accountant selected by Webhelp (other than on
a contingent fee basis). Any audit and/or inspection shall be conducted during
regular business hours at Company's facilities with reasonable notice. Such
audits shall be made no more often than once every twelve (12) months
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3. DIRECT COSTS. Each of the parties shall be solely responsible for
payment of its expenses occurring as a result of the operation of this
Agreement. Notwithstanding the foregoing, any direct costs (e.g. travel,
accommodation, etc.) incurred by Webhelp in fulfillment of their obligations
under this Agreement shall be the responsibility of Webhelp until the first 12
months of this Agreement has expired after which time any reasonable direct
costs shall be borne by Company.
4. TERM. This Agreement shall commence effective as of the date hereof
and shall continue thereafter until the term of the Technology and Trademark
Agreement terminates, unless mutually extended in writing by the parties hereto.
It is expressly understood by the parties that there is a process for
re-negotation set out under the Technology and Trademark Agreement and that
provisions related to the process of re-negotiation thereunder shall be deemed
to apply to this Services Agreement insofar as such provisions may reasonably
apply.
5. INDEMNIFICATION BY THE COMPANY. Notwithstanding any insurance
carried by the Company, the Company shall defend, indemnify and hold harmless
Webhelp, its subsidiaries and their respective agents, officers, directors and
employees (each an "Webhelp Person") against and from any and all losses,
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees, which may
be imposed upon or incurred by or asserted against any Webhelp Person by a
third-party and arising out of the performance by Webhelp of its services
hereunder (unless with respect to any such indemnified party claiming
indemnification hereunder due to the gross negligence or willful misconduct of
such indemnified party). In the event that any action or proceeding is commenced
against any Webhelp Person with respect to any matter for which any such person
or entity may be entitled to indemnification pursuant to this Section 4, Webhelp
shall give written notice thereof to the Company and the Company shall have the
right to defend such action or proceeding with counsel selected by the Company
and approved in writing by Webhelp, provided that (i) Webhelp's failure to give
any such notice shall not impair or limit any Webhelp Person's rights hereunder
except to the extent that the Company is materially prejudiced thereby and (ii)
no settlement shall be made by the Company without the prior written consent of
Webhelp (which consent shall not be unreasonably withheld, unless such
settlement does not contain a general release of the Webhelp Persons by all
claimants in form and substance reasonably acceptable to Webhelp, in which case
Webhelp may withhold its consent in its sole and absolute discretion). This
indemnification obligation of the Company shall survive any termination of this
Agreement or any provision herein to the contrary.
6. INDEPENDENT CONTRACTOR. At all times, Webhelp shall render and
perform its services hereunder as an independent contractor in accordance with
its own standards, subject to Webhelp's compliance with the provisions of this
Agreement and with all applicable laws, ordinances and regulations. The Company
shall not have or exercise any control or direction over Webhelp in the
performance of its services under this Agreement. Under no circumstances shall
either party hereto, any of its officers, directors or employees or any other
person employed by or associated with such party be deemed to be an employee of
the other party. Neither party nor any director, officer, employee, agent or
representative of such party shall be entitled to any of the employment-related
benefits (including, without limitation, fringe benefits and worker's
compensation benefits) afforded by the other party to its employees by virtue of
this Agreement.
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7. PAYMENT OF APPLICABLE TAXES. Webhelp shall be solely responsible for
the payment of all applicable federal, state and local income taxes, gross
receipt taxes, FICA, unemployment and disability benefits and worker's
compensation obligations arising out of or relating to the performance by
Webhelp of services pursuant to this Agreement. Webhelp shall further be solely
responsible for the payment of all applicable state and local sales, use and
service taxes levied upon it in connection with the services rendered by it
pursuant to this Agreement. It is expressly acknowledged and agreed by the
parties hereto that neither party hereto shall withhold or in any way be
responsible for the payment of any federal, state, provincial or local income or
occupational taxes, gross receipt taxes, FICA taxes, unemployment compensation,
disability benefits, or worker's compensation contribution, or any other similar
payments for or on behalf of the other party hereto or its employees, agents or
representatives.
8. RELINQUISHMENT OF RECORDS. Upon the termination of this Agreement,
each party hereto shall promptly return to the other party upon request any and
all files, data and materials owned by the requesting party and made available
to the other party pursuant to this Agreement.
9. AMENDMENT OR MODIFICATION, WAIVER. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by each party hereto. Except as otherwise specifically
provided in this Agreement, no waiver by any party hereto of any breach by the
other party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time.
10. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is given, (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, provided telephonic
confirmation of receipt is obtained promptly after completion of transmission,
(iii) on the business day after delivery to an overnight courier service or the
Express mail service maintained by the United States Postal Service, provided
receipt of delivery has been confirmed, or (iv) on the fifth day after mailing,
if mailed by registered or certified mail, postage prepaid, properly addressed
and return-receipt requested, in all cases to the parties as follows:
If to the Company:
If to Webhelp:
Xxx Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
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With a copy to:
Xxxx X. Xxxxxx
Xxxxxxx.xxx Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Telecopier: (000) 000-0000
Any party may change its address by giving the other party written notice of its
new address in the manner set forth above.
11. ENTIRE AGREEMENT. This Agreement and the Technology and Trademark
Agreement contain the entire agreement between the parties hereto with respect
to the subject matter hereof and thereof. This Agreement and the Technology and
Trademark Agreement supersede all prior understandings, negotiations and
agreements between the parties with respect to the subject matter hereof.
12. SEVERABILITY. If any provision herein contained shall be held to be
illegal or unenforceable, such holding shall not affect the validity or
enforceability of the other provisions of this Agreement.
13. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York applicable to contracts entered into and to be
performed entirely within that State, without reference to any conflict of laws
principles that would apply the laws of any other jurisdiction.
14. ASSIGNMENT. This Agreement may not be assigned in whole or in part
by either party hereto without the prior written consent of the other, and any
attempted assignment in violation of this Section 13 shall be null and void.
15. BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto, and their respective successors and
permitted assigns.
16. COUNTERPARTS. This Agreement may be executed in counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
17. INTEREST IN OTHER BUSINESSES. Nothing contained herein shall create
any right or entitlement in the Company or Webhelp to participate in any other
related or unrelated activity conducted by the other party and each party
further acknowledges that nothing contained herein shall create any interest,
right or entitlement of such party in any present or future operations,
activities or facilities owned, managed or otherwise related to the other party
hereto or its subsidiaries or affiliates, other than the rights of the parties
hereto as expressly provided herein and in the other agreements entered into as
of the date hereof between the parties.
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18. INTENTIONS OF THE PARTIES. The parties hereto intend, in good faith,
that this Agreement and the transactions contemplated hereby be conducted in
such a manner so as to comply with all applicable laws, rules and regulations
governing the services contemplated hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
XXXXXXX.XXX INC.
By __________________________
Name:
Title:
WEBHELP S.A.
By __________________________
Name:
Title:
