Exhibit 10.20
CORPORATE SERVICES AGREEMENT
This CORPORATE SERVICES AGREEMENT (the "Agreement"), is effective as of
March 29, 2000 (the "Effective Date"), by and between THE TITAN CORPORATION, a
Delaware corporation ("Titan") and CAYENTA, INC., a Delaware corporation (the
"Company").
RECITALS
WHEREAS, Titan is the common parent of an affiliated group of
corporations which includes the Company (the "Titan Group");
WHEREAS, Titan is the principal stockholder of the Company and the
Company has become a member of the Titan Group;
WHEREAS, the Company and its majority-owned subsidiaries require
certain administrative support in the conduct of its business; and
WHEREAS, Titan wishes to offer and provide such support to the Company,
and the Company wishes to accept such support, upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and obligations contained herein, the parties agree as follows:
1. SCOPE OF AGREEMENT.
Titan hereby agrees to provide or make available certain administrative
support and related services to the Company and/or its majority-owned
subsidiaries ("Services") in accordance with the terms and conditions of this
Agreement. Titan shall also provide such additional support or services to the
Company and/or its majority-owned subsidiaries pursuant to this Agreement as
Titan and the Company may mutually agree. The Services shall be performed in the
manner, to the extent and at a time substantially consistent with the manner in
which Titan performs administrative or other services for its own benefit.
2. SERVICES.
2.1 TYPES OF SUPPORT SERVICES. Services under this Agreement shall be
for support of the type described below:
(a) ACCOUNTING SERVICES. Titan shall provide bookkeeping and
accounting services, including the maintenance of books and records of the
Company's financial operations, stock option accounting services, internal audit
support services, and review of compliance with financial and accounting
procedures. Titan shall assist the Company in the preparation of Securities and
Exchange Commission and NASDAQ Stock Market filings, including without
limitation, Forms 8-K, 10-Q and 10-K, annual and quarterly reports to
stockholders and proxy statements and proxies and assist in the solicitation of
proxies.
1.
(b) PAYROLL AND PERSONNEL SERVICES. Titan shall provide the
following payroll and personnel services to the Company: administration of
reasonable employee payroll matters and maintenance of general employee
insurance obligations, establishment and management of an employee benefits
program, management of a corporate human resources program relating to executive
and employee recruiting, hiring and training of employees and their
administration, and advice on employee relations and related issues, management
of the Company's employee equity incentive plans and programs and establishment
and management of retirement plans (including the establishment of a 401(k)
Retirement Plan).
(c) MIS SERVICES. Titan shall provide reasonable management
information services to the Company, including coordination of intercompany
network services and database management services between Titan and the Company,
information technology planning services and centralized procurement of hardware
and software and custom software development. Titan may provide additional
management information services as are mutually agreed between Titan and the
Company. In addition, Titan shall allow the Company and its wholly owned
subsidiaries to access, display and use software systems and programs owned by
or licensed to Titan, except to the extent that Titan is precluded by its
licenses from providing such access, display or use.
(d) LEGAL SERVICES. Titan shall consult with and advise the
Company in determining the Company's need for legal services, including legal
services from the Company's General Counsel and other legal counsel with respect
to labor and personnel matters, compliance with applicable securities laws and
regulations, government contracting laws and other applicable laws and
regulations, litigation management, contract negotiation and preparation, merger
and acquisitions, intellectual property protections, tax issues, preventive
counseling and all matters relating to corporate governance of the Company. The
Company shall be responsible for paying and shall bear the cost of all legal
services provided to the Company.
(e) CONTRACTING SERVICES. Titan shall provide the Company
reasonable contracting services as requested by the Company, including
assistance with contract negotiations and administration of contracts.
(f) RISK MANAGEMENT. Titan shall provide the Company
centralized insurance purchasing for liability, property, casualty and other
normal business insurance and the handling of claims. Titan also shall provide
the Company support for product, worker safety and environmental programs of the
Company. Company acknowledges its primary responsibility for compliance with
applicable laws and the establishment and implementation of such programs.
(g) TAX RELATED SERVICES. Titan shall assist the Company in
the preparation of federal, state and local income tax returns, tax research and
planning and assistance on tax audits or other tax-related controversies.
(h) CORPORATE RECORD KEEPING SERVICES. Titan shall maintain,
on behalf of the Company, corporate records, including minutes of meetings of
the board of directors and stockholders of Company, supervision of transfer
agent and registration functions, maintenance of stock records, including the
tracking of stock issuances and stock reservations, and maintenance of records
relating to Section 16 and xxxxxxx xxxxxxx compliance.
