Exhibit 10.10
FORM OF SERVICES AGREEMENT
This Services Agreement (this "Agreement"), is entered into as of
[__________ __], 1999, (the "Effective Date") by and between
[Founder/CenterPoint Advisors, Inc.], a [___________] corporation ("Company"),
and [Attest L.L.C.], a [________ limited liability company] ("Firm").
RECITALS
A. Firm provides professional accounting services through individual
Certified Public Accountants (each a "CPA" and collectively, the "CPAs") who are
employed or otherwise retained by Firm.
B. Company owns certain assets that can be used to provide professional
accounting services and management, administrative and other support services.
C. Pursuant to the terms and conditions of this Agreement, Firm desires
to obtain the services of Company in performing such business functions so as to
permit Firm to devote its full professional time and attention to the rendering
of professional accounting services.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Company and Firm agree as
follows:
ARTICLE I
Relationship of the Parties
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Section 1.1 Appointment. Firm hereby appoints Company as its agent for the
management and administration of the business functions and business affairs of
Firm, and Company hereby accepts such appointment, subject at all times to the
terms and conditions of this Agreement.
Section 1.2 Independent Contractor. Firm and Company intend for Company to act
and perform as an independent contractor, and the provisions hereof are not
intended to create any partnership, joint venture, agency or employment
relationship between the parties hereto, except as otherwise expressly provided
herein. Company and Firm agree that Firm shall retain the exclusive authority
to direct the professional and ethical aspects of its accounting practice.
Company shall exercise neither control nor direction over the accounting
methods, procedures or decisions of Firm.
Section 1.3 Practice of Accountancy. The parties hereto acknowledge that Company
is not authorized or qualified to engage in any activity which under applicable
laws, regulations or ethics rules may only be performed by licensed certified
public accountants ("Attest Services") and that nothing herein shall be
construed as the provision of Attest Services by Company. To the extent any act
or service required of Company is construed or deemed to constitute the
provision of Attest Services, Company is released from any obligation to
provide, and Firm shall be deemed not to have requested Company to provide, such
act or service without otherwise affecting the other terms of this Agreement.
ARTICLE II
Services to be Provided by Company
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Section 2.1 Scope of Services Provided. Company shall provide or arrange for the
provision of the services set forth in this Article II. Except to the extent
necessary to comply with applicable laws, regulations or professional standards,
Firm will not act in a manner which would prevent Company from performing its
duties hereunder and will provide such information and assistance to Company as
is reasonably required by Company to perform its services hereunder. Company
shall cause its employees to comply with all applicable federal, state and local
laws, rules and regulations in Company's provision of services hereunder.
Section 2.2 General Administrative Services.
(a) Billing and Collection.
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(i) Firm hereby appoints Company for the term of this Agreement to be
its true and lawful attorney-in-fact, and in connection therewith,
grants to Company a power of attorney, coupled with an interest,
for the following purposes :
(A) to xxxx clients in Firm's name and on Firm's behalf, unless
prohibited by law;
(B) to collect, receive and administer accounts receivable
resulting from such billing in Firm's name and on its behalf;
(C) to take possession of and endorse in the name of Firm (and/or
in the name of an individual accountant, such payment
intended for purpose of payment of professional fees related
to Firm) any notes, checks, money orders, insurance payments
and other instruments received in payment of accounts
receivable;
(D) to initiate the institution of legal proceedings in the name
of Firm, to collect any accounts and monies owed to Firm and
to enforce the rights of Firm as creditor under any contract
or in connection with the rendering of any service; and
(E) to sign checks, drafts, bank notes or other instruments on
behalf of Firm.
