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EXHIBIT 10.3
FORM OF SERVICES AGREEMENT
This SERVICES AGREEMENT ("Agreement") is entered into as of
__________, 2000 (the "Effective Date") by and between H.T.E., INC., a Florida
corporation ("HTE"), and XXXXXXXXXX.XXX, INC., a Florida corporation ("DSI").
R E C I T A L S:
A. Prior to execution of this Agreement, DSI was a wholly-owned
subsidiary of HTE.
B. HTE and DSI have commenced on this date a Rights Offering
and, as a result of the Rights Offering, DSI expects to become a publicly
traded company, with HTE as a significant stockholder. The Rights Offering is
more fully described in DSI's registration statement on Form S-1 (Registration
No. ) filed with the Securities and Exchange Commission (the "Rights
Offering").
C. During the period when DSI was a wholly owned subsidiary of
HTE, DSI relied on HTE for the provision of certain administrative services.
D. The parties have agreed that following the Rights Offering,
HTE will continue to provide certain management and administrative services to
DSI and DSI will provide certain technical and administrative services to HTE.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. SERVICES. During the term of this Agreement, HTE will provide
the services described on Exhibit A to DSI and DSI will provide the services
described on Exhibit B and may, in its sole discretion, provide such other
services as HTE or DSI may request from each other from time to time (all such
services referred to herein as the "Services").
2. FEES AND EXPENSES.
(a) The requesting party (the "Requesting Party") will pay to
the other party fees ("Fees") for the Services provided by said party
("Performing Party") equal to such Performing Party's cost of providing such
Services, as reasonably determined by the Performing Party. Such Fees will
include an allocation of the Performing Parties general and administrative
overhead expense relating to such Services. The Performing Party may, but shall
not be obligated to, determine such cost using the same methods employed by the
Performing Party to allocate costs to the Requesting Party for such Services
prior to the Rights Offering.
(b) The Requesting Party will reimburse the Performing Party
for expenses any reasonable and necessary out-of-pocket expenses incurred in
connection with the provision of the Services, including any taxes or other
governmental impositions attributable to the provision of the Services (other
than income or other similar taxes assessed on the Fees), but not including any
general or administrative overhead expense of Requesting Party. Requesting
Party will not have any obligation to advance funds on behalf of Performing
Party.
(c) Performing Party will invoice Requesting Party for the
Fees and expenses due hereunder at the intervals determined by Performing Party
from time to time. All invoices will be due and payable within thirty (30)
calendar days after the date of the invoice.
3. INFORMATION AND RECORDS.
(a) The Parties will make available to each other on a timely
basis all information which is reasonably necessary for the parties to provide
the Services to each other.
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(b) The parties will maintain records with respect to the
Services which are substantially similar to those maintained with respect to
similar Services provided for its own account, and will provide those records
to each other upon termination of this Agreement.
4. LIABILITY.
(a) The parties make no express or implied warranties to each
other with respect to the Services.
(b) The Performing Party will be liable to the Requesting
Party for any Loss (hereinafter defined) suffered as a result of acts or
omissions of the Performing Party or any shareholder, director, officer or
employee of said party or any attorney, accountant, representative or agent
retained by the Performing Party ("Associates") in connection with the Services
provided only if and to the extent that (i) the acts or omissions constitute
gross negligence or willful misconduct or (ii) the acts or omissions would be
covered by the Performing Party's insurance coverage under crime, fidelity or
fiduciary insurance (if any). In any event, except to the extent covered by the
Performing Party's crime, fidelity or fiduciary insurance, (i) any claim for
damages from the Performing Party in connection with a Service provided will be
limited to the amount of Fees charged with respect to the Service, and (ii)
Performing Party will not be liable to Requesting Party for any incidental or
consequential damages, lost profits or opportunities, or exemplary or punitive
damages.
As used herein, "Loss" means any and all claims, liabilities,
obligations, losses, deficiencies and damages or judgments of any kind or
nature whatsoever arising from, asserted against, or associated with the
furnishing or failure to furnish the Services, regardless of by whom asserted
and regardless of whether or not any such loss is known or unknown, fixed or
contingent or asserted or unasserted, incurred by Performing Party in
connection with the provision of the Services.
5. INDEMNITY. Except as provided in Section 4(b), the Requesting
Party will indemnify the Performing Party and its Associates and hold
Performing Party and its Associates harmless from any and all Losses arising
from, asserted against or associated with the provision of Services by
Performing Party to Requesting Party.
6. AUTHORITY.
(a) In providing the Services, Performing Party may take such
actions, make such decisions and exercise such judgment on behalf of Requesting
Party as Performing Party has taken, made or exercised in providing the same or
similar services on behalf of Requesting Party prior to the closing of the
Rights Offering.
(b) Prior to taking action on behalf of Requesting Party,
Performing Party will use reasonable efforts to consult with appropriate
officers or employees of Requesting Party (i) in those circumstances under
which Performing Party would have consulted officers or employees of Requesting
Party prior to the Rights Offering, and (ii) in any other circumstances
required under such reasonable rules and procedures as Performing Party may
adopt, from time to time, after prior consultation with Requesting Party.
