Triton Distribution Systems, Inc. CONSULTING AGREEMENT
Exhibit
10.4
Effective
September 6, 2006 Univest Group, Ltd. ("Consultant") and Triton Distribution
Systems, Inc. (“TDSI” or the "Company") agree as follows:
1. Services
and Payment.
In
consideration of the mutual promises set forth herein and payment in accordance
with Exhibit A, Consultant agrees to undertake and complete the Services (as
described in Exhibit A) in accordance with and on the schedule specified in
Exhibit A.
2. Ownership,
Rights, Proprietary Information.
| a. |
All
intellectual property rights, trade secrets and other proprietary
rights
of the Company prior to the date of this Agreement shall be retained
by
the Company and all intellectual property rights, trade secrets and
other
proprietary rights of Consultant prior to the date of this Agreement
shall
be retained by Consultant.
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| b. |
Consultant
agrees that all non-public information, documents and materials of
the
Company is proprietary to the Company and, except as set forth below,
will
maintain the confidentiality of such information. The Company agrees
that
all non-public information, documents and materials of Consultant
is
proprietary to Consultant and, except as set forth below, will maintain
the confidentiality of such information. Consultant and the Company
may
disclose such information (i) to any of its employees, officers,
directors
or advisors, provided that such recipient is aware of the confidential
nature of the information (ii) that becomes public or (iii) as it
is
required to disclose by any law, rule, regulation or any governmental
entity. Upon termination and as otherwise requested by disclosing
party,
each of the parties hereto will return all items and copies containing
or
embodying such information, except that Consultant may keep personal
copies of their compensation records and this
Agreement.
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| c. |
Consultant
agrees that during the period over which it is (or was supposed to
be)
providing Services, Consultant will not encourage or solicit any
employee
or consultants of the Company to leave Company for any
reason.
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3. Warranty.
Consultant warrants that: the Services will be performed in a professional
and
workmanlike manner. Consultant warrants and represents that it has conducted
a
conflict of interest check with respect to this engagement and that it currently
is not aware of any actual or potential conflict with respect thereto.
Consultant agrees that it shall advise Company immediately should it become
aware of any such conflict or potential conflict.
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4. Exclusivity; Minimum
Availability.
Consultant agrees that it shall not perform consulting work related to the
Services for any third party competitor in the Exclusive Region during the
exclusivity period specified in Exhibit A without the prior written consent
of
Company, which shall not be unreasonably withheld. Consultant or Country
Sub-Consultants (as defined below) shall be available to perform Services
pursuant to this Agreement for such time as shall be mutually agreed upon
between the Company and Consultant or as specified or Exhibit A. The Company
agrees unless this Agreement is terminated or the exclusivity period expires
in
accordance with Exhibit A that Consultant shall be the exclusive provider of
the
Services in the Exclusive Region and that it shall not directly or indirectly
through the use of any other person or entity to perform the Services in the
Exclusive Region. The “Exclusive Region” shall include all of the following
countries: Jordan, Lebanon, Syria, Kuwait, the United Arab Emirates, Saudi
Arabia, South Africa, Sri Lanka, Bahrain, Qatar, Oman, Yemen, Iraq, Iran,
Turkey, Egypt, Libya, Algeria, Morocco, Tunisia and Sudan.
5. Termination.
This
engagement may be terminated at any time by mutual agreement of the parties.
Any
notice hereunder shall be deemed delivered either when personally served or
served electronically or by facsimile on the party to receive notice, or, if
served by U.S. Mail, three (3) days following its deposit in the U.S. Mail,
addressed to the party to receive notice at the address of such party appearing
in this engagement letter or at such other address as is specified by such
party
as its address for notices. Sections 2 and 3 and 5 through 11 of this Agreement,
Exhibit A (including the obligation to reimburse expenses and to pay
compensation for life of a contract with a travel vendor company (including
any
extensions thereon)) and any remedies for breach of this Agreement shall survive
any termination or expiration.
6. Relationship
of the Parties.
Notwithstanding any provision hereof, for purposes of this Agreement Consultant
shall be and act as independent contractor and not as partners or joint venture
participants of the Company and shall not bind nor attempt to bind the Company
to any contract. Consultant is an independent contractor and is solely
responsible for all its taxes, withholdings, and other statutory or contractual
obligations including, but not limited to, Workers' Compensation Insurance;
and
Consultant agrees to defend, indemnify and hold Company harmless from any and
all claims, damages, liability, attorneys' fee and expenses on account of an
alleged failure by Consultant to satisfy any such obligations.
