Exhibit 10.3
MANAGEMENT AND SERVICES AGREEMENT
This Management and Services Agreement (the "Agreement") is entered
into effective as of May 29, 1997, by and between HLM OF OREGON, ARCHITECTURE
AND PLANNING, P.C., an Oregon corporation (hereinafter referred to as "HLM"),
and HLM DESIGN, INC., a Delaware corporation (hereinafter referred to as
"Design").
RECITALS
WHEREAS, HLM provides architectural and engineering services through
the services of duly licensed architects and engineers engaged by HLM as
employees or independent contractors;
WHEREAS, Design is in the business of providing comprehensive
management services to architectural and engineering firms, including the
provision of office space and equipment, the recruitment, hiring and employment
of architectural and engineering personnel and support personnel, and the
provision of billing and collection services;
WHEREAS, Design has special expertise and experience in the operation,
management and marketing of the non-architectural and non-engineering aspects of
architectural and engineering firms of the type intended to be operated by HLM;
and
WHEREAS, HLM desires that Design provide the above-described services
to HLM, and Design desires to provide such services to HLM, pursuant to the
provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises of the parties hereto and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Term of Agreement; Termination. Commencing on the effective date set
forth above, and subject to the termination provisions set forth below, this
Agreement shall continue in effect until the fortieth (40th) annual anniversary
of the effective date hereof. Thereafter, this Agreement shall automatically
renew for successive one (1) year terms, unless either party shall provide the
other with written notice of termination at least thirty (30) days prior to the
expiration of the then current term hereof. Notwithstanding the foregoing,
either party hereto may terminate this Agreement at any time upon written notice
to the other in the event of any of the following:
a. The filing of a petition in voluntary bankruptcy or
an assignment for the benefit of creditors by the other, or
upon other action taken or suffered, voluntarily or
involuntarily, under any federal or state law for the benefit
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of debtors by the other, except for the filing of a petition in
involuntary bankruptcy against the other which is dismissed within
thirty (30) days thereafter; or
b. In the event the other shall materially default in the
performance of any duty or obligation imposed upon it by this Agreement
and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the defaulting party by the
non-defaulting party.
2. Obligations of Design.
a. General. HLM hereby appoints Design as its sole and
exclusive manager and administrator of all of HLM's day-to-day business
functions. HLM acknowledges and agrees that the purpose and intent of
this Agreement is to relieve HLM to the maximum extent possible of the
administrative, accounting, personnel and business aspects of HLM's
operations, with Design assuming responsibility and being given any and
all necessary authority to perform these functions. In connection with
the foregoing, HLM hereby agrees that Design shall have the authority,
duties and obligations set forth in Sections 2.b. through 2.d. below,
and HLM agrees to take no actions in contravention thereof without the
express prior written consent of Design.
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b. Financial Planning. Design shall prepare such budgets,
plans and policies as are necessary and appropriate in connection with
the operations of HLM, reflecting the anticipated sources and uses of
capital for HLM, and HLM's anticipated revenues and expenses. All
operations of HLM shall be conducted in accordance with such budgets,
plans and policies, which shall establish, by way of example and not
limitation, the following:
(1) the amounts, purpose and priority of all
capital expenditures;
(2) the amounts and sources of all additional
capital, including without way of limitation the issuance
of any and all additional capital stock and the incurring
of any and all indebtedness;
(3) the amounts, manner of payment and timing of
all dividends; and
(4) the amount, form and manner of payment of all
employee compensation and benefits, including without way of
limitation all compensation and benefits pertaining to
personnel employed or engaged by HLM, or pertaining to
personnel employed or engaged by Design on HLM's behalf.
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c. Facilities, Equipment and Supplies. During the term of this
Agreement, and all renewals and extensions hereof, Design shall
analyze, select and negotiate for the lease and/or purchase by HLM or
Design, as the case may be, of (1) suitable office facilities
("Offices") in which HLM can provide architectural and engineering
services, (2) such architectural and engineering equipment, office
equipment, furniture, fixtures, furnishings and leasehold improvements
(collectively, "Equipment") as necessary for the performance by HLM of
its architectural and engineering services, and (3) business supplies
of every kind, name or nature, which may reasonably be required by HLM
for its operations. Design shall have the authority to negotiate for
the purchase or lease of any or all such items on HLM's behalf, either
in HLM's or Design's name, as shall be deemed appropriate by Design in
its sole discretion, and all such items shall in all events be subject
to, and leased or purchased in accordance with, the budgets, plans and
policies referenced in Section 2.b. above.
d. Development, Management and Administrative Services. During
the term of this Agreement, and all renewals and extensions hereof,
Design shall furnish to HLM, or assist HLM in obtaining, as deemed
appropriate by Design in its sole discretion, all of the
non-architectural and non-engineering development, management and
administrative services as may be needed by HLM in connection with
HLM's operations.
