EXHIBIT 10.2
TRANSITION SERVICES AGREEMENT
BY AND BETWEEN
NETGURU, INC.
AND
BENTLEY SYSTEMS, INCORPORATED
DATED AS OF ___________ __, 2005
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT, dated as of _______ __, 2005
("Agreement"), is made by and between NETGURU, INC., a Delaware corporation, and
each of its subsidiaries ("Seller"), and BENTLEY SYSTEMS, INCORPORATED, a
Delaware ("Buyer").
R E C I T A L S
WHEREAS, the parties have entered into an Asset Purchase Agreement
dated as of August __, 2005 (the "Purchase Agreement") pursuant to which Seller
is selling, and Buyer is acquiring, the Business (as defined in the Purchase
Agreement), the date and time at which the closing of the Purchase Agreement is
to occur being referred to herein as the "Closing Date";
WHEREAS, in further consideration of the Purchase Agreement and related
transactions, Buyer will require Seller's assistance with respect to certain
operations of the Business during periods specified herein following the Closing
Date and Seller will require Buyer's assistance with respect to certain
operations of the Retained Business (as defined in the Purchase Agreement)
during periods specified herein following the Closing Date;
WHEREAS, in connection with and as a condition precedent to the closing
of the transaction contemplated by the Purchase Agreement, the parties have each
agreed to provide the services set forth herein to the other; and
WHEREAS, capitalized terms used herein but not defined have the
meanings ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
SECTION 1. SERVICES TO BE PERFORMED; TERM; PERFORMANCE AND COOPERATION.
(a) In accordance with the terms and provisions of this Agreement,
Seller agrees to perform (or to cause its affiliates to perform) for Buyer the
services described in SCHEDULES A1 THRU A2 hereto (collectively, the "Seller
Services") for the time period and to the extent specified with respect to each
such Seller Service in the applicable Schedule.
(b) In accordance with the terms and provisions of this Agreement,
Buyer agrees to perform (or to cause its affiliates to perform) for Seller the
services described in SCHEDULES B1 THRU B3 hereto (collectively, the "Buyer
Services" and together with the Seller Services to be referred to herein as the
"Services") for the time period and to the extent specified with respect to each
such Buyer Service in the applicable Schedule.
(b) (i) This Agreement shall become effective as of the date hereof and
shall terminate with respect to each Service (A) on the date specified for such
Service in accordance with the applicable Schedule hereto, (B) earlier as to
each Seller Service at the prior written request of Buyer, or (C) earlier as to
each Buyer Service at the prior written request of Seller.
(ii) The parties agree that if the party being provided the
benefit of a Service chooses to discontinue such Service prior to its stated
termination date, then such party shall give the other party prior written
notice within the notice period specified in the relevant Schedule, or if no
such notice period is specified, at least fifteen (15) days prior written notice
of its intent to terminate this Agreement as to that particular Service, which
termination shall be effective on the last day of the month on which the fifteen
(15) days prior written notice lapses. The terminating party will pay the other
party the fees and costs of any terminated Service up until the effective date
of termination.
(c) Notwithstanding anything to the contrary contained herein, this
Agreement may be terminated, in whole or in part, at any time:
(i) by the mutual consent of Buyer and Seller;
(ii) by Buyer in the event of any material breach or default
by Seller of any of Seller's obligations under this Agreement and the failure of
Seller to cure, or to take substantial steps towards the curing of, such breach
or default within thirty (30) days after receipt of written notice from Buyer
requesting that such breach or default be cured; or
(iii) by Seller in the event of any material breach or default
by Buyer of any of Buyer's obligations under this Agreement and the failure of
Buyer to cure, or to take substantial steps towards the curing of, such breach
or default within thirty (30) days after receipt of notice from Seller
requesting that such breach or default be cured.
(d) Except as specified herein, neither party makes any warranties of
any kind, express or implied, with respect to any Service provided hereunder.
