<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------------
FORM 10-Q
AMENDMENT NO. 1
(Mark One)
/x/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
----------------------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
----------------- ------------------
Commission file number 0-27204
TECHFORCE CORPORATION
- -------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter
GEORGIA 58-2082077
- -------------------------------------------------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
5741 Rio Vista Drive, Clearwater, Florida 33760
- -------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (813) 532-3600
---------------------------
- -------------------------------------------------------------------------------
Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report
Indicated by check X whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes /X/ No / /
--- ---
As of May 11, 1998, there were 8,164,072 shares of the issuer's
common stock outstanding.
<PAGE>
TECHFORCE CORPORATION
FORM 10-Q
QUARTER ENDED MARCH 31, 1998
INDEX
PART I. FINANCIAL INFORMATION PAGE NO.
- ------- --------------------- --------
Item 1 Financial Statements........................... 1
Consolidated Balance Sheet..................... 1
Consolidated Statements of Operations.......... 2
Consolidated Statements of Cash Flows.......... 3
Notes to Consolidated Financial
Statements..................................... 4
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations..................................... 7
Item 3. Quantitative and Qualitative
Disclosures About Market Risks................. 10
PART II. OTHER INFORMATION
Item 1 Legal Proceedings.............................. 11
Item 2 Changes in Securities......................... 11
Item 3 Defaults Upon Senior Securities............... 11
Item 4 Submission of Matters to a Vote of
Shareholders.................................. 11
Item 5 Other Information............................. 11
Item 6 Exhibits and Reports on Form 8-K.............. 11
SIGNATURES
- ----------
Signatures................................................. 12
EXHIBIT INDEX
- -------------
<PAGE>
TECHFORCE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
March 31, 1998
(In thousands)
<TABLE>
<CAPTION>
ASSETS March 31, 1998 December 31, 1997
-------------- -----------------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 1,062 $ 735
Investments 100 3,175
Accounts receivable, net of Allowance for Doubtful Accounts 16,123 12,829
of $356,149 and $345,000 at Mar 31, 1998 and Dec 31, 1997
respectively
Inventories 3,880 3,461
Net Investment in Sales Type Leases (current portion) 3,969 4,100
Prepaid expenses/Other Assets 1,321 1,031
-------- --------
Total current assets 26,455 25,331
-------- --------
PROPERTY, PLANT AND EQUIPMENT
Leasehold Improvements 928 764
Office furniture and fixtures 8,213 7,499
Replacement parts 17,713 17,077
Equipment held for rental 734 592
-------- --------
27,588 25,932
Less accumulated depreciation (12,322) (10,968)
-------- --------
Total property, plant and equipment net 15,266 14,964
-------- --------
NET INVESTMENTS IN SALES TYPE LEASES 9,629 10,105
Less current portion -------- --------
ORGANIZATION COSTS AND OTHER ASSETS 189 273
-------- --------
Total assets $ 51,539 $ 50,673
-------- --------
-------- -------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 4,756 $ 3,906
Accrued expenses 905 1,936
Accrued contract labor 782 551
Current maturities of obligations under capital leases,
long-term debt and non-recourse notes payable 2,635 2,770
Line of credit - -
Deferred revenue 3,445 2,069
Deferred Taxes 81 81
-------- --------
12,604 11,313
-------- --------
LONG-TERM DEBT AND OTHER LIABILITIES 1,928 1,835
-------- -------
NON-RECOURSE NOTES PAYABLE, net of current maturities 5,588 6,032
-------- --------
STOCKHOLDERS' EQUITY
Common stock 81 81
Additional paid in capital 28,072 28,031
Retained earnings 3,266 3,381
-------- --------
31,419 31,493
-------- --------
Total liabilities and stockholders' equity $ 51,539 $ 50,673
-------- --------
-------- --------
</TABLE>
<PAGE>
TECHFORCE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31
------------------------
<C> <C>
1998 1997
----------- ----------
<S>
Revenues:
Services $ 11,700 $ 10,220
Hardware 4,917 7,441
----------- ----------
Total revenues 16,617 17,661
----------- ----------
Direct costs:
Services 8,895 7,194
Hardware 4,102 5,488
----------- ----------
Total direct costs 12,997 12,682
----------- ----------
Gross Margin:
Services 2,805 3,026
Hardware 815 1,953
----------- ----------
Total gross margin 3,620 4,979
----------- ----------
Operating costs
Selling and marketing 2,336 2,282
General and administrative 1,440 1,147
----------- ----------
3,776 3,429
----------- ----------
Operating (loss) Income (156) 1,550
Interest expense, net 20 41
----------- ----------
(Loss) Income before taxes (176) 1,509
Benefit (Provision) for income taxes 61 (549)
----------- ----------
Net (loss) income $ (115) $ 960
----------- ----------
Basic earnings per common share $ (0.01) $ 0.12
----------- ----------
Diluted earnings per common share $ (0.01) $ 0.12
Weighted average number of common
shares outstanding 8,123,103 7,979,909
----------- ----------
Weighted average number of common
and common equivalent shares 8,123,103 8,265,472
----------- ----------
</TABLE>
Page 1
<PAGE>
TECHFORCE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
<TABLE>
<CAPTION>
Three Months Ended
March 31
----------------------------
1998 1997
------------- -------------
(Unaudited) (Unaudited)
<S> <C> <C>
Cash flows from operating activities
Net (loss) Income ($115) $960
Adjustments to reconcile net (loss) income to net cash
(used in) provided by operating activities:
Depreciation and amortization 1,437 746
Changes in operating assets and liabilities (2,474) 435
------------- -------------
Net cash (used in) provided by operating activities (1,152) 2,141
Cash Flows from investing activities
Purchase of property and equipment (1,656) (1,376)
Investment in sales-type leases 607 (510)
Sale of Investments 3,075 0
------------- -------------
Net cash provided by (used in) investing activities 2,026 (1,886)
------------- -------------
Cash flows from financing activities
Borrowings under revolving credit facilities 0 0
Repayment of long term debt (589) (459)
Issuances of Common Stock, net 41 0
------------- -------------
Net cash used in financing activities (548) (459)
------------- -------------
Net increase (decrease) in cash and cash equivalents 326 (204)
Cash and cash equivalents, beginning of period 736 6,242
------------- -------------
Cash and cash equivalents, end of period $1,062 $6,038
------------- -------------
------------- -------------
</TABLE>
<PAGE>
TECHFORCE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1998
(Unaudited)
1. NATURE OF BUSINESS
TechForce Corporation and subsidiaries (collectively, the "Company" and
formerly TechForce, a Georgia general partnership) are engaged in the sale,
design, on-site installation and maintenance, and support of computer and
data communications networking equipment.
2. BASIS OF FINANCIAL REPORTING
The condensed consolidated financial statements at March 31, 1998 and for
the three month period then ended are unaudited and reflect all adjustments
(consisting only of normal recurring adjustments) which are, in the opinion
of management necessary for fair presentation of the financial position and
operating results for the interim period. The condensed consolidated
financial statements should be read in conjunction with the consolidated
financial statements and notes thereto, together with management's
discussion and analysis of financial condition and results of operations,
contained in the Company's Annual Report to Shareholders incorporated by
reference in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
3. MAJOR CUSTOMERS
During the quarters ended March 31, 1998, and March 31, 1997, the
following customers individually accounted for more than 10% of the
Company's revenue:
<TABLE>
<CAPTION>
Quarter Ended March 31, 1998 Quarter Ended March 31, 1997
---------------------------- ----------------------------
Amount (1000) Percentage Amount (1000) Percentage
------------- ---------- ------------- ----------
<S> <C> <C> <C> <C>
Packard Bell Electronics, Inc. $1,075 6% $3,599 20%
General Electric Corporation $3,023 18% $ -- 0%
</TABLE>
The loss of revenues from General Electric Corporation could have a material
impact on the results of the operations of the Company in the near term.
Management believes that the loss of revenues from Packard Bell would not
have a material impact on the results.
4. EARNINGS PER SHARE
In 1997, the Company adopted Statement of Financial Accounting Standards
(SFAS) No. 128, "Earnings per Share" (SFAS 128). Basic earnings per share
is based upon the weighted average number of common shares and the
diluted earnings per share is based upon the weighted average number of
common shares plus the dilutive common equivalent shares outstanding
during the period. The following is a reconciliation of the denominators
of the basic and diluted earnings per share computations shown on the
face of the accompanying consolidated statements of operations:
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Three months ended March 31,
----------------------------
1998 1997
----------- ------------
Basic weighted average number of common
shares....................................... 8,123,103 7,979,909
Dilutive effect of options outstanding......... -- 285,563
Dilutive weighted average number of common
and common equivalent shares outstanding..... 8,123,103 8,265,472
</TABLE>
The following options were outstanding at March 31, 1998, but were not
included in the computation of diluted earnings per share because the company
incurred a net loss:
<TABLE>
<CAPTION>
<S> <C>
Number of options............................. 1.389.561
Range of exercised prices..................... $.38 - 9.63
Range of expiration dates..................... 2004 - 2008
</TABLE>
The following options were outstanding at March 31, 1997, but were not
included in the computation of diluted earnings per share because the
options' exercise price was greater than the average market price of the
common shares for March 31, 1997.
<TABLE>
<CAPTION>
<S> <C>
Number of options............................. 549,866
Range of exercise prices...................... $7.00 - 9.63
Range of expiration dates..................... 2005 - 2007
</TABLE>
As a result of adopting SFAS 128, the Company's quarterly earnings per share
for March 31, 1997, has been restated. However, for the three months ended
March 31, 1997, the previously reported primary and fully diluted earnings
per share did not differ from the basic and diluted earnings per share
calculated under SFAS 128.
5. LEGAL MATTERS
From time to time, the Company is involved in certain litigation and
claims arising in the ordinary course of business. In the opinion of
management, the ultimate resolution of any such matters will not have a
material adverse effect on the Company's financial position at March 31,
1998 or results of operations for the three months then ended.
6. RECLASSIFICATIONS
Certain amounts included in the 1997 financial statements have been
reclassified to conform with the 1998 financial statements.
7. NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131, "Disclosures about Segments of
an Enterprise and Related Information" (SFAS 131). SFAS 131 requires
that a public business enterprise report financial and descriptive
information about its reportable operating segments and related
information. SFAS 131 is effective for financial statement relating to
annual periods beginning after December 15, 1997. Management has determined
that the adoption of SFAS 131 will not have a material effect on the
accompanying consolidated financial statements.
<PAGE>
In February 1998, the Financial Accounting Standards Board issued
Financial Accounting Standards No. 132 "Employers disclosures about
Pensions and Other Postretirement Benefits" (SFAS 132) which standardizes
the disclosure requirements for defined contribution plans and defined
benefit plans. The statement is effective for financial statements
relating to annual periods beginning after December 31, 1997. Management
has determined that the adoption of SFAS 132 will not have a material
effect on the accompanying consolidated financial statements.
