Exhibit 10.5
TNCI UK LIMITED
OCEAN CASTLE PARTNERS LLC
CONSULTING AND MANAGEMENT
SERVICES AGREEMENT
THIS AGREEMENT, made as of the 12th day of February 2002 ("Effective
Date"), sets forth the terms and conditions under which OCEAN CASTLE PARTNERS
LLC, a Delaware limited liability company, with offices at 0000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000 ("Consultant"), will provide services to TNCI
UK LIMITED, a company incorporated under the laws of England and Wales, with
offices at Xxx Xxxx, Xxxxx Xxxx, Xxxxx XX0 0XX, Xxxxxxx ("TNCI UK").
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. SCOPE OF SERVICES. The services to be performed by Consultant
("Services") are described in Appendix A to this Agreement, which appendix will
also set forth (a) a description of the Services to be performed; (b) the
location of performance; and (c) compensation. Consultant should have no
expectation of performing (or being paid for) additional work beyond that
described in Appendix A or beyond the term of this Agreement. The parties may
agree to additional services to be provided pursuant to this Agreement, which
will be described in a supplemental appendix and must be signed by both parties.
2. COMPENSATION. Consultant's compensation for Services shall be as set
forth in Appendix A. Consultant shall be paid only for work performed during the
term of this Agreement. The compensation shall not exceed the maximum
expenditure set forth on Appendix A (if any), unless otherwise expressly agreed
to in writing. In addition, Consultant shall be reimbursed for all reasonable
out of pocket expenses which have been approved in advance by TNCI UK, subject
to the following exceptions: All invoices must be accompanied by receipt for
each expense in excess of $100.00 and all such invoices must be submitted for
payment within thirty (30) day of expenses being incurred by Consultant. TNCI UK
shall provide reimbursement to the Consultant within ten (10) days after
submission.
3. INDEPENDENT CONTRACTOR. The relationship between Consultant and TNCI UK
is that of an independent contractor. No employer/employee relationship is
created, and neither party is authorized to bind the other in any way.
Consultant is obligated to comply with all requirements (including without
limitation those relating to tax withholding) applicable to employers. It is
understood and agreed that any fees or other amounts paid by TNCI UK to
Consultant hereunder shall not be considered salary for pension or wage tax
purposes and neither Consultant nor its employees, agents or contractors will be
entitled to any fringe benefits or other supplemental benefit of TNCI UK, and
Consultant shall indemnify TNCI UK from any claims to the contrary. TNCI UK
shall not be responsible for deducting any taxes, unemployment, social security
or other expense, from fees paid under this Agreement.
4. NON-DISCLOSURE. "Confidential Information" means any information
identified as such, or information that a reasonable business person would
consider private, sensitive or proprietary and includes, without limitation,
this Agreement and its terms, TNCI UK's business or marketing plans,
intellectual property, processes, procedures, customer lists, trade secrets and
any proprietary information and intellectual property of any third party that
Consultant receives through TNCI UK. Consultant shall hold in confidence and not
disclose any Confidential Information received from TNCI UK and shall treat such
information in the same manner as it would treat its own confidential
information. Consultant shall not use the Confidential Information except for
the purpose of fulfilling its duties under this Agreement. In the event of a
breach by Consultant of its obligation under this Section, TNCI UK will suffer
irreparable harm and its remedies at law will be inadequate and shall have, in
addition to any other remedies it may have, the right to obtain injunctive
relief to restrain any breach or threatened breach thereof. Confidential
Information shall not include any information that (i) is or comes into the
public domain (other than through the fault of Consultant), (ii) is required by
law to be disclosed by Consultant, (iii) is independently developed by
Consultant outside the scope of the Services, or (iv) was known to Consultant
prior to the relationship created by this Agreement.
5. ASSIGNMENT OF RIGHTS. Consultant agrees that any and all software,
programs, inventions or other items made or created by it, in any medium, during
the term of this Agreement in the course of performing Services, and all
proprietary rights therein, including but not limited to worldwide rights of
patent, copyright and trade secret, shall be the exclusive property of TNCI UK
and "works made for hire" under the United States Copyright Law. To the extent
necessary to effectuate the foregoing, Consultant hereby assigns and transfers
to TNCI UK all such worldwide rights and agrees to provide such reasonable
assistance as may be necessary (at TNCI UK's expense) to perfect TNCI UK's
rights hereunder.
