EXHIBIT 10.3
FORM OF CORPORATE SERVICES AGREEMENT
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This Agreement is dated as of ________, 2000, between Xxxxxx X. Xxxxxx,
Inc., a Massachusetts corporation ("Parent"), and c-quential, Inc., a Delaware
corporation ("Sub").
WHEREAS, Parent, Sub and certain Affiliates of Parent and Sub have entered
into a Reorganization Agreement dated as of ___________, 2000 (the
"Reorganization Agreement") pursuant to which Parent, together with the other
members of the Parent Group, is assigning and transferring to Sub and the other
members of the Sub Group certain assets associated with the Sub Business in
exchange for the assumption by Sub and the other members of the Sub Group of
certain liabilities and obligations associated with such Sub Business and the
issuance by Sub to Xxxxxx X. Xxxxxx, International, Inc., a Delaware corporation
and the parent of Sub, the shares of the capital stock of Sub on such terms and
conditions as are contained therein; and
WHEREAS, the Reorganization Agreement provides that Parent and Sub shall
enter into an agreement relating to certain transition services to be provided
by the parties to the other parties and the members of their Group with respect
to the Sub Business after the Effective Date as well as certain other
arrangements, and this Agreement is entered into in order to fulfill that
provision.
NOW, THEREFORE, in consideration of the foregoing and the other agreements
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
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Section 1.1 Defined Terms. For purposes of this Agreement, the following
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terms shall have the following meanings:
"Additional Services" shall mean Additional Sub Services and Additional
Parent Services, collectively.
"Additional Parent Services" shall have the meaning set forth in Section
2.2 hereof.
"Additional Sub Services" shall have the meaning set forth in Section 2.2
hereof.
"Ancillary Agreements" shall have the meaning given to such term in the
Reorganization Agreement.
"Cross-Consulting Services" shall have the meaning set forth in Section 5
hereof.
"Cross-Consulting Services Fee" shall mean, with respect to any specific
matter in which a party receives Cross-Consulting Services hereunder, an amount
which is equal to eighty-five
percent (85%) of the gross professional service revenues received by the
recipient of such Cross-Consulting Services from a client in respect of such
matter.
"Effective Date" shall have the meaning given to such term in the
Reorganization Agreement.
"Group" shall have the meaning given to such term in the Reorganization
Agreement.
"Parent" shall mean Xxxxxx X. Xxxxxx, Inc., a Massachusetts corporation.
"Parent Group" shall have the meaning given to such term in the
Reorganization Agreement.
" Parent Services" shall mean the services set forth on Schedule A attached
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hereto from time to time.
"Provider" shall mean the provider of Services hereunder.
"Recipient" shall mean the recipient of any Services hereunder.
"Reorganization Agreement" shall have the meaning set forth in the
recitals.
"Services" shall mean the Parent Services and Sub Services, collectively.
"Sub" shall mean c-quential, Inc., a Delaware corporation.
"Sub Business" shall have the meaning given to such term in the
Reorganization Agreement.
"Sub Group" shall have the meaning given to such term in the Reorganization
Agreement.
"Sub Services" shall mean the services set forth on Schedule B attached
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hereto from time to time.
"Term" shall have the meaning set forth in Section 7.1 hereof.
Section 1.2 Capitalized Terms. All other capitalized terms used herein
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and not defined shall have the meanings given to them in the Reorganization
Agreement.
SECTION 2. SERVICES TO BE PROVIDED.
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Section 2.1 Scope of Services.
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(a) During the Term of this Agreement, upon the written request
from time to time made by Sub, Parent agrees to provide, and agrees to
cause the members of the Parent Group to provide, to Sub and the members of
the Sub Group, and Sub agrees to purchase from Parent, on its behalf and on
behalf of the other members of the Sub Group, the Parent Services described
in Schedule A attached hereto, on the terms and conditions
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set forth herein. Subject to the provisions of Section 7.2(b) hereof, Sub
may elect to discontinue any Parent Service at any time in accordance with
Section 7.2(a) hereof.
