Exhibit 10.1
CORPORATE SERVICES AGREEMENT
THIS CORPORATE SERVICES AGREEMENT (hereinafter, this "Agreement") is made
and entered into as of the 2nd day of September, 2003, effective as of April 15,
2003, by and between EQUITY GROUP INVESTMENTS, L.L.C., a Delaware limited
liability company (hereinafter, "EGI") and XXXXXXXXX HOLDING CORPORATION, a
Delaware corporation (hereinafter, "DHC"). EGI and DHC are sometimes referred to
herein individually as a "Party" and collectively as the "Parties".
RECITALS
WHEREAS, DHC and its affiliated companies have a need for certain
Corporate Services (as defined below), for which DHC does not currently have the
staffing, facilities or other means to provide for itself;
WHEREAS, EGI has the staffing, facilities and other means to provide the
Corporate Services to and on behalf of DHC;
WHEREAS, DHC intends to designate EGI as the provider of Corporate
Services for DHC, and EGI intends to accept such designation and perform the
Corporate Services for DHC, pursuant to the terms and on the conditions set
forth herein;
WHEREAS, it is contemplated that EGI will make use of third-party service
providers from time to time in the performance of certain DHC administrative
services in a manner consistent with current practice; and
WHEREAS, EGI commenced provision of the Corporate Services set forth in
Section 1 hereof as of April 15, 2003 and has not been compensated for such
Corporate Services pending execution of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Parties agree as follows:
1. Corporate Services. EGI shall provide, or cause to be provided, the
following administrative services, each substantially to the extent heretofore
enjoyed by DHC as applicable (collectively the "Corporate Services"):
(a) Providing assistance in matters of shareholder relations, including,
without limitation, maintaining communications with DHC's stock
transfer agent, responding to shareholder and market inquiries and
requests for information and materials, and maintaining shareholder
records relating to stock options;
(b) Coordinating with professional advisors in connection with DHC's
business, including, without limitation, accountants, attorneys,
brokers and banks;
(c) Coordinating the acquisition and maintenance of appropriate
insurance for DHC;
(d) Maintaining the financial accounts of DHC, including, but not
limited to, settling accounts payable with vendors and other
creditors of DHC;
(e) Maintenance and administration of the payroll of DHC;
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(f) Maintaining appropriate financial, tax, accounting and general
business records of DHC, assisting with the preparation and
submission of filings required by the Securities Exchange Commission
and the American Stock Exchange (and any other applicable regulatory
body);
(g) Providing support with regard to the information and technology
needs of DHC in the ordinary course of its business;
(h) Providing cash management and treasury functions; and
(i) Such other functions as may be requested by DHC, from time to time,
and agreed to by EGI.
2. Term.
(a) The term of this Agreement shall be deemed to have commenced at
midnight on April 15, 2003 and shall continue until such time as either: (x) DHC
shall give to EGI at least thirty (30) calendar days advance written notice of
its intention to terminate this Agreement, in which event this Agreement shall
terminate on the date specified in such notice; or (y) EGI shall give to DHC at
least thirty (30) calendar days advance written notice of its intention to
terminate this Agreement, in which event this Agreement shall terminate on the
date specified in such notice; or (z) termination pursuant to Section 7 hereof.
(b) Termination of Obligations. In the event of the termination of this
Agreement, neither Party shall have any further rights, obligations or
liabilities under this Agreement except (x) those which are accrued through the
effective date of such termination, and (y) reasonable costs and expenses,
including, without limitation, severance and early termination costs, incurred
by EGI upon a termination of this Agreement in connection with (i) the
redeployment of personnel hired by EGI to perform Corporate Services hereunder;
or (ii) the termination of third-party agreements entered into by EGI relating
to the provision by EGI or such third parties of Corporate Services hereunder
(it being acknowledged that, when practicable, the Parties shall endeavor to
have any such agreements entered into by DHC, rather than EGI).
3. Independent Contractor. EGI shall serve as an independent contractor
and DHC shall have no control over the selection, retention, terms of employment
or discharge of EGI's employees, representatives, or subcontractors, and no
control over the specific manner in which the Corporate Services shall be
performed.
4. Corporate Services Fee. In exchange for performing the Corporate
Services for DHC, DHC shall pay to EGI a monthly fee of $20,000 for each
calendar month during the term of this Agreement (prorated, if appropriate, for
the first and last calendar months of the term of this Agreement) (the
"Corporate Services Fee"). Following execution of this Agreement, the Corporate
Services Fee shall be paid to EGI monthly in advance on or before the first (1st
) day of each calendar month.
5. DHC Expenses. In addition to the Corporate Services Fee, DHC shall
bear (and, if and to the extent initially paid by EGI, shall promptly reimburse
EGI for) the actual cost of the following out-of-pocket expenditures:
(a) All audit, legal, appraisal, engineering, environmental and other
professional and/or consulting services provided by third parties
not employed by EGI as directed by DHC or as reasonably necessary
for EGI's performance of its obligations under this Agreement to the
extent such services are not performed by EGI or its employees;
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(b) Phone and fax charges, postage, and supplies;
(c) Expenses of meetings and travel of directors and officers of DHC;
(d) Temporary employees or independent contractors engaged to assist on
DHC matters; and
(e) All such other out-of-pocket expenditures directly related to DHC's
activities and reasonably determined to be appropriate and advisable
by any officer of DHC.
