Exhibit 10.9
FORM OF SEPARATE PRACTICE AGREEMENT
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THIS AGREEMENT (this "Agreement") is entered into as of [__________ __],
1999 (the "Effective Date"), by and among [Founder/CenterPoint Advisors, Inc.],
a Maryland corporation and a wholly owned subsidiary of CenterPoint Advisors,
Inc. (the "Company"), the certified public accountants (each a "CPA" and
collectively, the "CPAs") whose names appear on attached Exhibit A (the
"Members"), and [Founder L.L.C.], a _________ limited liability company (the
"Firm").
RECITALS
A. Members desire to operate the Firm as a public accounting practice
independent of Company.
B. Company has clients who from time to time require Attest Services
which Company is not able to provide to its clients (as used in this Agreement,
"Attest Services" means the practice of public accountancy that pursuant to
applicable laws, regulations or ethics rules may only be conducted by licensed
certified public accountants).
C. It is the parties' intention that the Firm will provide Attest
Services and that such activities by Members will not be considered a violation
of their contractual agreements with Company.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company, the Members, and the Firm
agree as follows:
1. Subject to the terms of this Agreement, Members may own and operate
the Firm and provide and xxxx for Attest Services to the Company's clients
through the Firm (the "Separate Practice") under the name " _________" until
this Agreement is terminated according to its terms. The Firm shall not, and the
Members shall not permit the Firm to, conduct any business activities of any
type or kind whatsoever other than the provision of Attest Services.
2. Members shall cause the Firm to operate as a separate legal entity and
observe all legal requirements and customary practices necessary to assure that
the Firm is a separate and distinct legal entity from any other person or
entity.
3. The Firm shall inform all of its clients that it is not a part of
Company and that the Firm is responsible for the work of the Separate Practice.
In addition, Members shall assure that the Firm has its own business identity,
including, without limitation, letterhead and business cards. Upon
soliciting or accepting any new client, the Firm shall use commercially
reasonable efforts to learn from such client all relationships between it and
Company and Company's affiliates, and the Firm shall promptly advise Company of
the identity of any such new client and all such relationships. The Firm shall
enter into separate engagement letters relating to the Attest Services to be
provided with each client of the Company. The Firm shall not provide Attest
Services to the Company or any of the Company's affiliates.
4. The Firm shall obtain and maintain, at its sole cost and expense,
accounting malpractice insurance in an amount at least equal to such insurance
maintained by the Company as of the date of this Agreement. Insurance shall be
maintained with an insurance company acceptable to Company. The Firm shall
provide Company with evidence of such coverage at the time this Agreement is
signed, which coverage shall include a provision requiring the insurance carrier
to notify Company at least 30 days before such coverage lapses, is canceled or
is not renewed. At the time of termination of this Agreement in accordance with
its terms, if the insurance obtained by the Firm has not been on an "occurrence"
basis, the Firm shall obtain "tail" coverage covering all claims made based upon
occurrences during the term of this Agreement. In the event that the Firm fails
to maintain any insurance required to be maintained by them pursuant to this
Section 4, the Company may, but shall not be obligated to, maintain such
insurance on Firm's behalf and offset its expenses with respect thereto from any
amounts owing by Company to the Firm, pursuant to this Agreement or otherwise.
The provisions of this Section 4 shall survive any termination of this
Agreement.
5. Each Member shall be, and shall cause the Firm to be, properly
registered as a certified public accountant and a certified public accounting
firm, respectively, in good standing in each state in which it conducts its
business. Members and the Firm shall comply with all applicable ethical,
professional and legal requirements. The Firm shall make provisions for adequate
quality review procedures in accordance with applicable professional and legal
requirements in such state. The Firm shall immediately notify Company of any
pending or threatened disciplinary proceeding by any State Society of CPAs, the
American Institute of Certified Public Accountants or any other federal or state
regulatory authority that could result in the loss of such registration,
licensure, or membership.
6. The Company and Members acknowledge and agree that other persons may
from time to time acquire membership interests in the Firm. The Firm shall not
issue or permit the transfer of any membership interests unless (i) the person
acquiring such interests agrees in writing to be subject to and bound by all of
the terms, conditions and restrictions of this Agreement by signing an
Instrument of Accession in the form of attached Exhibit B and (ii) such person
is a CPA or the person's equity is owned entirely by CPAs, in each case,
licensed in at least one jurisdiction in which the Firm provides Attest
Services.
