Interim Services Agreement
Exhibit 10.87
June 21, 2010
Xxxx Xxxxxxx
Chief Executive Officer
Xxxxxxx Networks
0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Dear Xxxx:
SFN Professional Services LLC d/b/a Xxxxx (“Xxxxx,” “we,” “us” or “our”) is pleased that Xxxxxxx Networks (“Company,” “you” or “your”) has selected us to provide you with outsourced interim services. The services (the “Services”) and fees will be more particularly described on the Schedule attached hereto and will be provided by the individual resource (the “Xxxxx Resource”) identified on such Schedule. Schedules for additional or different Xxxxx Resources may be added from time to time upon the mutual written agreement of the parties. In addition, upon the request of the Company and the execution of an additional Schedule to this agreement, Xxxxx will provide search Services to the Company, all as more particularly described on such Schedule.
Engagement. The Xxxxx Resource will be one of Xxxxx’x professionals, and we will be solely responsible for determining the conditions, terms and payment of compensation and benefits for the Xxxxx Resource. You will be solely responsible for providing the Xxxxx Resource day-to-day guidance, supervision, direction, assistance and other information necessary for the successful and timely completion of the Services. Xxxxx will have no oversight, control, or authority over the Xxxxx Resource with respect to the Services. The Company acknowledges that it is solely responsible for the sufficiency of the Services for its purposes. The Company will designate a management-level individual to be responsible for overseeing the Services, and the Xxxxx Resource will report directly to such individual with respect to the provision of the Services. Unless the Xxxxx Resource is acting as an executive officer of the Company and is authorized by the Company to make such decision, the Company will not permit or require the Xxxxx Resource to be the ultimate decision making authority for any material decision relating to your business, including, without limitation, any proposed merger, acquisition, recapitalization, financial strategy or restructuring.
Fees and Expenses. You will pay us the fees set forth on the applicable Schedule. In addition to our standard professional service fees, we will charge an administrative fee equal to 6% of our professional service fees to cover otherwise unbilled items difficult to estimate such as telephone charges, computer use, in-house copying, facsimiles, and other internal services. In addition, you will reimburse Xxxxx directly for all travel and out-of-pocket expenses incurred in connection with this agreement (including any Schedules).
Payment Terms. Payments to Xxxxx should be made upon receipt of invoice by electronic transfer in accordance with the instructions set forth below or such alternative instructions as provided by us from time to time. Any amounts not paid when due may be subject to a periodic service charge equal to the lesser of 1.5% per month and the maximum amount allowed under applicable law, until such amounts are paid in full, including assessed service charges. In lieu of terminating this agreement, we may suspend the provision of any Services if amounts owed are not paid in accordance with the terms of this agreement.
Bank Name and Address: Bank of America, 0000 X Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000
Beneficiary: Xxxxx
Beneficiary Account Number: 3751 80 4507
ABA Transit/Routing Number: 000000000
Please reference Company name in the body of the payment.
Effective Date and Termination. This agreement will be effective as of the earlier of (i) the date Xxxxx begins providing Services to the Company, and (ii) the date of the last signature to this agreement as indicated on the signature page. Either party may terminate this agreement or any Schedule effective immediately upon written notice to the other xxxxx.
Form - Interim Services Agreement (D)
Revised: 04/28/10
Hiring the Xxxxx Resource Outside of a Xxxxx Agreement. If, at any time during the time frame in which a Xxxxx Resource is providing Services to the Company and for a period of 12-months thereafter, other than in connection with this agreement or another Xxxxx agreement, the Company or any of its subsidiaries or affiliates employs such Xxxxx Resource, or engages such Xxxxx Resource as an independent contractor, the Company will pay Xxxxx a placement fee in an amount equal to 30% of the Annualized Compensation (as defined below). “Annualized Compensation” is defined as salary, incentive, signing and other bonuses, equity compensation, and any other compensation that may be earned by the Xxxxx Resource during the first 12 months of service with the Company (or its subsidiary or affiliate) regardless of when or if such compensation is actually paid. The placement fee shall be due upon the commencement of the Xxxxx Resource’s employment or engagement with the Company (or its subsidiary or affiliate).
Warranties and Disclaimers. We disclaim all representations and warranties, whether express, implied or statutory, including, but not limited to any warranties of quality, performance, merchantability, or fitness of use or purpose. Without limiting the foregoing, we make no representation or warranty with respect to the Xxxxx Resource or the Services provided hereunder, and we will not be responsible for any action taken by you in following or declining to follow any of the Xxxxx Resource’s advice or recommendations. The Services provided by Xxxxx and the Xxxxx Resource hereunder are for the sole benefit of the Company and not any unnamed third parties. The Services will not constitute an audit, review, opinion, or compilation, or any other type of financial statement reporting or attestation engagement that is subject to the rules of the AICPA or other similar state or national professional bodies or laws and will not result in an opinion or any form of assurance on internal controls.
