EXHIBIT 10b
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is effective as of the 15th
day of November, 2001, by and between Firstmark Corp., a Maine corporation
having its principal offices at 0000 Xxx Xxxxxxx, Xxx. 000, Xxxxxx, Xxxxx 00000
(the "Company"), and Westech Capital Corp., a Delaware corporation having its
principal offices at 0000 Xxx Xxxxxxx, Xxx. 000, Xxxxxx, Xxxxx 00000 (the
"Management Consultant").
WHEREAS, the Company has not conducted any significant business
operations since disposing of its principal operating subsidiary on March 5,
1999; and
WHEREAS, the Company is currently operating under an exemption from
registration under the Investment Company Act of 1940 as ordered by the
Securities and Exchange Commission (the "SEC"); and
WHEREAS, the Company is a public entity with accounting, reporting and
record keeping obligations which continue notwithstanding its current
non-operating status; and
WHEREAS, the Company desires to engage the Management Consultant to
provide it with management services upon the terms and conditions hereinafter
set forth and Management Consultant desires and is willing to accept such
engagement upon such terms and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Specific Management Duties.
(a) The Management Consultant shall provide the following:
(i) The Management Consultant will provide an office
with a telephone, fax, computer and software capabilities, and
clerical support (the "Overhead"). The Company will not be
responsible for any payment of rent to the Management
Consultant or for any Overhead.
(ii) The Management Consultant will provide general
accounting services in conformity with good commercial
practice and applicable SEC rules and regulations, as well as
reasonable instructions of the Company.
(iii) The Management Consultant will provide selected
internal reports, as requested by the Company from time to
time, such as a monthly summary of cash and cash equivalent
balances and expenses paid or accrued for such month.
(iv) The Management Consultant will draft and submit
to the Company for review and approval, at least five (5)
business days prior to the due date, the necessary SEC filings
to comply with all applicable rules and regulations.
(v) The Management Consultant will maintain all
corporate records in keeping with good commercial practices or
as instructed by the President of the Company.
(vi) Upon request by the Company, the Management
Consultant will assist the Chief Executive Officer and
President of the Company in locating a suitable candidate for
a business combination or disposition.
Notwithstanding the provisions of Section 3 below, in
the event that the Company requires services which exceed the scope or
extent of the services provided for herein (the "Additional Services"),
and if the Management Consultant agrees to provide such services, the
Company and the Management Consultant will negotiate in good faith an
adjustment to the fee payable hereunder; provided, however, that the
fee payable by the Company for such services will be no less than the
charges for comparable services from a third party and that any such
adjustment shall be effectuated only after approval by the Company's
Board of Directors (inclusive of the positive Board vote of H. Xxxxxxx
Xxxxxx, Xx. and Xxxxxx X. Xxxxx) and entry into a written amendment to
this Agreement executed by the Company and the Management Consultant.
(b) The Management Consultant shall not be responsible for the
following:
(i) The Management Consultant will not make decisions
as they relate to a business combination or disposition.
(ii) The Management Consultant will not make any
recommendations regarding the suitability of business
opportunities to the Company or outside parties.
(iii) The Management Consultant will not participate
in any negotiations between the Company and outside parties
other than in accordance with the terms of this Agreement.
(iv) The Management Consultant will not be obligated
to provide the Company with any financial assistance in the
form of equity contributions, loans or any other means.
(v) The Management Consultant will have no authority
pursuant to this Agreement to commit the Company in any manner
whatsoever, to use the Company's name in any way or to enter
into any contracts on behalf of the Company.
(c) To the extent that any Additional Services are provided to
the Company by a third party, all personnel necessary to provide such
services will remain the employees and responsibility of such third
party. Compensation and expense reimbursements payable to third parties
providing Additional Services to the Company shall be the sole
responsibility of the Company, and the amount of such compensation and
terms of such engagement shall be determined in the sole discretion of
the Company.
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The Management Consultant is not authorized to retain any third party
or to provide Additional Services to the Company.
