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Exhibit 10.9
FORM OF SERVICES AGREEMENT
This Agreement is made as of ______________, 1997 (this "Agreement")
among XXXXX XXXXXX, an individual ("Xxxxxx"), UNITED BREWERIES LIMITED, a
corporation organized under the laws of India ("UBL"), UB INTERNATIONAL
LIMITED, a corporation organized under the laws of the United Kingdom ("UB
International"), and UBICS, INC., a Delaware corporation ("UBICS" or the
"Company"). UBL and UB International are referred to hereinafter individually
as a "Provider" and collectively as the "Providers."
PREAMBLE
Providers, directly or through their affiliates (as defined in Section
12), engage in various business operations in various countries, and employ
skilled individuals involved in the provision of administrative, support and
other similar services ("Services"). UBICS wishes to utilize the offices and
facilities of the Providers (and their affiliates) from time to time and to
utilize the services of the Providers' employees (and their affiliates) from
time to time upon the terms and conditions set forth herein. Therefore, the
parties, intending to be legally bound hereby, agree as follows.
AGREEMENT
1. Services; Use of Facilities.
(a) Xxxxxx and each Provider agrees, and to cause each of
their respective affiliates, to provide Services to UBICS on a non-exclusive
basis upon request of UBICS from time to time, and UBICS agrees to accept such
Services.
(b) In the event that UBICS should require a materially
different level of Services from a Provider or any of its affiliates than that
being provided under this Agreement, or in the event that UBICS should require a
Provider or any of its affiliates to undertake special, limited duration
projects that are outside the scope of the Services, UBICS shall consult with
such Provider as to the required changes; provided, however, that in no event
shall a Provider or any of its affiliates be required to undertake projects
that would materially interfere with the conduct by such Provider or any of its
affiliates of their normal business. Each Provider will use, and agrees to cause
each of its affiliates to use, its best efforts to allocate or acquire the
personnel required to provide any additional Services, provided that UBICS gives
to such Provider reasonable written notice (which generally should not be less
than 30 days) that an increase in Services will be required and specifying the
type and level of such Services.
(c) In the event of any material reduction in the level of
Services required from a Provider or its affiliates, UBICS agrees to give
reasonable written notice (which generally should be at least 30 days notice) to
such Provider or any of its affiliates of such proposed reduction, and to
continue to pay for Services (whether or not utilized) in general conformity
with historic levels until the end of such 30 day period. This 30 day period
prior to any slowdown or reduction is intended to enable Provider or any of its
affiliates to adjust its roster of employees, and to give any notice to any
employees who must be terminated as a result of such Provider or any of its
affiliates ceasing to provide such Services to UBICS as required by law,
industry, or custom. Any change to the scope or level of the Services shall be
reflected by a corresponding change to the compensation for the Services.
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(d) From time to time upon reasonable prior written notice to
a Provider or any of its affiliates, each Provider agrees to provide and to
cause each of its affiliates to provide UBICS and its officers, employees,
agents and representatives with access to and the use of a designated portion of
any offices or other facilities of such Provider and any of its affiliates
(collectively, the "Provider Facilities"). Each Provider shall permit and shall
cause each of its affiliates to permit UBICS and its officers, employees, agents
and representatives with access to its Provider Facilities on the same terms and
conditions as such Provider, its affiliates and their employees. UBICS agrees
that it shall, and shall use its best efforts to cause its employees, agents and
representatives to, perform and observe all terms and conditions of any lease,
or sublease or other contractual arrangement to which either Provider or their
respective affiliates is a party with respect to the Provider Facilities.
(e) UBICS, Xxxxxx and Providers agree that they each shall
use their best efforts to comply with all applicable laws and regulations in
performing this Agreement.
2. Compensation.
(a) Payment for Services provided to UBICS and for Provider
Facilities used by UBICS during a given calendar month shall be made by UBICS to
each Provider or its affiliates against invoices delivered to UBICS on or before
the 15th day of the following month. Any delay in the delivery of such invoices
shall entitle UBICS to defer, on a day-by-day basis, the due date of its
payments hereunder. All payments not made within the time specified on the
invoice shall bear interest at the Prime Rate of interest announced from time to
time by PNC Bank, National Association, Pittsburgh, Pennsylvania. The terms of
all such invoices shall require payment within 30 days of the date that the
invoice is received by UBICS, unless otherwise agreed to by the parties.
(b) Compensation for Services shall be based upon rates to be
agreed upon by UBICS and each Provider or any of its affiliates at the time
Services are to be provided, which compensation shall in each case be fair and
reasonable on terms no less favorable to UBICS than those which would be made to
non-affiliated parties and based on the estimated costs, including a reasonable
allocation of direct and indirect overhead costs, incurred by such Provider or
any of its affiliates in providing the Services. The parties hereto agree to
review periodically (but in any event at least every six months during the term
of this Agreement) such compensation and negotiate in good faith to adjust such
compensation to reflect any changes in the amount or nature of such Services
required by UBICS, as provided above, and any changes in the cost to Provider or
any of its affiliates of providing such Services.
(c) Compensation for the use of Provider Facilities shall be
an amount equal to a pro rata share of the Provider's or any of its affiliates'
aggregate costs (including rental, taxes, utilities and other similar operating
expenses and costs) with respect to the portion of the Facility assigned to or
used by UBICS, with such proration reflecting the number of days each month such
portion of the Provider Facility is actually used by UBICS and its employees,
agents and representatives.
3. Independent Contractor. The parties agree that the personnel
of each Provider or any of its affiliates whose services are provided to UBICS
under this Agreement are not, and shall not be, employees of UBICS. Each
Provider or any of its affiliates is an independent contractor, and its
personnel are employees of such Provider and its affiliates.
