Exhibit 10(em)
AGREEMENT
This Agreement, entered into this 20th of May, 0000, xxxxxxx Xxxxxxxx, XX
("Kambrium") having a place of business at Xxxxx Xxxxxxxxxx, X-000 000
XXXXXXXXXXXXX, Xxxxxx, and NCT Group, Inc. ("NCT") having a place of business at
00 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, describes the arrangements, terms and
conditions under which both Kambrium and NCT agree to proceed.
1. Objective: Kambrium will assist NCT, in particular its subsidiary Artera
Group, Inc., in establishing distribution agreements, large end user sales,
resellers, capital, funding, joint venture partners, and private network
opportunities.
2. Term of the Agreement: The Initial Term of this Agreement shall be for a
one year period, but will automatically be extended beyond the expiration
of such Initial term for additional consecutive one (1) year terms upon the
anniversary of the commencement of each one (1) year term unless terminated
by either party upon written notice to the other no less than thirty (30)
days prior to the expiration of each respective term. Termination shall in
no way affect transactions already completed for which compensation is due
to Kambrium as described in Paragraph 4 below.
3. Non-Compete: Kambrium shall make available such time as it, in its sole
discretion, shall deem appropriate for the performance of its obligations
under this Agreement. NCT acknowledges and agrees Kambrium will perform
services for other companies, except that it may not do so for companies
that directly compete with NCT during the term of this Agreement..
4. Compensation: As compensation for Kambrium's services hereunder, NCT shall
promptly pay to Kambrium as follows:
(a) Engagement Fee: A fee of $32,800 shall be paid to Kambrium on the
signing of this Agreement.
(b) Raising Capital and Debt: A fee shall be paid to Kambrium of 5%
(six percent) of the equity capital and 1% (one percent) for debt
obligations raised for NCT from those parties listed as
"Investors" on Schedule A. Kambrium will also receive warrants
exercisable in two (2) years to purchase an amount of equity in
NCT equal to 5% of the equity sold, at the same price as the
equity sold. "Equity Capital," as used in this provision shall
include funds used to purchase (a) debt obligations which are
convertible into equity, (b) any obligations or equity containing
"put" options, (c) preferred stock of any nature and (d) any
other NCT obligations in which the holder has rights in addition
to repayment (other than rights against collateral).
Agreement for Kambrium 05-24-04
(c) Licensing and Distribution Fees: A fee shall be paid to Kambrium
of 7% (seven per cent) of the gross revenues received, when
received, under any licensing and/or distribution agreements
between NCT and those parties listed on Schedule "A" attached
hereto as Business Targets. "Gross Revenues" are defined as all
revenues received under a licensing and/or distribution agreement
between NCT and a Business Target less verifiable direct costs
incurred by NCT in delivery of the contracted license, services
or products required by such agreement. The 7% fee, as discussed
above, shall be paid for a period of three (3) years from the
date that revenue is first received from each Business Target
listed on Schedule A, and thereafter, the fee shall be 5% of
Gross Revenue from such Business Targets.
(d) Joint Venture Income: In the event NCT enters into a joint
venture, partnership or other business relationship with any
Investor or Business Target that results in gross revenues being
paid to NCT, Kambrium will receive a fee of 7% (seven percent) of
said revenues received, when received, that result from the
aforementioned, less verifiable direct costs incurred by NCT in
delivery of the contracted license (if any), services or products
required by the business relationship entered into between NCT
and such Business Target(s). The 7% fee, as discussed above,
shall be paid for a period of three (3) years from the date that
revenue is first received from each Investor or Business Target
listed on Schedule A, and thereafter, the fee shall be 5% of
Gross Revenue from such Business Targets.
(e) Sale of NCT: In the event any Investor or Business Target
purchases greater than a majority interest of NCT, Kambrium shall
receive 6% (six percent) of such purchase price. "Purchase price"
shall mean any compensation of any nature received, or to be
received, by NCT from such transaction, including any legal,
beneficial or equitable interest in a business such as stock,
stock options, partnership interests, member interests,
beneficial trust interests and similar types of interests as well
as any deferred compensation.
