CERTAIN SERVICES AGREEMENT
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THIS CERTAIN SERVICES AGREEMENT (this "Agreement") is made as of the
1st day of January, 1995, by and between XXXXX CORPORATION, an Indiana
corporation ("Xxxxx"), and THE XXXXXX GROUP, INC., a Delaware corporation
("Xxxxxx"). Unless the context otherwise requires, the term "Xxxxxx", as used in
this Agreement shall refer to Xxxxxx and its subsidiaries.
WITNESSETH:
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WHEREAS, Xxxxxx is a 47% owned subsidiary of Xxxxx; and
WHEREAS, Xxxxxx wishes to obtain certain services from Xxxxx, and
Xxxxx wishes to provide Xxxxxx with such services.
NOW THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Terms of Agreement. This Agreement shall be effective as of the
date hereof and shall continue until terminated by either party upon thirty (30)
days' notice to the other party.
2. Certain Services/Fees. Xxxxx shall provide, as requested, to
Xxxxxx certain services, including, but not limited to, acquisition, strategic,
financial and planning advice, auditing review, directors and officers insurance
procurement, and corporate secretarial services to the Board of Directors. As
part thereof, Xx. Xxxxxxx shall serve as a director of Xxxxxx, without payment
of annual retainer and per meeting fees, and Xx. Xxxxxxx shall serve as
corporate secretary to the Board of Directors. Xxxxxx shall pay Xxxxx an annual
fee of One Hundred Thousand Dollars ($100,000) for such services, payable in
equal quarterly installments of Twenty Five Thousand Dollars
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($25,000) on the first day of each calendar quarter, with the first installment
being due on execution of this Agreement for the period January 1, 1995 through
March 31, 1995. The Annual Fee includes the first $10,000 of out-of-pocket
expenses which Xxxxx may incur. Xxxxxx acknowledges that such fee arrangement is
fair to it.
3. Limitation of Liability. Xxxxx shall not be liable to Xxxxxx for
any loss, damage or injury ("damages") (whether caused in whole or in part by
its negligence or gross negligence, that of its employees, agents or affiliates,
or through contingencies beyond its control), arising out of the provision of
(or failure to provide) any services hereunder, except for Xxxxx'x willful and
intentional bad faith. In no event, whatsoever, shall Xxxxx or its employees,
agents or affiliates be liable for any damages exceeding the aggregate amount of
any fees paid to Xxxxx under Section 2 of this Agreement or for any punitive or
consequential damages. Xxxxxx shall indemnify and hold harmless Xxxxx and its
employees, agents and affiliates from and against all judgements, penalties,
fines, amounts paid in settlement and reasonable expenses (to be paid or
reimbursed as incurred), incurred in connection with any threatened, pending or
completed action, suit or proceeding arising out of or relating to this
Agreement (or any services performed, to be performed or failed to be performed)
to the maximum extent permitted by Delaware law. The indemnification provided
herein shall not be deemed exclusive or preclude any other rights to which Xxxxx
or its employees, agents or affiliates may be entitled, whether under Xxxxxx'x
By-laws, law, insurance or otherwise.
4. Mutual Cooperation. Xxxxx and Xxxxxx acknowledge that the
operation of Xxxxxx and performance of this Agreement will require the mutual
cooperation of the parties, and each of the parties shall assist and cooperate
with the other party as
reasonably necessary to enable this Agreement to be performed. While Xxxxx is to
provide certain services to Xxxxxx hereunder, the parties recognize that Xxxxxx
is managed by its own independent Board of Directors and executive management.
5. Assignment and Delegation/No Third Party Beneficiaries. This
Agreement is personal in nature, and neither of the parties may, without the
written consent of the other, assign any of the rights or delegate any of the
duties hereunder. No person or entity other than the parties hereto, shall have
any rights under or in respect of this Agreement.
6. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties' successors and assigns.
7. Arbitration. Any disputes or claims arising out of or relating to
this Agreement (or any services performed, to be performed or failure to be
performed) shall be determined solely by arbitration, which unless otherwise
agreed by the parties hereto shall be pursuant to the rules of the American
Arbitration Association.
8. Entire Agreement. This Agreement embodies the entire
understanding between the parties relating to its subject matter and supersedes
and terminates all prior agreements between the parties with respect to its
subject matter. This Agreement may not be modified or terminated except by a
writing duly signed by each of the parties hereto, and no waiver of any
provision of this Agreement shall be effective unless in a writing duly signed
by the party sought to be bound.
9. Governing Law. This Agreement shall be constructed under and
governed by the substantive laws of the State of Delaware, without giving effect
to any choice of law provisions.
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10. Notices. All notices given pursuant to this Agreement shall be
in writing and shall be deemed given when personally delivered or when deposited
in the mails and sent by registered or certified mail, return receipt requested,
to the parties at the following addresses or at such other address as either
party may designate to the other by like notice; provided, however, that this
provision shall not prevent the giving of actual notice by any other method:
To Xxxxx:
Xxxxxxx X. Small
Office of the President
Xxxxx Corporation
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
To Xxxxxx:
Xxxxxxx Xxxx
Chairman
The Xxxxxx Group, Inc.
00000 XX 00 Xxxx
Xxxxxxx, Xxxxxxx 00000
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
ATTEST: XXXXX CORPORATION
________________________________ By:______________________________________
Xxxxxxx X. Small
Office of the President
ATTEST: THE XXXXXX GROUP, INC.
________________________________ By:______________________________________
Xxxxxxx Xxxx
Chairman
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