2.
(i) FINANCIAL SERVICES. Titan shall provide to the Company the
following financial services: (a) banking services administration, including
bank account administration, loan administration, covenant compliance
administration, maintenance of cash collection and disbursement systems and
arrangement of letters of credit, foreign currency exchanges or conversion
calculations and cash transfers; (b) financial management and information
services, including centralized cash management, pension fund management,
leasing, customer financing, financial analysis and providing information on
foreign currency issues, risk assessment and hedging strategies and (c)
investment banking services, including advice and support for equity and debt
financings, managing Titan and the Company's relationships with debt rating
agencies, analysis, advice, negotiation and other support for mergers and
acquisitions, investor relations services and management of relationships with
equity financial analysts. In connection with such services, Titan is authorized
to (y) invest the funds deposited by the Company with Titan in taxable,
tax-exempt or tax-preferred instruments of short or longer term duration based
upon Titan's assessment of the Company's tax considerations and the Company's
cash needs or (z) loan all or any portion of funds to Titan or any other
subsidiary or affiliate of Titan at interest rates not less than would be
received from comparable term taxable interest-bearing securities and on payment
terms consistent with the Company's cash needs. Titan will advise the Company on
a quarterly basis as to the earnings that the Company may expect on its cash
deposits during the following quarter.
(j) CREDIT SERVICES. Titan shall assist the Company in
identifying and obtaining cost-effective sources of financing consistent with
the needs of Titan and its affiliated companies. Subject to entering into a
reimbursement agreement, Titan may provide the Company with corporate guaranties
or other credit support in connection with the Company's direct external
financing transactions.
2.2 PERFORMANCE OF SERVICES.
(a) PERFORMANCE. The Services shall be performed by Titan on
an ongoing basis during the Term (as defined in Section 5.1 below), as
reasonably required or requested by the Company.
(b) THIRD PARTY PROVISION OF SERVICES. At its option, Titan
may provide any of the Services by contracting with a third party to provide
such services. In such event, the Company shall continue to pay Titan directly
for the services in accordance with Section 2.3 of this Agreement.
2.3 CHARGE FOR SERVICES.
(a) DIRECT SERVICES. The Company shall reimburse Titan monthly
for all Services directly attributable to the Company and/or its majority-owned
subsidiaries at Titan's fully allocated cost, or in the case of Services
provided by a third party at the invoiced amount to Titan.
(b) HUMAN RESOURCES FEE. For human resources related Services,
the Company shall pay Titan an annual fee equal to the Company's percentage of
Titan's annual cost
3.
of its human resource function, with the percentage being the percentage of the
Company's average headcount to the total Titan Group average headcount as of the
last day of the last fiscal year and as of the end date of each of the four
quarters of the current fiscal year ("Human Resources Fee"). Prior to the
beginning of each fiscal year, Titan will estimate the Human Resources Fee for
such fiscal year and Company shall pay Titan the estimated annual Human
Resources Fee in twelve equal monthly installments. At the end of each fiscal
year, Titan will calculate the actual Human Resources Fee and shall credit the
Company for any overpayments against the first payments due on the Human
Resources Fee for the new fiscal year and invoice the Company for any
underpayments of the Human Resources Fee.
(c) CORPORATE SERVICES. For all other Services, the Company
shall pay Titan an annual fee determined by the Company's percentage of Titan's
annual cost of its central corporate services ("Corporate Services Fee"). The
Company's percentage shall be the average of the following three percentages as
of the final day of the last fiscal year and as of the end date of each of the
four quarters of the current fiscal year: (i) the percentage of the Company's
total payroll dollars of the total payroll of the Titan Group, (ii) the
percentage of the Company's operating revenue to the total operating revenue of
the Titan Group and (iii) the percentage of the average net book value of the
sum of the Company's tangible capital assets plus inventories to the total
average net book value of the Titan Group's tangible capital assets plus
inventories; provided that Titan reserves the right to adjust the allocations
for such Services based upon its assessment of the actual relative use of the
central corporate services by the members of the Titan Group. Prior to the
beginning of each fiscal year, Titan will estimate the Corporate Services Fee
for such fiscal year and Company shall pay Titan the estimated annual Corporate
Services Fee in twelve equal monthly installments. At the end of each fiscal
year, Titan will calculate the actual Corporate Services Fee and shall credit
the Company for any overpayments against the first payments due on the Corporate
Services Fee for the new fiscal year and invoice the Company for any
underpayments of the Corporate Services Fee of the Titan Group.