(b) During the Term of this Agreement, upon the written request from
time to time made by Parent, Sub agrees to provide, and agrees to cause the
members of the Sub Group to provide, to Parent and the members of the
Parent Group, and Parent agrees to purchase form Sub, on its behalf and on
behalf of the other members of the Parent Group, the Sub Services described
in Schedule B attached hereto, on the terms and conditions set forth
herein. Subject to the provision of Section 7.2 (b) hereof, Parent may
elect to discontinue any Sub Service at any time in accordance with section
7.2(a) hereof.
Section 2.2 Additional Services.
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(a) From time to time after the Effective Date, Sub may request that
Parent provide additional administrative and support services (the "Additional
Parent Services") to Sub until such time as Sub is able to otherwise contract
or arrange for such services.
(b) From time to time after the Effective Date, Parent may request
that Sub provide additional administrative and support services (the
"Additional Sub Services") to Parent until such time as Parent is able to
otherwise contract or arrange for such services.
(c) Upon a request for such Additional Services, Parent and Sub shall
negotiate in good faith as to the scope of such Additional Services and the
terms and conditions under which such Additional Services may be provided by
the Provider; provided that, unless otherwise agreed to by the parties, such
Additional Services will be provided only to the extent, and on a basis
comparable to that, provided by the Provider with respect to its own
operations. Any mutually agreed-upon Additional Services to be provided by a
Provider or another member of the Provider's Group will be added to the
applicable service schedule, and such Additional Services will be deemed to be
a "Parent Service" or "Sub Parent Service," as applicable, and a "Service" for
all purposes under this Agreement unless expressly stated otherwise in this
Agreement.
Section 2.3 Limitations on Services.
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(a) Each Service furnished pursuant to this Agreement shall be in all
material respects equivalent to and limited to the same type, quality, quantity
and timeliness of such service that the Provider provides to its own
organization and personnel, and to those of the other members of the Provider's
Group. Each party acknowledges that the other may make changes from time to
time in the manner of performing the Services if such Provider is making similar
changes for itself, any member of its Group, or its respective business. Each
party further acknowledges that such Services will be performed by those
employees of such Provider who perform similar services for such Provider in the
normal course of their employment. Accordingly, except as otherwise agreed upon
by the parties, neither party shall be obligated to make available any
incremental Services to the extent that doing so would unreasonably interfere
with the performance of any employee of such party in connection with his or her
responsibilities to the other, require additional staff or otherwise cause an
unreasonable burden to the other, any member of the its Group, or their
respective business. Each party acknowledges and agrees that
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duly authorized agents of the other shall have the right to enter their premises
to the extent reasonably necessary or convenient to provide the Services.
(b) If a Provider ceases to provide any of the Services to its own
business units or if the level of such Services is reduced for any reason, such
Provider may also cease to provide or reduce the level of such Services provided
to the Recipient under this Agreement. Each party agrees to provide the other
as promptly as practicable notice of any substantial change in the level of such
Services provided under this Agreement, but in no event shall such Provider
provide less than ninety (90) days advance notice of such date of any Service
discontinuance.
(c) Neither party shall be required to provide any Service to the
extent the performance of such Service becomes "impracticable" as a result of a
cause or causes outside the reasonable control of such party, including
unfeasible technological requirements, or to the extent the performance of such
Services would require such party to violate any applicable laws, rules or
regulations or would result in the breach of any license, lease or other
applicable contract.
SECTION 3. CHARGES AND PAYMENTS.
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Section 3.1 Charges for Services. Except as specifically set forth on
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Schedule A and Schedule B attached hereto, it is the intention of the parties
hereto that the charges for Services to be provided pursuant to this Agreement
shall be determined and allocated according to methods consistent with past
practices and procedures observed by Parent and Sub prior to the Effective Date
concerning intercompany services and accounts, with a view in every case toward
providing the Provider with a reimbursement of fully allocated direct and
indirect costs of providing Services but without any profit to such Provider.
