Attached files
Exhibit
10.7
ADMINISTRATIVE
SERVICES AGREEMENT
This Administrative Services Agreement
(this "Agreement") is entered into effective December 31, 2009 (the "Effective
Date") between WS Technologies LLC dba Windswept Technologies, an Oregon limited
liability company ("Windswept"), and Aequitas Capital Management, Inc., an
Oregon corporation ("Aequitas").
RECITALS
Windswept desires to engage Aequitas to
provide certain management services functions necessary for the operation of
Windswept's business, and Aequitas is willing to provide such services pursuant
to the terms and conditions set forth in this Agreement.
AGREEMENT
1.
Scope of
Engagement.
1.1. Engagement. Windswept
hereby engages Aequitas, and Aequitas accepts the engagement from Windswept, to
render services as specifically described in this Agreement.
1.2. Management
Services. Aequitas will provide Windswept with the support
services described in the attached Exhibit A (collectively, the
"Services"). Windswept acknowledges and agrees that the services of
Aequitas personnel will not be provided on a full-time or exclusive basis for
Windswept. Either party may change the Services (including
terminating a particular Service) upon 180 days prior written notice to the
other party.
1.3. Use of Salesforce.com
Software. Aequitas will allow Windswept to use the data
available on Aequitas' Salesforce.com software.
2.
Fees.
2.1. Service Fees. As
consideration for the services to be rendered hereunder, Windswept will pay
Aequitas the fees ("Fees") set forth on the attached Exhibit A. The
Fees will increase by 3% on January 1 of each year, beginning January 1,
2011.
2.2. Payments. All fees
owed Aequitas hereunder will be invoiced monthly in arrears by Aequitas and will
be paid by Windswept within 15 days after receipt of invoice, except for any
portion of an invoice that Windswept disputes (acting reasonably and in good
faith). The fees for any partial month will be appropriately
prorated.
3.
Independent Contractor
Status. All Aequitas personnel assigned by Aequitas to provide
services to Windswept under this Agreement are and will remain employees of
Aequitas or other affiliates of Aequitas, and are not employees of
Windswept. The manner and means of providing services under this
Agreement will be within the sole control of Aequitas and its personnel, subject
only to the limitations set forth in this Agreement. Aequitas
personnel assigned by Aequitas to provide services under this Agreement to
Windswept will not, by virtue of this Agreement, be entitled to receive any
benefits generally provided by Windswept to its employees or participate in any
benefit plans provided by Windswept to its employees, including but not limited
to health insurance, disability insurance, life insurance, pension benefit,
profit-sharing or unemployment compensation insurance.
4.
Term and
Termination.
4.1. Term of Agreement;
Termination. This Agreement will continue in effect until
(a) either party gives the other party 180 days notice that it is
terminating this Agreement, or (b) the parties mutually agree in writing to
earlier termination. Either party may also terminate this Agreement
by written notice to the other upon: (i) failure by the other party
to perform any material term, covenant or condition of this Agreement, or breach
of any representation or warranty of the other party in this Agreement, and such
failure or breach continues for a period of 30 days after the receipt of a
notice of such failure or breach, or (ii) upon the initiation of a
proceeding against the other party under any bankruptcy law by or against the
other party, or if that party is adjudged insolvent or makes an assignment for
the benefit of creditors. In addition, Aequitas may terminate this
Agreement by written notice to Windswept upon failure by Windswept or
microHelix, Inc. to perform any material term, covenant or condition of, or
breach of any representation or warranty in the Sublease dated December 31, 2009
between Windswept and Aequitas or the Amended and Restated Advisory Services
Agreement dated December 31, 2009 between microHelix, Inc. and Aequitas, as
applicable, and such failure or breach continues for a period of 30 days after
the receipt by Windswept of a notice of such failure or breach.
4.2. Effect of Termination of
Agreement. The termination of this Agreement will be without
prejudice to the rights and obligations of the parties that have vested prior to
the effective date of such termination, including but not limited to the right
of Aequitas to receive Fees for Services previously provided as provided in
Section 2 and
the obligation of Windswept to pay such fees. For purposes of
clarity, Windswept will owe Aequitas the pro rata portion of the Fees for
the services provided by Aequitas through the date of termination.
5.
Representations. Each
party represents and warrants to the other that it has full corporate power and
authority to execute and deliver this Agreement and perform its obligations
hereunder, and that this Agreement constitutes a valid and legally binding
obligation of that party, except as such enforcement may be limited by
bankruptcy or reorganization laws or by general principles of
equity. Aequitas represents and warrants to Windswept that: (a)
Aequitas will perform the Services in a good and workmanlike manner, in
accordance with generally accepted professional and other applicable standards
effective at the time of performance, and in accordance with this Agreement; and
(b) the Services will be provided using such Aequitas employees, contractors and
other personnel that are skilled, adequately trained, licensed and properly
authorized to carry out their respective duties in the performance of the
Services.
6.