(e) The parties shall use commercially reasonable efforts to cooperate
with each other in all matters relating to the provision and receipt of
Services. In addition, upon the reasonable request of either party, the parties
shall take such further action that may be deemed necessary to effect the rights
and obligations set forth herein regarding the grant of the licenses set forth
in the Schedules hereto.
(f) Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that the Services set forth on the Schedules
hereto relating to leases of real property shall constitute the basic terms of
such leases. The parties shall negotiate, execute and deliver standard and
customary leases or subleases that include the specific terms set forth in the
applicable Schedule in accordance with local laws relating to such properties;
provided, however, that neither party shall be required to provide security
deposits under such leases or subleases regardless of what may be required by
local custom.
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SECTION 2. PAYMENT.
Each party shall pay to the other such fees and costs, if any, for the
relevant time period as set forth in the Schedule attached hereto that is
applicable to such Service. If any fees are incurred pursuant to this Agreement,
such fees shall be payable monthly in arrears unless otherwise provided by the
terms set forth in the Schedule applicable to such Service.
SECTION 3. RELATIONSHIP OF PARTIES.
(a) All employees and representatives of each party or its affiliates
providing Services to the other party under this Agreement shall be deemed for
purposes of all compensation and employee benefits to be employees or
representatives solely of the party that is providing such Service and shall not
be deemed to be employees or representatives of the party that is receiving the
benefit of such Service.
(b) The parties hereto are independent contractors, and neither party
not its employees or agents will be deemed to be employees or agents of the
other for any purpose or under any circumstances. No partnership, joint venture,
alliance, fiduciary or any relationship other than that of independent
contractors is created hereby, expressly or by implication.
SECTION 4. USE OF INFORMATION, CONFIDENTIALITY.
(a) To the extent obtained by either party and their respective
affiliates as a result of the provision of Services hereunder, each of Buyer and
Seller shall, and shall cause their respective affiliates to, hold all
Confidential Information (as defined in the Confidential Non-Disclosure
Agreement between the parties dated March 3, 2005) relating to the other party
confidential and shall, except as otherwise indicated below, will not disclose
any of such information to any party for a period of five (5) years from the
date of the Purchase Agreement, unless legally compelled or required to disclose
such information in which event the party legally compelled or required to
disclose shall provide the other party with written notice of such legal
compulsion to disclose and shall use commercially reasonable efforts to afford
the other party a reasonable period of time to contest such disclosure.
(b) It is understood that, prior to, during or after performance of
this Agreement, each party's personnel may unavoidably receive or have access to
private or confidential information of the other party, including other
operations, which is not specifically covered by the foregoing or by the
Purchase Agreement. Except for the information the transfer to or access of
which is contemplated by the Purchase Agreement, each party agrees that all such
information will be subject to the provisions of this Section 4 and other
relevant provisions of said agreements between the parties and that its
personnel will comply with all reasonable requirements of Seller and Buyer,
including identification badges and sign-in procedures, in connection therewith.
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SECTION 5. COMPLIANCE WITH LAWS.
Each party will, with respect to its obligations and performance
hereunder, comply with all applicable requirements of federal, state and local
laws, rules and regulations, including without limitation, import and export
control, environmental and occupational safety requirements.
SECTION 6. INDEMNITY AND DAMAGES.
(a) The party providing Services to the other shall be liable,
responsible and accountable in damages and costs and expenses (including
reasonable attorneys' fees) only for gross negligence or willful misconduct in
the provision of Services. Neither party shall be liable, responsible or
accountable in damages and costs and expenses (including reasonable attorneys'
fees) under this Agreement except as expressly set forth in the immediately
preceding sentence. Each party's liability under this Section 6(a) shall be
subject to the provisions of Section 6(c).