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Additionally, Design shall provide HLM with such advice and supervision
regarding all aspects of HLM's architectural and engineering services
as HLM may request from time to time, subject in all events to the
limitations set forth in Section 4 hereof. Such non-architectural and
non-engineering development, management and administrative services
shall include, by way of example and not limitation, the following:
(1) Bookkeeping and Accounts. Design shall establish
and maintain all bookkeeping and accounting services necessary
and appropriate to support the Offices, including, without
limitation, maintenance, custody and supervision of all
business records, papers, documents, ledgers, journals and
reports, and the preparation, distribution and recordation of
all bills and statements for professional services rendered by
HLM (collectively, "Books and Records"). Notwithstanding the
foregoing, HLM shall be responsible for maintaining full and
accurate accounting records of all services rendered and such
additional information as may be required in order for HLM to
satisfy any and all applicable reporting requirements.
(2) General Administrative Services. Design shall
provide HLM with overall supervision and management,
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including the maintenance and repair, of the Offices, and
of all Equipment located in or at the Offices.
(3) Contract Negotiation and Administration. Design
shall negotiate and administer all non- architectural and
non-engineering aspects of all agreements pertaining to the
provision of architectural and engineering services by HLM to
third parties ("Architectural and Engineering Agreements"). By
way of example and not limitation, Design shall have the
authority to negotiate and administer the provisions of the
Architectural and Engineering Agreements pertaining to such
matters as pricing and scheduling, and shall also provide HLM
with such advice and supervision regarding all other aspects
of the Architectural and Engineering Agreements as HLM may
request from time to time, subject in all events to the
limitations set forth in Section 4 hereof. Additionally,
Design shall negotiate and administer all aspects of HLM's
agreements which do not pertain directly to the provision of
architectural or engineering services by HLM to third parties
("General Business Contracts").
(4) Personnel. Subject to the provisions of
Section 4 hereof, Design shall provide such personnel to
HLM as Design shall determine in its sole discretion to
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be necessary to enable HLM to perform all services
contemplated under the Architectural and Engineering
Agreements and the General Business Contracts. Design shall
provide such personnel by either (1) engaging such personnel
directly on HLM's behalf (for example, as employees or
independent contractors of HLM), or (2) engaging such
personnel directly (for example, as employees or independent
contractors of Design) and then leasing or subcontracting such
personnel to HLM. Design shall have the sole discretion to
determine the manner in which such personnel are provided to
HLM. In no event shall Design provide or be required to
provide architect or engineer employees or independent
contractors (whether licensed or unlicensed) to HLM in any
manner not in compliance with all applicable codes, rules and
regulations adopted by any authority regulating the licensing
of architects or engineers for the applicable jurisdiction.
Design shall advise HLM with respect to the hiring and
termination of all HLM personnel, and shall determine
compensation for all HLM and all Design personnel, including
determination of salaries, fringe benefits, bonuses, health
and disability insurance, workers' compensation insurance, and
any other benefits that each such employee shall receive. HLM
shall compensate all HLM personnel (including those leased or
subcontracted to HLM by Design) and make any and all
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applicable withholding filings and payments in connection
therewith. Additionally, Design shall manage and supervise any
licensed personnel employed or engaged by HLM, or employed or
engaged by Design on behalf of HLM, regarding those aspects of
their employment that do not involve performance under the
scope of their licensure; provided, however, that HLM shall
manage and supervise all activities of such licensed personnel
performed under the scope of their licensure.
(5) Security and Maintenance. Design shall advise HLM
with respect to all services and personnel necessary to
provide HLM with proper security, maintenance, and cleanliness
of the Offices and the Equipment.
(6) Architectural and Engineering Recruiting and
Training. Design shall, in its sole discretion, either perform
on HLM's behalf, or assist HLM in performing, all recruiting,
screening and evaluating of prospective architect and engineer
employees and contractors for HLM, and Design shall assist HLM
in training HLM's architects and engineers in the delivery of
architectural and engineering services at the Offices in a
manner consistent with HLM's and Design's established
standards, practices, procedures and policies.