Charges for each Service shall be determined on a monthly basis. With
respect to any Services which are provided for a period which is less than a
full calendar month, or where the scope of such services is changed in
accordance with Section 2.3(b) during such period, the charges with respect to
such Service shall be appropriately pro-rated.
Section 3.2 Payments for Services.
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(a) As soon as practicable, but in no event more than fifteen (15)
days, following the last business day of a calendar month during which this
Agreement is in effect, Provider shall submit to Recipient a written invoice for
the aggregate amount to be charged to Recipient for Services rendered during the
month prior to the just completed month; provided, that each such invoice shall
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indicate the amount of charges being assessed for each Service provided and
shall include such documentation as is reasonably necessary to substantiate such
amounts. Recipient shall pay to Provider the invoiced amount within thirty (30)
days after receipt of an invoice.
(b) Whenever the provision of any Service pursuant to this Agreement
is terminated for any reason, Provider shall, as promptly as practicable, but in
no event more than fifteen (15) business days, after the termination of such
Service, submit to Recipient a written invoice for the aggregate amount still
owed to Provider with respect to such Service, together
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with such documentation as is reasonably necessary to substantiate such amounts.
Recipient shall pay to Provider the invoiced amount within thirty (30) days
after receipt of an invoice.
Section 3.3 Taxes or Other Governmental Charges. All federal, state and
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local taxes, charges, fees and similar liabilities, except taxes based on
Provider's net income, which are levied on either party in connection with the
provision of any Services hereunder, shall be for Recipient's account and paid
directly by Provider or, if required to be paid by Recipient, shall be added to
the next invoice. Provider shall provide Recipient with evidence of the payment
of any such taxes by Provider with such invoice. Notwithstanding the foregoing,
the provisions of the Tax Allocation Agreement shall govern with respect to the
matters covered this Section 3.3.
Section 3.4 Out-Of-Pocket/Direct Expenses. To the extent it is not
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duplicative of Recipient's payment obligations set forth in Section 3.1 above,
Recipient agrees to pay directly or to reimburse Provider for all reasonable
out-of-pocket and direct expenses incurred by Provider in respect of the
provision of any Services, including, without limitation, all reasonable
expenses for outside accounting, legal, recruiting, consulting, marketing and
other professional services. All payments or reimbursements to be made under
this Section 3.4 by Recipient shall, except as otherwise provided herein, be
made not later than thirty (30) days following receipt by Recipient of an
invoice therefor.
Section 3.5 Performance under Other Agreements. Notwithstanding anything
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to the contrary contained herein, neither party shall be charged under this
Agreement for any obligations that are specifically required to be performed
under the Reorganization Agreement or any other Ancillary Agreement and any such
other obligations shall be performed and charged for (if applicable) in
accordance with the terms of the Reorganization Agreement or such other
Ancillary Agreement.
SECTION 4. INDEPENDENT CONTRACTOR STATUS.
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In carrying out the provisions of this Agreement, each party is and shall
be deemed to be for all purposes a separate and independent entity, and no
partnership, joint venture or other arrangement shall be deemed to have been
created hereunder. Provider shall select its employees and agents, and such
employees and agents shall be under the exclusive and complete supervision and
control of Provider. Provider hereby acknowledges responsibility for full
payment of wages and other compensation to all employees and agents engaged in
the performance of the Services hereunder. It is the express intent of this
Agreement that Provider shall render and perform the Services as an independent
contractor in accordance with its own standards, subject to its compliance with
the provisions of this Agreement.
SECTION 5. AGREEMENTS REGARDING CROSS-CONSULTING.