Other issued but not yet required FASB standards are not currently
applicable or material to the Company's operations.
8. On May 8, 1998, the Company announced that it will restructure its
business operations away from the hardware business segment by reducing
the infrastructure and resources allocated to it. As a result of the
planned cost reductions, the Company expects to incur a non-recurring
charge in the second quarter of approximately $2.5 million related to
staff reductions, closing and relocating certain functions and inventory
valuation adjustments in response to the Company's strategy shift related
to the sale of hardware.
<PAGE>
PART I. FINANCIAL INFORMATION (continued)
- ------- ---------------------
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Overview
The Company provides network support services focusing on mission
critical technologies such as LAN/WAN internetworking, data networking,
mainframe channel networking and workstation support. The Company's support
solutions include network monitoring services, 7X24 diagnostic and technical
support from the Technology Support Center in Clearwater, Florida, on-site
maintenance, remote and on-site equipment software installation and network
design on complex multi-vendor enterprise networks. The Company's
maintenance contracts with customers range from one to five years. The
Company also sells and leases various data network hardware supplied by other
manufacturers, as well as its own channel extension hardware. Field service
operations are conducted through a combination of the Company's field support
personnel and a network of authorized service providers that are certified by
the Company to provide local on-site repair or parts replacement services
under the direction of the Company's Technical Support Center.
Revenues from service and maintenance contracts are either recognized
ratably over the contract period or on a per call basis, as is the case under
the Company's workstation support agreements. Revenues from product sales
are recognized at the time of shipment. When appropriate, revenues from
leasing are accounted for as sales-type leases where the present value of all
payments are recorded currently as revenues and the related costs of the
equipment less the present value of any appropriate unguaranteed residual
value are recorded to cost of sales. The associated interest income is
recognized over the term of the lease. Revenues derived from sales-type
leases for the three months ended March 31, 1998 and March 31, 1997,
respectively were $0.3 million and $1.0 million. Amortized interest on
sales-type leases totaled $0.2 million and $0.1 million for the three month
periods ended March 31, 1998 and March 31, 1997, respectively.
Management anticipates that revenues from its proprietary channel
extension products and services will continue to decrease at a rate of
approximately 10% to 20% per year primarily as a result of a trend toward
open-systems environments. Management does not believe that this gradual
decline in such revenues will have a material adverse effect on the Company's
results of operations and financial condition.
Revenues from Packard Bell represented 6% of total Company revenues for
the three months ended March 31, 1998 as compared to 20% for the three months
ended March 31, 1997. The call volume level for the three months ended March
31, 1998 may not be indicative of future call volumes due to changes made by
Packard Bell in its end user product warranty. Revenues from General
Electric represented 18% of total Company revenues for the three months ended
March 31, 1998. The Company received no revenues from General Electric for
the three months ended March 31, 1997.
Continued growth of the Company's customer base and its services can be
expected to continue to place a significant strain on its administrative,
operational and financial resources. The Company's future performance and
profitability will depend in part on its ability to continue to increase the
number and productivity of its channels to market, to successfully implement
enhancements to its business management systems and to adapt those systems as
necessary to respond to changes in its business. Furthermore, although the
Company has experienced rapid growth in total revenues and has previously
been profitable, its limited operating history makes the prediction of future
operating results difficult. There can be no assurance that the Company's
revenue growth will continue in the future or that profitable operating
results can be sustained.
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" (SFAS 131). SFAS 131 requires that a
public business enterprise report financial and descriptive information about
its reportable operating segments and related information. SFAS 131 is
effective for financial statements relating to annual periods beginning after
December 15, 1997. Management has determined that the adoption of SFAS 131
will not have a material effect on the accompanying consolidated Financial
Statements.
<PAGE>
In February 1998, the Financial Accounting Standards Board issued
Financial Accounting Standards No. 132, "Employers Disclosures about Pensions
and Other Postretirement Benefits" (SFAS 132) which standardizes the
disclosure requirements for defined contribution plans and defined benefit
plans. The statement is effective for financial statements relating to
annual periods beginning after December 15, 1997. Management has determined
that the adoption of SFAS 132 will not have a material effect on the
accompanying consolidated financial statements.
Other issued but not yet required FASB standards are not currently
applicable or material to the Company's operations.
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
Total revenues. Total revenues decreased 5.9% from $17.7 million for
the three months ended March 31, 1997 to $16.6 million for the three months
ended March 31, 1998 due to decreased hardware sales and leasing activity
partially offset by increased enterprise network support and workstation
support revenues.
Service revenues. Revenues from services increased 14.5% from $10.2
million (57.9% of total revenues) for the three months ended March 31, 1997
to $11.7 million (70.4% of total revenues) for the three months ended March
31, 1998. This increase was attributable to increased enterprise network and
workstation support revenues offset by the reduced revenue from FedEx.
Revenues from enterprise network support services increased by 26.0% while
revenues from workstation support increased by 32.3% for the three months
ended March 31, 1998 as compared to revenues from these services for the
three months ended March 31, 1997. Service revenues include revenues from the
sale of workstation repair parts procured by the Company on behalf of certain
workstation support customers.
Hardware revenues. Revenues from hardware decreased 33.9% from $7.4
million (42.1% of total revenue) for the three months ended March 31, 1997 to
$4.9 million (29.6% of total revenues) for the three months ended March 31,
1998. Hardware revenues included revenues from leasing activities of $1.0
million and $.3 million for the three months ended March 31, 1997 and 1998,
respectively. On May 8, 1998, the Company announced that it will reduce its
strategic focus on hardware and will decrease the infrastructure supporting
its hardware sales efforts. Accordingly the Company expects revenue from the
sale and lease of hardware to decline from historical levels.
Cost of Service. Cost of service increased 23.6% from $7.2 million
(70.4% of service revenues) for the three months ended March 31, 1997 to $8.9
million (76.0% of service revenues) for the three months ended March 31,
1998. This overall cost of service increase was unfavorably affected by the
increased cost related to enterprise service delivery, and volume related
increase in workstation support. Cost of service includes the cost of
workstation repair parts procured by the Company on behalf of certain
workstation support customers.
Cost of Hardware. Cost of hardware decreased 25.2% from $5.5 million
(73.8% of hardware revenues) for the three months ended March 31, 1997 to
$4.1 million (83.4% of hardware revenue) for the three months ended March 31,
1998. This decrease was caused by lower hardware revenues during the three
months ended March 31, 1998. Increased cost of hardware as a percent of
revenue reflected increased competitive pressure on hardware pricing.
Gross Margin. Overall gross margin decreased 27.4% from $5.0 million,
(28.2% of total revenues), for the three months ended March 31, 1997 to $3.6
million, (21.8% of total revenues) for the three months ended March 31, 1998.
Gross margin on services decreased 7.3% from $3.0 million for the three
months ended March 31, 1997 to $2.8 million for the three months ended March
31, 1998, while decreasing as a percent of service revenues from 29.6% to
24.0% respectively. Gross margin on hardware revenues decreased 58.4% from
$2.0 million for the three months ended March 31, 1997 to $0.8 million for
the three months ended March 31, 1998. This decrease was caused primarily by
decreased hardware revenues combined with declining margins from sales of
hardware during the three months ended March 31, 1998. Hardware margins as a
percentage of hardware revenues decreased from 26.2% for the three months
ended March 31, 1997 to 16.5% for the three months ended March 31, 1998
primarily as a result of these factors. The Company has experienced
competitive pressure on resale hardware margins and anticipates continued
pressure due to price competition.
<PAGE>
Selling and Marketing Expenses. Selling and marketing expenses
increased 2.3% from $2.3 million (12.9% of total revenues) for the three
months ended March 31, 1997 to $2.3 million (14.0% of total revenues) for the
three months ended March 31, 1998. The increase resulted primarily from the
build up of sales infrastructure which the company now plans to reduce.
General and Administrative Expenses. General and administrative
expenses increased 25.5% from $1.1 million for the three months ended March
31, 1997 to $1.4 million for the three months ended March 31, 1998. Rent,
information systems, supplies, and depreciation expenses comprise a
significant portion of the general and administrative expense increase over
the same period for 1997.
Operating Income. Operating income decreased 110.1% from $1.6 million,
(8.5% of total revenues), for the three months ended March 31, 1997 to $(0.2)
million, (1.0% of total revenues), for the three months ended March 31, 1998
as a result of the factors listed above.
Interest (Income) Expense, Net. Net interest expense totaled $41,000
for the three months ended March 31, 1997, resulting from interest on the
company's line of credit. Net interest income totaled $20,000 for the three
months ended March 31, 1998, due to higher a investment balance and no line
of credit.
Income Taxes. The Company's effective income tax rate was 34.6% for
the three months ended March 31, 1998, as compared to a 36.4% effective
income tax rate for the three months ended March 31, 1997.
Liquidity and Capital Resources
The Company's operating activities provided cash of $2.1 million and
used cash of $1.2 million for the three months ended March 31, 1997 and 1998,
respectively. Cash provided by operating activities for the 1997 period was
primarily due to net income before depreciation and amortization and increase
in accounts payable and deferred revenue offset by increases in accounts
receivable. Cash used in operating activities for the 1998 period was
primarily due to a net operating loss, increases in accounts receivable and
inventory, partially offset by increases in accounts payable and deferred
revenue.
The Company's investing activities used cash of $1.9 million and
provided cash of $2.0 million for the three months ended March 31, 1997 and
1998, respectively. Cash used by the Company's investing activities for the
1997 period related to the purchase of property and equipment as well as
increases in investment of sales-type leases. Cash provided by the Company's
investing activities for the 1998 period resulted from the sale of
investments, as well as the reduction of investment in sales-type leases,
partially offset by the purchase of property and equipment.
Financing activities used cash of $0.5 million and $0.5 million for
the three months ended March 31, 1997 and 1998 respectively, primarily due to
the repayment of long term debt.
The Company's cash requirements have been financed with cash flow from
operations and borrowings under its revolving credit facility with First
Union National Bank of Florida (the "Bank") since October 1996. The credit
facility with the Bank provides for borrowings of up to $15.0 million based
on the value and aging of the Company's eligible accounts and lease
receivables. Borrowings under the line of credit bear interest at the Bank's
quoted variable base rate, which has ranged from 7.12% to 7.47% during the
three months ended March 31, 1998, and was 7.18% as of March 31, 1998. As
of March 31, 1998, the Company had no outstanding balance under the line of
credit and approximately $11.6 million was available for borrowing thereunder
based upon the Company's qualifying accounts receivables. The Company
intends to use its borrowing capacity under the line of credit on a limited
basis primarily for working capital requirements. The credit facility
expires in September 1998. Although there can be no assurances that the Bank
will do so, the Company believes that the Bank will agree to renew the
facility.