6. Indemnification. EGI shall provide DHC the benefit of the same
standard of judgment and effort in rendering the Corporate Services hereunder as
EGI applies to its own corporate functions and operations. However, EGI and its
officers, directors, member, affiliates, agents and employees shall not be
liable to DHC or to any other person for any act or omission in the course of
performance of their duties hereunder except for their gross negligence or
willful misconduct. DHC shall defend, indemnify and save harmless EGI and its
officers, directors, members, affiliates, agents and employees from and against
any and all liabilities, claims, damages, costs and expenses (including
reasonable attorney's fees and amounts reasonably paid in settlement) incurred
by reason of or arising out of the performance or nonperformance of its duties
under or by reason of this Agreement; provided, however, there shall be no such
indemnification for liabilities, claims, damages, costs or expenses incurred by
any such person or entity by reason of their gross negligence or willful
misconduct in the conduct of their duties under or by reason of this Agreement.
7. Default. In the event of a material default (hereinafter a
"Default") by either Party to this Agreement, the Party suffering from such
Default (hereinafter the "Non-Defaulting Party") shall serve written notice to
the Party in Default (hereinafter the "Defaulting Party") setting forth with
reasonable particularity the nature of the alleged Default, and the specific
remedy or performance sought by the Non-Defaulting Party (hereinafter the
"Default Notice") of the Defaulting Party to cure the Default. The Defaulting
Party shall have five (5) days from its receipt of the Default Notice to either
cure the Default or, if the Default is not capable of being cured within five
(5) days, to make substantial efforts and progress towards curing the Default.
In the event that the Defaulting Party does not cure the Default or make
substantial efforts and progress towards curing the Default within five (5) days
of its receipt of the Default Notice, then the Non-Defaulting Party may deliver
a second notice (hereinafter the "Notice of Termination") to the Defaulting
Party informing the Defaulting Party that this Agreement has been terminated as
of the Date of the Notice of Termination.
8. Notice. Whenever, under the terms of this Agreement, any notice is
required or permitted to be served upon the other Party, said notice may be
served upon the other Party by personal service, overnight carrier, or by
certified mail. Any such notice shall be deemed given when personally received
by the Party to whom the notice is directed; provided, however, in the event
notice is mailed, such notice shall be deemed given when deposited in the United
States Mail with postage prepaid. Notices shall be in writing and, until further
notification in writing, shall be delivered to the following addresses:
To EGI:
Equity Group Investments, L.L.C.
Xxxxxx X. Xxxxxxxxxxx, President
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
with a required copy to:
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Equity Group Investments, L.L.C.
Xxxxxx X. Xxxxxxxx, Esq., Vice President and General Counsel
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
To DHC:
Xxxxxxxxx Holding Corporation
Xxxxxx X. Xxxxxxx, CFO
c/o Equity Group Investments, LLC
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
with a required copy to:
Xxxxxxxxx Holding Corporation
Xxxxx X. Xxxxx, Esq., Acting General Counsel
Xxxx, Xxxxxx & Xxxxxxxxx LLP
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
9. Assignment. The Parties to this Agreement may not assign or
otherwise transfer all or any part of their rights or obligations under this
Agreement without the prior written consent of the other Party; provided that
EGI may subcontract to affiliated and unaffiliated entities, firms and
organizations for those services EGI reasonably deems necessary or advisable to
accomplish the Corporate Services specified above (and such subcontracting shall
not reduce the Corporate Services Fee); provided, however, any agreement with
any entity performing services for an additional fee shall be approved in
advance by DHC, such approval not to be unreasonably withheld.
10. Governing Law. This Agreement shall be governed and construed in
accordance with (including Section 735 ILCS 105/5-1 et seq., but otherwise
without regard to the conflicts of laws provisions of) the laws of the State of
Illinois.
11. Validity. This Agreement sets forth the entire understanding of the
Parties and has been duly executed and delivered on behalf of each of the
Parties and constitutes the legal, valid, binding and enforceable obligation of
each such Party.
12. Headings. The paragraph headings contained herein are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Agreement or in any way affect the terms
and provisions hereof.
13. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and all of which together shall constitute
one and the same Agreement.
14. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings in
connection therewith. There are no agreements, understandings, conditions,
warranties, or representations, oral or written, express or implied, with
reference to the subject matter hereof that are not merged herein or superseded
by this Agreement. This Agreement may not be changed orally, but only by an
agreement in writing signed by duly authorized officers of each of the Parties.
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IN WITNESS WHEREOF, each of the Parties hereto, intending to be
legally bound hereby, have caused this Agreement to be executed by their duly
authorized officers, on the day and year first above written, after a due
reading of the whole.
EQUITY GROUP INVESTMENTS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Its: President
XXXXXXXXX HOLDING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Its: Chief Financial Officer
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