Exhibit 10.25
SERVICES AGREEMENT
THIS SERVICES AGREEMENT, dated as of June 21, 2007 (this "Agreement"), by
and between Epic Energy Solutions, LLC, a Delaware limited liability company
(the "Company"), and NanoDynamics, Inc. a Delaware corporation ("Provider").
RECITALS
WHEREAS, the Company desires that Provider provide the Services (as defined
below) and Facilities (as defined below) to the Company, and Provider desires to
provide the Services and Facilities to the Company; and
WHEREAS, the Company and Provider wish to set forth the terms and
conditions of the Services and provide for a fair reimbursement of the costs to
Provider of the Services and Facilities without any profit or markup to the
Company.
AGREEMENT
NOW THEREFORE, in consideration of the premises, the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Provider hereby
agree as follows:
1. Term. The initial term of this Agreement shall commence on the date
hereof and end on June 30, 2008 ("Initial Term") and will be automatically
renewed for successive six month periods ("Renewal Terms" and together with the
Initial Term, the "Term") unless either party elects to terminate this Agreement
effective as of the end of the Initial Term or any Renewal Term. Notice of
termination shall be made no later than thirty (30) days prior to the end of the
Initial Term or ninety (90) days prior to the end of any Renewal Term.
2. Provision of Services and Facilities.
(a) During the Term, Provider agrees to provide to the Company the
services (the "Services"), including but not limited to those set forth on
Exhibit A hereto, and the facilities and office equipment (the "Facilities"),
including but not limited to those set forth on Exhibit B hereto, in a manner
and on such basis as shall be specified in, or otherwise contemplated by, the
Company's then-current annual business plan (including the annual budget) as
adopted by a Super Majority Decision (as defined in the Company's Limited
Liability Company Agreement) and in effect from time to time during the Term
hereof (as same may be amended, the "Annual Plan"). Unless otherwise provided in
the Annual Plan, the Services and the Facilities shall be provided by Provider
on a continuous basis without requiring any specific request or further
authorization from the Company. The Company shall furnish a copy of the Annual
Plan to Provider not less than 30 days prior to the effective date thereof.
(b) The Services and Facilities specified on Exhibits A and B hereto,
respectively, are indicative only and are not intended to be an exhaustive
listing of the nature and
scope of the Services and Facilities to be provided by Provider hereunder, and
the parties agree that Provider shall provide all such Services and Facilities
as shall be reasonably required under (or consistent with) the Annual Plan
(subject to Provider's express agreement to provide any Services and Facilities
not specified on Exhibits A or B hereto, which agreement shall not be
unreasonably withheld), or as the parties may otherwise mutually agree during
the Term.
(c) Nothing in this Agreement shall in any way limit the power or the
obligation of the board of managers of the Company to uphold and discharge its
fiduciary and other responsibilities under the Limited Liability Company Act of
the State of Delaware.
(d) The Services required hereunder shall be performed by Provider
itself or through a third-party contractor selected by Provider, as Provider
shall determine in its sole discretion.
3. Fees; Payments.
The fees to be paid to the Provider by the Company in consideration of its
provision of the Services and Facilities hereunder (the "Fees") shall be based
upon, and derived from, the relevant cost estimates for such Services and
Facilities as reflected in the annual budget contained within the applicable
Annual Plan (the "Annual Budget"). The Fees will be based upon actual Provider's
internal costs (including, without limitation, allocable overhead and
administrative costs), and third-party costs incurred on the Company's behalf,
without any markup or profit. The Fees shall be payable by the Company to the
Provider on a quarterly basis, in advance, on the first business day of each
fiscal quarter of the Company, in an amount equal to one-quarter of the
estimated annual cost for such Services and Facilities quoted in, or derived
from, the applicable Annual Budget. The first Fee payment hereunder shall be due
and payable by the Company on the date hereof, and shall be pro rated for the
actual number of days in the Company's current fiscal quarter.
4. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties hereto and their respective successors and
assigns, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person, including, without limitation, any employee,
stockholder or creditor of the parties hereto, any rights or remedies of any
nature whatsoever under or by reason of this Agreement.
5. Assignment. This Agreement and the rights and obligations of a party
hereunder may be assigned only upon the written consent of the other party to
this Agreement. Any other attempted assignment shall be null and void.
6. Amendments. Any amendment, modification or waiver of any provision of
this Agreement shall only be effective if evidenced by a written instrument
signed by an officer of the Provider and an officer of the Company.
7. Confidentiality. Provider and the Company hereby agree to hold in trust
and maintain confidential all information relating to the other party or any of
their subsidiaries and affiliates that is disclosed by either party to the other
in connection with or during the Term of this Agreement whether orally,
visually, in writing or in any other tangible form and includes,
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but is not limited to, technical, economic and business data, know-how,
drawings, business plans and computer information data bases. Without prejudice
to the rights and remedies of any party to this Agreement, either Provider or
the Company, as the case may be, shall be entitled to equitable relief by way of
an injunction if the other party hereto breaches or threatens to breach any
provision of this Section 7.
8. Independent Contractor. Provider shall not be an agent, partner or
employee of the Company as a result of any provision of this Agreement, but
rather shall be deemed an independent contractor.
9. Governing Law. The parties hereby agree that this Agreement shall be
governed by and construed under and in accordance with the laws of the State of
New York, without regard to conflict of laws.
10. Waiver. Any delay or omission or failure to exercise any right or
remedy provided for herein shall not constitute a waiver of any provision of
this Agreement and shall not limit any party's right thereafter to enforce any
provision or exercise any right.
11. Headings. All Section headings in this Agreement are not to be
considered a part of this Agreement and are for convenience only and shall not
be deemed to control or affect the meaning or construction of any of the
provisions hereof.
12. Notices. Any notice to be given or made hereunder by any party to the
other shall be in writing and hand delivered, mailed or telecopied as follows:
If to the Company, addressed to:
Epic Energy Solutions, LLC
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn.: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Provider, addressed to:
NanoDynamics, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
NANODYNAMICS, INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
EPIC ENERGY SOLUTIONS, LLC
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
Signature Page to Services Agreement
EXHIBIT A
SERVICES
Administrative services including payroll, accounting, banking, human
resources, information technology, facilities management, quality management,
environmental health and safety management, insurance and risk management and
contract administration.
Exhibit A to Services Agreement
EXHIBIT B
FACILITIES
(a) Office and laboratory space, as may be specified in the Annual Plan;
and
(b) Information systems including workstations, computers, cellphones,
laptops, telephone equipment, internet, telecommunication lines, printers, faxes
and copiers.
Exhibit B to Services Agreement
