EXHIBIT 10.14
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT ("AGREEMENT"), effective as of
January 1, 1998, by and between EUROPEAN MICRO HOLDINGS, INC., a Nevada
corporation ("NEVADA"), and EUROPEAN MICRO PLC, a United Kingdom corporation
("UK").
NOW, in consideration of the mutual covenants and agreements of the parties
herein contained and intending to be legally bound, the parties hereto hereby
agree as follows:
ARTICLE 1
SERVICES TO BE PROVIDED
1.1 Upon the terms and conditions described herein, Nevada shall provide to
UK the following administrative services:
(a) MANAGEMENT INFORMATION AND TELECOMMUNICATION SERVICES. To the extent
permitted by the licensing agreements entered into from time to time by
Nevada, at the request of UK, Nevada shall process reports and
calculations of UK on the computer systems of Nevada, shall provide UK
with access to other programs provided by the computer system of
Nevada, and shall provide Nevada with sufficient telecommunication
services to permit Nevada to maintain and operate its telephone system;
(b) PERSONNEL. Nevada shall recommend and administer benefit programs and
salaries for the employees of UK, and shall recommend and administer
policies and guidelines it deems appropriate for the management of
employees of UK;
(c) INSURANCE. Nevada shall recommend insurance policies and coverages on
behalf of UK, and shall assist UK in the negotiation and administration
of claims with insurance carriers on behalf of UK; and
(d) LEGAL COUNSELING. Nevada shall provide or make available general legal
counseling for UK, including management of litigation in which UK is
involved, but only to the extent that to do so would not, in the
judgment of Nevada, reasonably be expected to create a conflict of
interest under applicable legal ethical guidelines. Nevada shall
determine whether, in its judgment, engagement by UK of outside counsel
is appropriate and if it so determines, shall engage, direct and review
such outside counsel and shall make recommendations to UK as to the
settlement of any litigation.
1.2 The fee for the services provided by Nevada described in Section 1.1
for any fiscal year shall be the Aggregate Cost of such service. As used in this
Agreement, the "AGGREGATE COST" of any service for any fiscal year is the cost
to Nevada that is allocated in accordance with the internal budgeting procedures
of Nevada for such year to the particular service provided to UK. The overall
cost for that year of a provided service shall first be determined generally and
without regard to whether such service is provided to UK, Nevada and its
affiliates or to any other party. A fraction representing the relationship
between the reasonably expected demand for
such service by UK for that fiscal year and the reasonably expected demand for
such service by all parties, including, without limitation, UK and Nevada, shall
be multiplied times the overall cost yielding the "Aggregate Cost". The parties
agree that the Aggregate Cost of any service is their good faith determination
of the fair market value of such service. The parties agree that in the event
that any tax or assessment (other than any such on income) is required to be
paid as a result of the provision of services hereunder, UK shall be solely
responsible for the payment of such tax or assessment.
1.3 Nevada undertakes to provide the services required hereunder with the
same degree of care and diligence, and using the same procedures and policies,
it uses in providing such services for its own operations. In providing services
hereunder, Nevada, and its employees, officers, agents, directors and
shareholders, shall not be liable to UK for errors and omissions hereunder
except to the extent that such errors and omissions resulted from a violation of
its covenant in the immediately preceding sentence. Nothing in this Agreement
independently enables or permits Nevada to make executive or operational
decisions on behalf of UK.
ARTICLE 2
PAYMENT OF COMPENSATION
2.1 Promptly after the end of each fiscal quarter, Nevada shall calculate
all amounts due and payable hereunder for such calendar quarter and shall issue
an invoice to UK. UK shall pay the amount required to be paid hereunder within
thirty (30) calendar days after receipt of such invoice.
2.2 Nevada shall keep, at its usual place of business, books and records
relating to the payments to be made hereunder containing such true entries as
may be necessary or proper to ascertain the amount of payments to be made to
Nevada hereunder. At the request and expense of UK, Nevada shall produce, during
normal business hours, said books and records and make them available for
inspection by duly authorized agents of UK, shall permit such agents to make
copies thereof, and shall give such information as may be necessary or proper to
enable the amount of payment due hereunder to be ascertained and verified.
ARTICLE 3
TERM OF AGREEMENT AND TERMINATION
3.1 TERM. This Agreement shall become effective as of the date first above
written, and shall be effective until terminated by Nevada or UK.