6. WARRANTY. Consultant represents and warrants that it has the right to
perform the Services, that the Services will be of good quality and performed in
a professional and workmanlike manner in accordance with industry standards,
that the results of Services delivered hereunder will not infringe the
copyright, patent, trade secret, trademark, contractual, employment,
nondisclosure rights or other proprietary rights of any third party, and that
the performance of the Services will not violate the provisions of any agreement
to which Consultant is a party. Consultant warrants that Consultant will comply
with all applicable federal, state and local laws. EXCEPT AS SPECIFICALLY
PROVIDED HEREIN, CONSULTANT MAKES NO WARRANTY, REPRESENTATION, PROMISE OR
GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO
THE WORK PERFORMED, INCLUDING ITS QUALITY, PERFORMANCE, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. NON-COMPETITION. Without limiting any other provision of this Agreement,
while Consultant continues to perform Services for TNCI UK, Consultant shall not
render any direct or indirect assistance to any company or enterprise whose
actual or proposed business involves the provision of products or services
competitive with TNCI UK's products or services, without the prior written
consent of TNCI UK. During the term of this Agreement and thereafter, Consultant
agrees that it will not publish or otherwise communicate any deleterious remark
concerning TNCI UK, its affiliates, directors, officers, employees or agents, or
do anything which would directly or indirectly damage the business, business
prospects or reputation of TNCI UK. Consultant acknowledges that monetary
damages will be inadequate to remedy any breach of this Section and therefore,
TNCI UK may seek an injunction to prevent Consultant from breaching this
provision, in addition to any other equitable or legal remedy otherwise
available. In the event that a court finds this Section unenforceable as overly
broad or against public policy, the parties agree that this Section shall be
narrowed as necessary to be deemed enforceable.
8. TERM. This Agreement will remain in effect for a period of two years
from the Effective Date (the "Term").
9. LIMITATION OF LIABILITY. EXCEPT FOR (i) DAMAGES TO PERSONS OR TANGIBLE
PROPERTY, (ii) CONSULTANT'S VIOLATION OF TNCI UK'S PROPRIETARY RIGHTS, AND (iii)
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CONSULTANT'S INDEMNIFICATION OBLIGATIONS BELOW, EACH PARTY'S LIABILITY TO THE
OTHER AND BOTH PARTIES' SOLE REMEDY HEREUNDER FOR ANY CAUSE, REGARDLESS OF THE
FORM OF ACTION, WILL BE LIMITED TO THE TOTAL FEES PAID UNDER THIS AGREEMENT. IN
NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10. INDEMNITY. Consultant will defend at its own expense any claim, suit or
action against TNCI UK, its affiliates, subsidiaries, officers, directors,
employees, agents, representatives and consultants and will indemnify and hold
such parties harmless against any and all related damages, costs, liabilities,
expenses and settlement amounts, based upon any breach of Consultant's
warranties above or any other act or omission on Consultant's part, provided
that TNCI UK notifies Consultant promptly in writing of any such action and all
prior related claims, gives Consultant sole control of the defense and/or
settlement of such action, and cooperates fully in any such defense or
settlement. TNCI UK may participate in any such claim suit or action with
counsel of its own choosing at its own expense.
11. GENERAL.
(a) This Agreement, including any Appendices hereto, which are
incorporated herein and form a part hererof, constitutes the entire agreement of
the parties relating to the subject matter hereof and supersedes all previous
communications or agreements, whether oral or written. No waiver or modification
of its provisions shall be effective without a writing signed by the parties.
(b) The invalidity of any provision of this Agreement shall not affect
the validity of any other provision hereof. In the event that the
non-competition provision in Section 7 is determined by a court of competent
jurisdiction to be unenforceable, such provision shall be enforced to the extent
that it is legally enforceable.
(c) This Agreement will be construed in accordance with the laws of
the England and Wales, and all disputes arising from or related to this
Agreement shall be subject to the exclusive jurisdiction of the Courts located
in London, England.
