EXHIBIT 10.10
FORM OF
ADMINISTRATIVE SERVICES
AGREEMENT TO BE ENTERED
INTO BY AND BETWEEN
REGISTRANT AND TDA
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT, dated as of ___________, 1996, by and
between Eagle Supply Group, Inc., a Delaware corporation (the "Corporation"),
and TDA Industries, Inc., a New York corporation ("TDA").
W I T N E S S E T H:
WHEREAS, the Corporation, simultaneously herewith, is consummating both a
public offering of its securities and the acquisition of all of the outstanding
capital stock of Eagle Supply, Inc., a Florida corporation, from TDA; and
WHEREAS, the Corporation desires to engage TDA to provide and perform
certain office space and administrative services for the Corporation under the
terms and subject to the conditions hereinafter set forth, and TDA desires to be
so engaged.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Engagement and Duties. (a) The Corporation hereby engages TDA to
continue to provide to the Corporation office space, secretarial services and
other administrative services at TDA's New York City offices, in substantially
the type and amount that the Corporation has utilized in the several months
prior to the date hereof.
(b) Neither TDA nor any employee or agent thereof shall be required to
devote any minimum amount of time to the performance of its duties hereunder, or
report on or perform its duties hereunder on a fixed or periodic basis, and TDA
and any employee or agent thereof may engage or participate in such other
activities incidental to any other employment, occupation or business venture or
enterprise which do not materially interfere with its ability to perform its
duties hereunder.
(c) TDA hereby accepts such engagement and agrees that throughout the
period of its engagement it shall faithfully and diligently, in furtherance of
the business of the Corporation, perform the duties incidental to its engagement
hereunder.
2. Term. The engagement of TDA hereunder shall commence on the date hereof
and continue on a month to month basis unless terminated by either party upon
not less than five days written notice to the other party. This Agreement shall
terminate on the first day of the month following the giving of timely notice of
termination.
3. Administrative Fee. In consideration for TDA's services hereunder, the
Corporation shall pay to TDA a monthly fee of $3,000 during the term of this
Agreement.
4. Expenses. TDA shall pay all of its ordinary day-to-day out-of-pocket
expenses incurred in providing services to the Corporation. TDA shall be
reimbursed by the Corporation for all other reasonable expenses incurred by TDA
in the performance of its duties hereunder.
5. Exculpation; Indemnification. (a) Neither TDA nor any of its respective
affiliates, nor any of their respective officers, directors, partners, employees
or agents, shall be liable, in damages or otherwise, to the Corporation for any
act or omission performed or omitted by any such person pursuant to authority
granted by this Agreement, except if such act or omission results from gross
negligence, willful misconduct or bad faith, or a knowing and material violation
of the provisions of this Agreement. TDA shall be entitled to rely in good faith
on the advice of counsel to the Corporation, the Corporation's accountants or
other independent experts retained by the Corporation experienced in the matter
at issue, and any act or omission of TDA in reasonable reliance on such advice
shall in no event subject TDA to liability to the Corporation.
(b) The Corporation, to the fullest extent permitted by law, shall
indemnify and hold harmless TDA, its affiliates, and their respective officers,
directors, partners, employees and agents (collectively, the "Indemnified
Persons") from and against any and all claims or liabilities of any nature
whatsoever, including legal fees and other expenses reasonably incurred, arising
out of or in connection with any action taken or omitted by any such Indemnified
Person by or on behalf of the Corporation pursuant to authority granted by this
Agreement, except where found by a court of competent jurisdiction to be
attributable to the gross negligence, willful misconduct or bad faith of any
such person, or a knowing and material violation by such person of the
provisions of this Agreement.
(c) Any Indemnified Person entitled to indemnification from the
Corporation hereunder shall seek recovery under any insurance policies by which
such person is covered and shall obtain the written consent of the Board of
Directors of the Corporation prior to entering into any compromise or settlement
which would result in an obligation of the Corporation to indemnify such
Indemnified Person. If such Indemnified Person shall actually recover any
amounts under any applicable insurance policies, it shall offset the net
proceeds so received against any amounts owed by the Corporation by reason of
the indemnification provided hereunder or, if all such amounts
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shall have been paid by the Corporation in full prior to the actual receipt of
such net insurance proceeds, it shall pay over such proceeds (up to the amount
of indemnification paid by the Corporation to such Indemnified Person) to the
Corporation. If the amounts in respect of which indemnification is sought arise
out of the conduct of the business and affairs of the Corporation and also of
any other person for which the Indemnified Person hereunder was then acting in a
similar capacity, the amount of the indemnification provided by the Corporation
shall be limited to the Corporation's proportionate share thereof as determined
in good faith by the Board of Directors of the Corporation in light of its
fiduciary duties to the Corporation.
