Executive Services Agreement
Exhibit 10.1
July 16, 2023
Xxxx Xxxxxxx Executive Chair
Dear Xxxx:
SeatonHill Partners, LP (“SeatonHill,” “we,” or “us”) is pleased that WM Technology, Inc. (along with its affiliated entities, the “Company,” “you” or “your”) desires to engage SeatonHill to provide chief financial officer (“CFO”) services. This letter along with the terms and conditions attached as Exhibit A and B (collectively, the “Agreement”) confirms our mutual understanding of the terms and conditions upon which SeatonHill will make available to you the services of Xxxx Xxxxx (the "CFO Partner") with the support of at least one additional advisory partner with relevant industry experience and the intellectual capital and support of SeatonHill for use in connection with our relationship with you.
Effective as of July 17, 2023 (the “Effective Date”), the CFO Partner will work on your behalf performing as the Company’s CFO. The CFO Partner will take direction from and report directly to the Company’s Executive Chair. The scope of work will be consistent with the attached Exhibit B.
Compensation
The compensation due to SeatonHill is as follows:
You will pay directly to SeatonHill the fees as noted in Exhibit B. (“Fees”) with payments to SeatonHill made in accordance with the instructions set forth in Exhibit A. In addition to our standard professional service fees as described in Exhibit B, we will charge a 3% administrative fee, which covers ancillary administrative costs such as technology, communication, and supplies; however, it does not include the CFO Partner’s out-of-pocket expenses related to the performance of the services. Absent any specified expense reimbursement provisions in Exhibit B, the Company will reimburse the CFO Partner for pre- approved travel and other out-of-pocket expenses incurred by the CFO Partner to the same extent that the Company reimburses other senior managers for such expenses.
We appreciate the opportunity to serve you and believe this Agreement accurately reflects our mutual understanding. 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,
SeatonHill Partners, XX
X. Xxxxxxx Xxxxxx
Chief Operating Officer
2023-07-16 | 15:03:04 CDT
Exhibit A Terms and Conditions
1.Relationship of the Parties. The parties agree that XxxxxxXxxx and the CFO Partner will be serving the Company as an independent contractor for all purposes and not as an employee, agent, partner of, or joint venturer with the Company.
2.Payment Terms. SeatonHill will invoice the Company according to the terms in Exhibit B. Payments to SeatonHill should be made according to the payments instructions provided on each invoice. 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.
3.Termination.
(a)Either party may terminate this Agreement by providing the other party a minimum of 30 days advance written notice. SeatonHill will continue to provide, and the Company will continue to pay for, the services until the termination effective date.
(b)SeatonHill may terminate this Agreement immediately upon written notice to the Company if: (i) the Company is engaged in or asks SeatonHill or the CFO Partner to engage in or ignore any illegal or unethical activity; or (ii) the Company fails to pay any amounts due to SeatonHill when due. If (i) the CFO Partner ceases to be a member of SeatonHill for any reason; or (ii) the CFO Partner dies or becomes disabled, the Company will have the option of immediately terminating this Agreement or replacing the CFO Partner with another SeatonHill member.
(c)The expiration or termination of this Agreement will not destroy or diminish the binding force and effect of any of the provisions of this Agreement 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), hiring the CFO Partner, governing law, arbitration, limitation of liability, and indemnity.
4.Hiring the CFO Partner Outside of a SeatonHill Agreement. During the term of this Agreement and for the 12-month period following the termination or expiration of this Agreement, other than in connection with this Agreement or another SeatonHill agreement, the Company will not employ the CFO Partner or engage the CFO Partner as an independent contractor. The parties recognize and agree that a breach by the Company of this provision would result in the loss to SeatonHill of the CFO Partner’s valuable expertise and revenue potential and that such injury will be
impossible or very difficult to ascertain. Therefore, in the event this provision is breached, SeatonHill will be entitled to receive as liquidated damages an amount equal to 45% of the Annualized Compensation (as defined below), which amount the parties agree is reasonably proportionate to the probable loss to SeatonHill and is not intended as a penalty. The amount will be due and payable to SeatonHill upon written demand to the Company. If a court or arbitrator determines that liquidated damages are not appropriate for such breach, SeatonHill will have the right to seek actual damages and/or injunctive relief. “Annualized Compensation” means the equivalent of the CFO Partner’s salary with the Company calculated on a full-time annual basis plus the maximum amount of any bonus for which the CFO Partner was eligible with respect to the then-current bonus year.