4. Reports. Each Provider and its affiliates shall report to
UBICS in the manner, at the times, and in the detail as may be agreed upon by
such Provider, its affiliates and UBICS with respect to the Services and the
Facilities.
5. Standards. Each Provider agrees and to cause each of its
affiliates to use its best efforts to provide UBICS with effective and quality
Services.
6. Xxxxxx and the Providers each agree that they shall use their
best efforts to cause each entity which they control, including their respective
affiliates, to perform their obligations under this Agreement.
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7. UB Group Name. Each Provider agrees and to cause each of its
affiliates, to grant UBICS the right to use the name "UB Group" in all countries
and subdivisions thereof in which any Provider Facilities are located to the
same extent as each Provider and any of its affiliates has such right, and each
Provider hereby grants and agrees to cause each of its affiliates, to grant
UBICS a non-exclusive license to use the name "UB Group" to such extent. UBICS
agrees that it will exercise reasonable care in its use of the name "UB Group."
8. Books and Records. Each Provider shall, and shall cause each
of its affiliates, to maintain the books and records of its activities in
connection with this Agreement at its principal place of business, and such
books and records shall be available for inspection by UBICS during regular
business hours for the sole purpose of determining the reasonableness and
accuracy of all invoices submitted by each Provider and any of its affiliates to
UBICS for the Services and the use of the Provider Facilities. UBICS
acknowledges that such books and records are the confidential and private
property of each Provider and any of its affiliates and all information
contained therein shall be maintained as such by UBICS, its accountants, agents,
and employees, or any other person receiving such information through UBICS.
9. Indemnification. UBICS shall indemnify and hold harmless
each Provider, any of their affiliates and their respective officers and
directors, from and against any and all claims, demands, expenses (including
reasonable attorneys' fees), actions, losses, costs, and any and all other
liability ("Claims") arising from each Provider's or any of their affiliates'
performance of the Services or use of such Provider's or any of their
affiliates' facilities by UBICS or its officers, employees, agents or
representatives under this Agreement or from a violation by UBICS of its
covenant in Section 7 with respect to use of the UB Group name except Claims
which result from the negligence, reckless or intentional misconduct of such
Provider or any of its affiliates.
10. Term. This Agreement shall become effective on _____________
and shall continue until terminated pursuant to Paragraph 10 hereof.
11. Termination. Either party may terminate this Agreement upon
thirty days' written notice to the other party on or after the ____________
anniversary of the effective date hereof; provided, however, that the provisions
of Section 7 shall terminate upon the occurrence of a Change in Control (as
defined in Section 12) of the Company.
12. Certain Definitions. As used herein, the following definitions
shall apply:
(a) An "affiliate" of a person or entity shall have the
meaning ascribed to such term for purposes of Rule 405 under the Securities Act
of 1933, as amended (the "Securities Act") and includes any person or entity
that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common Control with, the person or entity specified.
(b) The term "control" (including the terms "controlling,
"controlled by" and "under common control with") shall have the meaning ascribed
to such term for purposes of Rule 405 under the Securities Act, and includes the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, whether through the ownership
of voting securities, by contract, or otherwise.
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(c) "Change in Control" shall mean any of the following
events:
(i) any individual, corporation, partnership, association, trust or
other entity (other than Xxxxxx or an affiliate of Xxxxxx) becomes the
beneficial owner (as defined in Rule 13(d)(3) under the Securities
Exchange Act of 1934), directly or indirectly, of securities of UBICS
representing 50% or more of the combined voting power of the then
outstanding voting securities of UBICS;
(ii) consummation of an agreement by UBICS to consolidate or merge
with any other entity pursuant to which UBICS will not be the
continuing or surviving corporation or pursuant to which shares of the
common stock of UBICS would be converted into cash, securities or other
property, other than a merger of UBICS in which holders of the common
stock of the surviving corporation immediately prior to the merger
would have the same proportion of ownership of common stock of the
surviving corporation immediately after the merger;
(iii) consummation of an agreement of UBICS to sell, lease,
exchange or otherwise transfer in one transaction or a series of
related transactions substantially all the assets of UBICS;
(iv) consummation of any plan or proposal adopted by UBICS for a
complete or partial liquidation or dissolution of UBICS; or
(v) consummation of an agreement to sell more than 50% of the
outstanding voting securities of UBICS in one or a series of related
transactions other than an initial public offering of voting securities
registered with the Securities and Exchange Commission.
13. Miscellaneous.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective successors and assigns.
(b) If any term of this Agreement or any application thereof
shall be invalid or unenforceable, the remainder of this Agreement and any
other application of such term shall not be affected thereby.
(c) This Agreement shall not be waived, changed or
discharged, except by written agreement signed by the party against which
enforcement is sought.
(d) This Agreement is executed in and shall be construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
(e) No failure or delay by any party in exercising any right,
power, or privilege under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power, or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege.
(f) This Agreement may be executed in any number of
counterparts all of which shall be considered one and the same Agreement.
(g) This Agreement embodies the entire Agreement between the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior or contemporaneous, oral or written, understandings, negotiations, or
communications by or on behalf of the parties.
(h) This Agreement may not be assigned by either party
without the prior written consent of the other party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
executed as of the date first written above.
PROVIDERS:
UNITED BREWERIES LIMITED
By
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Name
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Title
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UB INTERNATIONAL LIMITED
By
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Name
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Title
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XXXXX XXXXXX
COMPANY:
UBICS, INC.
By
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Name
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Title
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