The Company decreased its investment in sales-type leases by $0.6
million and increased discounted leases to third parties of $0.4 million for
the three months ended March 31, 1998. As of March 31, 1998, the Company's
<PAGE>
investment in capital leases included $9.2 million of leases which had been
discounted via non-recourse notes payable to banks. An additional $5.5
million represented undiscounted leases, a portion of which the Company
plans to discount in the future. This leasing activity places demands on the
Company's working capital based on the timing and availability of discounting
activities with financial institutions.
Management believes that cash from operations and borrowings available
under its revolving credit facility together with current cash balances will
be sufficient to finance its working capital needs and capital expenditure
requirements for at least the next 12 months. Although no assurance can be
given, management believes that cash from operations together with available
sources of financing, including additional bank debt, will be sufficient to
fund the company's capital requirements for the foreseeable future beyond
such 12 month period. The Company relocated its joint corporate headquarters
and operations facility to a new location in the first quarter of 1998. In
conjunction with this move, the company has committed to a 60 month premises
lease in Clearwater, Florida. The Company does not currently have any other
material commitments for capital expenditures.
Many companies use existing computer programs which identify a
particular year using only two digits. These programs were not developed to
consider the impact of the upcoming change in the century. Many computer
software applications could therefore fail or create erroneous results at or
beyond the year 2000 if not corrected or replaced by software applications
designed to properly recognize and process dates during and beyond the year
2000 ("Year 2000 compliant software"). During 1997, the Company upgraded its
financial and business communications systems with Year 2000 compliant
software. Furthermore, beginning in 1998, the Company plans to replace or
upgrade certain other systems to meet its evolving business requirements. The
replacement or upgraded systems will be evaluated or developed to ensure Year
2000 compliance. The expected costs for 1998 systems work are included within
the Company's capital budget for 1998. Furthermore, the Company has initiated
a project to test remaining internal systems and critical external interfaces
in 1998 in order to identify areas where the Year 2000 issue might materially
impact the Company's business. During 1998, management expects to identify
any remaining concerns related to Year 2000 readiness and initiate required
actions to ensure Year 2000 readiness. The Company believes that it will be
Year 2000 ready with no material impact on the Company's business and that
the costs of any corrective action will not materially affect the Company's
operating results or financial condition.
The Company also announced that it had signed a contract with a Fortune
100 company under which TechForce, as a subcontractor, will provide network
services to customers nationwide.
On May 8, 1998, the Company announced that it will restructure its
business operations away from the hardware business segment by reducing the
infrastructure and resouces allocated to it. As a result of the planned cost
reductions, the Company expects to incur a non-recurring charge in the second
quarter of approximately $2.5 million related to staff reductions, closing
and relocating certain functions and inventory valuation adjustments in
response to the Company's strategy shift related to the sale of hardware.
The above "Management's Discussion and Analysis of Financial Condition
and Results of Operations" contains forward-looking statements that involve
risks and uncertainties. The Company's actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors. Among such risks and uncertainties are as those
relating to the competitive nature of the TechForce's marketplace and its
ability to expand its customer base and grow revenues in line with previous
experience, dependence upon certain key personnel, the Company's ability to
manage its growth, and the risk of economic and market factors affecting
TechForce or its customers.
Item 3. Quantitative and Qualitative Disclosures About Market Risks.
Not Applicable.
<PAGE>
PART II OTHER INFORMATION
- ------- -----------------
Item 1. Legal Proceedings
Not Applicable.
Item 2. Changes in Securities
Not Applicable.
Item 3. Defaults Upon Senior Securities
Not Applicable.
Item 4. Submission of Matters to a Vote of Shareholders
Not Applicable.
Item 5. Other Information
Not Applicable.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit No. Description
----------- -----------
10.1* Master sub-contract agreement, dated March 31,
1998, between TechForce Corporation and XXX
Corporation.
10.2 Sub-contractor agreement, dated October 10, 1997,
between TechForce Corporation and General
Electric Corporation.
27.1 Financial Data Schedule
27.2 Financial Data Schedule (RESTATED)
(b) No reports on Form 8-K were filed during the period.
* Portions of this document have been omitted pursuant to a
request for confidential treatment under Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TECHFORCE CORPORATION
Date: June 4, 1998 /s/ Jerrel W. Kee
------------------------------------
Jerrel W. Kee
Chief Financial Officer
(principal financial and accounting officer)
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT NO.
- -----------
10.1* Master sub-contract agreement, dated March 31, 1998, between
TechForce Corporation and XXX Corporation.
10.2 Sub-contractor agreement, dated October 10, 1997, between
TechForce Corporation and General Electric Corporation.
27.1 Financial Data Schedule
27.2 Financial Data Schedule (Restated)
* Portions of this document have been omitted pursuant to a
request for confidential treatment under Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
<PAGE>
MASTER SUBCONTRACT AGREEMENT
This Agreement ("Agreement") is entered into as of March 31, 1998 (the
"Effective Date"), between XXX* (the "Company"), and TECHFORCE, a Georgia
corporation, with its principal place of business located at 5741 Rio Vista
Drive, Clearwater, Florida 33760 ("Subcontractor").
RECITALS
WHEREAS, Company will engage in marketing certain managed telecommunications
services to Customers and in connection therewith will agree to supply
installation, maintenance and other support services to such Customers;
WHEREAS, Subcontractor is knowledgeable concerning the installation and
maintenance of telecommunications equipment and may desire to provide such
installation, maintenance and other support services for Company; and
WHEREAS, Company desires to engage Subcontractor as an independent contractor in
performing certain installation and maintenance services for resale; and
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and Subcontractor hereby
agree as follows:
I. Definitions
1.01 Contract Price The term "Contract Price" shall mean and include the
amounts charged by Subcontractor for providing the Services described
in the Service Request Form, Schedule A attached hereto and
incorporated herein, including the amount charged for Materials
supplied by Subcontractor in providing the Services, together with all
taxes, assumed by Company pursuant to Section 4.02 hereof. The total
Contract Price (exclusive of taxes) and payment schedule of such
Contract Price shall be as set forth in Schedule B, pursuant to Exhibit
B-1 - Standard Price Model.
1.02 Customer The term "Customer" shall mean and include those persons or
entities procuring Equipment or Services from Company.
1.03 Effective Date The term "Effective Date" shall mean the date by which
the party's hereby agree to commence performance under this Agreement.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
1.04 Equipment. The term "Equipment" shall mean the computer hardware,
telecommunications equipment and other equipment set forth in the
attached schedules, as amended from time to time upon the mutual
agreement of the parties, which are to be managed by Company and may be
installed and maintained by Subcontractor pursuant to this Agreement.
1.05 System Outage. The term "System Outage" shall mean and include any
failure of the Equipment that materially affects the operation of the
Equipment. A more detailed definition of System Outage and its
prescribed maintenance requirements are described under Schedule C and
will be designated under each Service Request Form.
1.06 Manufacturer. The term "Manufacturer" shall mean and include each
manufacturer or vendor of the Equipment and Spare Parts.
1.07 Materials. The term "Materials" shall mean and include any tools or
materials which must be supplied by Subcontractor at its sole cost and
expense in order to perform the Services. Materials does not include
Equipment, cables or other items provided by Company to its Customers.
1.08 Project. The term "Project" shall mean and include all Services and
Materials to be provided to a Customer pursuant to this Agreement and
the applicable Service Request Form.
1.09 Service Request Form. The term "Service Request Form" shall mean and
include the document, completed and executed by Subcontractor and
Company for each Project, in substantially the form of Schedule A,
attached hereto and incorporated herein.
1.10 Project Service Term. The term "Project Service Term" shall mean and
include the period for which Company agrees to perform the Services for
a Customer as set forth in the applicable Schedule A.
1.11 Services. The term "Services" shall mean and include those
installation, maintenance and support services set forth and described
in Schedule A.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
1.12 Site. The term "Site" shall mean and include the premises where the
Equipment is to be installed or is located as set forth in the Schedule
A, including any such location where staging or other installation
related activity takes place.
1.13 Spare Parts. The term "Spare Parts" shall mean and include replacement
assemblies or subassemblies for the Equipment, other than the
Materials, as set forth in Schedule A as amended from time to time to
reflect changes in the Equipment.
1.14 Specifications. The term "Specifications" shall mean and include the
procedures, specifications, diagnostic software and drawings of the
Manufacturer's and Company for stocking and using the Spare Parts and
for installing, maintaining and supporting the Equipment; such
procedures, specifications, diagnostic software and drawings are
incorporated herein by this reference and may be amended from time to
time by such Manufacturers' or Company.
1.15 Unrelated Services. The term "Unrelated Services" shall mean and
include all installation, maintenance and repair services, in addition
to the Services, authorized by Company and provided by Subcontractor to
a Customer.
II. MASTER AGREEMENT
2.01 Master Agreement. This Agreement is the master agreement which shall
govern all Projects that are undertaken by Company and Subcontractor.
For each Project, Subcontractor and Company shall complete and execute
a separate Service Request Form. Such Service Request Form shall set
forth for each Project, the Site, the Equipment to be installed and/or
maintained, the Services to be rendered and the maintenance plan and
options therein specified, the Project Service Term, and the Materials
to be supplied by Subcontractor. In the event of any conflict between
the provisions of the Service Request Form and this Agreement, the
provisions of the Service Request Form shall control over the
provisions of this Agreement.
III. TERM
3.01 Term. This Agreement shall be effective as of the Effective Date and
shall remain in full force and effect for an initial term of thirty-six
(36) months, unless sooner
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
terminated pursuant to Article XV; provided, however, that this
Agreement shall remain in full force and effect with respect to any
Project for the Project Service Term of such Project which is not
completed at the expiration of the term of this Agreement or any
renewal thereof. This Agreement shall be automatically renewed for
additional successive twelve (12) month terms unless either party gives
the other party sixty (60) days written notice of its intention not to
renew this Agreement prior to the expiration of the term or the
anniversary thereof. Notwithstanding the foregoing, the provisions of
Articles III, VIII, IX, XII, XIV, XV, XVII, XVIII and XIX shall survive
any expiration or termination of this Agreement, in whole or in part.
IV. CHARGES AND PAYMENTS
4.01 Payment. Subcontractor shall invoice Company for the Contract Price for
Services performed and for any amounts due for Unrelated Services
performed for all then current Projects according to the payment
schedule described in Section 4.04. Each such invoice shall include
supporting documentation and details of the Services and Unrelated
Services performed. Company shall pay any amounts due within forty-five
(45) days of receipt thereof or notify Subcontractor of any dispute
with respect to any invoice. Company shall provide Subcontractor with
adequate documentation of any invoice or amount disputed by Company
within thirty (30) days of discovery of the basis for the dispute.