2. Term. The initial term of this Agreement shall be for a period of
one (1) year, commencing on the date hereof. Thereafter, the term of this
Agreement shall be extended automatically, without any further action by the
Company or the Management Consultant, for successive one-year terms. During the
term of this Agreement, either the Company or the Management Consultant may
terminate this Agreement with or without cause upon three (3) days prior written
notice to the other.
3. Compensation. During the term of this Agreement, the Company shall
pay the Management Consultant a full service fee equal to $5,000 per month for
the initial term of this Agreement, and as mutually agreeable thereafter subject
to the prior approval of the Company's Board of Directors (inclusive of the
positive Board vote of H. Xxxxxxx Xxxxxx, Xx. and Xxxxxx X. Xxxxx) and entry
into a written amendment to this Agreement executed by the Company and the
Management Consultant. Such payment shall be paid on or before the thirtieth
(30th) day of the next succeeding month. The amount of any such monthly payment
shall be prorated in the event this Agreement is not in full force and effect
for the entire month covered by such monthly payment.
4. Independent Contractor. In the performance of its work, duties and
obligations, it is mutually understood and agreed that the Management Consultant
is at all times acting and performing as an independent contractor. The Company
shall neither have nor exercise any control or direction over the methods by
which the Management Consultant or its employees, if any, shall perform their
work and functions. The sole interest and responsibility of the Management
Consultant is to assure that the services covered under this Agreement shall be
performed and rendered in a commercially reasonable manner. Nothing herein
contained shall be construed to limit the Management Consultant from providing
similar services to other entities as long as the provision of such services
does not infringe upon its ability to perform its duties under this Agreement.
5. Reimbursement of Expenses. The Company shall reimburse the
Management Consultant for any reasonable out-of-pocket expenses actually paid by
the Management Consultant provided, however, out-of-pocket expenses shall not
include any expenses related to Overhead.
6. Indemnification. The Company shall indemnify, defend and forever
hold harmless the Management Consultant and its officers, directors, employees,
agents, successors and assigns against and in respect of any and all liability,
loss, claims, cost and expense (including reasonable attorneys' costs of
litigation) that may be incurred by the Management Consultant arising out of, in
connection with, the performance of services by the Management Consultant under
this Agreement except to the extent that such performance involves the gross
negligence or willful misconduct of the Management Consultant. The Management
Consultant shall indemnify, defend and forever hold harmless the Company and its
officers, directors, employees, agents, successors and assigns against and in
respect of any and all liability, loss, claims, cost and expense (including
reasonable attorneys' costs of litigation) that may be incurred
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by the Company arising out of, in connection with, the gross negligence or
willful misconduct of the Management Consultant.
7. Assignments. Neither of the parties may assign or delegate this
Agreement or any rights or obligations hereunder without the prior written
consent of the other party. Any attempted assignment or delegation in violation
of the immediately preceding sentence will be void.
8. Entire Agreement and Amendment. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
hereto have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein. No amendment or
modification of this Agreement shall be valid unless made in writing and signed
by the parties hereto. No term or condition of this Agreement shall be deemed to
have been waived except by written instrument of the party charged with such
waiver.
9. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas (exclusive of conflicts of law
principles).
10. Notices. Any notice to be sent hereunder shall be either hand
delivered or sent by facsimile, Federal Express or registered mail, return
receipt requested, addressed to the appropriate party at:
To the Company: Firstmark Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: H. Xxxxxxx Xxxxxx, Xx.
To the Management Consultant: Westech Capital Corp.
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
11. Survivability. If any of the provisions of this Agreement are
determined to be invalid or unenforceable, such invalidity or unenforceability
will not invalidate or render unenforceable the remainder of this Agreement, but
rather the entire Agreement will be construed as if not containing the
particular invalid or unenforceable provision or provisions, and the rights and
obligations of the parties will be construed and enforced accordingly.
12. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
FIRSTMARK CORP.
By:
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H. Xxxxxxx Xxxxxx, Xx., President
By:
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Xxxxxx X. Xxxxx, Director
WESTECH CAPITAL CORP.
By:
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Xxxx X. Xxxxxx,
By:
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Xxxxxxx X. Xxxxx,
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