EXHIBIT 10.1
AGREEMENT
This Agreement (the "Agreement") is entered into this 28th day of October,
2005, by The Telmarc Group, LLC (with its Affiliates called "Telmarc") at 00
Xxxxxxxx Xxxx, Xxxxxxx Xxxx, XX 00000, a Delaware limited liability Telmarc, and
North Shore Capital Advisers Corp. ("NSCA") a Delawarecorporation with offices
at 00 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, each a "Party" and jointly
called the "Parties". The Parties hereby agrees as follows:
WHEREAS Telmarc is in the business of seeking out, financing, and managing
certain high technology businesses, and;
WHEREAS Telmarc may from time to time seek support in the management and
strategic focus of such businesses, and;
WHEREAS, NSCA represents that it has the expertise, resources, capabilities
and experience in providing management and strategic focus support in the
business area in which Telmarc operates;
NOW THEREFORE the Parties agrees as to the following;
1 Responsibilities of NSCA
1.1 When and if Telmarc, at Telmarc's sole discretion, seeks to obtain
assistance from NSCA then NSCA agrees to act as the non-exclusive financial
consultant to Telmarc in connection with:
(i) assisting the Telmarc in the development and evaluation of the business
plans of companies in which the Telmarc may invest, (ii) working with management
of the companies in which the Telmarc may invest to analyze financings and
business combinations, and (iii) working with management of the companies in
which the Telmarc may invest to develop business strategies for Telmarc, and
(iv) . Telmarc shall notify NSCA in writing of an opportunity in which Telmarc
would consider investing and at that time Telmarc would then request
specifically for the support described herein for that specific opportunity.
Telmarc has no obligation hereunder to present any such opportunity to NSCA and
if Telmarc does so it shall be done solely at Telmarc's discretion.
1.2 NSCA (a) will use and rely primarily on the information provided by
Telmarc or through confidential sources provided by Telmarc ("Information") and
on information available from generally recognized public sources in performing
the services contemplated by this letter without having independently verified
the same, (b) does not assume responsibility for the accuracy or completeness of
the Information and such other information, and (c) shall not make an appraisal
of any assets of Telmarc or any company in which it may invest.
2 Telmarc Responsibilities
2.1 Telmarc will, if it is available, and in a reasonable manner, furnish
NSCA with such information as the Telmarc and NSCA believe appropriate to the
assignment (all such information so furnished being "Information").
3 Duration
This agreement shall be for the initial term of two years commencing upon
the date hereof, and thereafter on a month-to-month basis until terminated by
the Telmarc or NSCA.
4 Compensation
4.1 In sole and complete consideration for such services, the Telmarc
agrees to pay NSCA a fee equal to $300 per hour for each hour NSCA provides per
express written prior request from Telmarc for specific services to the Telmarc,
payable within thirty (30) days after receipt of invoices, for service delivered
by NSCA to Telmarc, by Telmarc.
4.2 Telmarc further agrees to reimburse NSCA upon request made from time to
time, for its prior approved in writing by Telmarc reasonable actual and
documented out-of-pocket expenses, incurred in connection with NSCA's engagement
hereunder.
4.3 Unless specifically requested in writing by Telmarc to perform a task
hereunder, Telmarc shall have no responsibly to NSCA of any form, monetary or
otherwise.
5 Confidentiality and Proprietary Information
5.1 The parties agree that Confidential Information covered by this
agreement shall be disclosed by both parties. For the purposes of this
Agreement, "Confidential Information" means: any information including, but not
necessarily limited to: discoveries, designs, specifications, codes, drawings,
blueprints, tracing, diagrams, models, samples, flow charts, data, computer
programs, marketing plans, customer names and other technical, financial or
commercial information, whether written, oral or other tangible or intangible
forms. Such information is in writing, marked as "Proprietary" or a similar
notation at the time of the transmission, and maintained subsequently by the
Parties in accordance with the terms of this Agreement. If in the event that the
information is initially conveyed orally, the disclosing Party shall indicate at
the time of disclosure what is Proprietary and/or Confidential Information and
shall within thirty (30) days of such disclosure reduce such information to a
summarized writing with the Proprietary notices or a similar notation affixed
thereto. For the purposes of this Agreement, "Recipient" means the party
receiving Confidential Information, and "Discloser" means the party providing
Confidential Information.
5.2 The Recipient shall make use of the Confidential Information only for
the following purpose or purposes of evaluating a potential business
relationship between Telmarc and NSCA.