Except as otherwise provided herein or in any applicable Service
Request Form, the Contract Price shall be Subcontractor's sole and
complete compensation for the Services performed and Materials supplied
for a Project, including without limitation, compensation for overtime
or premium work, licenses, fees or any other expenses required to be
paid by Subcontractor in order for Subcontractor to perform the
Services.
4.02 Taxes. Company shall pay all sales, consumer, use and any other similar
taxes (except for taxes imposed on Subcontractor-provided Materials and
taxes based upon Subcontractor's income, net worth, franchise or
property) imposed by law in connection with the provision of the
Services or Unrelated Services. If there are any taxes, levies, charges
or fees which Subcontractor is obligated to pay but which have not been
paid by Subcontractor, Company may pay such amounts and either (a)
deduct such cost from any amount due Subcontractor or (b) invoice
Subcontractor for the cost thereof; Subcontractor shall pay any such
invoice within forty-five (45) days of receipt thereof. In the event
that Company provides Subcontractor with a duly authorized tax
exemption certificate, Subcontractor will not invoice the tax covered
by the exemption certificate. Company and Subcontractor agree to
reasonably cooperate with each other to determine more accurately each
party's tax liability and minimize such liability
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
to the extent legally permissible. Subcontractor will segregate the
charges assessed under this Agreement into the following payment
streams: i) that for taxable Service and Unrelated Services; ii) that
for nontaxable Service and Unrelated Services; iii) that for which a
sales, use or similar tax has been paid by Subcontractor and iv) that
for which Subcontractor is acting as a paying agent for Company in
receiving goods, supplies or service (including leasing and licensing
arrangements) that otherwise are not taxable or have previously been
subject to tax.
4.03 Unrelated Services. Subcontractor shall not perform any Unrelated
Services without the prior written consent of Company. If Company
agrees that such Unrelated Services are necessary for a Project,
Subcontractor shall supply such Unrelated Services and invoice Company
therefor at the rates set forth in Schedule B.
4.04 Payment Schedule. For each Project, Subcontractor and Company shall
concurrently complete and execute a separate Contract Price and Payment
Schedule as set forth in Schedule B, pursuant to Exhibit B-1.
V. STANDARD OF PERFORMANCE
5.01 Company Diagnostic Effort. Company shall use reasonable efforts to
screen all service-related calls of System Failures by Customers and to
determine the nature and scope of any System Outage prior to reporting
such System Outage to Subcontractor. Company shall designate System
failures and Subcontractor shall respond as set forth under Schedule C.
5.02 Service Availability. Except where Schedule D (Escalation Procedures)
applies, Subcontractor shall, upon execution of this Agreement, provide
a telephone contact where Company can report System Outages to
Subcontractor as set forth under Schedule C. Subcontractor's
maintenance personnel shall arrive at the Site of a reported System
Outage within the time specified.
5.03 Correction Time. Subcontractor shall correct System Outages within the
time specified therefor in the Service Request Form, pursuant to
Schedule C. In the event Subcontractor is unable or unwilling to
correct a System Outage in a timely manner in accordance with the
response times agreed to on the Service Request Form, Subcontractor
shall use its best efforts to escalate such performance, or lack
thereof to XXX* Corporation [entity] in a timely manner.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
VI. MATERIALS AND SPARE PARTS
6.01 Materials. Subcontractor shall furnish all installation Materials
necessary for performance of the Services. All Materials supplied by
Subcontractor to Customer shall be new, unless the system and/or the
component parts are no longer manufactured, thereby the contractor will
provide refurbished/like new products from reputable industry
providers.
6.02 Spare Parts. Company shall provide, and Subcontractor shall maintain on
Company's behalf an inventory of Spare Parts at Company's direction and
in an amount and variety sufficient to meet the requirements of the
Project(s) and the response times. Notwithstanding the aforesaid, it is
incumbent upon Subcontractor to notify Company in the event
Subcontractor reasonably discovers that inventory thresholds become too
low, either as a result of higher than expected maintenance turnover or
growth in number of locations (Customers) being covered under this
Agreement. All such Spare Parts shall be obtained by XXX* Corporation
at its sole cost and expense and shall remain the property of XXX*
Corporation. In addition, title to any such Spare Parts shall remain
with XXX* Corporation. Upon the instance delivery of such Spare Parts,
Subcontractor bears the risk of loss of the Spare Parts. Subcontractor
shall carry adequate insurance against loss, adding XXX* Corporation as
loss payee.
6.03 No Substitution. Subcontractor shall not substitute materials of a
lesser grade or quality for the Materials or Spare Parts specified in
the Service Request Form without Company's prior written consent.
6.04 UL Approved. All Materials supplied by Subcontractor shall be approved
by Underwriter's Laboratories ("UL") where such approval is available
for Materials of the type used. If any Materials are furnished without
the UL approval, Subcontractor shall be required to prove that UL
approval is not available for such Materials, and obtain Company's
consent to use such Materials. All Materials comprising electrical
equipment supplied by Subcontractor shall bear the manufacturer's label
which provides complete electrical data on such equipment.
VII. RISK OF LOSS
7.01 Risk of Loss. Subcontractor shall bear all risk of loss and damage to
the Equipment which is in its possession and control during the
performance of the Services. If
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Subcontractor due to Subcontractor's negligence, damages any property
of Customer or the Equipment, Subcontractor shall pay the repair or
replacement of such property or Equipment except to the extent such
loss or damage results from the actions or omissions of Company, its
employees or agents.
VIII. CORRECTION OF WORK: WARRANTY AND MAINTENANCE
8.01 Warranty.
(a) Subcontractor warrants that it has the right to enter into this
Agreement and that it understands the nature and scope of the Services
to be performed, the Specifications and Company's, and Manufacturers'
other installation and maintenance requirements for the Equipment and
Spare Parts, its obligations under this Agreement, and all other
matters which may in any way affect Subcontractor's rendering of the
Services. (b) Upon acceptance of the Installation Services and for a
period of three (3) months thereafter, ("the Warranty Period"), the
Subcontractor warrants that the Installation Services performed
hereunder, and those items of Materials as are supplied by
Subcontractor hereunder in connection therewith, shall be free from
defects and deficiencies in workmanship. (c) Subcontractor warrants
that the installation Services shall conform to the Specifications and
applicable Company installation practices, as disclosed to
Subcontractor, and in accordance with recognized industry standards
applicable to the installation of telecommunication equipment, in
particular, the Equipment manufacturer's standards. (d) Subcontractor
represents and warrants that it is skilled and knowledgeable in the
performance of the Services and that it shall perform the Services and
the Unrelated Services in a good and workmanlike manner and in
accordance with the Specifications and with the terms and conditions of
this Agreement and the applicable Service Request Form. (e)
Subcontractor warrants that any equipment and materials that are
requested by Company to be of a certain brand or of a certain
specification shall strictly conform to such request.
For a period of ninety (90) days from the rendering of any Unrelated
Services, Subcontractor shall correct at its own expense any defect,
deficiency or nonconformance therein. Subcontractor agrees to hold
Company harmless for any breach of said warranty.
8.02 Right to Cover. In the event that Company determines that Subcontractor
has breached the warranties set forth in Article VIII hereof, Company
may, by written notice to Subcontractor, direct Subcontractor to
immediately cease performing services for such Project(s) and Company
may itself provide or may procure, upon such terms as Company deems
reasonable and appropriate, services similar to the terminated
Services.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
8.03 Disclaimer of Warranty. NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE MADE BY SUBCONTRACTOR.
IX. SUBCONTRACTOR'S OBLIGATIONS
9.01 Liens.
Subcontractor shall keep each Site free and clear of all liens, claims
and charges including but not limited to material, laborers' and
mechanics' liens arising out of Services performed or Materials
supplied by Subcontractor or its subcontractors in connection with this
Agreement. Subcontractor shall give Company prompt written notice of
any actual or potential lien, claim or charge which has been or may be
imposed on a Site. In the event that any such lien, claim or charge is
imposed on a Site, Subcontractor shall immediately satisfy such lien,
claim or charge at its own cost and expense. If Subcontractor fails to
satisfy any lien, claim or charge within a reasonable period of time,
Company, without limiting any of its other rights or remedies, may
satisfy the lien, charge or claim and (a) deduct the cost, including
attorneys' fees, from any amount due Subcontractor or (b) invoice
Subcontractor for such cost; Subcontractor shall pay such invoice
within forty-five (45) days of receipt thereof.
9.02 Project Management.
If provided for under the Service Request Form, Subcontractor shall
assign a Project Manager who will oversee each phase of Subcontractor's
work. Subcontractor's Project Manager will be responsible for all
communications between the Subcontractor and Company.
9.03 Continuation of Services.
In the event that a dispute arises between Company and Subcontractor
concerning this Agreement, (a) Subcontractor shall continue to perform
the Services hereunder pending resolution of such dispute, unless and
until (i) this Agreement is terminated pursuant to Article XIII hereof
or (ii) Company directs Subcontractor to suspend performance pursuant
to Section 8.02 or 8.03, hereof, and (b) Company shall continue payment
other than for the disputed amount. Company shall not be in breach of
this Agreement or be liable to Subcontractor for damages for any
failure to pay any invoice for any Services provided by Subcontractor
which are the subject of a reasonable dispute between Company and
Subcontractor.
9.04 Inspection Procedures.
Subcontractor shall cooperate with the Company and the Customer at all
times in the inspection of the Materials and the Services provided
pursuant to this project,
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
and Subcontractor shall abide by all reasonable inspection procedures
and requirements established by Company, or the Customer.
9.05 Site Maintenance.
Subcontractor shall maintain the area in which it performs the Services
at the Site in a safe and clean manner and shall store all Materials
and Spare Parts neatly in the areas designated therefor by Company, or
the Customer. Upon completion of the Services, Subcontractor shall
immediately remove all temporary structures, waste materials and
rubbish, tools and other materials from the Site. In the event that
Subcontractor fails to remove any such structure, material, rubbish or
tools within two (2) days of notice thereof from Company, Company may
provide such removal services, either directly or through a third
party, and (a) deduct such cost from amounts due Subcontractor or (b)
invoice Subcontractor for such costs, which shall be payable within
forty-five (45) days of receipt thereof.
9.06 Maintenance Personnel.
Subcontractor shall employ a sufficient number of qualified personnel
to perform the Service and satisfy its obligations hereunder. Such
personnel shall be knowledgeable concerning the installation, testing
and maintenance of the Equipment. If Company requires Subcontractor to
maintain and/or install specific Equipment for which the Manufacturer
requires maintenance or installation services to be performed only by
Manufacturer certified or trained personnel, Subcontractor will provide
personnel so certified or trained. Company will assist Subcontractor to
enable Subcontractor to obtain such certification or training at
Subcontractor's sole cost and expense.