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(ii) Firm covenants, and shall cause each of its employees, to forward
any payments received for services provided by or on behalf of Firm for deposit
in a separate bank account owned solely by Firm (the "Firm Account"), and to
otherwise apply such funds in a manner consistent with the terms of this
Agreement. Firm and Company agree that Company shall be entitled to (and is
hereby authorized) to transfer funds from the Firm Account in payment of the
Service Fee (as determined pursuant to Article IV hereof). Firm and Company
agree to execute from time to time such documents and instructions as shall be
required by the bank maintaining the Firm Account to effect the foregoing
provisions and to extend or amend such documents and instructions as reasonably
required to effect the intent of this Section 2.2(a)(ii). Any action or
threatened action by Firm that materially interferes with or could materially
interfere with the operation of this Section 2.2(a)(ii), will constitute a
breach of this Agreement and will entitle Company, in addition to any other
remedies it may have at law or in equity, to seek a court ordered assignment of
the rights provided to Company pursuant to subparagraph (i) above and this
subparagraph (ii) and to distribute account debtor letters to clients
instructing them to make payment directly to and in the name of Company for
services rendered by Firm; provided that any amounts received by Company in
excess of the amount owed to Company by the Firm shall be held by Company for
the benefit of Firm.
(iii) All monies shall be accounted for by Company as being distinctly
attributable to Firm. Firm shall execute such documents in form and substance as
approved by Company to permit Company to exercise the rights and powers granted
to Company pursuant to this Section 2.2(a). Firm shall cooperate with, and at
the request of Company shall provide reasonable assistance to, Company with the
functions set forth herein.
(iv) The administration of accounts receivable pursuant to this
Section 2.2(a) shall include, without limitation, the right to: (A) extend the
time of payment of such accounts; (B) discharge or release the obligors of any
such accounts receivables; (C) xxx, assign or sell at a discount such contracts,
subject to customary practice; and (D) take such other measures to procure
payment of any such accounts as Company shall deem reasonable and appropriate.
(b) Accounting. Company shall administer and maintain the operation of a
bookkeeping and accounting system for Firm, including the maintenance, custody
and supervision of business records, ledgers and reports; and the establishment,
administration and implementation of accounting procedures, controls and
systems.
(c) Cash Management. Company shall manage the cash and cash equivalents of
Firm, and Company shall be entitled (and is hereby authorized) to transfer such
cash from the Firm Account and to use such cash for purposes as Company deems
appropriate.
(d) Other Services. Company shall supply to Firm all reasonably necessary
or appropriate services for the reasonably efficient operation of Firm,
including without limitation, clerical, purchasing, payroll, computer,
information management, preparation of tax returns, printing, postage and
duplication services, in each case consistent with the past practice and custom
of the Company. Company shall prepare quarterly unaudited accrual financial
statements for Firm containing a balance sheet and income statement, which shall
be delivered to Firm as soon as practicable, but no later than 45 days after the
end of each fiscal quarter.
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(e) Records and Files.
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(i) Company's Business and Financial Records. At all times during and
after the term of this Agreement, including any extensions or renewals hereof,
all business records, including but not limited to, business agreements, books
of account, personnel records, general administrative records and all
information generated under or contained in the management information system
pertaining to Company's obligations hereunder, and other business information of
Company of any kind or nature shall be and remain the sole property of, and
shall be managed and maintained by, Company. Notwithstanding the foregoing, the
Firm shall maintain all files pertaining to client engagements.
(ii) Access to Records. Except as prohibited by law, at all times
during and after the term of this Agreement, each party and its authorized
agents shall be entitled, upon request and with reasonable advance notice, to
obtain access (within not more than 10 business days following receipt of such
notice by the other party or parties) to all records of the other party directly
related to the performance of such party's obligations pursuant to this
Agreement.
(iii) Compliance with Law. The management and maintenance of all files
and records by Company and Firm shall comply with all applicable federal, state
and local statutes, rules and regulations.
Section 2.3 Facilities.
(a) Premises. Company shall provide such office space and facilities (the
"Premises") as Company and Firm shall jointly and reasonably determine to be
necessary or appropriate for Firm to conduct its business. The Premises shall be
subject to such expansion or reduction as jointly and reasonably reviewed and
approved by Company and Firm.
(b) Personal Property. Company shall provide such equipment, furniture,
fixtures, furnishings and other personal property reasonably necessary or
appropriate for the reasonably efficient operation of Firm for the use of Firm
pursuant to the terms hereof (the "Personal Property").
Section 2.4 Personnel. Company shall provide personnel, including, without
limitation, professional, administrative, clerical, secretarial, bookkeeping and
collection personnel as are reasonably necessary for the conduct of Firm's
operations. All personnel provided under this Section 2.4 shall be employees of
Company or one of its Affiliates, and Company shall determine and cause to be
paid the salaries and benefits of all such personnel.