Nonsolicitation. Each
party agrees that for a period of two years following the termination of this
Agreement for any reason, neither party will, directly or indirectly,
(a) contact, call upon, solicit or assist any person in contacting, calling
upon or soliciting the other party's clients for the purpose of selling services
or products offered by the other party, or (b) request or encourage any
clients, suppliers or employees of the other party to curtail, reduce or cancel
their business or employment with the other party. "Clients" shall
include any person who has engaged the party's services or who has paid fees,
directly or indirectly, to the party during the 24 months prior to the
termination of this Agreement. In addition, neither party will employ
or attempt to employ, directly or indirectly, or cause to be employed by
another, any person who is at any time during the year prior to the termination
of this Agreement, a management employee, officer or director of the Company or
of any of its subsidiaries or affiliates, nor shall either party form any
partnership with or establish any business venture in cooperation with such
person, without the express written consent of the other party.
7.
Miscellaneous.
7.1. Indemnification. Each
party (the "Indemnifying Party") agrees to indemnify and hold harmless the other
party, its affiliates and each of their respective directors, officers, agents,
consultants, employees and controlling persons (collectively, "Indemnified
Persons") from and against any claims, losses, damages, expenses and liabilities
or actions in respect thereof (collectively "Claims") (including all legal fees
and other expenses incurred in connection with investigating, preparing,
defending, paying, settling or compromising any Claims, whether or not in
connection with any pending or threatened litigation in which any Indemnified
Person is named a party), to which any of such Indemnified Persons may become
subject and which are related to or arise out of (a) any actions taken or
omitted to be taken by the Indemnifying Party, its employees and agents due to
gross negligence, bad faith or willful misconduct or (b) any breach by the
Indemnifying Party of any of the representations and warranties made by it under
this Agreement. The obligations of the Indemnifying Party referred to
above will be in addition to any rights that any Indemnified Person may
otherwise have. These indemnification obligations will survive any
termination of this Agreement or completion of Aequitas' services pursuant to
this Agreement.
7.2. Third Party Beneficiaries; Successors
and Assigns. No party may assign either this Agreement or any
of its rights, interests or obligations under this Agreement without the prior
written consent of the other party. This Agreement will be binding
upon and inure to the benefit of each of the parties and their respective
permitted successors and assigns. There are no third party
beneficiaries of this Agreement other than Indemnified Persons.
7.3. Entire Agreement; Modification or
Waiver. This Agreement sets forth the entire understanding of
the parties and constitutes the entire agreement between the parties with
respect to the matters contained in this Agreement, and supersedes all prior
oral or written representations, proposals, correspondence, discussions,
negotiations and agreements. No amendment, modification or waiver of
this Agreement will be binding or effective for any purpose unless it is made in
writing and signed by the party against whom enforcement of such amendment,
modification or waiver is sought. No delay on the part of Windswept
or Aequitas in the exercise of any of their respective rights or remedies will
operate as a waiver thereof, and no single or partial exercise by Windswept or
Aequitas of any such right or remedy will preclude other or further exercises
thereof. A waiver of any right or remedy on any one occasion will not
be construed as a bar to or waiver of any such right or remedy on any other
occasion.
7.4. Severability. Whenever
possible, each provision and term of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
or term of this Agreement will be held to be prohibited by or invalid under such
applicable law, then such provision or term will be ineffective only to the
extent of such prohibition or invalidity, without invalidating or affecting in
any manner whatsoever the remainder of such provision or term or the remaining
provisions or terms of this Agreement; provided, however, that the parties will
negotiate in good faith with respect to an alternative provision that will
effectuate the intent of the invalidated covenant, agreement or
provision.
7.5. Confidential
Information. Aequitas acknowledges that the information,
observations and data relating to the business of Windswept (collectively,
"Confidential Information") are the property of Windswept, regardless of how,
when or in what capacity Aequitas obtains any such Confidential
Information. Aequitas will use such Confidential Information only for
the purposes set forth in this Agreement and Aequitas will not knowingly
disclose such Confidential Information to any other person, firm or entity
without the prior written consent of Windswept, unless and to the extent that
the aforementioned Confidential Information becomes generally known to and
available for use by the public other than as a result of Aequitas' acts or
omissions to act. The parties agree that the covenant described in
this subsection will survive the termination of this Agreement for a period of
three years.
7.6. Notices. Each
notice, consent, request, or other communication required or permitted under
this Agreement will be in writing, will be delivered personally or sent by
certified mail (postage prepaid, return receipt requested) or by a recognized
US overnight
courier, and will be addressed as follows:
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If
to Windswept:
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WS
Technologies LLC dba Windswept
Technologies
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Attn: President
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5300
SW Meadows Road, Suite 400
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Lake
Oswego, OR 97035
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If
to Aequitas:
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Aequitas
Capital Management, Inc.
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Attn: Legal
Department
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5300
SW Meadows Road, Suite 400
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Lake
Oswego, OR 97035
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Each
notice, consent, request, or other communication will be deemed to have been
received by the party to whom it was addressed (a) when delivered if delivered
personally; (b) on the second business day after the date of mailing if mailed;
or (c) on the date officially recorded as delivered according to the record of
delivery if delivered by overnight courier. Each party may change its
address for purposes of this Agreement by giving written notice to the other
party in the manner set forth above.