3.2. TERMINATION FOR CAUSE. Notwithstanding the provisions related to the
term of the Agreement, in the event that a party hereto shall commit a material
breach under this Agreement, as amended from time to time, and such breach is
not remedied within a period of sixty (60) days after receiving written notice
of such default from the other party; then the other party (the "NON-DEFAULTING
PARTY") may terminate this Agreement without additional liability on ten (10)
days advance written notice. The foregoing rights of termination shall be in
addition to and not in substitution for any other remedies that may be available
to the Non-Defaulting Party, and any exercise of such rights shall not relieve
the Defaulting Party from any obligations accrued prior to the date of
termination or any liability or damages to the other party for breach of the
provision or provisions giving rise to the termination.
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ARTICLE 4
GENERAL PROVISIONS
4.1 OTHER SERVICES. Nothing in this Agreement shall be construed to
prohibit Nevada from undertaking to provide additional services to UK not
described in this Agreement on terms and conditions (including the fees
therefor) satisfactory to each of UK and Nevada.
4.2 INDEPENDENT PARTIES. Nothing in this Agreement shall be construed as
creating a partnership or a joint venture between Nevada and UK, or making
either party an agent or employee of the other party, but in all of its
operations hereunder Nevada shall be an independent contractor for UK. No
employee of Nevada who renders any service hereunder shall be considered,
construed or deemed to be an employee of UK as a result thereof.
4.3 LIMITATION OF LIABILITY. Notwithstanding any other provision of this
Agreement, in no event shall any party be liable to any other party for special,
incidental, punitive, exemplary, indirect or consequential damages whether
arising under contract, tort (including negligence), warranty, strict liability,
or other form of action. The parties to this agreement are the only intended
beneficiaries hereof. There are no third-party beneficiaries of this Agreement
and nothing herein should be so construed.
4.4 AGREEMENT TO TAKE NECESSARY AND DESIRABLE ACTIONS. The parties hereto
each agree to execute and deliver such other documents, certificates, agreements
and other writings and to take such other actions as may be reasonable or
desirable in order to consummate or implement expeditiously the transactions
contemplated by this Agreement.
4.5 GOVERNING LAW, JURISDICTION, INJUNCTIVE RELIEF. The construction and
performance of this Agreement, and of all agreements and documents relating to
it, shall be governed by the laws of, and the jurisdiction for any and all
litigation and other proceedings, whether legal or equitable, brought pursuant
to or in connection with this Agreement shall be, Florida, U.S.A. The parties
consent to the personal jurisdiction of the state and federal courts of such
state. Either party may bring an action in Florida or another relevant
jurisdiction to obtain injunctive or similar relief for any actual or threatened
failure of a party to comply with the provisions hereof.
4.6 SEVERABILITY. In the event any provision hereof is held by a court of
competent jurisdiction to violate any applicable law, it shall be deemed null
and void to the extent thereof, without affecting the remaining provisions of
this Agreement.
4.7 ASSIGNMENT. This Agreement may not be assigned by either party to any
third party(ies) except as otherwise provided herein. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the parties'
successors and assigns. Any attempted or purported assignment in violation of
this Agreement shall be deemed null and void AB INITIO.
4.8 ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding between the parties hereto with respect to the subject matter of
this Agreement, and supersedes any other agreement or understanding, written or
verbal, that the parties hereto may have had.
4.9 WAIVER. The failure of either party to enforce at any time, or for any
period of time, any provision of this Agreement shall not be construed as a
waiver of such provision or of the right of such party thereafter to enforce
such provision. Unless otherwise expressly provided
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herein, if the consent of a party is expressly required under this Agreement,
that consent may be granted or denied in the sole discretion of the party whose
consent is required.
4.10 AMENDMENT OR MODIFICATION. No amendment or modification of this
Agreement, in whole or in part, shall be binding upon the parties unless the
same shall be in writing and executed by the appropriate officers of each party.
4.11 CAPTIONS. The caption headings in this Agreement are for purposes of
reference only and are not intended and shall not be construed to have any
substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their representatives thereunto duly authorized.
EUROPEAN MICRO HOLDINGS, INC.
By: /s/ XXXX X. XXXXXXXXX
Name:XXXX X. XXXXXXXXX
Title:CO-CHAIRMAN
EUROPEAN MICRO PLC
By: /s/XXXXXXXX XXXXXXX
Name:XXXXXXXX XXXXXXX
Title: MANAGING DIRECTOR
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