(d) The satisfaction of any indemnification pursuant to this Section 5
shall be from and limited to Corporation assets.
6. Nature of Engagement. TDA is engaged as, and shall be deemed for all
purposes to be, an independent contractor with respect to the Corporation. In
particular, the Corporation shall not withhold, deduct or otherwise be obligated
to pay, or be accountable for, any federal, state or local taxes or FICA
contributions due from or on behalf of TDA or any of its employees or agents.
Except as expressly provided herein, no provision hereof is intended, or shall
be deemed, to create any corporation, joint venture or association among the
parties hereto, or to authorize or empower any party hereto to act on behalf of,
obligate or bind any other party hereto.
7. Agreement to Not Compete. As a material inducement for the Corporation
to enter into this Agreement, TDA and each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ hereby agree not to engage in, for the term of this Agreement, any
activity of any nature that competes with the Corporation in the roofing
supplies and related products markets.
8. Successors and Assigns. This Agreement may not be assigned, in whole or
in part, by any party hereto, without the prior written consent of the other
parties hereto, and any purported assignment without such consent shall be void
and without effect. This Agreement shall be binding upon and inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns. This Agreement is not intended, and shall not
be deemed, to create or confer any right or interest for the benefit of any
person not a party hereto.
9. Notices. Any notice or demand required or permitted to be given or made
to or upon any party hereto pursuant to any of the provisions of this Agreement
shall be deemed to have been duly given or made for all purposes if (i) in
writing and delivered by hand against receipt, or sent by certified or
registered mail, postage prepaid, return
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receipt requested, or (ii) sent by telegram, telecopy, telex or other electronic
means and followed by a copy delivered or sent in the manner provided in clause
(i) above, as follows:
To TDA, at: TDA Industries, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Executive Vice President
To the Corporation, at: Eagle Supply Group, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
in each case, with a copy to: Gusrae, ▇▇▇▇▇▇ & ▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
or to such other address as any party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
The date of giving or making of any such notice or demand shall be the earlier
of the date of actual receipt, or five business days after such notice or demand
is sent, or, if sent in accordance with clause (ii), the business day next
following the day such notice or demand is actually transmitted.
10. Waiver. No course of dealing or omission or delay on the part of any
party hereto in asserting or exercising any right hereunder shall constitute or
operate as a waiver of any such right. No waiver of any provision hereof shall
be effective unless in writing and signed by or on behalf of the party to be
charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
11. Governing Law. This Agreement shall be governed by, and interpreted and
enforced in accordance with, the laws of the State of New York, without giving
effect to the provisions thereof relating to choice or conflict of laws.
12. Jurisdiction; Service of Process. Each party hereto hereby irrevocably
(a) consents to the exclusive jurisdiction of the courts of the County of New
York, State of
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New York and of any federal court located therein in connection with any suit,
action or other proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, (b) waives any objection to venue in the
County of New York, State of New York, and (c) agrees that service of process in
connection with any such proceeding may be effected by mailing same in the
manner provided in Section 9 hereof.
13. Further Assurances. Each party hereto covenants and agrees promptly to
execute, deliver, file or record such agreements, instruments, certificates and
other documents and to do and perform such other and further acts and things as
any other party hereto may reasonably request or as may otherwise be necessary
or proper to consummate and perfect the transactions contemplated hereby.
14. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and which together shall constitute one and
the same instrument.
15. Titles and Captions. The titles and captions of the Sections of this
Agreement are for convenience of reference only and do not in any way define or
interpret the intent of the parties or modify or otherwise affect any of the
provisions hereof.
16. References. The terms "herein," "hereto," "hereof," "hereby," and
"hereunder," and other terms of similar import, refer to this Agreement as a
whole, and not to any Section or other part hereof.
17. Entire Agreement. This Agreement embodies the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any
prior agreement, commitment or arrangement relating thereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
EAGLE SUPPLY GROUP, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
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TDA INDUSTRIES, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Agreed to for Purposes of Section 7 only:
____________________________________
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____________________________________
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