(b) The party receiving the benefit of Services pursuant to this
Agreement shall indemnify, defend, and hold harmless the party providing
Services and its affiliates, directors, officers, shareholders, employees,
agents and controlling persons from and against any and all losses, claims,
damages, liabilities, costs and expenses (including any reasonable attorney's
fees and expenses incurred in connection with, and any amounts paid in, any
settlement) resulting from a demand, claim, lawsuit, action or proceeding
relating to any such person's conduct in connection with the provision of
Services under this Agreement, provided that such conduct did not constitute
gross negligence or willful misconduct or breach of this Agreement by the party
providing such Services.
(c) NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST
REVENUES) OF THE OTHER PARTY, ITS SUCCESSORS, ASSIGNS OR THEIR RESPECTIVE
AFFILIATES, AS A RESULT OF OR ARISING FROM THIS AGREEMENT, REGARDLESS OF WHETHER
SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR
OTHERWISE.
SECTION 7. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS TO BE PERFORMED SOLELY WITHIN THAT STATE.
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(b) FORCE MAJEURE. Except for a party's obligation to make timely
payments, neither party will have any liability for damages or delay due to
fire, explosion, lightning, pest damage, power failure or surges, strikes or
labor disputes, water or flood, acts of God, the elements, war, civil
disturbances, acts of civil or military authorities or the public enemy, acts or
omissions of communications or other carriers, or any other cause beyond a
party's reasonable control, whether or not similar to the foregoing that prevent
such party from materially performing its obligations hereunder.
(c) SUBCONTRACTING AND ASSIGNMENT. Neither party may subcontract any or
all of the functions or Services to be performed by it under this Agreement.
Unless otherwise provided by the Schedules hereto relating solely for the
Services provided for by such Schedule, neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assignable or transferable
by either party without the prior written consent of the other party hereto, and
any such unauthorized assignment or transfer will be void. Notwithstanding the
foregoing, Buyer may assign this Agreement, in whole or in part, to a subsidiary
or affiliate by providing prior written notice of such assignment to Seller.
(d) ENTIRE AGREEMENT; MODIFICATION; WAIVERS. This Agreement and the
Schedules attached hereto constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all previous
negotiation, commitments and writings with respect to Services. This Agreement
and the Schedules attached hereto may not be altered, modified or amended except
by a written instrument signed by the parties hereto. The failure of any party
to require the performance or satisfaction of any term or obligation of this
Agreement, or the waiver by any party of any breach of this Agreement, shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach
(e) SEVERABILITY. The provisions of this Agreement are severable, and
in the event that any one or more provisions are deemed illegal or unenforceable
the remaining provisions shall remain in full force and effect unless the
deletion of such provision shall cause this Agreement to become materially
adverse to either party, in which event the parties shall use reasonable
commercial efforts (as defined in the Purchase Agreement) to arrive at an
accommodation that best preserves for the parties the benefits and obligations
of the offending provision.
(f) NOTICES. All notices and other communications hereunder will be in
writing and deemed to have been duly given if given in accordance with the
provisions of the Purchase Agreement and as otherwise provided in the applicable
Schedule hereto.
(g) SURVIVAL OF OBLIGATIONS. The obligations of the parties under
Sections 2, 4 and 6 shall survive the expiration of this Agreement. The parties
acknowledge and agree that all claims for any breaches or alleged breaches of
any covenants contained in this Agreement shall not be subject to the time
periods, dollar and other limitations set forth in the Purchase Agreement.
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(h) EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(i) MEETINGS; ESCALATION PROCESS. If either party is not satisfied with
any Service delivered pursuant to this Agreement, then such party may, at any
time, and from time to time and at its sole discretion, initiate an escalation
process regarding such Service by delivering written notice to the other party
pursuant to Section 7(f) of this Agreement. The notice shall describe in
reasonable detail the nature of the problem. Upon receipt of such notice, the
party receiving notice shall arrange a meeting between appropriate
representatives of the parties to address the issues set forth in the notice.
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IN WITNESS WHEREOF, each of Seller and Buyer has caused this Agreement
to be duly executed on its behalf by its duly authorized officer as of the date
first written above.
BENTLEY SYSTEMS, INCORPORATED
By: _________________________________
Name:
Title:
NETGURU, INC.