Section 2.5 Inventory and Supplies. Company shall provide to Firm inventory and
supplies that are reasonably required in connection with the operation of the
Firm.
Section 2.6 No Warranty. Firm acknowledges that Company has not made and will
not make any express or implied warranties or representations that the services
provided by Company will result in any particular amount or level of
professional accounting practice or income to Firm.
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Section 2.7 Financial Planning and Budgeting.
(a) Budgeting. Company shall prepare, subject to the Firm's approval, all
annual capital and operating budgets (each an "Annual Budget" and collectively,
the "Annual Budgets"). For purposes of developing the initial Annual Budget, the
Company and Firm shall take into account the categories of expenses determined
by Company. The Annual Budget for each subsequent year shall reflect Firm's
anticipated staffing requirements for the next fiscal year, as well as other
anticipated expenses of Firm. The Annual Budget for each year shall remain in
full force and effect until the Annual Budget for the subsequent year is duly
adopted by the Firm.
(b) Capital Expenditures. Subject to the terms contained herein, Company
will make funds available for capital expenditures and improvements by Company
on behalf of Firm as follows:
(i) Budgeted Expenditures. All budgeted capital expenditures and
improvement projects shall be subject to final review and approval by the
Company and Firm prior to the making of any actual expenditure. Such review and
approval shall be based on confirming that the assumption, facts and
circumstances on which the decision to budget for such expenditure was based
still support and justify the actual expenditures.
(ii) Non-Budgeted Expenditures. Non-budgeted capital expenditures and
improvement projects shall be jointly and reasonably evaluated and approved by
the Firm and Company prior to the making of any actual non-budgeted expenditure.
ARTICLE III
Obligations of Firm
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Section 3.1 Licensing. Firm shall ensure that each person employed as a CPA has
all required licenses, credentials, approvals or other certifications to perform
his or her duties and services for Firm and, in the event that Firm becomes
aware of any disciplinary actions or malpractice actions initiated against any
such person, Firm shall promptly inform Company of such action and the
underlying facts and circumstances.
Section 3.2 Attest Services. Firm shall use and occupy the Premises exclusively
for the provision of Attest Services. Firm shall provide Attest Services to its
clients in compliance at all times with ethical standards, laws, rules and
regulations applicable to the operations of Firm. From time to time Firm, after
consultation with the Company, will adopt and implement fee schedules for
clients which shall be reasonable in relation to fees generally being charged in
the same or similar market areas.
Section 3.3 Firm's Internal Matters. Except as set forth herein, Firm shall be
responsible for matters involving its governance, employees and similar internal
matters, including, but not limited to, distribution of income among its
members, disposition of Firm's property and ownership interests (subject to any
restrictions contained herein), hiring and firing of its employees, licensing
and implementing all compliance plans and procedures as described in Section
3.4.
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Section 3.4 Compliance with Laws. Firm shall, and shall use its best efforts
to cause the employees of Firm to, comply with all applicable federal, state and
local laws, rules, regulations and restrictions in the conduct of Firm's
business. Firm and Company shall adopt a compliance plan or procedures to
assist Company and Firm in complying with applicable laws, rules and regulations
applicable to their respective duties, and Firm agrees to abide, and to cause
its employees to abide, by any such compliance plan or procedures. Firm shall
not take, and shall use its best efforts to prohibit any of its employees from
undertaking, any action that is not in accord with the regulatory compliance
plans, policies and manuals so developed.
Section 3.5 Firm Employee Benefit Plans. Firm shall not enter into or offer
to any of its or Company's employees any "employee benefit plan" (as defined in
Section 3(3) of ERISA) without the prior written consent of Company.
Section 3.6 Operating Agreements. Firm shall enforce the terms of any
operating agreements to which it is a party and any restrictive covenants of
which it is the beneficiary. Firm shall inform Company of any breach or
violation, or suspected breach or violation, of any such covenants or
restrictions and shall consult with Company in its efforts to enforce such
covenants and restrictions.