9.07 Service Interruption.
Subcontractor shall not unreasonably interrupt service on any
communications circuit during the performance of the Services If
Services must be performed at times other than normal business hours,
Subcontractor shall obtain Company's consent prior to performing such
services as Unrelated Services.
9.08 Manufacturer Warranties.
Subcontractor shall not limit, reduce or restrict any warranty,
maintenance and repair obligation or indemnification offered by the
Manufacturers or by the manufacturer or supplier of the Materials.
9.09 Equipment Inspection.
Subcontractor shall inspect i) all Equipment packaging when received
and ii) all Equipment when uncrated at the Site or at Subcontractor's
warehouse, staging area, or wherever else delivered pursuant to
Subcontractor's instructions and shall immediately notify Company if
any of the Equipment is defective, deficient or nonconforming.
Subcontractor shall review all packing slips for the Equipment,
maintain detailed records of Equipment received, and reconcile the
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Equipment received with Company orders and records. Subcontractor shall
send all packing slips or warehouse receipts for the Equipment to
Company within five (5) business days of receipt. Subcontractor shall
be responsible for any damages caused by delay unloading unless such
delays are a direct result of acts or omissions of Company or the
Customer.
9.10 No Customer Contact.
Subcontractor agrees that during the term of this Agreement and for one
(1) year thereafter, all communications concerning the Services and the
Equipment will be made directly to Company and not to Company's
Customer. Subcontractor will refer all requests for, or inquiries
regarding additional services that arise from the Services performed
under this Agreement to Company. Subcontractor agrees not to use
Customer information obtained as a result of the relationship
established by this Agreement to compete with Company.
9.11 Payroll Taxes.
Subcontractor shall be responsible for the payment of all wages,
salaries, benefits, and other compensation of its employees and
personnel including contributions to any employee benefit, savings or
work plans. Subcontractor shall be responsible to withhold and to pay
all federal, state, and local income, Social Security, unemployment and
other taxes. Subcontractor shall defend, indemnify and hold Company
harmless from any claim or demand by any person, government or agency
relating to such compensation or taxes as provided in Section 12.01
hereof. Subcontractor shall comply with all statutes, rules and
regulations including, but not limited to, those of employment of
labor, hours of labor, working conditions, Workers' Compensation,
payment of wages, and payment of taxes, including applicable
contributions for such persons when required by law.
9.12 Customer Interruption.
Subcontractor shall not unreasonably interfere with the business of the
Customer or others while performing the Services and shall not cause
damage to any property of Customer or to the Equipment.
9.13 Exclusivity.
Subcontractor represents that it is in its best interests to provide
Company an incentive to enter into the relationship contemplated by
this Agreement. Accordingly Subcontractor will take measures it feels
would benefit Company's sales efforts and recognizes that it would not
be in Subcontractor's best interests to hinder or diminish the
investments in time and resources Company will undertake to utilize
Subcontractor's expertise and labor efforts as set forth under the
Agreement.
Company represents that it is in its best interests to confer upon
Subcontractor a preferred vendor status. Whereas Company shall take
measures it feels would
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
benefit each of the parties to the Agreement by first utilizing
Subcontractor's experience and resources as set forth under the
Agreement, except for those opportunities within the scope and
geographic domain of XXX Corporation* and based upon Subcontractor's
continued desire to perform under the Agreement.
Notwithstanding the aforesaid during the initial one (1) year term of
this Agreement, Subcontractor shall not enter into contractual
arrangements or agreements with recognized Company strategic
competitors, including but not limited to Regional Bell Operating
Companies (RBOC's), Interexchange Carriers (IXC's) and/or Competitive
Local Exchange Carriers (CLEC's) for like or similar services as
provided under the Agreement, except for those instances where
Subcontractor is already under obligation to such strategic
competitors, prior to formal execution of this Agreement.
Subcontractor's breach of this provision shall be deemed a material
breach of this Agreement. Subcontractor reserves the right to offer
like or similar services as provided for under this Agreement on an
ad-hoc basis and on behalf of 3rd party vendors, in the sole event that
Company is not making or attempting to make a like or similar proposal
to the same Customer or customer group.
After the first annual period of the Agreement and in the event
Subcontractor desires to enter into or otherwise enact or execute a
like or similar contract environment with one of Company's aforesaid
strategic competitors, Company reserves the right to re-negotiate the
aforesaid terms and conditions of this Section 9.13 with Subcontractor,
prior to Subcontractor's enactment or execution of such like or similar
contract environment. The parties hereby agree to negotiate in a good
faith effort toward that end and during such time, the terms and
conditions of this Agreement shall prevail. In the event that such
negotiations are not resolved between the parties in a reasonable
amount of time not to exceed ninety (90) days, Subcontractor shall
reserve the right to enter into a like or similar contract environment
with such aforementioned strategic competitors.
9.14 New Equipment.
Subcontractor shall provide all Services under this Agreement for new
Equipment as mutually agreed to from time to time by Company and
Subcontractor, pursuant to Schedule B, Exhibit B-3 as from time to time
amended. As such, Subcontractor shall at its own expense comply with
any such Manufacturer's requirement for training and/or certification
requirements of Subcontractor's personnel (including any subcontractors
acting on behalf of Subcontractor), where such requirements are in
keeping with the spirit of the Agreement.
X. INDEMNIFICATION
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
10.01 Indemnity by Subcontractor.
Subcontractor agrees to indemnify, defend and hold Company, its
Affiliates and their respective officers, directors, employees, agents,
successors and assigns harmless, against any and all claims, damages or
losses incurred by Company arising from or in connection with:
(a) any claims of infringement made against Company of any United
States letters patent, or any copyright, trademark, service mark,
trade name or similar proprietary rights conferred by contract or
by common law or by any law of the Untied States or any state,
alleged to have occurred because of equipment, systems, products
or other resources or items provided to Company by Subcontractor;
provided, however, that Subcontractor will have no obligation with
respect to any losses to the extent the same results from
Company's unauthorized modification of a program or a machine or
Company's unauthorized combination, operation or use with devices,
data or programs not furnished by Subcontractor or its
subcontractors; whereas Subcontractor will make all reasonable
commercial efforts to obtain for Company a continued right to use
the Services;
(b) any claim or action by, on behalf of or related to, any employees
or personnel of Subcontractor (including any Affected Employees
hired by Subcontractor after such date of hire), including claims
arising under the Occupational Safety and Health Administration
requirements or orders, Equal Employment Opportunity Commission
requirements or orders, National Labor Relations Act, unemployment
insurance or workers' compensation laws, Fair Labor Standards Act,
or other applicable federal, state or local laws or regulations,
except to the extent that such losses result from Company's
failure to comply with this Agreement and its Schedules, or such
claim or action arose or grew out of events that occurred while
such person was a Company employee prior to his or her hire by and
employment with Subcontractor;
(c) any losses incurred by Company as a result of a failure by
Subcontractor to obtain any necessary regulatory approvals
applicable to its business or any necessary permits, or to comply
with any legal or regulatory requirement applicable to the
performance of the Services.
(d) any amounts, including but not limited to taxes, interest and
penalties, assessed against Company which are obligations of
Subcontractor pursuant to Section 4.02 and Section 9.11 hereof;
and
(e) Subcontractor's failure to accept an exemption certificate, act to
minimize Company's tax liability, or properly segregate charges
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
assessed under this Agreement into various payment streams as
required under Section 4.02 hereof.
10.02 Indemnity by Company.
Company agrees to indemnify, defend and hold Subcontractor, its
Affiliates and their respective officers, directors, employees, agents,
successors and assigns harmless, against any and all losses, arising
from or in connection with:
(a) any claims of infringement made against Subcontractor of any
United States letters patent, or any copyright, trademark, service
mark, trade name or similar proprietary rights conferred by
contract or by common law or by any law of the United States or
any state, alleged to have occurred because of equipment, systems,
products, or other resources or items provided to Subcontractor by
Company hereunder, provided, however, that Company will have no
obligation with respect to any losses to the extent the same
results from, arises out of, or in connection with Subcontractor's
unauthorized modification of a program or a machine or
Subcontractor's unauthorized combination, operation or use with
devices, data or programs not furnished by Company; in addition,
Company will make all reasonable commercial efforts to obtain for
Subcontractor a continued right to provide the Services;
(b) any claim or action by, on behalf of or related to, any employees
or personnel of Company (including any Affected Employees hired by
Subcontractor before such date of hire), including claims arising
under the Occupational Safety and Health Administration
requirements or orders, Equal Employment Opportunity Commission
requirements or orders, National Labor Relations Board or Fair
Labor Standards Act, or other applicable federal, state or local
laws or regulations, except to the extent that such losses result
from Subcontractor's failure to comply with this Agreement and its
Schedules;
(c) any amounts, including but not limited to taxes, interest, and
penalties, assessed against Subcontractor which are obligations of
Company pursuant to Section 4.02 hereof;
(d) Company's failure to act to minimize Subcontractor's tax liability
as required under Section 4.02 hereof;
(e) any environmental claim arising out of this Agreement, or as a
result of the Services performed at Company's facilities, unless
Subcontractor has caused the environmental damage by its own
actions or omissions or the actions or omissions of its
subcontractors or by failing to follow guidelines or procedures
provided by Company; and
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
(f) any losses incurred by Subcontractor as a result of a failure by
Company to obtain any necessary regulatory approvals applicable to
its business or any necessary permits, or to comply with any legal
or regulatory requirements applicable to the performance of the
Services.
10.03 Cross-indemnity and Contribution.
Each Party agrees to contribute to the amount paid or payable by the
other Party for any and all losses for which such Party is legally
liable and in proportion to such Party's comparative fault in causing
such losses, arising in favor of any person, corporation or other
entity, including the Parties hereto and their employees, contractors
and agents, on account of personal injuries, death or damage to
tangible personal or real property in any way incident to, or in
connection with or arising out of:
(a) this Agreement;
(b) the Services provided by Subcontractor hereunder;
(c) the presence of such Party, its employees, contractors or agents
on the premises of the other Party; or
(d) the act or omission of such Party, its employees, contractors or
agents.
10.04 Subrogation.
In the event that an Indemnifying Party shall be obligated to indemnify
an Indemnified Party pursuant to Sections 10.01, 10.02, or 10.03, (an
"Indemnified Party") written notice shall, upon payment of such
indemnity in full, be subrogated to all rights of the Indemnified Party
with respect to the claims and defenses to which such indemnification
relates.
