EXHIBIT 10.2
▇▇▇▇▇▇ AGREEMENT
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THIS ▇▇▇▇▇▇ AGREEMENT (the "Agreement") is made and entered into as of the
1st day of July, 1998, by and among ▇▇▇▇▇▇ HOLDINGS, INC. ("THI"), ▇▇▇▇▇▇
NETWORK SERVICES, INC. ("TNS"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (TNS, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ are sometimes referred to herein individually as a "▇▇▇▇▇▇ Party" and
collectively as the "▇▇▇▇▇▇ Parties").
R E C I T A L S:
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WHEREAS, THI has entered into: (i) a Consulting Agreement dated as of
December 26, 1996, with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Consulting Agreement"),
whereby ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has agreed to provide consulting services for THI for a
two year period ending December 26, 1998; (ii) a Consulting Agreement dated as
of December 26, 1996 with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇ Consulting Agreement")
whereby ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ has agreed to provide consulting services for THI for a
two year period ending December 26, 1998; and (iii) an Employment Agreement
dated as of December 26, 1996, with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (the "▇▇▇▇▇▇
Employment Agreement") whereby ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. was employed by THI for a
one year period ending December 26, 1997, which one year period was extended for
an additional year to end December 26, 1998; and
WHEREAS, THI entered into an agreement with [Confidential information set
forth here has been filed separately with the Securities and Exchange Commission
under Rule 24b-2 under the Securities Exchange Act of 1934] ("[Confidential
information set forth here has been filed separately with the Securities and
Exchange Commission under Rule 24b-2 under the Securities Exchange Act of
1934]") dated the 15th day of April, 1998 (the "[Confidential information set
forth here has been filed separately with the Securities and Exchange Commission
under Rule 24b-2 under the Securities Exchange Act of 1934] Agreement"); and,
WHEREAS, under the [Confidential information set forth here has been filed
separately with the Securities and Exchange Commission under Rule 24b-2 under
the Securities Exchange Act of 1934] Agreement, THI is to provide validation,
billing, and collection services for inmate call records supplied by
[Confidential information set forth here has been filed separately with the
Securities and Exchange Commission under Rule 24b-2 under the Securities
Exchange Act of 1934], and compensation for the services to be performed is to
be effected by the purchase by THI of [Confidential information set forth here
has been filed separately with the Securities and Exchange Commission under Rule
24b-2 under the Securities Exchange Act of 1934] account receivables of end user
accounts at a discount, all of which is more particularly set forth in the
[Confidential information set forth here has been filed separately with the
Securities and Exchange Commission under Rule 24b-2 under the Securities
Exchange Act of 1934] Agreement; and,
WHEREAS, Section M.2. of the [Confidential information set forth here has
been filed separately with the Securities and Exchange Commission under Rule
24b-2 under the Securities Exchange Act of 1934] Agreement requires that ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. [Confidential information set forth here has been filed
separately with the Securities and Exchange Commission under Rule 24b-2 under
the Securities Exchange Act of 1934] and to discharge certain responsibilities
as provided therein (collectively, the "M.2 Requirements"); and,
WHEREAS, the ▇▇▇▇▇▇ Parties (and others) have incorporated TNS, and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. will act as President of TNS; and,
WHEREAS, the parties desire to provide for (i) compensation to the ▇▇▇▇▇▇
Parties for the procurement of the [Confidential information set forth here has
been filed separately with the Securities and Exchange Commission under Rule
24b-2 under the Securities Exchange Act of 1934] Agreement; (ii) discharge of
the M.2 Requirements and transition services by the ▇▇▇▇▇▇ Parties; and (iii)
termination of the ▇▇▇▇▇▇ Consulting Agreement, the ▇▇▇▇▇▇▇ Consulting
Agreement, and the ▇▇▇▇▇▇ Employment Agreement, subject to the survival of
Section 6 of each such agreement as provided therein and herein;
NOW, THEREFORE, in consideration of the premises, and the mutual agreements
set forth below, the parties hereby agree as follows:
1. TERMINATION. Subject to the survival of Section 6. of the ▇▇▇▇▇▇
Consulting Agreement, the ▇▇▇▇▇▇▇ Consulting Agreement and the ▇▇▇▇▇▇ Employment
Agreement, as provided therein and in Section 1(d) below, the parties agree as
follows:
(a) ▇▇▇▇▇▇ Consulting Agreement. Effective as of the close of business on
June 30, 1998, the ▇▇▇▇▇▇ Consulting Agreement has been terminated. The annual
consulting fee for the second year of the consulting period due to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ thereunder has been paid on a prorated basis through June 30, 1998. ▇▇.