(d) INVOICES. The Company shall pay to Titan the aggregate
amount specified in any invoice for services within ten (10) days of receipt by
the Company.
3. DUTIES OF THE COMPANY
3.1 COOPERATION. The Company shall fully cooperate with Titan to permit
Titan to perform its duties and obligations under this Agreement in a timely
manner. The Company shall direct its officers, directors, employees, and agents
("Representatives") to (i) properly respond to requests by Titan for
information, and (ii) if requested by Titan, meet with or consult with Titan
regarding any manner related to the Services. The Company shall also promptly
provide Titan with copies of any agreements, instruments or documents in
possession of the Company as are reasonably requested by Titan, and promptly
provide Titan with any notices or other communications that the Company may
receive that may have any affect on Titan performance of the Services.
3.2 ACCURACY OF INFORMATION. The Company shall be responsible for the
completeness and accuracy of all information furnished to Titan by the Company
and Representatives of the Company in connection with Titan's performance of the
Services.
4.
4. LIMITATION OF LIABILITY.
The Company acknowledges that Titan is not in the business of providing
Services and that Services are being provided pursuant to this Agreement as an
accommodation to the Company. The Company's sole and exclusive remedy and
Titan's sole and exclusive liability for any breach of by Titan of Section 2,
and for any damages of the Company suffered or incurred directly or indirectly
in connection with the provision of Services by Titan (whether any claim related
to such damages arises in contract, in tort, by statute or otherwise), shall be
the performance by Titan of Services at Titan's expense. Titan makes no
warranty, express or implied, including any implied warranty of merchantability
for a particular purpose or as to the performance of the Services furnished
thereunder, nor any implied warranty arising from course of performance, course
of dealing or usage of trade, all of which are hereby expressly disclaimed.
Under no circumstances, including the failure of the essential purpose of any
remedy, shall Titan be liable for any consequential, exemplary, punitive or
incidental damages, including lost profits, regardless of whether Titan has been
advised of the possibility of such damages.
5. TERM AND TERMINATION.
5.1 TERM. This Agreement shall begin as of the Effective Date and shall
continue through March 29, 2001 ("Term"). This Agreement shall automatically
renew at the end of the initial Term and each subsequent Term for successive
one-year terms unless the Company notifies Titan at least 45 days prior to the
end of the current fiscal year that it intends to terminate this Agreement or
the Agreement otherwise terminates in accordance with Section 5.2.
5.2 TERMINATION. This Agreement shall automatically terminate without
any further action by either party on the date that the Company ceases to be a
member of the Titan Group.
5.3 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
this Section 5, all further obligation of the parties under this Agreement shall
terminate; provided, however, that: (a) no party shall be relieved of any
obligation or liability arising from any prior breach by such party of the
provisions of this Agreement; (b) the parties shall, in all events, remain bound
by and continue to be subject to the terms set forth in Sections 4, 5 and 6; and
(c) the Company shall remain liable for payment under Section 2.3 for any
Services performed on or prior to the date of termination. Following
termination, if Titan performs any Services for the Company on an as-requested
basis or as required in the event that the Company is unable to arrange for
another source for such services or as otherwise required by Titan in acting in
its capacity as the majority stockholder of the Company, then Titan shall charge
the Company, and the Company shall pay Titan, on a monthly basis, a fee equal to
the market rate for comparable services. The obligations in this Section 5.3
shall survive termination of this Agreement.
5.4 TERMINATION FEE. If the Agreement terminates pursuant to Section
5.2, then the Company shall pay Titan a termination fee equal to the estimated
Corporate Services Fee and Human Resources Fees for the remaining months in the
current fiscal year following the date of termination of this Agreement.
5.
6. CONFIDENTIALITY, RECORDS.
6.1 PROPRIETARY INFORMATION. All information furnished or disclosed by
one party (a "Disclosing Party") to the other party (a "Receiving Party") in
connection with the negotiation or performance of this Agreement, including but
not limited to trade secrets, cost and pricing information, proprietary computer
programs and algorithms, techniques, designs, drawings, prototypes, formulae or
test data, relating to any research project, work in process, future
development, engineering, manufacturing, marketing, servicing, financing or
personnel matter shall be deemed "Proprietary Information." of the Disclosing
Party. Provided, however, that the term "Proprietary Information" shall not be
deemed to include information which the Receiving Party can demonstrate by
competent written proof: (a) is now, or hereafter becomes, through no act or
failure to act on the part of the Receiving Party, available in the public
domain; (b) is known by the Receiving Party at the time of receiving such
information; (c) is hereafter furnished to the Receiving Party by a third party
without such third party violating an agreement with the Disclosing Party; (d)
is independently developed by the Receiving Party without reference to the
Proprietary Information or (e) is the subject of a written permission to
disclose by the Disclosing Party.
