Exhibit 10.8
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") is entered into effective as of
the 1st day of August 2002, between NEON Systems, Inc., a Delaware corporation
("NEON"), and Peregrine/Bridge Transfer Corporation, a Delaware corporation
("PBTC").
W I T N E S S E T H:
WHEREAS, NEON and PBTC have entered into a Termination and Support Agreement
dated effective as of August 1, 2002, whereby NEON and PBTC agreed to terminate
the Distributorship Agreement dated as of January 1, 1996, the First Amendment
to the Distributor Agreement dated as of January 1, 1999, the Remarketing
Agreement dated as of January 25, 2000 and the Services Agreement dated as of
December 18, 1998; and
WHEREAS, such Termination Agreement provides that NEON will provide PBTC with
certain administrative services and office space in consideration of PBTC's
execution and delivery of the Termination Agreement; and
WHEREAS, PBTC desires NEON to provide, or cause to be provided, certain
administrative, marketing and legal services and assistance to PBTC pursuant to
the terms and conditions hereof, which NEON is able to provide more economically
than PBTC.
NOW, THEREFORE, in consideration of the promises set forth herein and the
benefits to be derived herefrom, the parties hereby agree as follows:
ARTICLE I
SERVICES TO BE PROVIDED BY NEON
1.1 Provision of Services. NEON shall provide and perform, or cause its
affiliates to provide and perform, the services listed on Exhibit A attached to
this Agreement (the "Services"), which may include procurement of services to be
provided by third parties. Exhibit A may from time to time be modified by the
mutual written agreement of the parties.
1.2 Service Fee; Reimbursement of Expenses. During the first twelve months
of this Agreement (the "Initial Term"), such Services will be provided as
additional consideration to PBTC's execution and delivery of the Termination
Agreement, with no service fee. After the Initial Term, PBTC will have the
option to renew this Agreement for up to an additional twelve months (the
"Renewal Term"), except that during the Renewal Term, PBTC shall be required to
pay to NEON a set monthly service fee in the amount of $10,000 per month (the
"Service Fee") for the remaining term of this Agreement and any subsequent
renewal, if any. At the end of such Renewal Term, if any, or such Initial Term,
if PBTC does not elect to renew this Agreement for the Renewal Term, NEON will
have no further obligation to provide Services to PBTC. Notwithstanding the
foregoing, PBTC shall reimburse NEON monthly for all actual out-of-pocket costs
and expenses incurred by NEON during the prior month in
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connection with its performance or provision of the Services (the "Reimbursable
Amounts") during the full Initial Term and the Renewal Term, if applicable, of
this Agreement, including, without limitation, costs and expenses associated
with the procurement of services from third party providers.
1.3 Standards of Services. NEON shall use its reasonable efforts to cause
any and all personnel providing the Services to (i) perform such Services with
the same degree of care, skill and diligence with which it causes similar
services to be performed for itself and its various other subsidiaries, and (ii)
in cases where the Services entail providing third party services to PBTC,
utilizing the same or comparable vendors that are used by itself and its various
other subsidiaries.
1.4 Payment of Service Fees. On September 30, 2002, NEON shall invoice
PBTC and PBTC shall remit to NEON all Reimbursable Amounts incurred during the
period beginning on the effective date of this Agreement and ending on September
30, 2002. Thereafter, on the last day of each calendar month occurring
thereafter during the Initial Term and Renewal Term, if applicable, of this
Agreement, PBTC shall remit to NEON the Service Fee, if applicable, for the
month just beginning and all Reimbursable Amounts incurred during such prior
month and required to be paid by PBTC pursuant to Section 1.2 for such month. In
the event that PBTC exercises its option to continue receiving the Services
after the Initial Term, the first payment of the Service Fee shall occur on July
31, 2003.
1.5 Term. The Initial Term of this Agreement shall be twelve (12) months
beginning August 1, 2002 (the "Initial Term"). The term of this Agreement may be
continued by PBTC, in its sole discretion, for up to an additional twelve (12)
months subject to its payment of the Services Fee for each such additional
month. Unless otherwise renewed by PBTC for the Renewal Term, this Agreement
will terminate at the close of business on July 31, 2003. Notwithstanding the
foregoing; this Agreement may be terminated by PBTC at any time on written
notice thereof to NEON. The parties may extend the term beyond the dates hereof
by mutual agreement in writing signed by authorized representatives of both
parties.
1.6 Return of Records. Upon termination or expiration of this Agreement,
NEON shall deliver to PBTC all records, reports and data of PBTC that are in its
possession relating to the Services. NEON may retain copies of all such records,
reports and data as NEON may require, which copies will be prepared at the
expense of NEON.
1.7 Indemnification of NEON. PBTC agrees to defend, indemnify and hold
NEON and its affiliates and its and their officers, directors, agents and
employees harmless against any and all claims, losses, liabilities, damages and
causes of action, whether based on tort, breach of contract or any other legal
theory, on account of taxes, liens, debts, personal injuries, death or damage to
property and all other claims or demands of every character arising out of, in
connection with, or as an incident to, any act or omission in connection with
NEON's performance of the Services or fulfillment of its responsibilities under
this Agreement, including negligence (but not gross negligence or willful
misconduct) of NEON, its affiliates, or its or their officers, directors, agents
or employees.