By: _________________________________
Name:
Title:
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SCHEDULE A
SELLER SERVICES
Seller shall provide each of the following Services pursuant to the terms of
this Agreement:
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SCHEDULE A1
IS MIGRATION
Name of Service: Information Systems Migration
Terms of Service: Seller will provide Buyer with any reasonably
required transition assistance to migrate data and
other applications from the server infrastructure in
▇▇▇▇▇ ▇▇▇▇▇ which will remain with Seller
post-Closing. Within a reasonable time after the
Closing Date, after confirmation from Buyer, Seller
will delete and destroy all data specific to the
Business (as defined in the Purchase Agreement),
including but not limited to the RESAS database. As
part of this Service, Seller will provide Buyer with
access to any shared infrastructure to support its
Business.
Term of Services: Up to 1 year after the Closing Date.
Payment/Cost of Services: There shall be no cost to Buyer for this Service.
Seller Representative: [Name and contact information of Seller's employee
representative responsible for providing this
Service]
Buyer Representative: [Name and contact information of Buyer's employee
representative responsible for providing this
Service]
SCHEDULE A2
CALCUTTA FACILITY LEASE
Name of Service: Facilities Leased to Buyer
Terms of Service: Pursuant to and on the terms of a standard and
customary sublease in accordance with local laws,
Seller will lease the entire administrative office
building at the Calcutta facility (approximately
27,600 sq. ft., built in 2000) to Buyer. Buyer shall
have right of sublease. The lease will be subject
only to retaining an existing 600 sq. ft. office for
use by Seller's CEO (or other executive) through the
period of one year from the Closing Date (after such
time the space will revert to Buyer). Seller will
relocate its entire remaining staff such that only
Continuing Employees (as defined in the Purchase
Agreement) are located in the front building of this
facility prior to the Closing Date. Buyer shall not
be required to provide Seller (or any successor) with
a security deposit for any term of the lease.
Term of Services: Two (s) years after the Closing Date subject to two
(2) option terms of one (1 ) year each.
Payment/Cost of Services: The lease rates shall be inclusive of all applicable
taxes but not utilities (utilities shall be born
directly by Buyer). The following lease rates shall
apply:
-------------------------- --------------------------
Lease Year Rate Per Square Foot
(Rupees)/Month - Due at
the first of the month
-------------------------- --------------------------
-------------------------- --------------------------
1 Rs. 23
-------------------------- --------------------------
2 Rs. 23
-------------------------- --------------------------
3 (Option Year #1) Market Rate*
-------------------------- --------------------------
4 (Option Year #2) Market Rate*
-------------------------- --------------------------
The rate for these services shall include all of the
services standard in leases granted in a "▇▇▇▇▇▇ ▇"
▇▇▇▇, as well as the provision of services generally
consistent with the services provided prior to the
Closing Date. For the avoidance of doubt, the diesel
generators and air conditioners owned by the Seller
(both before and after the Closing Date) and used to
support the building prior to the Closing Date shall
remain in place and used for the same purpose after
the Closing Date and Seller shall be responsible for
all repairs, maintenance and replacement of equipment
necessary to maintain the same level of service
provided to occupants of the building prior to the
Closing.
* Market Rate shall be based upon a reasonable survey
of equivalent space available in the market.
Seller Representative: [Name and contact information of Seller's employee
representative responsible for providing this
Service]
Buyer Representative: [Name and contact information of Buyer's employee
representative responsible for providing this
Service]
SCHEDULE B
BUYER SERVICES
Buyer shall provide each of the following Services pursuant to the terms of this
Agreement:
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SCHEDULE B1
BUYER'S SHARED INFRASTRUCTURE
Name of Service: Buyer's Shared Infrastructure
Terms of Service:
Buyer will provide Seller with the following access
to the identified shared infrastructure, solely in
support of the Retained Business, for a period of up
to one (1) year from the Closing Date:
o Access and use of the phone system at the
▇▇▇▇▇ ▇▇▇▇▇ facility, providing up to twelve
(12) phones and six (6) lines.