6.2 USE AND HANDLING OF PROPRIETARY INFORMATION. The Receiving Party
shall maintain all Proprietary Information in trust and confidence and shall use
at least the same degree of care regarding this information as it uses with
respect to its own Proprietary Information to prevent it's unauthorized
disclosure, use or publication. The Receiving Party may use such Proprietary
Information only to the extent required to accomplish the intent of this
Agreement. The Receiving Party shall not use the Proprietary Information for any
purpose or in any manner which would constitute a violation of any laws or
regulations, including, without limitation, the export control laws of the
United States.
6.3 OWNERSHIP OF PROPRIETARY INFORMATION. All Proprietary Information
(including all copies thereof) of a party hereto shall at all times remain the
property of such Disclosing Party. No rights or licenses to trademarks,
inventions, copyrights or patents are implied or granted under this Agreement.
6.4 PERMITTED DISCLOSURE. A party may disclose Proprietary Information
to its professional advisors, and may disclose such information if such
disclosure is in response to a valid order of a court or other governmental body
of the United States or any political subdivision thereof or is mandated by
applicable law, provided, however, that the Receiving Party shall first have
given notice to the Disclosing Party and shall provide reasonable assistance to
the Disclosing Party to a protective order, confidentiality order or other
appropriate relief. Any compelled disclosure shall be limited to the maximum
disclosure required by such order or applicable law.
6.5 INJUNCTIVE RELIEF. Each party hereby acknowledges and agrees that
in the event of any breach of this Agreement by a Receiving Party, including,
without limitation, the actual or threatened disclosure of Proprietary
Information without the prior express written consent of the Disclosing Party,
the Disclosing Party will suffer an irreparable injury, such that no remedy at
law will afford it adequate protection against, or appropriate compensation for,
such injury.
6.
Accordingly, in the event of any breach or threatened breach by a Receiving
Party of any provisions of this Section 6, the Disclosing Party shall, in
addition to all other remedies available to it, be entitled to specific
performance of the Receiving Party's obligations under this Agreement.
7. MISCELLANEOUS.
7.1 TAXES. The Company shall pay any and all direct or indirect taxes
arising out of payments made or due pursuant to this Agreement other than any
income taxes payable by Titan.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the internal laws of the State of California.
7.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, including any and all
attachments or exhibits hereto, constitutes the entire, final and exclusive
understanding and agreement between the parties with respect to the subject
matter hereof. This Agreement may be amended, waived, discharged or terminated
only by written agreement of the parties.
7.4 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or invalid, this Agreement shall continue in full force and effect
without said provision.
7.5 FORCE MAJEURE. In the event that a party's performance under this
Agreement, other than the Company's obligation to make payments, shall be
interrupted or delayed by the occurrence of any event beyond the reasonable
control of such party, then such party shall be excused from performance during
the period of time when the interruption occurred.
7.6 CAPTIONS. The captions and heading to Sections of this Agreement
have been inserted for identification and reference purposes only and shall not
be used to construe the meaning or the interpretation of this Agreement.
7.7 PARTIES IN INTEREST. This Agreement shall inure to the benefit of
and be binding upon Titan, the Company and their successors and assigns. The
provisions of this Agreement are for the sole benefit of Titan and the Company
and the creditors and stockholders of Titan and the Company are not intended
beneficiaries of this Agreement.
7.8 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
7.9 STATUS. Titan shall be deemed to be an independent contractor and,
except as expressly provided or authorized in this Agreement, shall have no
authority to act for or represent the Company or bind or commit the Company to
any agreement or obligation.
7.
7.10 OTHER ACTIVITIES OF TITAN. The Company recognizes that Titan now
renders and may continue to render administrative, management and other services
to other companies in the Titan Group and other companies that may or may not
have policies and conduct activities similar to those of the Company. Titan
shall be free to render such services and the Company hereby consents thereto.
Titan shall only devote so much of its time and attention to the performance of
its duties under this Agreement as Titan deems reasonable or necessary to
perform the Services required thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the respective parties as of the respective dates set forth above.
THE TITAN CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
----------------------
Title: Vice President,
Corporate Controller
---------------------------
CAYENTA, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Lake
-----------------------------
Print Name: Xxxxxx X. Lake
----------------------
Title: Chief Financial Officer
---------------------------
9.