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(7) Insurance. Design shall, in its sole discretion,
either provide directly or advise and direct HLM with respect
to selecting and negotiating for the provision of professional
liability, commercial general liability and property insurance
to protect against loss in the nature of fire, other
catastrophe, theft, business interruption, general liability,
and non-architectural and non-engineering negligence.
(8) Billing and Collections. In order to relieve HLM
of the administrative burden of handling the billing and
collection of sums due under Architectural and Engineering
Agreements, Design shall be responsible, on behalf of and for
HLM, for billing and collecting the charges made with respect
to Architectural and Engineering Agreements and any or all
other services provided at the Offices; provided that
responsibility for specific accounts may be retained by HLM at
the mutual agreement of HLM and Design. In such event HLM
agrees that it will keep and provide to Design all invoices,
documents, evidence and records necessary for the purpose of
supporting the fees charged for all architectural and
engineering services from time to time. It is expressly
understood that the extent to which Design will endeavor to
collect such charges, the methods of collecting, the settling
of disputes with respect to charges, and the
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writing off of charges that may be or appear to be
uncollectible shall at all times be within the sole discretion
of Design (but subject to all applicable governmental
regulations and the terms and conditions of applicable
agreements), and that Design does not guarantee the extent to
which any charges billed will be collected. At HLM's request,
Design will reassign to HLM for collection by HLM, any
accounts which Design has determined to be uncollectible.
(9) Bank Accounts and Disbursements. During the term
of this Agreement, Design shall have access to any and all
bank accounts of HLM, and in connection therewith HLM hereby
appoints Design for the term hereof as its lawful
attorney-in-fact to deposit in such accounts fees generated
from HLM's architectural and engineering practice which are
collected by Design, and to make withdrawals from such
accounts for the payment of expenses arising from or relating
to HLM's operations, for Design's compensation hereunder, and
for all other costs, expenses and disbursements which are
required or authorized by this Agreement. Such withdrawals and
payments may be made by Design at any time and from time to
time as Design deems appropriate in its sole discretion. For
administrative convenience, HLM shall not make any
withdrawal(s) from such accounts without the
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prior written consent of Design. HLM agrees to execute from
time to time any and all additional documents required by the
banks at which HLM's accounts are maintained to effectuate the
power of attorney granted above.
(10) Approval of Stock Transfers. Design shall have
the sole authority and discretion to approve or deny on behalf
of HLM any and all proposals by stockholders of HLM to
encumber, sell, pledge, give or otherwise transfer HLM capital
stock.
(11) Marketing Support. Design shall provide HLM with
such marketing support as Design in its sole discretion deems
appropriate to develop, enhance and continue HLM's practice.
Such support may include, by way of example and not
limitation, making available such brochures, literature and
sales aids as Design develops, providing HLM with access to
pertinent economic and market data acquired or developed by
Design, and developing and implementing a comprehensive
marketing plan designed to xxxxxx client relations and enhance
HLM's name recognition as a high quality provider of
professional architectural and engineering services.
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3. Compliance with Architectural and Engineering Agreements.
Design agrees to perform its duties hereunder so as to comply with
HLM's obligations under the Architectural and Engineering
Agreements.
4. Conduct of Architectural and Engineering Practice. HLM
agrees to assign a duly licensed architect and, to the extent
engineering services are provided, a duly licensed engineer to
assure that its Offices are adequately staffed with such
architectural and engineering personnel as may be necessary to
efficiently perform architectural and engineering services at such
Offices. Notwithstanding any provision in this Agreement to the
contrary, Design shall have no authority, directly or indirectly,
to perform, and shall not perform, any function of HLM's operations
pertaining to services ("Professional Services") which are required
to be performed by duly licensed architects and/or engineers
pursuant to any and all applicable codes, or rules or regulations
adopted by any authority regulating the licensing of architects
(the "Architecture Board") or engineers (the "Engineering Board").
Design may, however, advise HLM as to the relationship between HLM's
performance of Professional Services and the overall administrative
and business functions of HLM's operations. To the extent Design
assists HLM in performing Professional Services, all personnel
employed or engaged by HLM or by Design on HLM's behalf shall be
subject to the professional direction and supervision of HLM, and
in the performance of such Professional Services, such personnel
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shall not be subject to any direction or control by, or liability to, Design,
except as may be specifically authorized by HLM in accordance with applicable
codes, rules or regulations.
To the extent any provision of this Agreement is determined to violate
any provision of the applicable codes, or any rule or regulation of the
Architecture Board or of the Engineering Board, then such provision of this
Agreement shall be deemed modified to the minimum extent necessary to cure such
violation.