5.3 Recipient shall keep the Confidential Information in strict confidence
and disclose the Confidential Information only to those of its employees,
subcontractors and consultants that need to know such Confidential Information
and solely for the purpose described in Section 2, provided, that Recipient
shall ensure that its employees, subcontractors and consultants exercise at
least the same degree of care in protecting the Confidential Information from
disclosure as they exercise in respect of the Recipient's own confidential and
proprietary information and data and in any event, at least a reasonable level
of care.
5.4 Recipient shall afford the Confidential Information the same security
and care in handling and storage as Recipient provides for its own confidential
and proprietary information and data and in any event, at least a reasonable
level of care. Except as may subsequently be agreed otherwise in writing, the
Recipient agrees not to duplicate or otherwise copy and to return immediately at
the Discloser's request all Confidential Information including any plans,
designs, documents or other tangible items (including electronic media) copied
or derived from and containing Confidential Information.
5.5 Recipient shall not be liable for use or disclosure of the Confidential
Information if the same: (a) is in the public domain at the time it is disclosed
or becomes a matter of public knowledge through no fault of Recipient; or (b) is
known, as demonstrated by written documentation, to the party receiving it at
the time of disclosure; or (c) is rightfully received by Recipient from a source
other than the disclosing party without a duty of confidentiality; or (d) is
independently developed, separate from the activities undertaken pursuant to
this Agreement, and such development can be verified through written
documentation. None of the above restrictions will prohibit the receiving Party
from disclosing the material as a result of any appropriate court order or other
legal investigation, either ex parte to this Agreement, or in pursuit of
remedies under this Agreement. The disclosing Party will be responsible for
notifying the other party of such disclosure, as soon as practicable prior to
its disclosure.
5.6 In the event Recipient is confronted with legal action to disclose
Confidential Information received under this Agreement, the Recipient shall
promptly notify the Discloser in writing and shall take reasonable steps to
limit the amount of Confidential Information so disclosed and to protect its
confidentiality, including but not limited to reasonably assisting the Discloser
in obtaining a protective order.
5.7 Each Discloser warrants that it has the right to make the disclosures
under this Agreement. Neither party shall have any liability to the other
arising from the use of the Confidential Information in accordance with this
Agreement. The parties mutually acknowledge that they make no representations or
warranties as to the reliability, accuracy or completeness of the Confidential
Information.
5.8 No license is granted by either party to the other under any patent,
trademark, copyright, trade secret or mask work other than as expressly set
forth herein.
6 Indemnification
6.1 Telmarc shall indemnify, defend and hold harmless NSCA, and all of
NSCA's and its affiliates' officers, directors, partners, employees and agents,
from and against any and all losses, claims, damages, liabilities or expenses of
any kind (including, but not limited to, reasonable attorneys fees and costs)
arising out of any claim, action or proceeding by a third party against any of
them to the extent it is based on (i) a claim for personal injury (including
death) or damage to personal property for which Telmarc or any of its affiliates
is legally responsible, or (ii) a claim by a client of TELMARC, which telmarc or
any of its affiliates is legally responsible, (iii) telmarc or its affiliate's
failure to comply with all applicable laws, regulations and orders in the
performance of its obligations under this Agreement.
6.2 NSCA shall indemnify, defend and hold harmless telmarc, and all of
telmarc's and its affiliates' officers, directors, partners, employees and
agents, from and against any and all losses, claims, damages, liabilities or
expenses of any kind (including, but not limited to, reasonable attorneys fees
and costs) arising out of any claim, action or proceeding by a third party
against any of them to the extent it is based on (i) a claim for personal injury
(including death) or damage to personal property for which NSCA or any of its
affiliates is legally responsible, or (ii) a claim by a client of NSCA, which
NSCA or any of its affiliates is legally responsible, (iii) NSCA or its
affiliate's failure to comply with all applicable laws, regulations and orders
in the performance of its obligations under this Agreement.
6.3 The party seeking indemnity under the foregoing provisions shall notify
the indemnifying party of any such claim, action or proceeding, and the
indemnifying party shall promptly and at its sole cost undertake the defense
thereof. No such claim shall be compromised or settled without the prior written
consent of the indemnified party if the settlement would restrict or adversely
affect the indemnified party. Such consent shall not be unreasonably withheld.
the indemnified party shall have the right to participate at its own cost and
expense in such claim, action, or proceeding using counsel of its own choosing.
6.4 Nothing in this agreement, expressed or implied, is intended to confer
or does confer on any person or entity other than the parties hereto or their
respective successors and assigns, and to the extent expressly set forth herein,
the Indemnified Persons, any rights or remedies under or by reason of this
agreement or as a result of the services to be rendered by NSCA hereunder. The
Parties further agree that neither the indemnified Party nor any of its
controlling persons, affiliates, directors, officers, employees or agents shall
have any liability to the indemnifying Party for any losses, claims, damages,
liabilities or expenses arising out of or relating to this agreement or the
services to be rendered by indemnified Party hereunder, unless it is finally
judicially determined that such losses, claims, damages, liabilities or expenses
resulted directly from the gross negligence or willful misconduct of the
indemnifying Party. The invalidity or unenforceability of any provision of this
agreement shall not affect the validity or enforceability of any other provision
of this agreement, which shall remain in full force and effect.