▇▇▇▇▇▇ acknowledges receipt of the separate payment referred to under paragraph
(b) of Exhibit 4 to the ▇▇▇▇▇▇ Consulting Agreement, which shall be retained by
▇▇. ▇▇▇▇▇▇ without proration. THI has transferred title to the 1991 Range Rover
to ▇▇. ▇▇▇▇▇▇, without payment, in accordance with paragraph (c) of Exhibit 4 of
the ▇▇▇▇▇▇ Consulting Agreement. No further payments are due by THI to ▇▇.
▇▇▇▇▇▇ under the ▇▇▇▇▇▇ Consulting Agreement.
(b) ▇▇▇▇▇▇▇ Consulting Agreement. Effective as of the close of business on
June 30, 1998, the ▇▇▇▇▇▇▇ Consulting Agreement has been terminated. The annual
consulting fee for the second year of the consulting period due to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ thereunder has been paid on a prorated basis through June 30, 1998. ▇▇.
▇▇▇▇▇▇▇ acknowledges receipt of the separate payment referred to under paragraph
(b) of Exhibit 4 to the ▇▇▇▇▇▇▇ Consulting Agreement, which shall be retained by
▇▇. ▇▇▇▇▇▇▇ without proration. No further payments are due by THI to ▇▇.
▇▇▇▇▇▇▇ under the ▇▇▇▇▇▇▇ Consulting Agreement.
(c) ▇▇▇▇▇▇ Employment Agreement. Effective as of the close of business on
June 30, 1998, the ▇▇▇▇▇▇ Employment Agreement has been terminated. The annual
base salary
due to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. thereunder has been paid on a prorated basis
through June 30, 1998. ▇▇. ▇▇▇▇▇▇ acknowledges receipt of the guaranteed bonus
and separate payment referred to under paragraphs (b) and (c) of Exhibit 4 to
the ▇▇▇▇▇▇ Employment Agreement, which shall be retained by ▇▇. ▇▇▇▇▇▇ without
proration. ▇▇. ▇▇▇▇▇▇ waives any rights to an incentive bonus for 1998 or stock
options, as set forth in paragraphs (d) and (f) of Exhibit 4 of the ▇▇▇▇▇▇
Employment Agreement. No further payments are due by THI to ▇▇. ▇▇▇▇▇▇ under the
▇▇▇▇▇▇ Employment Agreement.
(d) Survival. Section 6 of each of the ▇▇▇▇▇▇ Consulting Agreement, the
▇▇▇▇▇▇▇ Consulting Agreement and the ▇▇▇▇▇▇ Employment Agreement shall survive
the aforesaid terminations (and the termination of this Agreement), with the
period of non-competition provided therein expiring on June 29, 2000. The
Noncompetition provisions of each such Section 6 shall remain as originally
agreed upon, with the following being acknowledged: (i) TNS has employed
certain persons previously employed by THI, and such actions are not violative
of the Noncompetition provisions of said Section 6; (ii) THI waives the
enforcement of the Noncompetition provisions of said Section 6 as to the actions
to be performed by the ▇▇▇▇▇▇ Parties hereunder with respect to the type of
services rendered by THI under the [Confidential information set forth here has
been filed separately with the Securities and Exchange Commission under Rule
24b-2 under the Securities Exchange Act of 1934] Agreement as set forth therein,
but does not otherwise waive the enforcement of such provisions as to the
rendering of these type of services by the ▇▇▇▇▇▇ Parties to [Confidential
information set forth here has been filed separately with the Securities and
Exchange Commission under Rule 24b-2 under the Securities Exchange Act of 1934]
outside of the terms of this Agreement and/or to other telecommunications
companies.
2. TRANSITION AND M.2. REQUIREMENTS. With respect to the [Confidential
information set forth here has been filed separately with the Securities and
Exchange Commission under Rule 24b-2 under the Securities Exchange Act of 1934]
Agreement, the ▇▇▇▇▇▇ Parties shall assist THI in coordinating a smooth
transition of services and customer relations to current employees of THI and/or
its subsidiaries, and otherwise generally assist THI in the administration of
this account, as directed by THI. In this regard, the ▇▇▇▇▇▇ Parties agree to
follow the reasonable directives of THI as may be issued from time to time.
Without limiting the generality of the foregoing, at the direction of THI,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. shall assist in discharging the M.2 Requirements. THI
agrees that TNS may assist the ▇▇▇▇▇▇ Parties in discharging their obligations
hereunder. All services rendered by the ▇▇▇▇▇▇ Parties shall be as an
independent contractor, and neither the employees of TNS or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be or shall be deemed to be
employees of THI or its affiliates. The obligations under this Section 2 shall
continue for a period of one (1) year commencing on July 1, 1998, and ending on
June 30, 1999.
With respect to the foregoing, THI hereby designates ▇▇▇▇▇ ▇▇▇▇▇▇, as the
THI employee primarily responsible for the administration of the [Confidential
information set forth here has been filed separately with the Securities and
Exchange Commission under Rule 24b-2 under the Securities Exchange Act of 1934]
Agreement. The ▇▇▇▇▇▇ Parties will consult with ▇▇. ▇▇▇▇▇▇ (or his replacement)
in the administration of this account.