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In addition to the other Services provided herein, Parent shall make
available to Sub, at the request of Sub, the services of Parent's management
consultants and other professionals, and Sub shall make available to Parent, at
the request of Parent, the services of Sub's management consultants and other
professionals (in either case, "Cross-Consulting Services"). The Cross-
Consulting Services shall be in all material respects limited to the type,
quality, quantity and timeliness of such services that the party providing such
Cross-Consulting Services provides on
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behalf of itself and the other members of its Group, and shall be limited as to
the general availability of the party (and its employees and consultants)
providing such Cross-Consulting Services. The recipient of such Cross-Consulting
Services shall pay the provider of such Cross Consulting Services, within thirty
(30) days of receipt of payment therefor from the client in respect of the
performance of such Cross-Consulting Services, the Cross-Consulting Services
Fee.
SECTION 6. LIMITED LIABILITY; INDEMNIFICATION.
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Section 6.1 Limited Liability. Neither party shall be liable to the other
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party for any special, indirect, incidental, exemplary or consequential damages,
or for loss of profits or revenues, whether arising in contract, tort (including
negligence), under any warranty or otherwise, arising out of its performance or
non-performance under this Agreement or the termination of this Agreement, even
if Parent or Sub, as the case may be, has been advised of the possibilities of
such damages.
Section 6.2 Disclaimer of Warranty. NEITHER PARENT NOR SUB MAKES ANY
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REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE SERVICES TO BE PROVIDED BY IT UNDER THIS AGREEMENT.
In the event the performance or non-performance of any Service to be provided
hereunder results in direct damages to the Recipient, Provider shall be liable
only to the extent such performance or non-performance was the result of
Provider's gross negligence or willful misconduct, and Provider's maximum,
cumulative and sole liability to Recipient for such direct damages shall be
limited to an amount up to the aggregate amount actually paid by the Recipient
to Provider for such Service up to the date of the performance or non-
performance giving rise to the direct damages. Recipient acknowledges that such
payment constitutes fair and reasonable compensation for any direct damages.
Notice of any claim for direct damages must be made within one (1) year of the
date of the event giving rise to such claim and such claim must specify the
damage amount claimed and a description of the Service and the act or omission
giving rise to the claim.
Section 6.3 Indemnification. Recipient, on its behalf and on behalf of
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the other members of its Group, agrees to indemnify and hold harmless Provider
and the other members of its Group, and each of their respective directors,
officers, employees, agents, representatives, shareholders, transferees,
successors and assigns against any claims, actions, demands, judgments, losses,
costs, expenses, damages and liabilities (including reasonable attorneys' fees
and disbursements) related to or arising out of or connected with such Services,
regardless of the legal theory asserted. The foregoing indemnity applies to
claims, actions and demands for which Provider may be, or may be claimed to be,
partially or solely liable; provided that the foregoing indemnity will not apply
with respect to any claim for direct damages asserted by Recipient against
Provider as provided in Section 6.2 above.
SECTION 7. TERM OF AGREEMENT
Section 7.1 Term. This Agreement shall become effective on the Effective
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Date and shall remain in effect until the earlier of (a) the discontinuance or
termination of all Services to
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be provided hereunder in accordance with the Section 7.2 of this Agreement and
(b) _______, 2003 (such period, the "Term"), unless earlier terminated by the
mutual agreement of the parties.
Section 7.2 Discontinuation or Termination of Services.
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(a) A Recipient may discontinue its use of any such Service upon
written notice given to Provider of such Service not less than one hundred
eighty (180) days prior to the proposed date of Service discontinuance. In
addition, upon the occurrence and continuance of a breach or default by
either party in connection with the provision of, or payment for, any
Service hereunder for a period of ten (10) days after written notice
thereof has been given to the defaulting party, the non-defaulting party
may terminate such Service and shall have no further obligation to the
other party with respect thereto. Upon termination of this Agreement or
any Service to be provided hereunder, all unpaid fees with respect to
Services provided prior to the date of termination of this Agreement or
such Services, as applicable, shall be due and payable within thirty (30)
days of the date of termination. Notwithstanding any termination of this
Agreement or any Services to be provided hereunder, the provisions of
Sections 3, 5, 6 and 8 shall remain in effect indefinitely or until such
time as the obligations of both parties hereunder shall have been fully
discharged.