o Access to and use of the phone system in
Calcutta, allocating a reasonable number of
lines to Seller after Buyer's business needs
are met.
o Access to and use of the 12 IP phones over
the dedicated IPLC circuit between ▇▇▇▇▇
▇▇▇▇▇ and the Calcutta offices.
o Use of the printing facility at ▇▇▇▇▇ ▇▇▇▇▇
to produce a maximum of 2,500 color and
3,000 black & white standard letter sized
pieces per month.
o Buyer will permit Seller to mail to the
existing RESAS customer database up to four
(4) times, such mailing costs exclusively
paid by Seller and only after content has
been approved by Buyer (such approval not to
be unreasonably withheld). The mailing(s)
would be coordinated through an external
third party mailing service in a blind
fashion.
o Assuming there is space available in the
existing Seller facilities currently under
leases which Buyer assumes in Singapore and
Dubai, and further assuming that Buyer is
authorized to allow non-Buyer employees to
work out of the leased space, Buyer will
permit one (1) Seller employee to work out
of each of these offices in order to market
Seller's services.
Term of Services: One year from the Closing Date.
Payment/Cost of Services: Seller will not be charged for reasonable telephone
usage, both local and long-distance, unless it
exceeds $3,000 USD for the full year (and in such
case they will be billed from $0 dollar).
Seller Representative: [Name and contact information of Seller's employee
representative responsible for providing this
Service]
Buyer Representative: [Name and contact information of Buyer's employee
representative responsible for providing this
Service]
SCHEDULE B2
STAAD.SUITE OF SOFTWARE
Name of Service: STAAD.suite Cross License
Terms of Service: Buyer hereby grants Seller seventy-five (75)
perpetual, paid-up, named user licenses of ▇▇▇▇▇.▇▇▇
2005 (with all international design codes) and the
related STAAD.suite of products including
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇, STAAD.etc, STAAD.beam,
Sectionwizard, Layout, ADLPipe, STAAD.pipe,
STAAD.beava and QSE, current as of the Closing Date,
subject to Buyer's standard end user license
agreement. Seller shall receive updates and support
(ie. Maintenance) for ▇▇▇▇▇.▇▇▇ 2005 as typically
provided to customers for a period of one year from
the Closing Date at no cost and the second year after
the Closing Date at 50% SRP. These licenses are
non-transferable except to ▇▇▇▇▇ ▇. ▇▇▇ or an entity
in which he is the controlling shareholder or owner
and may only be used by Seller in support of its
operation of the Retained Business.
Term of Services: Perpetual except that this license shall terminate in
the event of a transaction or series of transactions
that results in a change in control of Seller such
that ▇▇▇▇▇ ▇. ▇▇▇ is not the controlling shareholder
or owner of the entity operating the Retained
Business (but any previously granted end user
licenses to compiled object-code versions shall
continue).
Payment/Cost of Services: There shall be no cost to Seller for this Service.
Seller Representative: [Name and contact information of Seller's employee
representative responsible for providing this
Service]
Buyer Representative: [Name and contact information of Buyer's employee
representative responsible for providing this
Service]
SCHEDULE B3
▇▇▇▇▇ ▇▇▇▇▇ FACILITY LEASE
Name of Service: Facilities Leased to Seller
Terms of Service: Pursuant to and on the terms of a standard and
customary lease in accordance with local laws, Buyer
will sublease 3,000 sq. ft. of the ▇▇▇▇▇ ▇▇▇▇▇ office
for use by Seller, such area to be identified by
Buyer after consultation with Seller, inclusive of
reasonable electricity and other utilities.
Term of Services: One year after the Closing Date with an option to
renew for one year.
Payment/Cost of Services: $3,400 per month.
Seller Representative: [Name and contact information of Seller's employee
representative responsible for providing this
Service]
Buyer Representative: [Name and contact information of Buyer's employee
representative responsible for providing this
Service]