Schedule 13D Exhibit J
Schedule TO Exhibit (d)(ii)
INTERIM MANAGEMENT SERVICES AGREEMENT
This document is an INTERIM MANAGEMENT SERVICES AGREEMENT (this
"Services Agreement"), is dated as of July 25, 2000, and is between
INVENSYS HOLDINGS LIMITED ("Invensys Holdings"), a private
limited company organized under the laws of England and Wales,
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BAAN COMPANY N.V. ("Baan"), a public limited company (naamloze
vennootschap) organized under the laws of The Netherlands.
RECITALS
A. Simultaneously with the execution and delivery of this Services
Agreement, Invensys Holdings, its parent company, Invensys plc
("Invensys"), a public limited company organized under the laws of
England and Wales, and Baan, are entering into an Asset Purchase
Agreement and Offer Amendment (the "Purchase Agreement") of even date
herewith contemplating the waiver by Invensys Holdings of conditions
precedent to Invensys Holdings' obligation to accept for payment and
pay for Common Shares of Baan tendered pursuant to an offer (the
"Offer") made by Invensys Holdings and the sale by Baan and purchase
by Invensys Holdings of all of the business and assets of Baan.
B. Also, simultaneous with the execution and delivery of this Services
Agreement, Invensys and Baan are executing and delivering an Interim
Loan Agreement pursuant to which Invensys will provide Baan with
secured interim financing from today until the closing (the "Closing")
under the Purchase Agreement is completed.
C. In order to help assure the continued viability of Baan's business
(the "Business") of designing, developing, selling, installing, and
servicing enterprise business software, Baan desires Invensys Holdings
to provide Baan, and Invensys Holdings is willing to provide Baan,
certain management services from today until the Closing under the
Purchase Agreement is completed on the terms and conditions set forth
in this Services Agreement.
TERMS AND CONDITIONS
In consideration of the matters recited above and of other good and
valuable consideration, and intending to be legally bound by this Services
Agreement, Invensys Holdings and Baan hereby agree as follows:
1. SERVICES
A. ENGAGEMENT. Baan hereby engages Invensys Holdings to provide Baan
with such management services (the "Services") during the Term
(as defined below in paragraph 1.B below) as Invensys Holdings
deems necessary or appropriate to help assure the continued
viability of Baan. Such services will include, but not be limited
to, services in the following areas: accounting, finance, general
administration, human resources, legal, production, research and
development, sales and marketing, strategic development,
treasury, and general management.
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B. TERM. The term (the "Term") of this Services Agreement will be
the period beginning immediately after Invensys Holdings' public
announcement (pursuant to Section 9.3 of the Purchase Agreement)
of Invensys Holdings amended condition to the Offer and ending at
the Closing.
2. METHOD OF PERFORMANCE
A. PERFORMANCE. Invensys Holdings will perform the Services during
the Term under the general direction of the Management Board of
Baan. Nothing in this Services Agreement, however, shall prevent
the Management Board and Supervisory Board of Baan from
performing their fiduciary duties or from taking (or refraining
from taking) any action required as part of such fiduciary
duties.
B. STATUS. Invensys Holdings is an independent contractor. Nothing
in this Services Agreement is intended to create an
employee-employer, master-servant, or principal-agent
relationship between Baan and Invensys Holdings or between Baan
and any employee of Invensys Holdings.
C. DIRECTION. In order to assure that Invensys Holdings will be able
to carry out the Services, the Management Board of Baan will
provide all Baan employees with a general instruction to carry
out all management directions given by Invensys Holdings during
the Term and specific written and oral directions as requested
from time to time during the Term by Invensys Holdings to the
same effect. Notwithstanding any other provision of this Services
Agreement, the Management Board will not be required, and will
not require any Baan employee, to follow any such instruction
which is illegal, manifestly contrary to good business ethics, or
manifestly unfair to Baan or its shareholders.
D. DISCRETION. Invensys Holdings will exercise Invensys Holdings'
own reasonable discretion in determining how Invensys Holdings
performs the Services.
E. FACILITIES. In performing the Services, Invensys Holdings will
furnish all office services, equipment, and facilities Invensys
Holdings needs to perform the Services. Baan may provide Invensys
Holdings with services or facilities to assist Invensys Holdings'
performance of the Services. Baan, however, will not be obligated
to do so.