10.05 Exclusive Remedy.
The indemnification rights of each Indemnified Party pursuant to
Sections 10.01, 10.02 or 10.03 shall be the exclusive remedy of such
Indemnified Party against the other Party with respect to the claims to
which such indemnification relates; provided that nothing in this
Section shall be deemed to limit Company's right to terminate this
Agreement for cause pursuant to Section 13.
10.06 Indemnification Procedures.
(a) If any civil, criminal, administrative or investigative action or
proceeding (any of the above being a "Claim") is commenced against
any Party entitled to indemnification under Sections 10.01, 10.02
or 10.03 (an "Indemnified Party") written notice thereof shall be
given to the Party that is obligated to provide indemnification
under such Sections (the "Indemnified Party") as promptly as
practicable. After
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
such notice, if the Indemnifying Party shall acknowledge in
writing to such Indemnified Party that this Agreement applies with
respect to such Claim, then the Indemnifying Party shall
acknowledge in writing to such Indemnified Party that this
Agreement applies with respect to such Claim, then the
Indemnifying Party shall be entitled, if it so elects in a written
notice delivered to the Indemnified Party to take control of the
defense and investigation of such Claim and to employ and engage
attorneys of its sole choice to handle and defend the same, at the
Indemnified Party's sole cost and expense. The Indemnified Party
shall cooperate in all reasonable respects with the Indemnified
Party and its attorneys in the investigation, trial and defense of
such Claim and any appeal arising therefrom; provided, however,
that the Indemnified Party may, at its own cost and expense,
participate, through its attorneys or otherwise, in such
investigation, trial and defense of such Claim and any appeal
arising therefrom. No settlement of a Claim that involves a remedy
other than the payment of money by the Indemnifying Party shall be
entered into without the consent of the Indemnified Party, which
consent will not be unreasonably withheld.
(b) After notice by the Indemnifying Party to the Indemnified Party of
its election to assume full control of the defense of any such
Claim, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal expenses incurred thereafter by
such Indemnified Party in connection with the defense of that
Claim. If the Indemnifying Party does not assume full control over
the defense of a Claim, the Indemnifying Party may participate in
such defense, at its sole cost and expense, and the Indemnified
Party shall have the right to defend the Claim in such manner as
it may deem appropriate, at the cost and expense of the
Indemnifying Party.
XI. LIABILITY
11.01 General Intent.
Subject to the specific provisions of this Section, it is the intent of
the Parties that each Party will be liable to the other Party for any
damages (including equitable remedies) incurred by the non-breaching
Party as a result of the breaching Party's failure to perform its
obligations in the manner required by this Agreement.
11.02 Direct Damages.
Each Party's, and each of its subcontractor's, liability for actual,
direct money damages resulting from failure of such Party to perform
under this Agreement, regardless of the form of action, and whether in
contract, tort (including, without limitation, negligence), warranty or
other legal grounds, will be limited to the
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
aggregate of the amounts paid under this Agreement in the six (6) month
period immediately preceding the occurrence. This limitation will not
apply to and, as appropriate, each Party shall respectively be fully
responsible at law and equity for:
(a) any obligation or failure by Company to pay any amounts due or
past due and owing to Subcontractor pursuant to the terms of this
Agreement;
(b) either Party's obligation to indemnify the other for losses as
provided in Sections 10.01, 10.02, 10.03;
(c) losses resulting from disclosure of confidential information or
breach of obligations under Section XVI.
11.03 Other Damages.
In no event will either Party have any liability, whether based on
contract, tort (including without limitation, negligence), warranty or
any other legal or equitable grounds, for any consequential, indirect,
incidental, special, punitive or exemplary damages (including lost
sales or revenue opportunities) suffered by the other Party, arising
from or related to this Agreement, even if such Party has been advised
of the possibility of such losses or damages; provided, however, that
this clause is not intended to prevent either Party from recovering
amounts owed under Sections 10.01, 10.02 and 10.03 or Subcontractor
from recovering Termination Charges.
XII. COMPLIANCE WITH APPLICABLE LAWS
12.01 Compliance with Applicable Laws.
Subcontractor shall be solely responsible for complying with all
federal, state and local statutes, ordinances, rules and regulations,
including but not limited to National Electrical Code, the rules and
regulations of the Secretary of Labor and the requirements of local
utilities and common carriers. Subcontractor shall at its own cost and
expense obtain all licenses and permits and pay all fees and charges
required to comply therewith. If the Specifications for a Project are
at variance with any such statutes, ordinances, rules and regulations,
Subcontractor shall promptly notify Company of such variance in
writing. Subcontractor shall hold Company and any of its customers and
affiliates harmless in respect of any violation thereof.
XIII. TERMINATION
13.01 Termination for Cause.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Upon written notice either Party may terminate this Agreement, without
charge to the terminating Party, in the event of a material breach by
the other. The Parties agree that for purposes of this Section, a
"material breach" shall include, without limitation, repetitive
failures by a Party to perform its duties that individually may not
rise to a material breach, but cumulatively do amount to such breach.
Without limiting the foregoing, Subcontractor shall be in material
breach if Company's failure to meet the Performance Standards for
different categories in consecutive months shall not in itself
constitute a material breach). However, if Subcontractor can provide
Company with a reasonable plan to restore the services to the
Performance Standards, then Subcontractor shall have an additional
thirty (30) days to bring the Services into compliance. Subcontractor
may terminate this Agreement only if Company's material breach consists
of: (i) nonpayment of amounts due to Subcontractor; (ii) breach of its
obligations as specified in the Schedules or in this Agreement, or
(iii) failure to provide a safe working environment for Subcontractor's
personnel performing the Services. The Party seeking termination will
provide the other Party with sufficient, reasonable written prior
notice of such material breach and the opportunity to cure same, as
follows:
(a) at least ten (10) days in the event of a failure to pay any
uncontested amount due and payable under this Agreement when due;
(b) at least forty-five (45) days in the event of any other material
breach.
If the nature of any nonmonetary breach is such that it would be
unreasonable to expect a cure within a forty-five (45) day period, the
breaching Party shall be given an additional fifteen (15) days to cure
such breach. In the event the material breach is not cured within the
periods specified above after delivery of the notice, the non-breaching
Party may terminate this Agreement, which termination shall be in
writing, as of a date specified in such notice of termination. The
terminating Party shall have all rights and remedies generally afforded
by law or equity, subject to the limitations expressed in this
Agreement.
13.02 Change in Control.
Company may terminate this Agreement at any time upon thirty (30) days
prior written notice if there is a Change in Control of Subcontractor.
As used in this Section, a "Change in Control" means any transaction or
series of related transactions after the Effective Date which results
in (a) a transfer of effective operating control of Subcontractor
(which, for purposes of this Subsection 13.02 only, shall be defined as
Subcontractor, Subcontractor's parent company and/or any
previously-permitted successor of Subcontractor) by one (1) or more
shareholders of Subcontractor, (b) any sale or purchase of all or
substantially all of the assets of Subcontractor, or (c) any merger or
consolidation of Subcontractor with or into a non-affiliated
corporation or any stock issuance by Subcontractor where more than
fifty percent (50%) of the outstanding voting
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
securities (by voting power) of the surviving or resulting corporation
or the issuer are directly or indirectly controlled by another entity.
All percentages referenced herein shall be determined on a fully
diluted basis. The following transactions shall not constitute, or be
considered in determining, a Change of Control: (i) any acquisition of
Subcontractor's securities by Subcontractor; or (ii) any acquisition of
securities by any employee benefit plan or related trust sponsored by
Subcontractor. In the event of a Change in Control of Subcontractor,
Subcontractor shall immediately so notify Company in writing and
Company may at its sole election, which election will be communicated
to Subcontractor within sixty (60) days after receipt of
Subcontractor's notice of Change of Control, either (A) consent to such
Change in Control, in which event this Subsection 13.02 shall
thereafter apply to the successor corporation, or (B) terminate this
Agreement without any further obligation or liability to Subcontractor,
in which event Subcontractor shall reimburse all of Company's
reasonable expenses (i) to select another provider of the Services
which are the subject of this Agreement, and (ii) to transition to that
other provider. Subcontractor shall provide all reasonable support and
cooperation to Company in effecting the transition to the other
provider.
XIV. INDEPENDENT CONTRACTOR; EMPLOYEES OF SUBCONTRACTOR
14.01 Relationship.
The relationship of Subcontractor and Company shall be that of
independent contractors. Nothing contained herein shall be construed as
creating a joint venture, partnership or principal and agent
relationship between Subcontractor and Company. Subcontractor shall
make no representations or warranties to any Customer or third party
purporting to bind Company.
14.02 No Exclusive Right.
Subcontractor acknowledges that this Agreement does not grant
Subcontractor the exclusive right to perform the Services or the
Unrelated Services for any Customer on behalf of Company and that
Company or a corporate affiliate may provide or procure services the
same as, or similar to, the Services and Unrelated Services. Further,
Subcontractor acknowledges that Company has not represented or
guaranteed that Subcontractor shall be provided with any specific
number of projects or any Projects at all.
14.03 Subcontractor Personnel.
Personnel furnished by Subcontractor shall be considered for all
purposes employees of Subcontractor. Under no circumstances shall such
personnel be considered employees of Company or be entitled to any of
the rights, benefits or privileges of Company employees. After
consulting with Subcontractor, Company may request Subcontractor to
assign a different employee of Subcontractor to a Customer(s) if
Company deems such employee incompetent
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
or unacceptable. If an employee is reassigned by Subcontractor at
Company's request, such employee shall not be assigned again to that
Customer without the prior written consent of Company.
14.04 Responsibility for Employees.
Each Party shall be responsible for the management, direction and
control of its employees and such employees shall not be employees of
the other Party. Accordingly, each party shall be responsible for all
federal, state and local taxes and assessments related to its
employees, such as social security taxes, unemployment insurance and
workers' compensation.
14.05 Control.
Except where this Agreement expressly provides that Subcontractor will
perform certain identified Services as agent for Company, the Services
will be under the control, management and supervision of Subcontractor.
14.06 Right to Perform Services for Others.
Except for provisions set forth under Section 9.13, each Party
recognizes that Subcontractor personnel providing Services to Company
under this Agreement may perform similar services for others and this
Agreement shall not prevent Subcontractor from using the personnel
provided to Company under this Agreement for such purposes.
14.07 Use of Third Parties to Perform Services.
Subcontractor may perform its obligations through its Affiliates or
through the use of agents, subcontractors, or independent contractors,
provided, however, that (i) Subcontractor shall not be relieved of its
obligations under this Agreement by use of such Affiliates or
subcontractors (ii) Subcontractor shall not use specific agents,
subcontractors or independent contractors to perform the Services at a
Company site in the event that Company so notifies Subcontractor in
writing that such specific agents (et al) are not desired by Company,
where such notification shall not be unreasonably issued, and (iii)
Subcontractor shall provide Company a list of prospective specific
agents, subcontractors or independent contractors within thirty (30)
days of execution of this Agreement.