Section 3.7 Negative Covenants of Firm. During the term of this Agreement,
Firm shall not take any action or inaction which, in Company's reasonable
discretion, would impair Company's ability to provide services hereunder or
would be inconsistent with the terms, conditions and representations contained
in this Agreement.
ARTICLE IV
Financial and Security Arrangements
-----------------------------------
Section 4.1 Service Fee. In consideration of the services to be provided and
the substantial commitment of capital and other resources and effort to be made
by Company hereunder, Company shall be paid the service fee (the "Service Fee")
in accordance with the terms of attached Fee Schedule.
Section 4.2 Reasonable Value. Firm and Company acknowledge and agree that the
Service Fee has been negotiated at arm's length and represents the reasonable
value of the facilities, equipment and services furnished by Company pursuant to
this Agreement, considering the nature and volume of the services required and
the risks assumed by Company. Payment of the Service Fee is not intended to be
and shall not be interpreted or applied as permitting Company to share in Firm's
fees for accounting services or any other services.
Section 4.3 Annual Reconsideration of Service Fee. Firm and Company recognize
that the arrangements contemplated by this Agreement are unique and that they
have limited bases upon which to establish the Service Fee. They further
recognize that the Service Fee must be adjusted periodically to take into
consideration the expense levels, other demand for and salaries of personnel
provided to Firm and the changes in facilities and equipment made available to
Firm. Firm and Company agree to reconsider the reasonable value of the
facilities, equipment and services furnished
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by Company pursuant to this Agreement on an annual basis in conjunction with the
preparation of the Annual Budget.
ARTICLE V
Term and Termination
--------------------
Section 5.1 Term of Agreement. This Agreement shall commence as of the
Effective Date and shall expire on the 40th anniversary thereof unless earlier
terminated pursuant to the terms of either Section 5.3 or Section 5.4.
Section 5.2 [Reserved].
Section 5.3 Termination by Firm. Firm may, in its sole discretion, terminate
this Agreement by giving written notice thereof to Company (after the giving of
any required notices and the expiration of any applicable waiting periods set
forth below) upon the occurrence of any of the following events:
(a) Company shall admit in writing its inability to generally pay its debts
when due, apply for or consent to the appointment of a receiver, trustee or
liquidator of all or substantially all of its assets, file a petition in
bankruptcy or make an assignment for the benefit of creditors, or upon other
action taken or suffered by Company, voluntarily or involuntarily, under any
federal or state law for the benefit of debtors, except for the filing of a
petition in involuntary bankruptcy against Company which is dismissed within 90
days thereafter.
(b) Company shall engage in gross negligence or fraud in the performance of
any material duty or material obligation imposed upon it by this Agreement (a
"Material Company Default"), and such Material Company Default shall continue
for a period of 90 days after written notice thereof has been given to Company
by Firm; provided, however, that no such Material Company Default shall
constitute a basis for termination by Firm if during the foregoing 90 day period
Company has initiated steps to materially cure such Material Company Default,
but such Material Company Default cannot, based on a reasonable effort by
Company, be materially cured within such period.
(c) Notwithstanding anything to the contrary contained herein, Firm may, in
its sole discretion and at any time, terminate any or all of Company's duties
under (i) Sections 2.2(a), (b), (c), 2.5 and/or 2.7 of this Agreement by
delivering written notice of such intent to terminate no less than one year
prior to the effective date of such termination or (ii) Section 2.3 of this
Agreement by delivering written notice of such intent to terminate no less than
one year prior to the scheduled termination of any lease for such Premises or,
if such Premises are not leased, no less than one year prior to the effective
date of such termination.
Section 5.4 Termination by Company. Company may, in its sole discretion,
terminate this Agreement by giving written notice thereof to Firm (after the
giving of any required notices and the expiration of any applicable waiting
periods set forth below) upon the occurrence of any of the following events:
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(a) Firm shall admit in writing of its inability to generally pay its debts
when due, apply for or consent to the appointment of a receiver, trustee or
liquidator of all or substantially all of its assets, file a petition in
bankruptcy or make an assignment for the benefit of creditors, or upon other
action taken or suffered by Firm, voluntarily or involuntarily, under any
federal or state law for the benefit of debtors, except for the filing of a
petition in involuntary bankruptcy against Firm which is dismissed within 90
days thereafter.
