Exhibit 10.15
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (the "Agreement") is made effective
the 2d day of September, 1998 by and between WebOne, Inc., a Delaware
corporation ("WebOne") and Commonwealth Principals II, LLC, a Delaware limited
liability company ("Commonwealth II").
WHEREAS, WebOne has been formed to execute a consolidation of a group
of firms that provide high level consulting services for businesses wishing to
market through the internet and contemporaneous initial public offering ("IPO")
of its common stock. (the "Plan");
WHEREAS, WebOne desires to retain the services of Commonwealth II to
assist in the execution of the Plan and the parties desire to enter into an
Agreement to evidence the terms and conditions of such an engagement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained in this Management Services Agreement, it is agreed as follows:
SECTION 1. CONSULTING TERMS AND DUTIES.
(a) Upon the terms and conditions set forth herein, WebOne hereby
retains and engages Commonwealth II, and Commonwealth II hereby accepts such
engagement and agrees to render services to WebOne designed to assist its
execution of the Plan.
(b) By way of example it is anticipated that Commonwealth II will
provide the following services --
(i) Professional services to manage and execute the Plan,
(ii) Identification and placement of senior executives to
manage WebOne before and after the IPO,
(iii) Identification of legal and auditing professionals to
represent WebOne in connection with the consolidation and IPO, and
(iv) Loans to fund the execution of the Plan.
SECTION 2. TERM. The term of Commonwealth II's retention and engagement
by WebOne under this Agreement (the "Term") shall commence with the effective
date of this agreement (the "Commencement Date") and shall continue for the
earlier of the Closing and twenty-four months, unless earlier terminated
pursuant to Section 6 of this Agreement.
SECTION 3. CONSIDERATION In consideration for the services rendered
pursuant to this Management Services Agreement, WebOne will pay to Commonwealth
II the following:
(a) CONSULTING FEES. WebOne will pay to Commonwealth II a fee in cash
at Closing equal to the amount incurred by Commonwealth II in compensation paid
or promised to consultants, advisors, accountants and other professionals
engaged by it to execute the plan.
(b) REIMBURSEMENT OF EXPENSES. WebOne will pay to Commonwealth II at
Closing the amount incurred or accrued by Commonwealth II for -
(i) those reasonable and necessary out-of-pocket expenses in
furtherance of the Plan, including an allocation for overhead
("Expenses"); and
(ii) interest on Preferred Investors' invested capital, not
otherwise accrued under a loan described in Section 4.
(c) RETURN. WebOne will pay to Commonwealth II at Closing an amount
equal to the sum of individual calculations of a return on each dollar expended
and interest cost incurred by Commonwealth II described in Subsections (a) and
(b), above, at the Prime Rate from the date the dollar is expended by
Commonwealth II until payment in full hereunder.
SECTION 4. LOANS.
Subject to its privilege to terminate its commitment at any time and
for any reason, Commonwealth II agrees to make loans to WebOne under the terms
and conditions provided in the Credit Agreement attached as EXHIBIT A and hereby
made a part hereof.
SECTION 5. TERMINATION This Agreement may be terminated by
either party with 30 days prior written notice.
SECTION 6. ARBITRATION. Excluding the right of WebOne to seek
injunctive relief, all claims (pursuant to Federal or state statutes or by
common law), controversies, differences or disputes between the parties arising
out of or relating to this Agreement or related or referenced exhibits or the
alleged breach thereof shall be settled by arbitration in accordance with the
rules then in effect of the American Arbitration Association at the time of the
dispute. After an award is rendered by the arbitrator(s), a judgment may be
entered in any court of competent Jurisdiction. The arbitration shall occur in
Fairfax County, Virginia to the exclusion of all other locations. The
arbitrators can only award actual and NOT punitive, trebled or exemplary damages
and cannot add to or subtract from the terms of this Agreement. The parties
agree that the arbitrators may include provisions for the payment of costs and
expenses, including reasonable attorneys' fees as part of any ruling or award
made thereunder. The parties acknowledge that arbitration shall be the sole,
final, binding and exclusive remedy of the parties with respect to any such
matter for which arbitration is undertaken hereunder.
SECTION 7. MISCELLANEOUS
(a) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered
personally, sent by facsimile
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transmission (with a copy also sent by another means herein provided
for), sent by certified, registered or express mail, postage prepaid
or sent by reputable air courier. Any such notice shall be deemed
given when so delivered personally or sent by facsimile transmission
(with issuance by the transmitting machine of a confirmation of
successful transmission) or, if mailed, five days after the date of
deposit in the United States mail or, if sent by courier, two days
after the date of deposit with much courier, addressed as follows:
(i) if to WebOne to:
Attention:
----------------
(ii) if to Commonwealth II, to:
Commonwealth Principals
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: J. Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Any party may change its address for notice hereunder by notice to the
other party hereto given in accordance herewith.
(b) ASSIGNABILITY. This Agreement shall not be assignable by
either party hereto without the prior written consent of the other
party, which consent, if requested of WebOne by Commonwealth II, shall
not be unreasonably withheld, and any such purported assignment shall
be void AB INITIO.
(c) GOVERNING LAW. The parties agree that this Agreement shall
be construed and governed in accordance with the internal laws of the
Commonwealth of Virginia, without giving effect to principles of
conflicts of laws.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
legal representatives, executors, administrators, successors and
permitted assigns.
(e) COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and
the same instrument.
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(f) ENTIRE AGREEMENT. This Agreement represents the entire
agreement and understanding of the parties hereto with respect to the
matters set forth herein. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications,
understandings and agreements between parties, written or oral,
relating to the subject matter of this Agreement. This Agreement may be
amended, superseded, cancelled, renewed, or extended and the terms
hereof may be waived, only by a written instrument signed by the
parties hereto or, in the case of a waiver, by the party waiving
compliance.
(g) WAIVERS. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver
thereof. Nor shall any waiver on the part of any party of any such
right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder, preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder.
(h) HEADINGS. The headings in this Agreement are inserted for
convenience only and are not to be considered in the interpretation or
construction of the provisions hereof.
(i) DEFINITIONS. For purposes of this Agreement, the following
terms have the meanings referred to in this Section 8:
"Closing" - means the consummation of the merger and
conversion of ownership interests of the Founding Companies
contemporaneously with the closing of the IPO of WebOne common
stock.
"Founding Companies" - means the companies that make up the
consolidated group of companies described in the final
Registration Statement on Form S-1 filed with the Securities
Exchange Commission covering the offer and sale of WebOne
common stock in the IPO.
"Prime Rate" - means the prime rate of interest cumulative,
non-compounded as reported by the Wall Street Journal from
time to time under its Money Rate column.
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IN WITNESS WHEREOF, WebOne and Commonwealth II have signed this
Agreement this __ day of September, 1998.
WEBONE, INC.
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------
J. Xxxxxxxx Xxxxxxx
Chairman
COMMONWEALTH PRINCIPALS II, LLC
By: /s/ [illegible]
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