5.Compensation paid directly to CFO Partner. With respect to any Bonus (as defined below) otherwise to be paid, granted or provided directly to the CFO Partner, you agree to pay, grant, or provide 20% of such Bonus directly to SeatonHill, in lieu of the CFO Partner. For purposes hereof, “Bonus” means any bonus paid, granted or provided by the Company to the CFO Partner in equity, cash or other consideration, in each case, in connection with services rendered by the CFO Partner to the Company.
6.Limitation of Liability; Indemnity.
(a)The liability of SeatonHill in any and all categories and for any and all causes arising out of this Agreement, whether based in contract, tort, negligence, strict liability or otherwise will, in the aggregate, not exceed the actual Fees paid by the Company to SeatonHill over the previous two months of the Agreement. In no event will SeatonHill be liable for incidental, consequential, punitive, indirect or special damages, including, without limitation, any interruption or loss of business, profit or goodwill. As a condition for recovery of any liability, the Company must assert any claim against SeatonHill within three months after discovery or 60 days after the termination or expiration of this Agreement, whichever is earlier.
(b)The Company agrees to indemnify SeatonHill and the CFO Partner 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 CFO Partner’s services to the Company. The CFO Partner will receive the benefit of the most favorable indemnification provisions provided by the Company to its directors, officers and equivalently placed employees and is required to be included under the
Company’s policy for liability insurance covering the Company’s directors, officers and any equivalently placed employees. Neither SeatonHill nor CFO Partner shall be entitled to indemnification, to the extent a claim directly arises from their own negligence or willful misconduct (as determined by a final, binding and non-appealable judgment of a court of competent jurisdiction).
7.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.
(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. 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 SeatonHill may pursue payment
of undisputed amounts through any court of competent jurisdiction.
(c)In the event any member or employee of SeatonHill (including, without limitation, the CFO Partner to the extent not otherwise entitled in his or her capacity as an employee of the Company) is requested or authorized by the Company 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 the Company or by the Company against a third party, the Company will, so long as SeatonHill is not a party to the proceeding in which the information is sought, reimburse SeatonHill for its member’s or employee’s professional time (based on customary rates) and expenses, as well as the fees and expenses of its counsel (including the allocable cost of in- house counsel), incurred in responding to such requests.
8.Miscellaneous.
(a)The Company agrees to reimburse SeatonHill for all costs and expenses incurred by SeatonHill in enforcing collection of any monies due under this Agreement, including, without limitation, reasonable attorneys’ fees.
(b)The Company agrees to allow XxxxxxXxxx to use the Company’s logo and name on SeatonHill’s website and other marketing materials for the sole purpose of identifying the Company as a client of SeatonHill. SeatonHill will not use the Company’s logo or name in any press release or general circulation advertisement without the Company’s prior written consent.
Exhibit B
Scope of Work and Compensation
Immediate need:
i.CFO services to maintain the Company’s CFO function and assume oversight of and responsibility for the Company’s corporate-level finance activities:
1.Financial planning & analysis
2.Corporate finance
3.Treasury & risk management
4.Accounting/controllership
5.Tax
ii.Initially and on an on-going basis, assess the Company’s accounting, reporting, planning and control processes and determine the need, if any, for additional resources to appropriately staff those functions.
iii.Implement a comprehensive financial planning and forecasting process including dynamic modeling to accurately forecast operating results and cash flow
iv.Provide general corporate finance leadership/analysis/advice/guidance to the CEO for all aspects of corporate-level strategic decisions
v.Act as principal financial officer and principal accounting officer of the Company
CFO resources:
vi.CFO Partner to serve as CFO on a 24/7 retained basis
Compensation1:
vii.Retainer Fees for services of $60,000 per month1
viii.Reimbursement of travel and other approved expenses
ix.Retainer Fees will be billed in advance on the 1st day of each month (with a prorated amount to be billed on the Effective Date)
x.At the Company’s discretion, engagement can be converted to a daily rate of $3,0001 per day which would be billed semi-monthly in arrears on the 15th and last days of each month
xi.Invoices are due upon receipt and payments will be made via ACH or other form of electronic payment
1In addition to our standard professional service fees described above, we will charge a 3% administrative fee, which covers ancillary administrative costs such as technology, communication, and supplies; however, it does not include the CFO Partner’s out-of-pocket expenses related to the performance of the services.