(b) Firm or any of its employees (1) fails to adhere to any compliance
plan, policy, or manual as contemplated in Section 3.4 hereof, (2) engages in
any conduct or is formally accused of conduct for which Firm's ability or
license reasonably would be expected to be subject to revocation or suspension,
whether or not actually revoked or suspended, or (3) is otherwise disciplined by
any licensing, regulatory or professional entity or institution, the result of
any of which event described in subparagraphs (1) through (2) above, in the
absence of termination of the licensed professional who is the subject of such
matter or other action of Firm to monitor and cure such act or conduct by such
employee, does or reasonably would be expected to materially and adversely
affect the Firm.
Section 5.5 Effective Date of Termination. Any termination of this Agreement
shall be effective (the "Termination Date") as follows:
(a) Immediately upon receipt of a termination notice pursuant to Sections
5.3 or 5.4 (a "Termination Notice") and expiration of applicable cure periods;
or
(b) Upon the expiration of this Agreement pursuant to Sections 5.1 or 5.2.
Section 5.6 Effect Upon Termination. Upon the Termination Date, except as
provided below, this Agreement shall terminate and shall be of no further force
and effect and all further obligations of Company and its Affiliates under this
Agreement shall terminate without further liability of its Company or its
Affiliates to Firm, except as follows:
(a) Each party hereto shall provide the other party with reasonable access
to books and records owned by it to permit such requesting party to satisfy
reporting and contractual obligations which may be required of it;
(b) Any amounts due and owing but unpaid to either Company or its
Affiliates or Firm as of the Termination Date shall be paid promptly by the
appropriate party; and
(c) Any and all covenants and obligations of either party hereto which by
their terms or by reasonable implication are to be performed, in whole or in
part, after the termination of this Agreement, shall survive such termination,
including, without limitation, the obligations of the parties pursuant to
Section 2.2(e)(ii) and the applicable provisions of Articles VI and VII.
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ARTICLE VI
Arbitration
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If a claim, controversy, dispute or disagreement arising out of or relating to
this Agreement, cannot be resolved by agreement of the Company and Firm, the
parties agree that any such claim, controversy, dispute or disagreement shall be
settled 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 the terms and provisions of this Article VI
shall not preclude any party hereto from seeking, or a court of competent
jurisdiction from granting, injunctive or other equitable relief for any breach
of any duty, obligation, covenant, representation or warranty, the breach of
which may cause irreparable harm or damage to the party seeking such equitable
relief.
ARTICLE VII
General Provisions
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Section 7.1 Entire Agreement; Assignment. This Agreement (including the
documents and instruments referred to herein) (a) 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 and (b) shall not be assigned by operation of law or otherwise,
except that Company may assign this Agreement or subcontract any or all of its
responsibilities hereunder to any of its Affiliates. Any attempted assignment
in violation of this Agreement shall be null and void ab initio.
Section 7.2 Amendments. This Agreement shall not be modified or amended
except by a written document executed by all parties to this Agreement.
Section 7.3 Waiver of Provisions. Any waiver of any terms and conditions
hereof must be in writing, and signed by the parties hereto. The waiver of any
of the terms and conditions of this Agreement shall not be construed as a waiver
of any other terms and conditions hereof.
Section 7.4 Additional Documents. Each of the parties hereto agrees to
execute any document or documents that may be reasonably requested from time to
time by the other party to implement or complete such party's obligations
pursuant to this Agreement.
Section 7.5 Contract Modifications for Prospective Legal Events. In the event
any state or federal laws or regulations, now existing or enacted or promulgated
after the date hereof, are interpreted by judicial decision, a regulatory agency
or independent legal counsel in such a manner as to indicate that this Agreement
or any provision hereof may be in violation of such laws or regulations, Firm
and Company shall amend this Agreement as necessary to preserve the underlying
economic and financial arrangements between Firm and Company and without
substantial economic detriment to either party. If this Agreement cannot be so
amended, the terms of Sections 5.3(b) and 5.4 shall apply. To the extent any act
or service required of Company in this Agreement should be construed or deemed,
by any governmental authority, agency or court to constitute the provision of
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Attest Services, the performance of said act or service by Company shall be
deemed waived and forever unenforceable and the provisions of this Section 7.5
shall be applicable. Neither party shall claim or assert illegality as a defense
to the enforcement of this Agreement or any provision hereof; instead, any such
purported illegality shall be resolved pursuant to the terms of this Section 7.5
and Section 7.7.