7 Replacement
7.1 This agreement replaces in its entirety the agreement between NSCA and
Telmarc dated July 1, 2005.
8 Warrantees
8.1 The services performed by NSCA under this Agreement will be performed
in a professional manner consistent with industry standards reasonably
applicable to the performance of such services. THE FOREGOING WARRANTIES ARE IN
LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE
9 Survival
9.1 The parties hereto agree that the provisions relating to the payment of
fees and expenses of NSCA, the indemnification and contribution provisions and
the provisions of the succeeding paragraphs will survive the termination of this
agreement for any reason. Except as required by applicable law, any advice to be
provided by NSCA under this agreement shall not be disclosed publicly or made
available to third parties without the prior written approval of NSCA, and
accordingly such advice shall not be relied upon by any person or entity other
than Telmarc.
10 General
10.1 Entire Agreement and Severability
This represents the entire Agreement and no prior Agreement, whether
written or oral, are to be considered part of this Agreement. If any one clause
of this Agreement is rendered ineffective by any means, this does not render the
remaining elements ineffective. In point of fact, all non-ineffective elements
of the Agreement are to hold. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
10.2 Applicable Law
This Agreement is made to be governed by, construed in accordance with, and
interpreted under the laws of the State of New York.
10.3 Authority
Each participant to this Agreement represents and warrants it has the
necessary authority and power to enter into and carry out the provisions of this
Agreement.
10.4 Acts of God
The timing and performance of any obligation hereunder is subject to "Acts
of God".
10.5 Use of Speech
All pronouns contained herein and any variations thereof, shall be deemed
to refer the masculine, feminine, or neuter, singular or plural, as the identity
of the Parties may require.
10.6 Waiver
No waiver of any right under this Agreement shall be deemed effective
unless contained in writing and signed by the party charged with such waiver,
and no waiver of any right arising from any breach or failure to perform shall
be deemed to be a waiver of any future such right or of any other right arising
under this Agreement.
10.7 Notices
All notices, requests, demands, and communications related to this
Agreement will be deemed given if and when delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, to the
addresses indicated on the last page of this Agreement, and the receipt of such
notices, if under certified or registered mail not unduly delayed by receipt by
either party.
All Notices, consents, reports, requests and other documents authorized or
required to be given pursuant to this Agreement are to be sent by registered
mail to the following:
TELMARC: NSCA:
The Telmarc Group LLC North Shore Capital Advisors Corp.
Xxxxxxxx X. XxXxxxx, Managing Partner 00 Xxxxxx Xxxx
00 Xxxxxxxx Xx Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Xxxxxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxx
10.8 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective legal representatives and successors.
10.9 Headings
Headings contained in this Agreement are inserted only as a matter of
convenience and in no way define, limit, extend, or describe the scope of this
Agreement or the intent of any provisions hereof.
10.10 Unenforceability
If any provision of this Agreement is or becomes or is deemed invalid,
illegal, or unenforceable in any jurisdiction, to the maximum extent
permissible, such provision shall be deemed amended to conform to applicable
laws so as to be valid and enforceable or, if it cannot be so amended without
materially altering the intention of the Parties, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.
10.11 No Agency
Neither Party shall be an agent of the other unless otherwise expressly
agreed to in writing for a specific purpose.
10.12 Independent Consultant
NSCA is not authorized to act as an independent entity and is not an
employee or agent of Telmarc. Neither Party shall have the right or authority to
assume or create any obligation on behalf of, in the name of, or binding upon,
the other Party, nor to represent the other Party as a distributor in any manner
not specifically provided for herein. Nothing in this Agreement is an any way to
be construed that NSCA or any Affiliate of NSCA is an employee of Telmarc.
10.13 Assignment
This Agreement is not assignable by either party. IN WITNESS WHEREOF, the
Parties have caused their authorized representatives to sign below, on the dates
below, but as of the date first above written.
The Telmarc Group, LLC NORTH SHORE CAPITAL ADVISORS CORP.
/s/ Xxxxxxxx X. XxXxxxx
By: ________________________ By: /s/ Xxxxxx Xxxxx
______________________
Xxxxxx Xxxxx
Name: Xxxxxxxx X. XxXxxxx Name: _____________________
Managing Partner