3. PAYMENT. THI will pay to the ▇▇▇▇▇▇ Parties ten percent (10.0%) of the
Profits derived by THI from the activities currently set forth in the
[Confidential information set forth here has been filed separately with the
Securities and Exchange Commission under Rule 24b-2 under the Securities
Exchange Act of 1934] Agreement during the period commencing on July 1, 1998,
and ending on December 31, 1998 (the "Primary Period") and five percent (5.0%)
of the Profits derived by THI from the [Confidential information set forth here
has been filed separately with the Securities and Exchange Commission under Rule
24b-2 under the Securities Exchange Act of 1934] Agreement during the period
commencing on January 1, 1999, and ending on June 30, 1999 (the "Secondary
Period"). "Profits" for the purposes of this Agreement are as defined in
paragraph 4 herein. THI will fund to the ▇▇▇▇▇▇ Parties as an advance against
this payment, the amount of $50,000.00 per month, beginning July 30, 1998, and
continuing on the 30th day of each month thereafter through the Primary Period.
Similarly, THI will fund to the ▇▇▇▇▇▇ Parties as an advance against this
payment, the amount of $25,000 per month, beginning January 30, 1999, and
continuing on the 30th day of each month thereafter through the Secondary
Period. At the end of the Primary Period and the Secondary Period, the Profits
derived by THI from the [Confidential information set forth here has been filed
separately with the Securities and Exchange Commission under Rule 24b-2 under
the Securities Exchange Act of 1934] Agreement during such period, and the
resulting payment due the ▇▇▇▇▇▇ Parties, shall be calculated, as set forth in
paragraph 4 herein. In the event such payment exceeds the advances, THI will
pay to the ▇▇▇▇▇▇ Parties the amount by which the required payment exceeds the
advances within a reasonable time not to exceed sixty (60) days from the receipt
of the reports from the accountants as provided for in paragraph 4. In the
event the advances exceed the required payment, the ▇▇▇▇▇▇ Parties will pay to
THI the amount by which the advances exceeds the required payment, within a
reasonable time not to exceed sixty (60) days from the receipt of the reports
from the accountants as provided for in paragraph 4.
4. DEFINITION AND CALCULATION OF PROFITS. "Profits" for the purposes of
this Agreement shall mean the gross revenues received by THI from accounts
receivable purchased from [Confidential information set forth here has been
filed separately with the Securities and Exchange Commission under Rule 24b-2
under the Securities Exchange Act of 1934] under the [Confidential information
set forth here has been filed separately with the Securities and Exchange
Commission under Rule 24b-2 under the Securities Exchange Act of 1934] Agreement
less, the purchase price paid by THI for those receivables ("Booked Gross
Revenue"), less the following charges, fees or expenses associated with such
receivables or underlying calls generating such receivables: (i) validation,
(ii) billing and collection, (iii) inquiry costs not to exceed 1.4% of Booked
Gross Revenue, (iv) unbillables, and (v) bad debt and uncollectibles. General
operating overhead and expenses of THI shall not be deducted from such Profits
for the purposes of calculating the payment due under this Agreement. The
independent accounting firm for THI shall calculate the Profits, as defined
above, and resulting payment using generally accepted accounting principles. To
the extent that the gross revenues are undetermined at the end of the Primary
Period or Secondary Period such revenues will be estimated by said accountants,
based on experience of collections by THI for [Confidential information set
forth here has
been filed separately with the Securities and Exchange Commission under
Rule 24b-2 under the Securities Exchange Act of 1934] accounts as well as THI's
own accounts. Such estimates will be made as of ninety (90) days following the
end of the Primary Period or Secondary Period using the data available as of
that time.
5. NO OTHER AGREEMENTS. This Agreement constitutes the entire agreement
between the parties with respect to its specific subject matter.
6. COUNTERPARTS; SIGNATURES. This Agreement may be executed in one or
more duplicate counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
Facsimile transmission of any signed original of this Agreement and/or
retransmission of any signed facsimile transmission shall be the same as
delivery of an original.
7. SUBSIDIARIES AND AFFILIATES. The parties recognize and agree that
services under the [Confidential information set forth here has been filed
separately with the Securities and Exchange Commission under Rule 24b-2 under
the Securities Exchange Act of 1934] Agreement and this Agreement may be
performed by subsidiaries or affiliates of the parties, and this Agreement shall
apply to and be binding upon any such subsidiary or affiliate.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their successors and assigns, heirs and
legal representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
THI:
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▇▇▇▇▇▇ HOLDINGS, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ PARTIES:
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▇▇▇▇▇▇ NETWORK SERVICES, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