5. Non-Exclusive Nature of Design's Duties. The parties acknowledge
that Design is in the business of providing services of the nature provided to
HLM hereunder to architectural and engineering firms located throughout the
United States, and that Design may currently be a party to or may at any time
hereafter enter into contracts with other architectural and engineering firms in
that regard. Additionally, Design may also directly or indirectly provide
architectural and engineering services from time to time. No such activities by
Design shall be deemed a breach of or a conflict with the duties of Design
hereunder.
6. Design's Compensation. As compensation for the provision of its
services hereunder, Design shall be paid, no less frequently than on a quarterly
basis, an estimate of the balance, if any, of HLM's cash flow (as determined in
accordance with generally accepted accounting principles applied on a consistent
basis) following the
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payment by HLM or by Design on HLM's behalf of all of HLM's expenses, and the
deduction from such cash flow of an amount equal to one percent (1.00%) of HLM's
net profits (as determined in accordance with generally accepted accounting
principles applied on a consistent basis) for such time period as has elapsed
subsequent to the last payment to Design (such deducted amount to be retained by
HLM as compensation for services provided to HLM by HLM or by HLM's personnel,
and to be distributed or retained by HLM as HLM deems appropriate in its sole
discretion).
7. Ownership of Books and Records. The books and records generated and
maintained by each of the parties hereto shall be and remain the property of
each such party. HLM agrees to make all of its books and records (subject to
applicable ethical and legal confidentiality requirements) available for
inspection, examination or copying by duly authorized representatives of Design
from time to time throughout the term hereof, and upon written request by Design
to HLM following the termination hereof, all to enable Design to better perform
its duties hereunder.
8. Liability and Indemnification. Neither Design nor its
stockholders, directors, officers, employees or agents shall have
any liability for action taken or omitted by such person(s) in the
performance of its duties hereunder if such action or omission is
taken in good faith and without negligence. Each party to this
Agreement respectively assumes responsibility for liability, actual
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or alleged, arising from its respective activities performed pursuant to this
Agreement. HLM agrees, during the term of this Agreement and thereafter, to the
extent necessary to effectuate the purpose hereof, to indemnify and hold
harmless Design against any claims or liabilities arising under this Agreement
which arise out of or in connection with the Architectural and Engineering
Agreements, the General Business Contracts or the actions of HLM's architect and
engineer employees or contractors (including, without way of limitation, those
employees and contractors employed or engaged by Design on HLM's behalf or
otherwise).
9. Confidentiality. HLM acknowledges that due to the nature of this
Agreement, HLM will have access to information of a proprietary nature owned by
Design including, but not limited to, any and all computer programs (whether or
not completed or in use) and any and all operating manuals or similar materials
which constitute the non-architectural and non-engineering systems, policies and
procedures, and methods of doing business, developed by Design for the operation
of facilities managed by Design. Consequently, HLM acknowledges and agrees that
Design has a proprietary interest in all such information and that all such
information constitutes confidential and proprietary information and the trade
secret property of Design. HLM hereby waives any and all right, title and
interest in and to such confidential information and trade secrets and agrees to
return all copies of
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such confidential information and trade secrets to Design, at HLM's expense,
upon the termination of the Agreement.
HLM further acknowledges and agrees that Design is entitled to prevent
its competitors from obtaining and utilizing its confidential information and
trade secrets. Therefore, HLM agrees to hold Design's confidential information
and trade secrets in strictest confidence and not to disclose them to or allow
them to be disclosed to or used by, directly or indirectly, any person or entity
other than those persons or entities who are employed by or affiliated with
Design or HLM, either during the term of this Agreement, or at any time after
the expiration or sooner termination of this Agreement, without the prior
written consent of Design. HLM agrees to require each independent contractor and
employee of HLM, and any such persons or entities to whom such information is
disclosed for the purpose of performance of Design's or HLM's obligations under
this Agreement, to execute a "Confidentiality Agreement" in a form acceptable to
Design, upon the request of Design.
HLM acknowledges and agrees that a breach of this Section 9 will result
in irreparable harm to Design which cannot be reasonably or adequately
compensated in damages, and therefore Design shall be entitled to injunctive and
equitable relief to prevent a breach and to secure enforcement thereof, in
addition to any other relief or award to which Design may be entitled.