Limitation of Liability; Indemnity.
(a) Xxxxx’x liability in any and all categories and for any and all causes arising under this agreement, whether based in contract, tort, negligence, strict liability or otherwise, will, in the aggregate, not exceed the actual fees paid by you to us over the previous two months’ of the agreement with respect to the Xxxxx Resource from whom the liability arises. In no event will we be liable for incidental, consequential, punitive, indirect or special damages, including, without limitation, interruption or loss of business, profit or goodwill. As a condition for recovery of any liability, you must assert any claim against us within three months after discovery or 60 days after the termination or expiration of the applicable Schedule under which the liability arises, whichever is earlier.
(b) You agree to indemnify us and the Xxxxx Resource to the full extent permitted by law for any losses, costs, damages, and expenses (including reasonable attorneys’ fees), as they are incurred, in connection with any cause of action, suit, or other proceeding arising in connection with the Xxxxx Resource’s services to you.
Insurance. To the extent the Company has directors’ and officers’ liability insurance in effect, the Company will provide such insurance coverage for any Xxxxx Resource serving as an officer or executive of the Company under this agreement at no additional cost to the Xxxxx Resource, along with written evidence to Xxxxx or the Xxxxx Resource that the Xxxxx Resource is covered by such insurance. Furthermore, the Company will maintain such insurance coverage with respect to occurrences arising during the term of this agreement for at least three years following the termination or expiration of the applicable Schedule or will purchase a directors’ and officers’ extended reporting period or “tail” policy to cover the Xxxxx Resource for such three year period.
Change in Company Circumstances. In the event that the Company’s financial condition or liquidity significantly deteriorates or the Company enters into discussions with restructuring or bankruptcy advisors, Xxxxx and the Company will review the current fee structure and payment terms under this agreement (including any Schedule) and agree on appropriate modifications. In addition, Xxxxx and the Company will discuss the need for additional Xxxxx resources with specialized skills in working with companies undergoing significant debt and equity restructuring, and as needed, Xxxxx resources with experience helping companies seeking or operating under bankruptcy protection. The agreed upon additional resources will be engaged under terms and fees commensurate to the expertise and services to be provided. In the event that Xxxxx and the Company cannot agree on appropriate modifications to this agreement (including any Schedule) or the need for additional Xxxxx resources, Xxxxx, or the Company may immediately terminate this agreement or any Schedule upon notice to the Company.
Governing Law. Arbitration and Witness Fees.
(a) This agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of laws provisions.
Form - Interim Services Agreement (D)
Revised: 04/28/10
(b) If the parties are unable to resolve any dispute arising out of or in connection with this agreement, the parties agree and stipulate that any such disputes will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in the Dallas, Texas office of the AAA by a single arbitrator selected by the parties according to the rules of the AAA, and the decision of the arbitrator will be final and binding on both parties. In the event that the parties fail to agree on the selection of the arbitrator within 30 days after either party’s request for arbitration under this Section, the arbitrator will be chosen by the AAA. The arbitrator may in his or her discretion order documentary discovery but will not allow depositions without a showing of compelling need. The arbitrator will render his or her decision within 90 days after the call for arbitration. Judgment on the award of the arbitrator may be entered in and enforced by any court of competent jurisdiction. The arbitrator will have no authority to award damages in excess or in contravention of this agreement and may not amend or disregard any provision of this agreement, including this section. Notwithstanding the foregoing, either party may seek appropriate injunctive relief from any court of competent jurisdiction, and Xxxxx may pursue payment of any unpaid amounts due under this agreement through any court of competent jurisdiction.
(c) In the event any professional of Xxxxx (including, without limitation, any Xxxxx Resource) is requested or authorized by you or is required by government regulation, subpoena, or other legal process to produce documents or appear as witnesses in connection with any action, suit or other proceeding initiated by a third party against you or by you against a third party, you will, so long as Xxxxx is not a party to the proceeding in which the information is sought, reimburse Xxxxx for its professional’s time (based on customary rates) and expenses, as well as the fees and expenses of its counsel, incurred in responding to such requests. This provision is in addition to and not in lieu of any indemnification obligations the Company may have under this agreement.
Miscellaneous.
(a) This agreement together with all Schedules constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes any and all agreements, whether oral or written, between the parties with respect to its subject matter. No amendment or modification to this agreement will be valid unless in writing and signed by both parties.
(b) If any portion of this agreement is found to be invalid or unenforceable, such provision will be deemed severable from the remainder of this agreement and will not cause the invalidity or unenforceability of the remainder of this agreement, except to the extent that the severed provision deprives either party of a substantial portion of its bargain.
