CONSULTING AGREEMENT
This Consulting Agreement dated as of June 1, 2000 by and between
DualStar Technologies Corporation, a Delaware corporation having its address at
0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("DualStar"), and TechOne Capital Group
LLC, a Delaware limited liability company having its address at 00 Xxxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 ("TechOne").
WHEREAS, DualStar and TechOne are parties to that certain letter
agreement effective as of August 12, 1999, as amended by letter dated March 24,
2000 (together, the "Letter Agreements"), pursuant to which DualStar has engaged
TechOne to provide certain consulting services to DualStar and its subsidiaries;
and
WHEREAS, DualStar and TechOne desire to amend and extend the consulting
engagement contemplated by the Letter Agreements by entering into this
Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual promises and other good
and valuable consideration, the parties hereto agree as follows:
1. Upon execution and delivery of this Consulting Agreement by DualStar
and TechOne, the Letter Agreements shall terminate and be of no further force
and effect, except that any amounts due to TechOne by DualStar, at the time of
such termination, shall be immediately due and payable, and TechOne shall not be
prevented from collecting such amounts notwithstanding the termination of the
Letter Agreements.
2. Subject to the terms and conditions set forth herein, TechOne hereby
agrees to provide to DualStar and its subsidiaries consulting services (the
"Services") in connection with DualStar's strategic alternatives and the
implementation of an expanded communications business plan adopted by DualStar
Communications, Inc., a wholly-owned subsidiary of DualStar, and DualStar hereby
agrees to pay TechOne for the Services a sum of $30,000 per month, payable in
advance on the first day of each month during the Term (defined below), and to
reimburse TechOne for all out-of-pocket expenses incurred by TechOne and its
personnel in furtherance of performing the Services.
3. All personnel assigned by TechOne to perform Services will be
principals, employees or contractors (collectively, "personnel") of TechOne and
TechOne will pay all salaries and expenses of, any applicable federal, social
security, federal and state unemployment taxes, and any other payroll or
withholding taxes relating to such employees. TechOne will be considered, for
all purposes, an independent contractor, and its will not, directly or
indirectly, act as an agent, servant or employee of DualStar.
4. This Consulting Agreement will be effective from the date hereof and
will terminate on June 1, 2003, at which time it may be renewed, extended or
modified by a written agreement signed by both parties hereto.
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5. TechOne agrees that the Services to be provided hereunder will be
performed by qualified, careful and efficient personnel in strict conformity
with the best practices and highest applicable standards. TechOne is responsible
for the direct management and supervision of its personnel.
6. TechOne agrees not to use or disclose to anyone other than
employees, principals, consultants attorneys and other professionals of TechOne
who have acknowledged this confidentiality covenant and agree in writing to be
bound by it, during the terms of this Consulting Agreement and for a period of
two (2) years following the termination hereof, any Confidential Information
(defined below). For purposes of this Consulting Agreement, "Confidential
Information: is (a) information contained in any materials delivered to TechOne
pursuant to this Consulting Agreement, and (b) information which relates to
DualStar's business affairs or that of any of its affiliates, but does not
include any information otherwise made available to TechOne in any other
capacity apart from this Consulting Agreement or is otherwise publicly available
through no act or failure to act on the part of TechOne. Upon the termination of
this Consulting Agreement, TechOne shall deliver to DualStar all Confidential
Information and other material in which DualStar has exclusive rights.
7. TechOne's obligation to perform the Services hereunder shall be
excused without liability when prevented by strike, act of God, governmental
action, accident or any other condition beyond its reasonable control. TechOne
agrees to resume performance of Services as soon as practicable following
cessation of such condition.
8. This Consulting Agreement may be terminated prior to the end of the
Term or any renewal thereof as provided in this Paragraph 8 and the rights and
remedies of the parties upon such termination shall be as set forth in this
Paragraph. Either party (the "Non-defaulting Party") may terminate this
Consulting Agreement upon a material breach of this Consulting Agreement by the
other party (the "Defaulting Party") if such material breach is not cured by the
Defaulting Party within fifteen (15) days of its receipt of written notice
regarding such breach from the Non-defaulting Party. Other than termination as a
result of a material breach by TechOne, DualStar may terminate this Consulting
Agreement only by giving written notice to TechOne of DualStar's intention to
terminate this Consulting Agreement accompanied by payment of (i) all unpaid
amounts due hereunder from DualStar to TechOne for Services rendered through the
date of termination, plus all reimbursable amounts for which TechOne has
delivered to DualStar an invoice on or before the termination date, (ii)
$25,000, which will be used by TechOne for reimbursable expenses incurred prior
to the termination date and not yet invoiced, and (iii) an amount equal to the
product of $30,000 times the greater of (A) the number of months remaining in
the Term hereof, and (B) 24. Not later than 60 days following the termination
date, TechOne shall provide DualStar with an itemized invoice for reimbursable
expenses incurred by TechOne prior to the termination date. To the extent that
the $25,000 payment contemplated by clause (ii) above exceeds such invoiced
amount, TechOne will remit the difference to DualStar with the itemized invoice.
To the extent that the $25,000 payment contemplated by clause (ii) above is less
than the
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invoiced amount, DualStar will remit such difference to TechOne within 30 days
following receipt of the itemized invoice.
9. DualStar shall not in any action or proceeding, or otherwise, assert
any claim for consequential damages against TechOne on account of any loss,
cost, damage or expense which DualStar may suffer or incur because of any act or
omission of TechOne or its employees in the performance of the Services, and
DualStar hereby expressly waives all such claims.
10. This Consulting Agreement may not be assigned by either party
without the prior written consent of the other party.
11. This Consulting Agreement will be governed in all respects by the
law of the State of Delaware.
12. This Consulting Agreement may be amended only by an instrument in
writing executed by the parties or their permitted assignees.
13. All notices pursuant to this Consulting Agreement shall be in
writing, and hand delivered or mailed by first class mail, postage prepaid, or
sent via facsimile to the attention of the person listed below and to the party
intended as the recipient thereof at the address of such party set forth below,
or at such other address or to the attention of such other person as such party
shall have designated for such purpose in a written notice complying as to
delivery with the terms of this Paragraph.
If to TechOne: TechOne Capital Group LLC
00 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Chairman
Fax: (000) 000-0000
If to DualStar: DualStar Technologies Corporation
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
Fax: (000) 000-0000
14. Failure by either party at any time to require performance by the
other party or to claim a breach of any provision of this Consulting Agreement
will not be construed as a waiver of any right accruing under this Consulting
Agreement, nor affect any subsequent breach, nor affect the effectiveness of
this Agreement or any part hereof, nor prejudice either party as regards any
subsequent action.
15. This Consulting Agreement constitutes the entire agreement between
TechOne and DualStar with respect to the subject matter hereof and no
representation or
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statement not contained in the main body of this Agreement shall be binding upon
DualStar or TechOne as a warranty or otherwise.
IN WITNESS WHEREOF, the parties hereto have respectively caused this
Consulting Agreement to be executed by their duly authorized signatories as of
the day and year first above written.
DUALSTAR TECHONOLOGIES CORPORATION
By: /s/
--------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President and Chief Executive Officer
TECHONE CAPITAL GROUP LLC
By: /s/
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