(b) Once a Service is discontinued or terminated in accordance
with the terms of this Agreement, Provider shall, upon the request of
Recipient, not again be obligated to later reinstate such Service;
provided, however, that to the extent Provider is thereafter requested to
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provide any discontinued or terminated Service to Recipient, including any
transition-related assistance necessary for any other organization to
perform the discontinued or terminated Service, and Provider consents to
provide such Service, the obligation of Provider to provide such service
shall be subject to the limitations set forth in Section 2.3 hereof, and
Provider shall be entitled to compensation reflecting the actual costs
incurred by Provider with respect thereto consistent with the general
payment terms contained herein.
SECTION 8. MISCELLANEOUS.
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Section 8.1 Force Majeure. Anything contained in this Agreement to the
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contrary notwithstanding, Provider's performance of its duties and obligations
hereunder shall be excused to the extent that failure of performance is caused
by any act of force majeure, including, but not limited, to acts of God or the
public enemy, acts of the government in its sovereign capacity, fires, floods,
epidemics, quarantine restrictions, freight embargoes, strikes, unusually severe
weather, sabotage or any other or similar event or casualty beyond the
reasonable control of Provider; provided, however, that Recipient shall not be
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obligated to pay Provider for such Services to the extent that Provider is
unable to perform as a result of a force majeure condition. Provider shall
promptly notify Recipient of such events and make every reasonable effort to
restore such Services. Notwithstanding the foregoing, Recipient shall be
responsible for making its own alternative arrangements with respect to
interrupted Services during the pendency of any force majeure condition.
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Section 8.2 Access to Information; Confidentiality. The provisions of
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Section 8 of the Reorganization Agreement relating to the access to information
and confidentiality shall apply with respect to any information obtained or
learned by either party from the other party in connection with the parties'
performance of their respective obligations hereunder. This Section shall
survive the termination of this Agreement.
Section 8.3 Dispute Resolution. All disputes, controversies or claims
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between Parent and Sub arising out of or relating to this Agreement, including,
without limitation, the breach, interpretation or validity of any term or
condition hereof, shall be resolved in accordance with the provisions of the
Reorganization Agreement relating to dispute resolution.
Section 8.4 Amendment and Waiver. No amendment of any provision of this
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Agreement, including Schedule A and Schedule B attached hereto, shall in any
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event be effective unless the same shall be in writing and signed by the parties
hereto. Any failure of any party to comply with any obligation, agreement or
condition hereunder may only be waived in writing by the other party but such
waiver shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. No failure by any party to take any action against
any breach of this Agreement or default by the other party shall constitute a
waiver of such party's right to enforce any provisions hereof or to take any
such action.
Section 8.5 Notices. Any notice to any party hereto given pursuant to
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this Agreement shall be in writing and shall be given by the means, and to the
addresses, set forth in the "Notices" section of the Reorganization Agreement.
Section 8.6 Successors and Assigns. This Agreement may not be assigned by
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either party without the prior written consent of the other party, and any
attempt to assign any rights or obligations hereunder without such consent shall
be void; provided, however, that either party may assign or transfer this
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Agreement without the consent of the non-assigning party to an entity that
succeeds to all or substantially all of the business, assets or capital stock of
such party. This Agreement shall inure to the benefit of, and be binding upon
and enforceable against the respective successors and assigns of the parties
hereto.
Section 8.7 Entire Agreement; Parties in Interest. This Agreement
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(including the Schedules hereto and the applicable provisions of the
Reorganization Agreement and other Ancillary Agreements) comprises the entire
agreement between the parties hereto as to the subject matter hereof and
supersedes all prior agreements and understandings between them relating thereto
and, except as provided in Section 6.3 above, is not intended to confer upon any
person other than the parties hereto (including their successors and permitted
assigns) any rights or remedies hereunder.
