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Exhibit 10.9
SERVICES AGREEMENT
This Agreement is made as of October 27, 1997 (this "Agreement") among
XXXXX XXXXXX, an individual ("Xxxxxx"), UNITED BREWERIES LIMITED, a corporation
organized under the laws of India ("UBL" or "Provider"), and UBICS, INC., a
Delaware corporation ("UBICS" or the "Company").
PREAMBLE
Provider, directly or through its affiliates (as defined in Section
12), engages in various business operations in various countries, and employs
skilled individuals involved in the provision of administrative, support and
other similar services ("Services"). UBICS wishes to utilize the offices and
facilities of the Provider (and its affiliates) from time to time and to
utilize the services of the Provider's employees (and its 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 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 Provider or any of its affiliates than that being
provided under this Agreement, or in the event that UBICS should require
Provider or any of its affiliates to undertake special, limited duration
projects that are outside the scope of the Services, UBICS shall consult with
Provider as to the required changes; provided, however, that in no event shall
Provider or any of its affiliates be required to undertake projects that would
materially interfere with the conduct by Provider or any of its affiliates of
their normal business. 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
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 Provider or its affiliates, UBICS agrees to give reasonable
written notice (which generally should be at least 30 days notice) to 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 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.
(d) From time to time upon reasonable prior written notice to Provider
or any of its affiliates, 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 Provider and any of its affiliates
(collectively, the "Provider Facilities"). Provider shall
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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 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
Provider or its affiliates is a party with respect to the Provider Facilities.
(e) UBICS, Xxxxxx and Provider 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 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 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 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
Provider or any of its affiliates whose services are provided to UBICS under
this Agreement are not, and shall not be, employees of UBICS. Provider or any
of its affiliates is an independent contractor, and its personnel are employees
of Provider and its affiliates.
4. REPORTS. Provider and its affiliates shall report to UBICS in the
manner, at the times, and in the detail as may be agreed upon by 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.
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6. FURTHER AGREEMENTS. Xxxxxx and the Provider 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.
7. UB GROUP NAME. 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 Provider and any of its affiliates has such right, and
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. 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 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 Provider,
any of its 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 Provider's or any of its affiliates' performance of the Services
or use of Provider's or any of its 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 Provider or any of its affiliates.
10. TERM. This Agreement shall become effective on the date hereof and
shall continue until terminated pursuant to Paragraph 11 hereof.
11. TERMINATION. Any party may terminate this Agreement upon thirty
days' written notice to the other parties on or after the fifth anniversary of
the effective date hereof; provided, however, that the Provider and Xxxxxx
shall have the right to terminate the provisions of Section 7 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) consummation of an agreement by UBICS to consolidate or merge
with any other entity that is not an Affiliate 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;
(ii) consummation of an agreement of UBICS to sell, lease, exchange
or otherwise transfer to a third party that is not an Affiliate in one
transaction or a series of related transactions substantially all the assets of
UBICS; or
(iii) consummation of an agreement by Xxxxxx (together with his
Affiliates) to sell more than 50% of the outstanding voting securities of UBICS
to a third party that is not an Affiliate 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.
PROVIDER:
UNITED BREWERIES LIMITED
By /s/ XXXXX XXXXXX
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Name Xxxxx Xxxxxx
Title Chairman
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
COMPANY:
UBICS, INC.
By /s/ XXXXXXX X. XXXX
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Name Xxxxxxx X. Xxxx
Title President
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