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10. Cooperation. HLM and Design agree that they shall at all times
maintain an effective liaison and close cooperation with each other to
facilitate the provision of high quality and cost effective architectural and
engineering services. Each of the parties agrees to cooperate fully with each
other in connection with the performance of their respective obligations under
this Agreement, and both parties agree to employ their best efforts to resolve
any dispute that may arise under or in connection with this Agreement. HLM shall
provide to Design full and complete access to HLM's premises, and to HLM's Books
and Records (as defined in Section 2.d.(1) hereof), in order that Design may
perform its functions hereunder. Notwithstanding any other provisions contained
herein, Design shall not be liable to HLM, and shall not be deemed to be in
default hereunder, for the failure to perform or provide any of the supplies,
services, personnel, or other obligations to be performed or provided by Design
pursuant to this Agreement if such failure is a result of a labor dispute, act
of God, or any other event which is beyond the reasonable control of Design.
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11. Arbitration. If a dispute or matter in controversy arises between
the parties hereto which they are unable to resolve to their mutual satisfaction
within ten (10) days of written notice from one to the other of the existence of
such dispute, then either party may notify the other party in writing (the
"Notice") that the dispute be submitted to binding arbitration as provided
herein Such arbitration shall take place in Charlotte, North Carolina, in
accordance with the Rules of Commercial Arbitration of the American Arbitration
Association, or its successor. The provisions of xx.xx. 1-567.1 et seq. of the
General Statutes of North Carolina, or any successor or amended statute or law
containing similar provisions, shall apply in any such arbitration. Any
arbitration pursuant to this Agreement shall be conducted by one (1) arbitrator.
The judgment upon the award rendered in any such arbitration shall be final and
binding upon the parties and may be entered in any court having jurisdiction
over any party.
12. Waiver of Violation. The waiver by either party of a
breach or violation of any provision of this Agreement shall not
operate as or be construed as a waiver of any subsequent breach
thereof.
13. Miscellaneous.
a. Notices. All notices, offers and acceptances or
rejections thereof required to be given hereunder, shall be
given by certified mail to the parties hereto at the addresses
listed below, or at such other address as may be stated from
time to time, and shall be deemed delivered upon deposit in
the United States mail, postage prepaid:
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To HLM: HLM of Oregon, Architecture
and Planning, P.C.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxx
To Design: HLM Design, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxx
With a Copy to: Xxxxxxx X. Xxxx, Esq.
Xxxxxxxxx Xxxxxx Xxxxxx & Xxxxxx, P.A.
0000 Xxxxxxxxx Xxxxx
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
b. Severability. The provisions of this Agreement shall be
separable and a determination that any provision of this Agreement, or
subpart thereof, is either unenforceable or void shall not affect the
validity of any other provision of this Agreement, or subpart thereof.
Wherever possible all provisions shall be interpreted so as not to be
unenforceable and any court of competent jurisdiction is authorized and
directed by the parties hereto to enforce any otherwise unenforceable
provision in part, to modify it, to enforce it only to a degree and not
fully, or otherwise to enforce that provision only in a manner and to
an extent, that renders the provision valid or enforceable. The intent
of the parties is that this Agreement be enforceable and enforced to
the maximum extent possible after excising (or deeming excised) all
invalid or unenforceable provisions, whether or not the remaining
provisions are grammatically correct.
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c. Amendments or Modifications. This Agreement constitutes the
entire understanding between the parties hereto with respect to the
subject matter hereof, and no changes, amendments or alterations shall
be effective unless agreed to in writing by both parties hereto,
provided that no such amendment shall conflict with applicable laws or
regulations.
d. Relationship of the Parties. The relationship of the
parties hereto shall at all times be that of independent contractors.
Except as expressly provided herein, nothing contained in this
Agreement shall be construed to constitute either party as an agent,
legal representative, partner, joint venturer or employee of the other,
and neither party hereto shall have the power to bind the other with
respect to any obligation to any third party.
e. Assignability. Design may assign this Agreement, and/or
transfer, assign or delegate any or all of its rights, obligations and
responsibilities under this Agreement, without the consent of HLM, to
one or more of Design's Affiliated Entities and/or one or more of
Pacific Capital, L.P., a Delaware limited partnership, and/or Equitas,
L.P., a Delaware limited partnership. For purposes of this Agreement,
"Affiliated Entities" are defined to include any and all entities
which: (1) are owned by Design, (2) are under common control with
Design, (3) are licensees of Design, or (4) are
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otherwise affiliated with Design. Except as expressly provided above,
this Agreement is not transferrable or assignable by either party.
f. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
HLM DESIGN, INC.
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________
Senior Vice President
HLM OF OREGON, ARCHITECTURE
AND PLANNING, P.C.
By: /s/ Xxxxxx X. Xxxxxx
_________________________________
President
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