F. AUTHORITY. Invensys Holdings will have no authority to enter into
any agreement with any person or entity on behalf of Baan.
Invensys Holdings will not represent to anyone that Invensys
Holdings has any such authority. Baan will, however, at Invensys
Holdings' written or oral request enter into any such agreements
or transactions as Invensys Holdings deems necessary or
appropriate in order carry out the Services.
G. PAYMENTS CONCERNING INVENSYS HOLDINGS' EMPLOYEES. Invensys
Holdings will be solely responsible for all salary, wages,
benefits, withholding or income taxes, social insurance payments
or contributions, unemployment taxes, workers' compensation, and
other payments relating to Invensys Holdings' employees.
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H. ACTS OF INVENSYS HOLDINGS' EMPLOYEES. Invensys Holdings will be
solely responsible for any damage or injury
(1) caused by the acts or omissions of Invensys Holdings'
employees resulting from the performance of Services or
otherwise or
(2) incurred by Invensys Holdings' employees in connection with
the performance of Services.
Invensys Holdings will indemnify and defend Baan, any and all
members of its Management and Supervisory Boards, and all of its
officers, executives, employees, agents, and advisors
(collectively, the "Indemnified Parties") and hold the
Indemnified Parties harmless from and against any liability,
cost, or expense (including attorneys' fees) arising out of any
allegation or claim that any such damage or injury has occurred.
I. LIABILITY. Invensys Holdings will not be responsible to Baan or
any person or entity claiming through Baan for any liability,
cost, or expense arising out of any action or failure to act on
the part of Invensys Holdings in connection with the performance
of Services unless, and then only to the extent that, Invensys
Holdings' actions were grossly negligent, in bad faith or wilful
misconduct.
3. COMPENSATION
A. FEES. In exchange for Invensys Holdings' performance of the
Services, Baan will pay Invensys Holdings fees (the "Fees") of
5.0% of the expenses incurred by Invensys Holdings in carrying
out the Services.
B. EXPENSES. In addition to paying Invensys Holdings the Fees, Baan
will reimburse Invensys Holdings for those reasonable and
necessary travel, lodging, and meal expenses Invensys Holdings
incurs in performing the Services. Baan, however, will not
reimburse Invensys Holdings for expenses in excess of $250,000
unless the Baan Management Board authorizes a higher amount.
C. TAXES. Invensys Holdings will be solely responsible for the
payment of all taxes and other governmental charges which may
result from any payment made to Invensys Holdings under this
Services Agreement.
D. PAYMENT. Periodically during the Term, Invensys Holdings will
present to Baan invoices with supporting documentation evidencing
its performance of Services. Baan will pay Invensys Holdings the
Fees and reimburse Invensys Holdings' reimbursable expenses
within 30 days after receiving such invoices.
4. CONFIDENTIALITY
A. GENERALLY. Invensys Holdings understands that Baan may disclose
to Invensys Holdings Baan's confidential, proprietary. and trade
secret information (the "Confidential Information") in order to
assist Invensys Holdings' performance of Services.
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B. NONUSE AND NONDISCLOSURE. Invensys Holdings will hold all
Confidential Information in confidence. Except as may be
necessary or appropriate to carrying out the Services, Invensys
Holdings will not disclose any Confidential Information to anyone
unless the Baan Management Board authorizes Invensys Holdings to
do so. Invensys Holdings will not use any Confidential
Information for any purpose likely to be to Baan's competitive
disadvantage
C. PERMITTED USES. Notwithstanding paragraph 4.A above, Invensys
Holdings' obligations of nonuse and nondisclosure of Confidential
Information will not restrict Invensys Holdings' use and/or
disclosure of any of the Confidential Information which:
(1) Is publicly known or comes into the public domain without a
breach by Invensys Holdings of its duties under this
Services Agreement,
(2) Has been or is subsequently disclosed to Invensys Holdings
by another person who is not under an obligation of
confidence to Baan,
(3) Has been or is subsequently independently conceived or
discovered by Invensys Holdings, or
(4) Invensys Holdings is obligated to disclose pursuant to a
nonappealable decree or other order of a court or other
governmental authority.
