TRANSITION SERVICES AGREEMENT

 

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                                                                    EXHIBIT 10.2

 

 

 

 

                          TRANSITION SERVICES AGREEMENT

 

 

                                 BY AND BETWEEN

 

 

                                  NETGURU, INC.

 

 

                                        AND

 

 

                          BENTLEY SYSTEMS, INCORPORATED

 

 

 

 

 

 

 

                        DATED AS OF ___________ __, 2005

 

 

 

 

 

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                          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.

 

 

 

 

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         (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 ind