(f) Adding and Deleting from Schedules: A prospective Investor or
Business Target shall be added to Schedule A with written consent
from NCT. Any such prospect may be removed from Schedule A if it
does not enter into a business relationship with NCT within three
(3) months of its addition to Schedule A. If in NCT's opinion
reasonable progress is being made towards entering into a
business relationship the three (3) month period will be extended
in writing until such time as the prospect is deemed by NCT to be
inactive.
(g) Equity. Kambrium may request any of the above- described fees as
equity in NCT instead of cash. NCT at its sole discretion may
decide to honor the request. If NCT decides to honor the request,
the price of the equity will be mutually agreed upon by the
parties at the time
Agreement for Kambrium 05-24-04
of the request but in no event will such price be greater than
the price of the last capital infusion. Kambrium and NCT may, on
a comparable basis, agree that Kambrium will receive equity in
any joint venture or similar transaction referred to in this
Paragraph 4 in lieu of all or part of the cash fee provided for
herein.
(h) If Kambrium uses other entities to assist them, then Kambrium is
responsible for the compensation to those entities.
5. Expenses: Kambrium agrees that ordinary expenses incurred by it associated
with this agreement will be paid by Kambrium, except as agreed in advance
by NCT and Kambrium.
6. Relationship: Except to such extent as might hereinafter be expressly
agreed for a particular purpose, Kambrium shall not have the authority to
obligate or commit NCT in any manner whatsoever.
7. Information: NCT acknowledges that Kambrium will rely on information
furnished by NCT concerning NCT's business affairs without independent
certification and represents that such information will be materially
complete and correct.
8. Confidentiality: Except in the course of the performance of its duties
hereunder, Kambrium agrees that it shall not disclose any trade secrets,
know-how, or other proprietary information not in the public domain learned
as a result of this Agreement unless and until such information becomes
generally known.
9. Assignment: This Agreement shall not be assignable by either party.
10. Governing Law: This Agreement shall be deemed to be a contract made under
the laws of the State of Connecticut in the United States of America, and
for all purposes shall be construed in accordance with the laws of said
State and Country.
11. Miscellaneous.
(a) NCT agrees to provide Kambrium, in regard to any transaction
contemplated hereby, with a timely copy of all letters of intent,
offers, counter-offers, final agreements, closing statements and
any other information or materials which are pertinent to such
transaction.
(b) Each of the undersigned signatories, individually and on behalf
of NCT and Kambrium, respectively, represents and warrants that
he or she has the authority to enter into this Agreement.
(c) "NCT," as used in this Agreement, shall mean the NCT Group, Inc.
and any of its affiliates or successors-in-interest. With regard
to the Artera Optimization Software Service, license is limited
to finding distribution agents and technology applications, as
listed in the Schedule A, for the Artera Turbo Residential and
Artera Turbo Small Business products. Other products may only be
included, on a case by case basis, with the prior written consent
of NCT, and a listing on the Schedule A attached hereto.
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(d) No communications, consents and other notices hereunder shall be
effective unless in writing and delivered by overnight courier,
telecopy or facsimile, or mailed by certified mail, postage
prepaid, return receipt requested, and properly addressed to the
intended recipient at its last known address.
AGREED AND ACCEPTED:
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For NCT Group, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chairman and CEO
Date: 05/24/04
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For Kambrium A.B.
By: /s/ Xxxx Xxxx af Rantzien
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Xxxx Xxxx af Rantzien
Managing Director
Date: 05/25/04
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Agreement for Kambrium 05-24-04
Schedule A
DirectTV/xxxxxxxx.xxx
Xxxxxx Network Systems
Telia -Sonera
Nokia
Ericsson
Xxxxxxxxxx-Whampoa
Virgin Holdings
Milicom
Glocalnet
Deutsche Telekom
Comviq
Tele2
Bredbandsbolaget
Telenor
Agreement for Kambrium 05-24-04