7. Assignment.
This
Agreement and the services contemplated hereunder are personal to Consultant
and
Consultant shall not have the right or ability to assign, transfer, or
subcontract any obligations under this Agreement without the written consent
of
Company, except that any Consultant may subcontract its rights and obligations
in any country to an affiliate as long as prior written notice is given to
the
Company (each, a “Country Sub-Consultant”) or to Xxxxxx Xxxxx or an entity
controlled by him. Except as referred to above, any other attempt to assign,
transfer or subcontract shall be void. Without limiting the foregoing, any
assignment of this Agreement (by operation of law, merger, reverse merger,
change of control or otherwise) by the Company shall not be permitted unless
the
assignee of this Agreement agrees in writing to assume the obligations of the
Company hereunder.
8. Notice.
All
notices under this Agreement shall be in writing, and shall be deemed given
when
personally delivered, or three days after being sent by prepaid certified or
registered U.S. mail to the address of the party to be noticed as set for the
herein or such other address as such party last provided to the other by written
notice.
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9. Miscellaneous.
Any
breach of Section 2 or 3 will cause irreparable harm to Company for which
damages would not be an adequate remedy, and therefore, Company will be entitled
to injunctive relief with respect thereto in addition to any other remedies.
The
failure of either party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights. No changes,
modifications, or waivers to any provision of this Agreement shall be determined
to be illegal or unenforceable, that provision will be limited or eliminated
to
the minimum extent necessary so that this Agreement shall otherwise remain
in
full force and effect and enforceable. This Agreement shall be governed by
and
construed in accordance with the laws of the State of California without regard
to the conflicts of law provisions thereof. Headings herein are for convenience
of reference only and shall in no way affect interpretation of the
Agreement.
10. Arbitration
and Equitable Relief.
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a)
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Disputes.
Except as provided in Section 10(d) below, the Company and Consultant
agree that any dispute or controversy arising out of, relating to
or in
connection with the interpretation, validity, construction, performance,
breach or termination of this Agreement shall be settled by binding
arbitration with the American Arbitration Association (“AAA”) located in
San Francisco, California, in accordance with AAA’s current commercial
arbitration rules. The arbitrator may grant injunctions or other
relief in
such dispute or controversy. The decision of the arbitrator shall
be
final, conclusive, and binding on the parties to the
arbitration.
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b)
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Consent
to Personal Jurisdiction.
The arbitrator(s) shall apply California law to the merits of any
dispute
or claim, without reference to conflicts of law rules. Consultant
hereby
consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or
relating to this Agreement or relating to any arbitration in which
the
parties are participants.
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| c) |
Costs.
The non-prevailing party in any arbitration shall pay the costs and
expenses of the arbitrator in respect of such arbitration. In any
court
action at law or equity or in respect of any arbitration, which is
brought
by one of the parties to enforce or interpret the provisions of this
Agreement, the parties shall be responsible for their own attorney's
fees.
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| d) |
Equitable
Relief.
The parties may apply to any court of competent jurisdiction for
a
temporary restraining order, preliminary injunction, or other interim
or
conservatory relief, as necessary, without breach of this arbitration
agreement and without abridgment of the powers of the
arbitrator.
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e)
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Acknowledgement.
CONSULTANT HAS READ AND UNDERSTAND SECTION 10, WHICH DISCUSSES
ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO,
OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING
ARBITRATION, EXCEPT AS PROVIDED IN SECTION 10(d), AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF CONSULTANT’S RIGHT TO A JURY
TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THE RELATIONSHIP BETWEEN THE
PARTIES.
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11. Indemnity.
The
Company shall indemnify, defend and hold harmless Consultant, its affiliates,
officers, directors, employees, advisors, shareholders, partners and owners
from
and against all losses, damages and claims, including reasonable attorney’s fees
and expenses resulting from or arising out of the performance of the Services
by
Consultant, except Consultant shall not be entitled to any indemnification
hereunder arising out of its willful misconduct or gross negligence as
determined by a final judgment of a court of competent jurisdiction. Consultant
shall indemnify, defend and hold harmless the Company from and against all
losses, damages and claims, including reasonable attorney’s fees and expenses
directly attributable to its willful misconduct or gross negligence in the
performance of its duties hereunder as determined by a final judgment of a
court
of competent jurisdiction, except that the Company shall not be entitled to
indemnification hereunder to the extent such losses, damages and claims are
also
attributable to its willful misconduct or gross negligence.
