EXHIBIT 10.2
Management Services Agreement
This Management Services Agreement (this "Agreement") made as
of the 14th day of October, 1999, by and between XXXXXXXX CAPITAL LIMITED, an
Ontario corporation (hereinafter "Provider"), and HYCOMP, INC., a corporation
organized under the laws of the Commonwealth of Massachusetts (hereinafter the
"Company").
WHEREAS, the Company has the need for certain executive,
accounting, human resources, information technology and other general management
and administrative services relating to its operations, including personnel
services, business development and investor relations; and
WHEREAS, Provider has agreed to provide such executive,
accounting, human resources, information technology and other general management
and administrative services to the Company; and
WHEREAS, the Company has agreed to reimburse Provider for the
cost of such executive, accounting, human resources, information technology and
other general management and administrative services as provided in this
Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and
the terms and conditions contained hereinafter, the parties hereto agree as
follows:
1. Term. The term of this agreement shall be from the date
hereof to March 31, 2000; provided, however, that it may be terminated by either
party on 45 days prior written notice at any time after the Company has hired a
full time Chief Executive Officer.
2. Services.
2.1 Provider agrees to provide, and the Company
agrees to accept, the executive, accounting, human resources, information
technology and other general management and administrative services described in
Exhibit A attached hereto and as otherwise mutually agreed by Provider and the
Company (the "Services").
2.2 If not otherwise agreed, the specification of
particular methods for rendering the Services and the assignment of personnel
therefore will be determined by Provider in such manner as in Provider's
judgment will best serve the objectives indicated by the Company. Such methods
may include, but are not limited to: (a) remote consulting (by telephone, fax,
E-mail, video conferencing, etc.); (b) written advice; (c) participation in
meetings, seminars and workshops; (d) secondment of employees for specific
activities; (e) supply of technical materials, studies and other information;
(f) introduction to persons, firms/companies which may be of interest to the
Company; and (g) other means mutually agreement agreed upon from time to time.
3. Compensation. In consideration for the Services, the
Company shall pay Provider a fee of U.S.$15,000 per month, payable in arrears on
the 5th day of each calendar
month. The Company shall also reimburse Provider for its reasonable
out-of-pocket expenses incurred in connection with the Services, payable within
30 days after Providers' invoice thereof.
4. Obligations.
4.1 The Company agrees to fully cooperate with
Provider and to supply Provider with any and all information reasonably
necessary to enable Provider to perform the Services hereunder, in such form as
may be reasonably requested. The Company will give Provider representatives free
access to any and all sources of information reasonably necessary to enable
Provider to satisfactorily perform the Services.
4.2 Provider agrees to fully cooperate with the
Company and to supply the Company with any and all information reasonably
necessary to enable the Company to meet its legal and tax requirements.
5. Liability. Provider shall have no liability to the Company
except to the extent of the actual damages (excluding lost profits or special or
punitive damages) suffered by the Company as a direct result of the gross
negligence or greater culpability of Provider.
6. Indemnity. The Company shall indemnify Provider and its
officers, directors, employees, independent contractors, agents and
representatives, in their capacities as such (each, an "Indemnified Party"),
against and hold them harmless from any and all damage, claim, loss, liability
and expense (including, without limitation, reasonable attorneys' fees and
expenses) incurred or suffered by any Indemnified Party arising out of or
relating to the Services, except to the extent that such damage, claim, loss,
liability or expense is found in a final non-appealable judgment to have
resulted from Provider's gross negligence or willful misconduct.
7. Independent Contractor. The relationship between Provider
and the Company is that of independent contractor. Neither Provider nor the
Company is, or may hold itself out as, an agent for or employee of the other.
Neither Provider nor the Company shall have any authority to take, and neither
shall take, any action which binds, or purports to bind, the other. Without
limiting the foregoing, no employee of Provider may make any claim, demand or
application to or for any right or privilege applicable to an officer or
employee of the Company, including but not limited to workmen's compensation
coverage, unemployment insurance benefits, social security coverage, health plan
or insurance benefit, any other insurance benefit or any retirement benefit.
8. Notices. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be (i) sent by
registered or certified mail, return receipt requested, (ii) hand delivered,
(iii) sent by electronic mail, or (iv) sent by prepaid overnight carrier, with a
record of receipt, to the parties at the following addresses (or at such other
addresses as shall be specified by the parties by like notice):
(1) if to Provider:
Xxxxxxxx Capital Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
-2-
CANADA
Attn: Xxxx X. Xxxxxxxx
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
(2) if to the Company:
HyComp, Inc.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, X.X. 10005
Attn: Chief Executive Officer
Each notice or communication shall be deemed to have been given on the date
received.
9. Miscellaneous Provisions.
9.1 This Agreement contains the complete
understanding of the parties hereto and there are no understandings,
representations, or warranties of any kind, express or implied not specifically
set forth herein. This Agreement may be amended only by written documents signed
by duly authorized representatives of each of the parties hereto.
9.2 This Agreement shall be governed, construed and
interpreted in accordance with the laws of New York.
9.3 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute a single agreement.
9.4 This Agreement shall be for the benefit of
Provider and the Company and shall be binding upon the parties and their
respective successors and permitted assigns.
9.5 Every provision of this Agreement is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such term or provision shall be enforced to the maximum
extent permitted by law and, in any event, such illegality or invalidity shall
not affect the validity of the remainder of the Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the day and year first above written.
XXXXXXXX CAPITAL LIMITED
-3-
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Executive Officer
HYCOMP, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
-4-
EXHIBIT A
The Services to be rendered under this Agreement include, without limitation,
the following:
1. Assistance, advice and support in strategic policy, preparation of
regular operating reviews, attendance at board meetings and the
provision of operations consultancy and support;
2. Assistance, advice and support in new and existing services
including technical support, quality controls, market research and
development;
3. Assistance, advice and support in business organization,
administration and logistics;
4. Assistance, advice and support in business development, marketing,
promotion, advertising and investor relations;
5. Assistance, advice and support in purchasing, including selection
and identification of suppliers;
6. Assistance, advice and support in human resources and training,
including personnel recruitment, training and management as well
as advice and assistance in human resource policies and
procedures; also to engage and remunerate executive, secretarial,
clerical and other non executive staff and make them available to
the Company. This may include making available the services of
existing executive personnel.
7. Assistance and advice in financial matters, including access to
funds, cooperation with banks, cash management and treasury
management;
8. Assistance, advise and support in accounting, including
preparation of business plans, budgets, forecasts, management
accounts and project cost accounts;
9. Assistance, advice and support in risk management and insurance
matters;
10. Assistance, advice and support in information and communication
services ("ICS") (i.e. electronic data processing and
communication systems), especially selection, installation and
support of ICS systems and software;
11. Assistance, advice and support in legal and tax matters;
12. Assistance, advice and support in negotiating agreements with
third parties;
13. Provider may make available to the Company the services of such of
Provider's directors or executives for any purposes of the
business including taking up appointments as directors, whether
executive or non executive, of the Company.
-5-