Company may request that Subcontractor replace an agent, subcontractor
or independent contractor that is providing the Services under this
Agreement for failure of the agent, subcontractor or independent
contractor to meet the applicable Performance Standards, providing a
written notice specifying the failure to perform should Subcontractor
so request. Subcontractor shall promptly investigate the matter and
take appropriate action, up to and including removal of the individual
or entity from the project. Subcontractor shall report its findings and
its proposed action within thirty (30) days, and if Company again, in
good faith, requests the removal of the agent, subcontractor or
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
independent contractor from the project, Subcontractor shall cause such
removal. Subcontractor shall bear the expenses associated with removal
of the agent, subcontractor or independent contractor from the project,
provided that this is not intended to excuse Company from paying for
Services properly rendered.
14.08 Non-Solicitation.
During the term of this Agreement, neither party shall, directly or
indirectly, solicit, recruit or hire any employee of the other party
without the prior written consent of the other party.
XV. ASSIGNMENT
15.01 Assignment.
Neither party shall assign any right or obligation under this Agreement
without the other party's prior written consent. Any attempted
assignment shall be void, except that either party may assign moneys
due or become due to it, provided that (a) the assignment party gives
the other party at least thirty (30) days prior written notice of such
assignment, and (b) such assignment does not impose upon the other
party obligations to the assignees, other than the payment of such
moneys.
Not withstanding the foregoing, Company may assign this Agreement, in
whole or in part to any of its affiliates. Upon such assignment and
assumption of liability thereto by the assignee the assignor shall be
discharged of any liability under this Agreement.
Without limiting the generality of the foregoing, this Agreement shall
be binding upon and shall insure to the benefit of the parties'
respective successors and assigns.
XVI. CONFIDENTIALITY
16.01 Confidential Information.
Subcontractor and Company each acknowledge that the other possesses and
will continue to possess information that has been created, discovered,
developed by or provided to it by a Party or a third party, which
information has commercial value in its business and is not in the
public domain. Except as otherwise specifically provided by the
Parties, "Confidential Information" shall mean:
(a) all information marked confidential, restricted, or proprietary by
either Party;
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
(b) information that is provided orally or visually, provided that the
disclosing party identifies the information as confidential upon
disclosure and summarizes the information in a document provided
to the receiving party no later than ten (10) days after
disclosure;
(c) business information to which the receiving party has access by
virtue of its performance under this Agreement, whether or not the
information is marked confidential, restricted, or proprietary,
and which by its nature reasonably should be deemed to be
confidential by the receiving party; and
(d) all Company data made available to Subcontractor, including
without limitation Company's customer lists, customer information,
research information, information regarding business planning and
operations of Company, and Company's administrative, personnel,
financial or marketing activities.
16.02 Obligations.
(a) Non-disclosure. Company and Subcontractor will not disclose any
Confidential Information, except as otherwise specified in the
Agreement. Company and Subcontractor will each use a level of care
no less stringent than the level of care reflected in security
procedures in effect as of the Commencement Date, unless the
Parties agree otherwise, to prevent disclosing to any entity the
Confidential Information of the other as it employs to avoid
disclosure, publication or dissemination of its own information of
a similar nature. Each Party, upon notice of an alleged breach of
a confidentiality obligation by its directors, officers,
employees, consultants, agents, or subcontractors (for purposes of
this section only, collectively, "subcontractors"), shall also
enforce fully its rights to prevent disclosure of the Confidential
Information by such subcontractors. Notwithstanding the foregoing,
the Parties may disclose such information to their subcontractors
involved in providing services to Company as follows:
(i) the Parties may disclose such Confidential Information as is
necessary to permit the subcontractor to perform its duties
hereunder;
(ii) the disclosing Party has a written confidentiality agreement with
such subcontractor which is no less restrictive than the
confidentiality terms of this Agreement;
(iii) the disclosing Party assumes fully responsibility for the acts or
omissions of its subcontractor, no less than if the acts or
omissions were those of the disclosing Party; and
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
(iv) the other Party is expressly made a third party beneficiary of the
confidentiality agreement with such subcontractor, with an
independent right of enforcement.
16.03 Agreement Terms.
Without limiting the generality of the foregoing, neither Party will
publicly disclose the terms of this Agreement without the prior written
consent of the other.
16.04 Limitation on Disclosure and Use.
Neither Party will:
(a) make or permit any use of the Confidential Information of the
other except as contemplated by this Agreement;
(b) acquire any right in or assert any lien against the Confidential
Information of the other; or
(c) refuse to return promptly, provide a copy of, or destroy such
Confidential Information upon the request of the other Party;
provided that if such Confidential Information is destroyed, the
other party shall deliver an officer's certificate to such effect.
(d) promptly upon request, the other party shall deliver or destroy
all Confidential Information it has received from the requesting
party.
16.05 Nondisclosure of Terms.
Neither party shall disclose the terms of this Agreement to any third
party, including but not limited to making any press announcements,
without the prior written consent of the other party, except that
Company may disclose the existence of this Agreement and the
availability of Subcontractor's Services hereunder.
16.06 Irreparable Harm.
The parties acknowledge and agree that the breach of the provisions of
this Article XVI may subject the other party to immediate and
irreparable harm not capable of being compensated by monetary damages.
Accordingly, as between the parties, each party hereby consents to the
granting of injunctive relief, whether preliminary, temporary or
permanent in the event of breach of its obligations under this Article
XVI without proof of actual damages.
XVII. INSURANCE
17.01 Insurance.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Prior to the Effective Date of this Agreement, Subcontractor shall have
obtained, at its own cost and expense, and on the Effective Date shall
furnish certificates and copies of the following insurance naming
Company as an additional insured: (a) Workers' Compensation and other
related insurance covering Subcontractor's personnel, as prescribed by
the applicable laws of the state or states in which Subcontractor is
performing its obligations hereunder; (b) employer's liability
insurance with limits of at least $1,000,000 per occurrence and
$1,000,000 in the aggregate; and (c) comprehensive general liability
insurance including but not limited to contractual liability, products
liability, completed operations and comprehensive motor vehicle
liability insurance, with limits of not less than $100,000 for bodily
injury, including death, to any one (1) person, $1,000,000 per
occurrence and $1,500,000 in the aggregate and with limits of $300,000
for property damage per occurrence and $1,500,000 in the aggregate.
Subcontractor agrees that, between Subcontractor and Company,
Subcontractor, Subcontractor's insurer(s) and anyone claiming by,
through, under or in Subcontractor's behalf shall have no claim, right
of action or right of subrogation against Company based upon any loss
or liability insured against under the foregoing insurance. All
policies of insurance for such insurance furnished by Subcontractor
shall contain a clause or rider stating essentially that: Company is to
be notified in writing at least thirty (30) days prior to cancellation
of, any material change in, or renewal refused for, this policy. Such
insurance provision shall not, in any way, limit Subcontractor's
liability under this Agreement.
17.02 Other Insurance.
If Company requests in writing that other special insurance be included
in Subcontractor's comprehensive general liability and property
insurance policy, Subcontractor shall, if possible, include such
insurance and Company shall pay Subcontractor for the additional cost
of same.
17.03 Bonds.
If required by a Customer or applicable law, Subcontractor agrees to
obtain at its cost and expense and to furnish Company with copies of
customary performance or bid bonds.
XVIII. MISCELLANEOUS
18.01 CHOICE OF LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF XXX*, except provisions relating
to conflict of laws. Any suit regarding this Agreement must be brought
in a court of competent jurisdiction in XXX, XXX*.
18.02 Remedies.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Remedies hereunder are cumulative and are not in lieu of any rights or
remedies that either party may have under any other agreements, or at
law or equity. Any failure or delay on the part of either party to
exercise any right, power or privilege hereunder shall not operate as a
waiver thereof.
18.03 Notices.
Any notice, request, instruction or other document to be sent by either
party shall be in writing and shall be deemed to have been received, if
sent by certified or registered mail, return receipt requested, or by a
reputable delivery service which provides proof of delivery. Notices
shall be sent:
If to Company: XXX*
If to Subcontractor: VP and General Manager -
Network Services
TECHFORCE
5741 Rio Vista Drive
Clearwater, Florida ..33760
18.04 Severability.
Should any part or provision of this Agreement be held to be illegal,
invalid or unenforceable by any court of competent jurisdiction, or by
any regulatory agency exercising its valid jurisdiction, the legality,
validity or enforceability of the remaining parts or provision shall be
construed to the maximum extent possible to give effect to the intent
of the parties or if such construction is not possible, the remaining
provisions of this Agreement shall then be construed as if such
illegal, invalid or unenforceable provision had not been contained
herein.
18.05 Integration.
This Agreement, together with the Schedules attached hereto and the
Specifications incorporated herein, constitutes the entire
understanding and agreement between Company and Subcontractor with
respect to the subject matter hereof and supersedes all previous
agreements with respect thereto. In the event of any apparent conflicts
or inconsistencies between this Agreement or any Schedules or other
Attachments to it, to the extent possible, such provisions shall be
interpreted so as to make them consistent, and if such is not possible,
the provisions of this Agreement shall prevail.
18.06 No Modification.
No modification to this Agreement shall be valid unless in writing and
signed by duly authorized representatives of the parties hereto.
18.07 No Waiver.
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
No waiver by either party, whether expressed or implied, of any
provisions of this Agreement or of any breach or default of either
party, shall constitute a continuing waiver of such provision or of a
waiver of any other provisions of this Agreement.
18.08 Force Majeure.
(a) Neither Party shall be liable for any default or delay in the
performance of its obligations hereunder:
(i) if and to the extent that such default or delay arises out of
causes beyond its reasonable control, including but not limited to
the following occurrences to the extent they are beyond the
reasonable control of the defaulting or delaying Party: acts of
God, acts of war, earthquakes, fires, floods, terrorism, riots,
civil disorders, rebellions, strikes, lockouts and labor disputes
(individually, each being a "Force Majeure Event"); and
(ii) provided such default or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented by
the nonperforming Party through the use of alternate source,
work-around plans or other means.
(b) Upon the occurrence of a Force Majeure Event, subject to the
provisions of Section 18.09 below, the nonperforming Party will be
excused from further performance or observance of the
obligation(s) so affected so long as such circumstances caused by
the Force Majeure Event prevail and such Party uses its best
efforts to promptly recommence performance or observance of said
obligation(s). Any Party so delayed in its performance will
immediately notify the other by telephone (to be confirmed in
writing within five (5) days of the inception of the Force Majeure
Event) and describe at a reasonable level of detail the
circumstances causing such delay.
