SERVICES AGREEMENT
This SERVICES AGREEMENT (this Agreement") is made and entered into as of
March 10, 1997 by and between SIEBERT, BRANDFORD, SHANK & CO., LLC., a Delaware
limited liability company (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC., a
Delaware corporation ("MS&Co.").
R E C I T A L S
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WHEREAS, the Company desires to obtain certain services from MS&Co. and
MS&Co. desires to provide such services; and
WHEREAS, the parties are willing to enter into this Agreement on the terms
and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the covenants and undertakings of the
parties hereto and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
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SERVICES
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1.1 The Designated Services. During the term of this Agreement, MS&Co.
shall provide certain personnel including the full-time services of ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ III and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and such other persons as the Company may
request as well as administrative, payroll, technical and employee benefits
services to the Company and such other services as may be approved in advance by
the Company (collectively, "Services"). MS&Co. will furnish the Services and
perform its obligations hereunder in accordance with its standard policies and
practices; provided that MS&Co. and its Affiliates shall have no liability to
the Company of any kind whatsoever arising, directly or in any way indirectly,
from the furnishing of the Services or the performance of MS&Co.'s obligations
hereunder, the manner in which such activities are or fail to be conducted or
from any transaction in connection with the Services between MS&Co. and its
Affiliates and the Company to which MS&Co. or its Affiliates and the Company are
parties except for conduct constituting fraud, gross negligence or a pattern of
repeated and intentional misconduct causing material damage to the Company over
an extended period of time.
ARTICLE II
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FEES FOR SERVICES
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2.1 Fees for Services. In consideration for the Services provided
hereunder, MS&Co. shall be entitled to an amount equal to the direct and
indirect costs incurred by MS&Co. (without markup) for the provision of such
Services which shall be paid in cash on the last business day of each calendar
quarter in arrears upon the presentation of proper invoices therefore. For
purposes hereof, the parties agree that indirect costs to be incurred by MS&Co.
to provide the Services described herein will equal $300,000 per annum for 1997.
The Company shall have the right to inspect that portion of the books and
records of MS&Co. that show the direct costs to MS&Co. of providing the
Services.
ARTICLE III
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TERM AND TERMINATION
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3.1 Term. The term of this Agreement shall commence on the date hereof and
shall terminate on the first anniversary of the date hereof (such period being
hereinafter referred to as the "Term"); provided, however, that the Term shall
automatically be extended for additional one-year periods unless either party
provides written notice to the other not less than 90 days prior to the
expiration of the Term, as extended. The Company shall have the right to
terminate this Agreement in the event MS&Co. is guilty of fraud, gross
negligence or a pattern of repeated and intentional misconduct causing material
damage to the Company over an extended period of time. MS&Co. shall have the
right at any time to terminate this Agreement in its entirety upon 90 days'
advance written notice to the Company, provided that the indemnification
provisions of Article IV hereof shall survive any such cancellation.
ARTICLE IV
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INDEMNIFICATION
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4.1 Indemnification.
(a) The Company agrees to indemnify and save harmless MS&Co., its present
and future officers, directors, employees, agents and Affiliates from and
against any and all liabilities, penalties, fines, forfeitures, demands, claims,
causes of action, suits and costs and expenses incidental thereto (including
costs of defense, settlement and reasonable attorney's fees), which any or all
of them may hereafter suffer, incur, be responsible for or pay out as a result
of bodily injuries (including death) to any person, damage (including loss of
use) to any property (public or private), or any violation or alleged violation
of statutes, ordinances, orders, rules or regulations of any governmental entity
or agency, to the extent such are caused by, or arise out of breach of any
warranties by the Company, or any grossly negligent or willful act or omission
of the Company, its employees, subcontractors or agents arising out of the
performance of this Agreement.
(b) MS&Co. shall give written notice to the Company of a claim for
indemnification under this provision within thirty (30) days following MS&Co.'s
first knowledge of the event or occurrence which gives rise to the claim. Upon
receipt of notice, the Company shall retain counsel to defend MS&Co. and will
pay such counsel reasonable attorney's fees and other litigation expenses.
(c) Subject to Section 1.1 hereof, MS&Co. agrees to indemnify and save
harmless the Company, its present and future officers, directors, employees and
agents, from and against any and all liabilities, penalties, fines, forfeitures,
demands, claims, causes of action, suits and costs and expenses incidental
thereto (including costs of defense, settlement and reasonable attorney's fees),
which any or all of them may hereafter suffer, incur, be responsible for or pay
out as a result of bodily injuries (including death) to any person, damage
(including loss of use) to any property (public or private), or any violation or
alleged violation of statutes, ordinances, orders, rules or regulations of any
governmental entity or agency, to the extent such are caused by, or arise out of
breach of any warranties by, MS&Co., or any grossly negligent or willful act or
omission of MS&Co., its employees, subcontractors or agents arising out of the
performance of this Agreement.