D. INVENTIONS. Invensys Holdings will report promptly to Baan any
discovery or invention, whether or not patentable, Invensys
Holdings makes, conceives, or develops during the course of
performing the Services. On request of Baan, Invensys Holdings
will assign to Baan such discoveries and inventions without
additional compensation. Invensys Holdings will cooperate fully
with Baan in Baan's efforts to perfect its title to and to
exploit the value of any such discovery or invention.
E. CONTINUING DUTIES. Invensys Holdings' duties under this paragraph
4 will continue in effect indefinitely during the Term and for
one year thereafter.
5. TERMINATION AND CANCELLATION
A. TERMINATION. This Services Agreement may be terminated by mutual
agreement at any time, but only by a written agreement which
refers expressly to this Services Agreement and is signed by both
parties.
B. AUTOMATIC TERMINATION. This Services Agreement will terminate
automatically, and have no further force or effect, upon
termination of the Offer Agreement or the Purchase Agreement or
upon the Closing.
C. CANCELLATION. This Services Agreement may be cancelled by either
party if and when
(1) The other party has breached a material obligation under
this Services Agreement,
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(2) The party desiring to cancel has delivered to the breaching
party a written demand that the breaching party cure the
breach,
(3) The breaching party has failed to cure such breach within 30
days after receipt of the demand, and
(4) The party desiring to cancel then delivers to the breaching
party written notice of cancellation.
6. MISCELLANEOUS
A. AMENDMENTS. This Services Agreement may be amended at any time,
but only by a written agreement which refers expressly to this
Services Agreement and is signed by both parties. In addition,
until Invensys owns, directly or indirectly, at least 95% of the
outstanding Common Shares of Baan, any amendment of this Services
Agreement shall also require the prior written consent of the
"Continuing Members" under the Offer Agreement.
B. NO THIRD PARTIES. The parties do not intend that this Services
Agreement create any rights in or confer any benefits to anyone
other than Baan and Invensys Holdings.
C. GOVERNING LAW. This Services Agreement will be governed by the
internal substantive laws of The Netherlands and will be enforced
by Dutch courts.
D. RELATIONSHIP WITH THE PURCHASE AGREEMENT. This Services Agreement
is intended to amplify and supplement the Purchase Agreement.
Wherever possible, this Services Agreement and the Purchase
Agreement shall be construed as being consistent. Where
particular matters are addressed expressly in this Services
Agreement, the terms and conditions of this Services Agreement,
and not those of the Purchase Agreement, shall govern. Otherwise,
the terms and conditions of the Purchase Agreement, and not those
of this Services Agreement, shall govern.
E. COMPLETE AGREEMENT. This Services Agreement is only and entire
understanding of Invensys Holdings and Baan about the subject of
this Services Agreement. Accordingly, this Services Agreement
supersedes all prior representations, warranties, covenants,
commitments, guarantees or other agreements, whether oral or
written, about the subject of this Services Agreement.
F. UNCONDITIONAL GUARANTEE. Invensys hereby unconditionally and
irrevocably guarantees to Baan the full and punctual performance
of all of Invensys Holdings' obligations under this Services
Agreement. Invensys agrees that any and all modifications,
additions, or alterations which may be made in the terms of this
Services Agreement or in the obligations to be performed
thereunder, or any payments to be made on account thereof, or any
grace, waiver, or forbearance on the part of either Invensys or
Baan to the other, shall not in any way release Invensys from
continuing and undiminished liability hereunder. Invensys hereby
waives notice of any such modifications, additions, adjustments,
grace, forebearance, or waiver except as required under this
Services Agreement.
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To evidence their agreement, INVENSYS HOLDINGS LIMITED and BAAN COMPANY
N.V. have signed this INTERIM MANAGEMENT SERVICES AGREEMENT below and
delivered signed counterparts of this INTERIM MANAGEMENT SERVICES AGREEMENT
to each other.
INVENSYS HOLDINGS LIMITED BAAN COMPANY N.V.
By: /s/ Frans D. Rosendaal By: /s/ Joost Van Lanschot
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Frans D. Rosendaal Joost van Lanschot
Attorney-in-Fact Attorney-in-Fact
As to paragraph 6.F:
INVENSYS PLC
By: /s/ Frans D. Rosendaal
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Frans D. Rosendaal
Attorney-in-Fact
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