7.7. Captions;
Interpretation. The section headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement. The terms of this Agreement are the
product of negotiation between the parties and are not to be construed as being
drafted solely by one party, and no presumption is to arise therefrom in favor
of either party. The words "will" and "shall" have the same
meaning. The words "include," "includes" and "including" shall not be
deemed to be terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
7.8. Counterparts. This
Agreement may be executed in counterparts. Each counterpart will be
considered an original, and all of them, taken together, will constitute a
single Agreement. This Agreement may be delivered by facsimile or
electronically, and any such delivery will have the same effect as physical
delivery of a signed original. At the request of any party, the other
party will confirm facsimile or electronic transmission signatures by signing an
original document.
7.9. Law and Venue. This
Agreement will be governed by and construed in accordance with the laws of the
State of Oregon without giving regard to its choice or conflict of laws
provisions. Any dispute arising out of this Agreement to enforce or
interpret this Agreement will be commenced and heard exclusively in Multnomah
County, Oregon.
7.10. Attorney Fees. In
connection with any legal action to enforce or interpret any provision of this
Agreement, the prevailing party in such action will be entitled to collect from
the other party the reasonable legal fees and related disbursements incurred by
such prevailing party in such action, including any appellate or bankruptcy
proceeding.
[Signatures
on following page]
IN WITNESS WHEREOF, this Agreement is
executed as of the first date set forth above.
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WS
TECHNOLOGIES LLC DBA
WINDSWEPT
TECHNOLOGIES
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By
microHelix, Inc., its Manager
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By
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/s/ Brian A. Oliver
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Brian
A. Oliver
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Secretary
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AEQUITAS
CAPITAL MANAGEMENT, INC.
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By
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/s/ Robert J. Jesenik
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Robert
J. Jesenik,
President
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Signature
Page to Administrative Services Agreement
EXHIBIT
A
TO
ADMINISTRATIVE
SERVICES AGREEMENT
BETWEEN
WS
TECHNOLOGIES LLC DBA WINDSWEPT TECHNOLOGIES AND AEQUITAS
CAPITAL
MANAGEMENT, INC.
Set forth
below are the services and resources to be provided by Aequitas to Windswept
pursuant to the Administrative Services Agreement to which this schedule is
attached.
The
charges detailed below address regular, recurring services. Aequitas
will also provide certain services that are more ad hoc in nature and those
services will be charged on a variable/as used basis. These charges
will be billed directly to Windswept on a monthly basis
Legal
Services will be variable and charged monthly, billable at $200/hr.
Accounting Services
(Windswept)
Monthly
fixed cost - $28,100
Services
provided:
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Settlement/reconciliations
with hospital clients
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Communication
with financing partners
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Funding
requests
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Annual
audit coordination
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Budgeting
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Monthly
financial reporting (internal and external
partners)
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Billing
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Processing
cash rebates to clients
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G/L
maintenance
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Accounting Services
(Corporate)
Monthly
fixed cost - $4,000
Services
provided:
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·
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Treasury/banking
relationships
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Financial
reporting
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·
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Public
company reporting and filings
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Tax
planning
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Facilitation
of annual audit and tax preparation
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AR/AP
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Financial Services
(Windswept)
Monthly
fixed cost - $5,500
Services
provided:
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Financial
modeling
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·
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Financial
advisory services
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Underwriting
support
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HR/Personnel
Services
Monthly
fixed cost - $2,500
Services
provided:
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New
employee setup
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Payroll
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Employee
relations
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Labor
and employment law compliance
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Benefit
administration and renewal
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Management/staff
training
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Administration
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Oversight
of performance management process
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Employee
safety – OSHA compliance
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IT Services
Monthly
fixed cost (support) - $15,000
Monthly
fixed cost (hardware/software/voice/data) - $10,000
Services
provided:
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Desktop
and platform support services
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o
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User
and infrastructure management and
support
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Application
development and support
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o
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Resource
and process management
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Infrastructure
Platform
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o
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CP
system hardware (FTP, RPTMGR)
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o
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CP
user hardware (laptops, desktops)
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o
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Shared
hardware (email, networking,
backup/recovery)
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o
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Data
center (Savvis)
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o
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Printers/copiers
(workroom 1 and 2)
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o
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Phone/voicemail
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o
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Cell
phones
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o
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Computers
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Software
acquisition and management
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o
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CarePayment
software (OnTime, AccuZip, etc.)
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o
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Core
desktop licenses (Office, Virus)
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o
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Salesforce.com
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o
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WebEx
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Voice/data
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Voice
services
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o
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Data
services
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o
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Mobile
services (cell phones, data cards)
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All costs
associated with projects beyond the scope of the services outlined above will be
billed to Windswept monthly and will include a 15% administrative
charge. This may include, but is not limited to, employee travel,
implementation services, corporate transactional support and assistance with
mergers and acquisitions. Any employee time on such variable charged
services will be at $150 per hour. Specific computing hardware and
software purchased for Windswept will be billed at cost.