7. FORCE MAJEURE. The Performing Party will not be liable to the
Requesting Party for any failure to comply with this Agreement caused, directly
or indirectly, by of (a) a fire, flood, explosion, riot, rebellion, revolution,
labor trouble (whether or not due to the fault of such Party), requirements or
acts of any government authority or agency or subdivision thereof, loss of
source of supplies or other inability to obtain materials or suppliers, or (b)
any other cause, whether similar or dissimilar to the foregoing, beyond the
reasonable control of the parties hereto.
8. TERM. The parties' obligation to provide Services hereunder,
shall continue until either party gives one hundred twenty (120) days advance
written
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notice or upon written notice from a party if one of the parties materially
breaches this Agreement and fails to cure such breach within thirty (30) days
after receiving written notice thereof. One party may terminate another party's
obligation to provide it with services and still be obligated to provide the
other party with Services until the other party also terminates the other
party's obligation to provide Services [(and space if applicable)]. Any
outstanding Fees and expenses as well as a Requesting Party's obligation to
indemnify the Performing Party shall survive the termination of this Agreement
indefinitely.
9. NOTICES. All notices, demands, requests, or other
communications which may be or are required to be given, served, or sent by a
party pursuant to this Agreement will be in writing and will be (a) personally
delivered, (b) mailed by first class, registered or certified mail, return
receipt requested, postage prepaid, (c) sent by an internationally recognized
express delivery service or (d) transmitted by facsimile, address as follows:
if to HTE:
H.T.E., Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx 00000
Attention: X.X. Xxxxxx, Jr.,
Executive Vice President
if to DSI:
XxxxxxXxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Attention: O. F. Xxxxx,
President and CEO
Each party may designate by notice in writing a new address or
facsimile number to which any notice may be given, served or sent. Each notice
will be deemed sufficiently given, served, sent or received when it is
delivered to the addressee, with an affidavit of personal delivery, the return
receipt, the delivery receipt or when delivery is refused by the addressee.
Each notice or other communication sent by facsimile will be deemed
sufficiently given only if a copy of the notice or communication is immediately
sent by one of the methods specified in (a), (b) or (c) above.
10. MISCELLANEOUS.
(a) This Agreement sets forth the entire agreement of the
parties with respect to the Services and supersedes all previous agreements,
understandings or negotiations with respect to the Services.
(b) The rights and obligations set forth in this Agreement
may be amended, modified or supplemented only by a writing signed by each
party.
(c) A party may waive a right under this Agreement only by a
written waiver signed by the party. No failure to exercise or delay in
exercising a right under this Agreement will constitute a waiver of that right.
(d) If any provision of this Agreement is found invalid,
illegal or unenforceable, the provision will be ineffective only to the extent
of the invalidity, illegality or unenforceability, and the other provisions of
this Agreement will remain in full force and effect.
(e) A party may not assign its rights, and a party may not
delegate its obligations, under this Agreement unless it first obtains the
written consent of
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the other party, provided, however, that HTE may assign its rights and delegate
its obligations to any wholly-owned subsidiary of HTE without DSI's consent.
Any party, in its discretion, may withhold consent to any such assignment or
delegation.
(f) Except as permitted under Subsection (e), this Agreement
will not inure to the benefit of any Person other than the Parties.
(g) This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
(h) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf as of the date first above written.
H.T.E., INC.
By:
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Name: X. X. Xxxxxx, Jr.
Title: Executive Vice President
XXXXXXXXXX.XXX, INC.
By:
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Name: O. F. Xxxxx
Title: President and
Chief Executive Officer
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EXHIBIT A
H.T.E., INC., AS PERFORMING PARTY
DESCRIPTION OF SERVICES
A. Accounting:
1. Maintain a general ledger.
2. Furnish general bank account checks and reconcile general
bank account.
3. Process vendor invoices and employee expense reports approved
by DSI for payment.
4. Input accounts receivable in accordance with instructions
from DSI personnel; post cash receipts; provide A/R aging as requested (not
more often than once per week).
5. Maintain fixed asset records (acquisition-disposal-
depreciation schedules).
6. Provide project profit and cost accounting schedules.
7. Provide quarterly financial information for use by DSI
personnel in preparing quarterly financial statements; bonus calculations;
trial balances; and financial statements.
8. Responsible for all SEC quarterly reporting requirements.
9. Coordinating all required audits and reviews for financial
reporting.
10. Coordinating and creating all press releases and corporate
communications.
11. General administrative support necessary to fulfill the DSI
requirements as a publicly held company.
B. Payroll:
1. Maintain employee data base and input payroll information
into the payroll database.
2. Distribute payroll checks.
3. Administer state and federal income tax withholdings.
C. Tax:
1. Prepare and file all state and federal income and sale/use
tax returns with a due date during the Term.
D. Benefits:
1. Coordinate participation of DSI employees in HTE's health and
medical insurance program.
2. Coordinate participation of DSI employees in HTE's 401(k)
Defined Contribution Benefit Plan.
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EXHIBIT B
DSI AS PERFORMING PARTY
DESCRIPTION OF SERVICES
All technical, creative and administrative services necessary for HTE
to operate its _________________________ in substantially the same fashion as
such ____________________ were operated prior to the date hereof.
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