(c) Neither party will be deemed to have waived any rights or remedies accruing under this agreement unless such waiver is in writing and signed by the party electing to waive the right or remedy. The waiver by any party of a breach or violation of any provision of this agreement will not operate or be construed as a waiver of any subsequent breach of such provision or any other provision of this agreement.
(d) Neither party will be liable for any delay or failure to perform under this agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such party’s reasonable control.
(e) You may not assign your rights or obligations under this agreement without the express written consent of Xxxxx. Nothing in this agreement will confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns and the Xxxxx Resources.
(f) The expiration or termination of this agreement or any Schedule will not destroy or diminish the binding force and effect of any of the provisions of this agreement or any Schedule that expressly, or by reasonable implication, come into or continue in effect on or after such expiration or termination, including, without limitation, provisions relating to payment of fees and expenses (including witness fees and expenses and liquidated damage fees), governing law, arbitration, limitation of liability and indemnity.
(g) You agree to reimburse Xxxxx for all costs and expenses (including, without limitation, reasonable attorneys’ fees, court costs and arbitration fees) incurred by Xxxxx in enforcing collection of any monies due under this agreement.
(h) You agree to allow us to use the Company’s logo and name on Xxxxx’x website and other marketing materials for the sole purpose of identifying the Company as a client of Xxxxx. Xxxxx will not use the Company’s logo or name in any press release or general circulation advertisement without the Company’s prior written consent.
Form - Interim Services Agreement (D)
Revised: 04/28/10
We appreciate the opportunity to serve you and believe this agreement accurately reflects our mutual understanding of the terms upon which the Services will be provided. We would be pleased to discuss this agreement with you at your convenience. If the foregoing is in accordance with your understanding, please sign a copy of this agreement and return it to my attention.
Sincerely,
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SFN Professional Services LLC d/b/a Xxxxx |
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/s/ Xxxx Xxxxxxxxx |
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Xxxx Xxxxxxxxx |
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Managing Director |
Accepted and agreed:
Xxxxxxx Networks
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By: |
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/s/ Xxxxx Xxxx |
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Name: |
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Xxxxx Xxxx |
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Title: |
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VP of HR |
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Date: |
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June 23, 2010 |
Form - Interim Services Agreement (D)
Revised: 04/28/10
Schedule A to Interim Services Agreement
This Schedule is entered into in connection with that certain Interim Services Agreement, dated June 21, 2008 (the “Agreement”), by and between SFN Professional Services LLC d/b/a Xxxxx (“Xxxxx,” “we,” “us” or “our”) and Xxxxxxx Networks (“Company,” “you” or “your”) and will be governed by the terms and conditions of the Agreement.
Xxxxx Resource Name: Xxxxx Xxxxxx
Service Description or Position: Interim CFO providing transitional CFO services to assist Company with closing the 2009 financial statements, finalizing the 2009 external audit, and preparing 2010 year-to date financial statements. Additionally, the Xxxxx Resource will assist Company in working with external parties including the Company’s lenders with an interest in the Company throughout the process. The resource will also assist with transitioning the CFO role once a permanent CFO is hired by the Company.
Company Supervisor: Xxxx Xxxxxxx, Chief Executive Officer and/or Company Board of Directors
Start Date: June 22, 2010
Replacement: If you are dissatisfied with the Services provided by the Xxxxx Resource, we will immediately remove the Xxxxx Resource and endeavor to furnish a replacement as soon as reasonably practical. We do not guarantee that we will be able to find a suitable replacement. If you notify us of your dissatisfaction with the Services provided by the Xxxxx Resource prior to the conclusion of the Xxxxx Resource’s third day of work, we will not charge you for the first 16 hours worked by the Xxxxx Resource.
Fees: You will pay to Xxxxx a fee of $235 per hour for the Xxxxx Resource. The fees set forth in this Schedule will automatically increase on an annual basis commencing with the first anniversary of this Schedule in an amount equal to 6% per year.
Xxxxxxxx: Xxxxx will xxxx for Services on a bi-weekly basis.
In addition, you will reimburse Xxxxx directly for all travel and out-of-pocket expenses incurred by Xxxxx or the Xxxxx Resources in performing the Services.
In the event of a conflict between the terms and conditions of this Schedule and the Agreement, the terms and conditions of the Agreement will control.
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SFN Professional Services LLC d/b/a Xxxxx |
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Xxxxxxx Networks |
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By: |
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/s/ Xxxx Xxxxxxxxx |
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By: |
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/s/ Xxxxx Xxxx |
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Name: |
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Xxxx Xxxxxxxxx |
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Name: |
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Xxxxx Xxxx |
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Title: |
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Managing Director |
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Title: |
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VP of HR |
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Date: |
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June 4, 2010 |
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Date: |
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June 23, 2010 |
Form - Interim Services Agreement (D)
Revised: 04/28/10