Members and the Firm may not assign this Agreement or any rights
and/or obligations hereunder without the prior written consent of Company. Any
such attempted assignment shall be void ab initio. Company shall have the right
to assign its rights and delegate its obligations hereunder to any affiliate of
Company or to any third party succeeding to all or substantially all of the
assets of Company.
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7. Unless terminated earlier pursuant to the terms hereof, this Agreement
shall be effective as of the Effective Date and shall continue for a period of
40 years thereafter; provided, however, that this Agreement may be terminated:
a. By Company or Firm, in the event that it is determined by any court,
accounting or other regulatory body that the operation of the Separate Practice
in accordance with the terms of this Agreement violates any law, rule or
regulation (including, without limitation, any law, rule or regulation
prohibiting the practice of accounting by non-professional corporations or
partnerships); or
b. Subject to any applicable cure period, by the non-breaching party, in
the event of a breach of any of the terms of this Agreement or the Services
Agreement dated the date hereof between the Company and the Firm.
8. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, sent by nationally recognized
overnight delivery service, mailed by registered or certified mail (return
receipt requested) or sent via facsimile to the parties at the following
addresses (or at such other address for a party as shall be specified by notice
given in accordance with this Section):
If to Company: c/o CenterPoint Advisors, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
with a copy to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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If to Firm or __________________________
Members: __________________________
__________________________
__________________________
__________________________
__________________________
Attn: ____________________
Facsimile: _______________
with a copy to: __________________________
__________________________
__________________________
__________________________
__________________________
Attn: ____________________
Facsimile: _______________
1 Peachtree Center
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
9. Company shall have the right from time to time upon reasonable notice
to the Firm during normal business hours to audit, copy, review and examine the
books, records and tax returns and reports of the Firm.
10. This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Illinois applicable to
contracts executed and to be performed wholly within such state, without giving
effect to its choice of law rules.
11. Any dispute, controversy or claim arising out of, relating to, or
connected with, this Agreement, its interpretation, the breach thereof or any
other agreement entered into in connection with the transactions contemplated
herein, including the arbitrability of such dispute, controversy or claim, shall
be settled exclusively by final and binding arbitration venued in Chicago,
Illinois in accordance with the Arbitration Rules for Professional Accounting
and Related Services Disputes of the American Arbitration Association, and
judgment upon the award entered by the arbitrator may be entered in any court
having jurisdiction thereof; provided, however, that nothing herein shall be
construed to prohibit Company from seeking in any court of competent
jurisdiction any injunctive or other equitable relief to which it is entitled
hereunder.
12. This Agreement shall not be modified or amended except by a written
document executed by Company and the holders of a majority of the voting power
of the issued and outstanding Interests in the Firm.
13. This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
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14. This Agreement may be executed via facsimile or otherwise in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
15. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and permitted successors and assigns, and except as
expressly set forth herein, nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
* * *
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IN WITNESS WHEREOF, Company, the Members and the Firm have executed this
Agreement as of the Effective Date.
[FOUNDER/CENTERPOINT, INC.]
By:_________________________________
Name:_______________________________
Its:________________________________
[FOUNDER L.L.C.]
By:_________________________________
Name:_______________________________
Its:________________________________
MEMBERS
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EXHIBIT A
List of Members
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EXHIBIT B
Form of Instrument of Accession to Separate Practice Agreement
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The undersigned, in connection with becoming the owner or holder of record
of a [_______________ (_____%)] membership interest in [Founder L.L.C.], a
Maryland limited liability company (the "Firm"), hereby agrees to become party
to and bound by that certain Separate Practice Agreement, dated as of
[__________________], 1999, by and among the Firm, [Founder/CenterPoint, Inc.]
(the "Company") and the Members of the Firm. This instrument shall take effect
and shall become an integral part of the Separate Practice Agreement immediately
upon execution and delivery to the Firm and the Company of this instrument.
IN WITNESS WHEREOF, this instrument has been duly executed by or on behalf
of the undersigned.
Dated: _________________
[FOUNDER/CENTERPOINT, INC.]
By:_________________________________
Name:_______________________________
Its:________________________________
[FOUNDER L.L.C.]
By:_________________________________
Name:_______________________________
Its:________________________________
____________________________________
[NEW MEMBER]