(d) The Company shall give written notice to MS&Co. of a claim for
indemnification under this provision within thirty (30) days following the
Company's first knowledge of the event or occurrence which gives rise to that
claim. Upon receipt of notice, MS&Co. shall retain counsel to defend the Company
and will pay such counsel reasonable attorney's fees and other litigation
expenses.
4.2 Survival. The obligations of the parties under this Article IV shall
survive the termination of this Agreement.
ARTICLE V
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MISCELLANEOUS
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5.1 Force Majeure. Any failure of any party to perform any of its
obligations hereunder shall not constitute a breach or nonperformance of this
Agreement if such failure is due to circumstances beyond its control (an "Event
of Force Majeure"), including, but not limited to, any requisition by any
government authority, act of war, strike, boycott, lockout, picketing, riot,
sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire,
flood, accident, explosion, earthquake, storm, failure of public utilities or
common carriers, mechanical failure, embargo or prohibition imposed by any
governmental body or agency having authority over the party, provided that upon
the elimination of such circumstances the obligations of such party shall
continue in full force and effect thereafter. The party affected by such
circumstance shall give prompt notice thereof to the other party hereto. Any
affected party shall use its best efforts to minimize the duration and
consequences of, and to eliminate, any such circumstances.
5.2 Independent Contractor Status. MS&Co. shall be deemed an
independent contractor in the performance of all Services hereunder and not a
partner, subcontractor or other legal representative of the Company. Neither
party hereto shall have the right or authority to assume, create or incur any
liability or obligation of any kind, express or implied, against or in the name
of or on behalf of any other party except in accordance with the explicit terms
of this Agreement.
5.3 Notices. Unless otherwise specified in this Agreement, all notices,
demands, elections, requests and other communications which any party to this
Agreement may desire or be required to give hereunder shall be in writing and
shall be given by delivering the same by a reputable courier service which
requires a signature upon delivery or by mailing the same by registered mail,
postage prepaid, return receipt requested, or by telefax with receipt
confirmation, addressed:
if to the Company, to:
Siebert, Brandford, Shank & Co., LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Siebert, Brandford, Shank & Co., LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to MS&Co., to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to any other address designated by either party in a notice given to the
other party pursuant to the provisions of this section. All notices given as in
this Section 5.3 provided shall be deemed to have been given or served on the
date delivered.
5.4 Headings and Captions. The headings and captions contained in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning or interpretation of this Agreement.
5.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof, and all prior
agreements and understandings between the parties pertaining to the subject
matter hereof are superseded hereby. There are no representations, warranties,
covenants or undertakings with respect hereto, other than those set forth or
referred to herein. No rights in favor of third parties are hereby created.
5.6 Amendments, Modification. This Agreement may not be amended except in a
written instrument signed by both of the parties hereto expressly stating it is
an amendment to this Agreement. No course of dealing will be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any party under or by reason of this Agreement.
5.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but both of which together shall constitute but one
and the same instrument and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
5.8 Choice of Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws (and not the conflicts of laws
rules) of the State of New York applicable to contracts made and to be performed
therein.
5.9 Waiver; Severability. A failure of any party to insist in any instance
upon the strict and punctual performance of any provision of this Agreement
shall not constitute a waiver of such provision. No party shall be deemed to
have waived any right, power or privilege under this Agreement or any provisions
hereof unless such waiver shall have been in writing and duly executed by the
party to be charged with such waiver, and such waiver shall be a waiver only
with respect to the specific instance involved and shall in no way impair the
rights of the waiving party or the obligations of the other party in any other
respect or any other time. If any provision of this Agreement shall be waived,
or be invalid, illegal or unenforceable, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain binding and in full force
and effect.
5.10 Relationship of the Parties. In all matters relating to this
Agreement, each party hereto shall be solely responsible for the acts of its
employees, and employees of one party shall not be considered employees of the
other party. Except as otherwise provided herein, no party shall have any right,
power or authority to create any obligation, express or implied, on behalf of
the other party.
5.11 No Third Party Rights. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any other persons other than the parties hereto and their
respective successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligations or liability of any third persons to any
party to this Agreement, nor shall any provision give any third parties any
right to subrogation or action over or against any party to this Agreement. This
Agreement is not intended to and does not create any third-party beneficiary
rights whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Services Agreement as of the day and year first
above written.
SIEBERT, BRANDFORD,
SHANK & CO., LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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