Section 7.6 Parties In Interest; No Third Party Beneficiaries. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and permitted assigns of the parties hereto. Except
as provided in Section 7.1, neither this Agreement nor any other agreement
contemplated hereby shall be deemed to confer upon any Person not a party hereto
or thereto any rights or remedies hereunder or thereunder.
Section 7.7 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid or unenforceable provision, there
shall be added automatically as part of this Agreement a provision as similar in
its terms to such illegal, invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
Section 7.8 Applicable Law. 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.
Section 7.9 No Waiver; Remedies Cumulative. No party hereto shall by any act
(except by written instrument pursuant to Section 7.3), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any default in or breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of any party hereto, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. No remedy set forth in this
Agreement or otherwise conferred upon or reserved to any party shall be
considered exclusive of any other remedy available to any party, but the same
shall be distinct, separate and cumulative and may be exercised from time to
time as often as occasion may arise or as may be deemed expedient.
Section 7.10 Interpretation. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless a contrary intention
appears, (i) the words "1 herein," "1 hereof" and "1 hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision and (ii) reference to any Article or
Section means such Article or Section hereof. No provision of this Agreement
shall be interpreted or construed against any party hereto solely because such
party or its legal representative drafted such provision.
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Section 7.11 Gender and Number. When the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter and the
number of all words shall include the singular and plural.
Section 7.12 Notices. 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: [founding company]
[address]
With a copy to: Xxxxxx Xxxxxx & Xxxxx
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Firm: [Firm]
[address]
With a copy to: [Firm's counsel]
[address]
Section 7.13 Counterparts. 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.
Section 7.14 Definitions. For the purposes of this Agreement, the following
definitions shall apply:
"Affiliate," with respect to any Person, means a Person that, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person. Notwithstanding the foregoing, for
definitional purposes of this Agreement, Firm shall not be deemed an Affiliate
of Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board and Securities and Exchange Commission or their respective
successors, consistently applied and maintained throughout the periods
indicated.
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"Person" means any natural person, corporation, partnership, limited
liability company or other business structure recognized as a separate legal
entity.
* * *
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IN WITNESS WHEREOF, the Firm and Company have executed this Services
Agreement as of the Effective Date.
Firm:
[NEWCO]
By:______________________________________
Title:___________________________________
By:______________________________________
Title:___________________________________
Company:
[FOUNDER/CENTERPOINT ADVISORS, INC.]
By:______________________________________
Title:___________________________________
By:______________________________________
Title:___________________________________
FEE SCHEDULE
(a) The Company shall be entitled to a monthly service fee payable in
arrears upon presentation of an invoice equal to the sum of the following
amounts:
(i) the product of the Firm Ratio times the aggregate expenses of the
Company for such month for general administrative costs, Premises
occupancy, utilities and similar costs and salaries, taxes and benefits
with respect to personnel (other than professional personnel);
(ii) for each professional employee of the Company (other than members
or employees of the Firm) and each employee of an Affiliate of the Company,
the product of such employee's hourly billing rate then in effect times the
number of hours (or fractions thereof) devoted by such employee to the
business and affairs of the Firm during such month; and
(iii) the funds expended by the Company during such month on the
Firm's behalf for capital expenditures and improvements as provided in
Section 2.7(b) and other out-of-pocket expenses directly attributable to
the Firm's business.
(b) "Firm Ratio" for any period is the number that results from dividing
the aggregate number of hours (or fractions thereof) devoted by professional
employees of the Company that are members or employees of the Firm during such
period to the business and affairs of the Firm divided by the aggregate number
of hours (or fractions thereof) devoted by all professional employees of the
Company during such period to the business and affairs of the Firm and the
Company or its Affiliates.