(c) If any Force Majeure Event substantially prevents, hinders or
delays performance of the Services for more than thirty (30) days,
then at Company's option:
(i) Company may procure such Services from an alternate source and
Subcontractor will be liable for payment for such Services in
excess of Subcontractor's charges under this Agreement for up to
180 days; or
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
(ii) This Agreement will terminate as of a date specified by Company in
a written termination notice to Subcontractor and Subcontractor's
sole and exclusive remedy shall be payment by Company to
Subcontractor of any reasonable out-of-pocket expenses directly
associated with ramp down transition costs.
(d) Upon the occurrence of a Force Majeure Event, Subcontractor shall
implement promptly its disaster recovery plan and provide disaster
recovery services. The occurrence of a Force Majeure Event shall
not relieve Subcontractor of its obligation to implement its
disaster recovery plan and provide disaster recovery services;
(e) Except as stated in Section 18.08 above, nothing in this section
shall limit or otherwise relieve Company's obligation to pay any
moneys due Subcontractor under the terms of this Agreement,
provided, however, that if the Parties agree that some discrete
sub-component of the Services cannot reasonably be provided, the
Parties will mutually determine an equitable adjustment to the
charges to adjust for such Force Majeure Event.
18.09 Compliance with Laws.
Each party shall comply with all applicable federal, state and local
laws, rules and regulations applicable to its performance under this
Agreement.
18.10 Entire Agreement.
The terms contained in this Agreement and any Schedule(s) referred to
herein, which are incorporated into the Agreement by this reference,
constitute the entire agreement between the parties with respect to the
subject matter hereof, superseding all prior understandings, proposals,
and other communications, oral or written. Neither party shall be bound
by any pre-printed terms additional to or different from those in this
Agreement that may appear subsequently in the other party's form
documents, purchase orders, acknowledgments, invoices or other
communications. This Agreement may only be modified by a writing signed
by both parties.
IN WITNESS WHEREOF, the parties by their duly authorized representatives, have
executed this Agreement as of the dates set forth below.
XXX* TECHFORCE
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Signature Signature
------------------------------ -------------------------
Title Title
---------------------------------- -----------------------------
Date Date
----------------------------------- ------------------------------
CONFIDENTIAL INFORMATION
Solely for use by employees of XXX* and TECHFORCE with
a need to know. Not to be disclosed to or used by any other
person without the prior written permission of XXX*.
* Indicates information deleted based on an Application for
Confidential Treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 and filed separately with the Securities and
Exchange Commission.
<PAGE>
Exhibit 10.2
Equipment Service Agreement
between
TechForce Corporation
("TechForce")
and
General Electric Service Management Group
("Customer")
Dated: October 12, 1997
1. This Agreement is between TechForce Corporation ("TechForce"), with its
principal offices at 15940 Bay Vista Drive, Clearwater, FL, and General
Electric Service Management Group ("GE"), with its principal offices at
Appliance Park, Louisville, KY 40225.
2. Whereas, GE wishes to engage TechForce to provide on-site maintenance and
parts procurement services to GE's warranty customers.
3. Now, Therefore, in consideration of the mutual rights and obligations
contained herein, the parties agree as follows:
4. TERM. This Agreement shall be effective on the date set forth above and
shall continue for a period of two (2) years and thereafter on a year to
year basis until either party terminates this Agreement at the end of the
original term or any one year extension thereof upon not less than ninety
(90) days prior written notice to the other party. Both parties agree that
the pricing shown in Appendix A is to be reviewed after ninety (90) days
and may be adjusted by mutual agreement of both parties.
5. PROGRAM(S). GE will offer various extended warranty service packages to
customers who purchase personal computers and personal computer peripherals
(the "Equipment") from authorized warranty distributors. Services rendered
by TechForce will be in support of these extended warranty programs.
6. CHARGES FOR SERVICES. Prices for services rendered by TechForce pursuant
to this Agreement are set forth in Appendix A, which is attached hereto and
made a part hereof. GE agrees to pay TechForce for services rendered in
accordance with Appendix A. TechForce shall provide a weekly invoice to GE
for all services rendered by TechForce during the preceding week. GE
agrees to pay such invoice by within fifty five (55) days after receipt of
the invoice. Any past due amounts shall accrue interest at the rate of one
percent (1%) per month or any portion thereof.
CONFIDENTIAL - DRAFT
September 26, 1997
<PAGE>
7. TECHFORCE OBLIGATIONS ("the Work"). With respect to each GE customers,
TechForce agrees to provide the following services:
a) On-Site Maintenance: TechForce will provide on-site repair
services to GE customers upon receipt of a service dispatch
from GE. TechForce will follow the guidelines defined in the
Statement of Work (Appendix A).
b) Parts Procurement: TechForce will procure the parts required to
successfully complete the repair as provided by GE's Help Desk.
8. GE OBLIGATIONS. GE agrees to perform each of the following obligations:
a) Help Desk Support: GE (or agent acting on GE's behalf) shall
perform telephone diagnostics, isolate to the best of its
ability the failing component of the Equipment.
b) Dispatch Service: Upon completing diagnosis, GE will transmit
a work order to TechForce to perform activities described in
Section 7. GE will provide sufficient information for TechForce
to contact the end-user, procure parts, schedule and perform
TechForce Obligations. Both GE and TechForce will agree on the
transmission media (for example, fax, e-mail, EDI transfer) and
the specific information required to perform the Work.
9. INDEPENDENT CONTRACTORS. This Agreement does not constitute or appoint
either party as an agent for the other party. The relationship of the
parties at all times shall remain that of independent contractors. No
partnership, joint venture or other arrangement other than independent
contractors is intended hereby.
10. INDEMNITY. Each party hereby indemnifies and holds harmless the other
party for all actions, claims, demands, proceedings, damages and expenses
arising out of negligence or willful misconduct of the indemnifying
party. In the event that either party becomes aware of any action or
circumstances which will result in such party seeking indemnification from
the other party pursuant to this Section 10, the party seeking
indemnification shall promptly notify the other party of such circumstances
and cooperate fully in the defense thereof. The indemnifying party shall
obtain control of all proceedings at the indemnifying parties sole expense
The indemnified party may obtain counsel and participate in all proceeding
at the indemnified party's expense.
11. INSURANCE. Each party agrees to obtain general liability insurance in an
amount not less than $1,000,000 per occurrence with an aggregate limitation
of not less than $2,000,000. Additionally, TechForce agrees to obtain
property damage insurance in an amount of $1,000,000 per occurrence with an
aggregate limitation of not less than $2,000,000. Each party agrees to
provide the other
CONFIDENTIAL - DRAFT
September 26, 1997
<PAGE>
party with a certificate of insurance evidencing compliance with this
Section 11 upon request of the other party.
12. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
FOR CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR OTHER SPECIAL DAMAGES OF ANY
NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS AND LOSS OF BUSINESS
VOLUME, WHETHER OR NOT SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF
THE SAME, EXCEPT IN THE CASE OF DAMAGES RESULTING FROM THE WILFUL AND
INTENTIONAL CONDUCT OF THE OTHER PARTY.
13. DEFAULT AND REMEDIES. In the event that either party fails to perform any
obligation set forth in this Agreement, and such failure continues for a
period of thirty (30) days following the receipt by the breaching party of
written notice specifying such breach, the non-breaching party shall have
the right to do any or all of the following: (a) terminate this Agreement
immediately upon expiration of the 30 day cure period, (b) whether or not
this Agreement has been terminated, commence an action against the
breaching party to collect damages for the breach, and (c) in the case of
GE only, obtain an alternative service provider to perform the services
required of TechForce herein. In all events, each party will use its
reasonable efforts to mitigate the damages of the other party. All
remedies provided for in this Section 13 are intended to be cumulative and
in addition to all rights and remedies available at law and in equity.
14. ASSIGNMENT AND SUBCONTRACTING. Neither party may assign this Agreement
without the prior written consent of the other party which will not be
unreasonably delayed or withheld. TechForce may subcontract services
provided for under this Agreement, but in all event shall remain obligated
for the performance thereof.
15. REPORTING. TechForce agrees to provide reports to GE regarding activities,
quality of service and program performance as mutually agreed by GE and
TechForce. TechForce further agrees to provide reasonable additional
information to GE upon request. GE will provide such additional reasonable
information as TechForce may request.
CONFIDENTIAL - DRAFT
September 26, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM TECHFORCE
CORPORATION AND SUBSIDIARIES CONSOLIDATED BALANCE SHEET AT MARCH 31,1998 (IN
THOUSANDS) AND TECHFORCE CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF
INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1998 (IN THOUSANDS, EXCEPT PER SHARE
DATA) AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 1,062
<SECURITIES> 100
<RECEIVABLES> 16,479
<ALLOWANCES> 356
<INVENTORY> 3,680
<CURRENT-ASSETS> 26,455
<PP&E> 27,588
<DEPRECIATION> 12,322
<TOTAL-ASSETS> 51,539
<CURRENT-LIABILITIES> 12,604
<BONDS> 5,588
0
0
<COMMON> 81
<OTHER-SE> 31,338
<TOTAL-LIABILITY-AND-EQUITY> 51,539
<SALES> 4,917
<TOTAL-REVENUES> 16,671
<CGS> 4,102
<TOTAL-COSTS> 12,997
<OTHER-EXPENSES> 3,776
<LOSS-PROVISION> (30)
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (176)
<INCOME-TAX> 61
<INCOME-CONTINUING> (115)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (115)
<EPS-PRIMARY> (0.01)
<EPS-DILUTED> (0.01)
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR 12-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1996
<PERIOD-END> MAR-31-1997 MAR-31-1996
<CASH> 702 734
<SECURITIES> 5,336 7,672
<RECEIVABLES> 14,231 15,728
<ALLOWANCES> 676 250
<INVENTORY> 4,129 2,473
<CURRENT-ASSETS> 27,224 26,849
<PP&E> 19,423 14,572
<DEPRECIATION> 7,482 4,261
<TOTAL-ASSETS> 48,024 44,310
<CURRENT-LIABILITIES> 12,879 14,897
<BONDS> 3,213 2,397
0 0
0 0
<COMMON> 80 79
<OTHER-SE> 29,344 26,937
<TOTAL-LIABILITY-AND-EQUITY> 48,024 44,310
<SALES> 7,441 7,872
<TOTAL-REVENUES> 17,661 17,227
<CGS> 5,488 5,672
<TOTAL-COSTS> 12,682 12,495
<OTHER-EXPENSES> 3,429 3,334
<LOSS-PROVISION> 676 0
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> 1,509 1,398
<INCOME-TAX> 549 489
<INCOME-CONTINUING> 980 907
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 980 907
<EPS-PRIMARY> .12 .12
<EPS-DILUTED> .12 .11
</TABLE>