12. Miscellaneous.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which shall constitute one and the same document.
This Agreement shall be binding on all successors and permitted assigns.
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IN
WITNESS WHEREOF, the parties have executed this agreement as of the date first
above written
Company
_______________________________
Name:
Title:
Consultant
Univest
Group
_______________________________
Name:
Title:
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EXHIBIT
A to
Consulting Agreement between Univest Group, Ltd. (“Consultant”) and
Triton Distribution Systems, Inc. (“TDSI” or “Company”) effective September 6,
2006.
SERVICES
During
the term of this engagement, Consultant directly or through a Country
Sub-Consultant or other permitted assign shall identify and refer travel vendor
companies in the Exclusive Region and elsewhere to the Company as potential
customers of the Company’s products. Individual travel vendor companies shall be
approved by the Company before being targeted by Consultant. Consultant shall
make one of its officers available to attend meetings at the Company's Xxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx office on such basis as the
parties from time to time agree reasonably may be required in order for
Consultant to perform adequately and cost-effectively the services to be
rendered by it hereunder. Meetings in Sausalito shall not be required more
often
than once semi-annually of up to three days duration. Company will make every
effort to ensure that Consultant is given at least 2 weeks advance notice of
meeting dates in Sausalito. The Company shall pay the travel, lodging and other
related expenses of Consultant incurred by the Consultant in connection with
the
semi-annual meetings in Sausalito within a reasonable period of time following
notice thereof. Consultant shall perform services to be rendered hereunder
at
and from their established office.
TERM
This
engagement shall commence on the date hereof and shall continue through until
terminated in accordance with its terms. The exclusivity provided for in Section
4 of this engagement shall initially last until February 29, 2008 and shall
be
automatically renewed for successive eighteen-month periods as long as during
each such prior period Consultant has generated segments through the TDS system
or have referred clients to the Company. For the avoidance of doubt, Consultant
shall not be obligated to perform any Services for the Company, except that
the
failure to perform any such Services will likely result in the expiration of
the
exclusivity period as described above. By no later than (30) days following,
as
applicable, each eighteen-month anniversary of this agreement and the date
of
termination of this engagement, Company shall pay and deliver to Consultant,
in
full: (i) any and all amounts accrued and unpaid for services rendered Company
by Consultant through such date, as applicable, and (ii) reimbursement of any
and all costs advanced and expenses incurred by Consultant on behalf of Company
with respect to this engagement through such date, as applicable.
COMPENSATION
Except
as
set forth below, Company shall compensate Consultant in total for services
rendered hereunder at the rate of Fifteen Percent (15%) of gross segment revenue
(the “Base Rate”) to the Company for business attributed to Consultant’s and its
Country-Sub Consultants efforts and for any business with any client whose
primary operations are in the Exclusive Region. In the event that the Company
receives gross segment revenue from the business referred to in the previous
sentence in excess of $2.00 per segment, Company shall compensate Consultant
for
such excess at the rate of Seventy-Five Percent (75%) of such excess. If the
underlying market conditons have significantly adversely changed or if the
clients have requested or made signifcantly adverse changes to its contract
terms with Company, Company shall be permitted to renogotiate the Base Rate
with
Consultant, provided that such rate shall not be lower than Ten Percent (10%)
(the “Floor Rate”). Company shall have the right to conduct such renegotiations
once every 18 months and any such adjusted Base Rate shall only apply to
contracts with customers signed on or after the commencement of such new period,
with the first such period commencing on March 1, 2008. With respect to each
travel vendor company, Compensation shall be paid only for the period of the
Company’s contract with such travel vendor company, including any renewal of
such contract, provided that upon any such renewal, the parties may renegotiate
the compensation paid to Consultant in respect of such renewed contract if
the
renewed contract contains materially different payment terms with the Company,
provided that such compensation shall not be less than the Floor Rate.
Compensation shall be paid by the 30th day of the month following the month
in
which the company receives payment attributable to Consultant’s efforts.
Consultant shall receive a monthly revenue report thirty days after the monthly
revenue is received by TDSI. The Company agrees to assist with basic Triton
Distribution Systems, Inc. marketing materials, but all other expenses including
specific Consultant’s marketing expenses and materials, office rent, supplies
and utilities, liability insurance, etc. shall be paid by Consultant unless
otherwise mutually agreed upon by Consultant and the Company.
TRAVEL
Except
as
set forth above, all travel and entertainment necessary to sell and market
Company products in the Exclusive Region shall be at the sole expense of
Consultant unless otherwise mutually agreed upon by the Company and
Consultant.
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