Section 8.8 Severability. If any term or provision of this Agreement or
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the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such terms or provisions to persons or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
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Section 8.9 Captions. Captions and headings are supplied herein for
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convenience only and shall not be deemed a part of this Agreement for any
purpose.
Section 8.10 Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal substantive laws of the Commonwealth
of Massachusetts, without giving effect to the principles of conflicts of laws
thereof.
Section 8.11 Counterparts. This Agreement may be executed in several
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counterparts, and all counterparts so executed shall constitute one agreement,
binding upon the parties hereto, notwithstanding that the parties are not
signatory to the same counterpart.
[Signature page follows next]
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IN WITNESS WHEREOF, Parent and Sub have caused this Agreement to be duly
executed by their authorized representatives as an agreement under seal as of
the day and year first written above.
PARENT:
XXXXXX X. XXXXXX, INC., a
Massachusetts corporation
By:_________________________________
Name:
Title:
SUB:
C-QUENTIAL, INC., a Delaware
corporation
By:_________________________________
Name:
Title:
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SCHEDULE A
PARENT SERVICES
1. Payroll.
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Services to include preparation of payroll checks for Sub employees,
maintenance of Sub employee payroll records, and any other ancillary
payroll functions required.
2. Accounting and Treasury.
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Services to include assisting Sub's accounting department and auditors with
general and specific accounting services, including preparation of
financial and regulatory statements, filings with the Securities and
Exchange Commission, such as Forms 10-K, 10-Q and 8-K, proxy statements and
annual reports to stockholders, internal audit support services, and review
of compliance with financial and accounting procedures. Treasury services
shall include assisting Sub in establishing bank accounts, managing cash
accounts and currency exchange matters.
3. Corporate Records.
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Services to include maintenance of corporate records and minute books,
coordination with stock transfer agent, administration of option plans and
issuances and stock repurchase programs.
4. Tax Preparation.
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Services include assisting Sub in the preparation and filing of all tax
returns, including federal, state and local corporate income taxes, state
franchise taxes, local property taxes, state and local withholding taxes,
value added tax returns, preparing for meetings with tax authorities and
audits, and tax research and planning.
5. Human Resources and Benefits Administration.
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Services include arranging and procuring general liability, property and
casualty and other business insurance coverage, workers' compensation
coverage, assistance with human resources functions, including maintaining
personnel records, compliance with applicable laws and regulations
regarding employees and labor in general, adoption of employee handbook and
procedures for recruiting, hiring, promoting and terminating employees.
6. Training.
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Services to include the provision and coordination of professional training
for Sub's employees and consultants, including internal and external
seminars and educational conferences and retreats, including, without
limitation, training through the engagement of APDI; provided, however, the
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cost of Sub of such APDI services shall equal the cost Parent charges to
the other members of the Parent Group.
7. Risk Management
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Services to include assisting Sub with minimizing exposure to liabilities
and to maintain contacts with insurance brokers and carriers.
8. Legal Services.
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Services to include access to Parent's in-house counsel staff for legal
advice and assistance in general corporate affairs and business
transactions, compliance with regulatory matters (including, without
limitation, matters in respect of federal and state securities laws),
advice and services with respect to intellectual property matters, and
coordinating contact and use of outside counsel.
9. Information and Technology and other Administrative Support.
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Services to include data processing and telecommunications assistance,
secretarial and administrative assistance and support, graphics,
photocopying and general office services.
10. Personal Property and Vehicles.
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Services to include the use of telecommunications equipment, including
voice and data transmission equipment, photocopying equipment, computer
hardware and peripherals and miscellaneous office furniture, including
desks, chairs, filing cabinets and storage units, as well as the use of
motor vehicles.
11. Miscellaneous.
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Such other services as may be reasonably necessary from time to time in the
operation of the Sub Business during the Term.
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SCHEDULE B
SUB SERVICES
A-1