1.8 NEON's Liability. NEON, its affiliates and its and their officers,
directors,
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agents and employees shall not be liable to PBTC for any loss or damage suffered
by PBTC resulting from the performance of the Services by NEON or the
fulfillment of NEON's responsibilities under this Agreement, except to the
extent that such loss or damage results from the gross negligence or willful
misconduct of NEON or its affiliates or its or their respective officers,
directors, agents or employees.
ARTICLE II
MISCELLANEOUS
2.1 Assignment. Neither NEON nor PBTC may transfer or assign this
Agreement or any of its obligations or rights herein without the consent of the
other parties hereto, which consent will not unreasonably be withheld.
Notwithstanding the foregoing, PBTC or NEON may assign this agreement in
connection with a corporate name-change, reorganization, reincorporation,
recapitalization or other corporate transaction that does not effect a change in
control of the relevant company, without the consent of the other party. Any
attempted assignment without such consent shall be void.
2.2 Force Majeure. Performance under this Agreement, other than the
obligation to make payments of money due, shall be suspended in the event such
performance is prevented by fires, floods, hurricanes, storms, bad weather,
tornadoes, lightning, explosions, acts of God or the public enemy, governmental
laws, rules, regulations or orders, and other events, whether similar or
dissimilar, beyond the control of the parties.
2.3 Independent Contractor. In performing the Services hereunder, NEON and
any of its affiliates performing Services hereunder shall be considered to be
independent contractors. In no event shall any party hereto be deemed a partner,
co-venturer or agent of the other party hereto.
2.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by facsimile
transmission or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice; provided
that notices of a change of address shall be effective only upon receipt
thereof):
(i) To NEON, as follows:
NEON Systems, Inc.
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Att: Chief Financial Officer
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(ii) To PBTC, as follows:
Peregrine/Bridge Transfer Corporation
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▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Att: Chief Financial Officer
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
2.5 Governing Law. This Agreement shall be governed by and construed
in accordance with laws of the State of Texas, without regard to its principles
of conflicts of laws.
2.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
2.7 No Third Party Beneficiaries. Except as expressly provided herein,
nothing in this Agreement shall entitle any person other than NEON or PBTC or
their respective successors and assigns permitted hereby to any claim, cause of
action, remedy or right of any kind.
2.8 Counterparts. This Agreement may be executed in any number of
counterparts, no one of which needs to be executed by both parties, and this
Agreement shall be binding upon both parties with the same force and effect as
if both parties had signed the same document, and each such signed counterpart
shall constitute an original of this Agreement.
2.9 Amendment. No modification or amendment of this Agreement shall be
binding upon a party unless in writing and signed by the other party hereto.
2.10 Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof, and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties hereto regarding the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
Neon Systems, Inc.
By:______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Date:____________________________________
Peregrine Bridge Transfer Corporation
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By:______________________________________
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer
Date:____________________________________
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EXHIBIT A
Description of Services
During the Initial Term and the Renewal Term, if applicable, of this Agreement,
NEON will provide, or cause to be provided, to PBTC, the services described
below (the "Services"). The Services may be modified from time to time by the
mutual written agreement of the parties.
(a) Facilities Management. NEON will provide office space and furniture
for PBTC's Houston-based employees (up to a maximum of the square feet
of office space that NEON's IMS Division occupied at Closing of the
Termination and Customer Support Agreement dated August 14, 2002).
(b) Accounting Services. Perform all normal and customary accounting
functions for PBTC and maintain all necessary books and records in
connection therewith; and monitor the actual monthly income and
expenses of PBTC, collect revenues and pay operating expenses, compare
actual results to the relevant operating budgets, and report to PBTC.
(c) Risk Management Services. Assist PBTC in review of the insurable risks
of PBTC and the determination of levels of insurance coverage,
develop, administer and implement a risk management program for PBTC;
procure insurance coverage in accordance with PBTC's instructions; and
subject to PBTC's guidelines and approval, oversee the investigation
and resolution of all casualty and liability claims brought by or
against PBTC.
(d) Tax Services. Assist in the preparation of state and federal income
tax returns for PBTC; sales tax filings and state unemployment tax
filings; and coordinate with PBTC and oversee any challenges,
disputes, and audits of any income, sales, or unemployment taxes.
(e) Human Resources. Provide standard human resource services including
implementation and oversight of interview and hiring guidelines and
services; implementation and oversight of employment policies and
procedures; conduct of periodic employee reviews; and to the extent
permitted by applicable law and governmental regulations, employee
benefits and payroll administration.
(f) Regulatory Compliance Review. Assist PBTC in assuring compliance with
applicable governmental regulations (including without limitation
labor and employment regulations and Americans with Disabilities Act)
solely with respect to PBTC employees who office in NEON's corporate
headquarters; and implementing a program to monitor continuing
compliance with governmental regulations.
(g) Legal Services. NEON's Legal Department will provide legal and
contracts review services to Recipient. Specifically, NEON's Legal
department will draft and/or review any contracts to be entered into,
counsel and consult with all departments regarding legal matters, and
address legal questions of PBTC.
Monthly Services Fee
Service Fees and Reimbursable Amounts (as defined in Section 1.2 of
this Agreement) shall be paid in accordance with Sections 1.2 and 1.4 of this
Agreement.
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