(d) Consultant may not assign any of its rights or delegate any of its
duties under this Agreement to any third party without TNCI UK's prior written
consent; provided, however, that Consultant shall be permitted without obtaining
any prior consent from TNCI UK to assign the right to receive payments for its
services hereunder to any third party.
(e) The provisions of this Agreement, with the exception of Section 1,
shall survive any termination of this Agreement in accordance with their terms.
This Agreement may be executed in any number of counterparts, all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above.
TNCI UK LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
OCEAN CASTLE PARTNERS LLC
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
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APPENDIX A
DESCRIPTION OF SERVICES, COMPENSATION
DESCRIPTION OF SERVICES
OCEAN CASTLE PARTNERS LLC ("CONSULTANT") shall perform the following
services for, or in assistance of, TNCI UK LIMITED ("TNCI UK"):
1) FINANCIAL ADVISORY SERVICES. Consultant shall assist TNCI UK in
planning for its capital needs and in obtaining the capital necessary to
meet such needs. Such services shall include, without limitation, analysis
of the cost of doing business until TNCI UK's operations become cash flow
positive, if ever, and how to obtain the financing necessary to cover those
costs; sourcing any outside financing that may be necessary to meet such
needs (provided, however, that any such services may include fees in
addition to the compensation provided for herein); analysis of the type of
financing that would best suit TNCI UK's needs; preparation and
dissemination of any memoranda and other documentation necessary in
connection with obtaining any necessary outside financing; and any and all
related functions.
2) OPERATIONS FINANCE. Consultant shall assist TNCI UK with respect to
the generation of revenue from product and services sales, which services
shall include, without limitation, analysis of the product and service
package and method of purchasing such package appropriate for each
prospective customer, i.e., in determining the method of purchase that will
best incentivize a prospective customer, based on its needs, demands and
financial position, to purchase TNCI UK's products and services; financial
modeling of revenue generation from sales to prospective customers; cash
flow and burn rate analysis regarding TNCI UK's operations after cash flow
positive is attained, if ever; and any and all related functions.
3) MARKETING AND SALES STRATEGY. Consultant shall assist TNCI UK with
its strategy regarding identifying prospective customers for its products
and services and in gaining access to such customers. These services shall
include, without limitation, assistance in assessing the package of
products and services appropriate to meet the needs and demands of each
prospective customer; strategy with respect to, and presentation of,
proposals to prospective customers; preparation of any marketing materials
deemed necessary in connection with any such presentations; preparation of
bid packages and of any prospective customer or governmental
agency-required submissions necessary in connection with any such bid
packages; negotiations with prospective customers with respect to purchases
of such products and services; and any and all related functions.
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4) STRATEGIC ALLIANCES. Consultant shall assist TNCI UK in identifying
companies and technologies, relationships with which could be beneficial to
TNCI UK's business. Consultant shall assist in the identification of such
prospective alliances and in gaining access to them. Consultant shall also
assist in negotiating the terms of any such relationships and preparation
of any documentation governing them.
5) BOARD OF DIRECTORS AND MANAGEMENT. Consultant shall assist TNCI UK
in identifying and gaining access to individuals who might be beneficial to
TNCI UK as members of its Board of Directors or management team. Consultant
shall assist in negotiating with any such individuals with respect to the
terms of their prospective directorships or management positions and in the
preparation of any documentation necessary in connection therewith.
6) PUBLIC RELATIONS. Consultant shall assist TNCI UK in its public
relations. These services shall include, without limitation, assistance in
determining what business events merit public dissemination; the media and
content for any such public disseminations; and any and all related
functions.
LOCATION OF PERFORMANCE
Consultant shall perform its services hereunder primarily from its offices
in Philadelphia, Pennsylvania, United States, but shall travel as necessary in
order to provide the level of services required hereunder.
COMPENSATION
Consultant shall be compensated for its services hereunder in an amount of
$33,000 per month. The first payment hereunder shall be made on the date hereof,
and each successive payment shall be made on the first day of each successive
month during the Term beginning with March 1, 2002. All payments shall be by
wire transfer of immediately available funds pursuant to the following wire
instructions:
Bank: Citibank, NY
ABA#: 000000000
FBO: Xxxx Xxxxxx
Beneficiary a/c: 40611172
For further credit to: 000-00000-00
Ocean Castle Partners
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