INDEPENDENT CONSULTING AGREEMENT
THIS AGREEMENT entered into this 23rd day of December, 1998, by and between
THE ENERGY NETWORK, INC., a Connecticut Corporation, with an office located
at 00 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX (hereinafter referred to as "TEN")
and Oxford Technologies Inc. a Connecticut corporation, with an office
located at 000 Xxxxx Xxxxxx, Xxx Xxxxxxx, XX (hereinafter referred to as
"OXFORD").
1. AUTHORIZATION AND AGREEMENT TO SOLICIT
(a) TEN hereby authorizes OXFORD, subject to the terms and
conditions of this Agreement, to solicit expressions of interest and
requests for proposals from potential customers to outsource the
development, construction and operation of district energy and
cogeneration power projects to TEN in the territory described below,
and to refer such leads to TEN. The projects which are the subject of
this Agreement are those in which TEN expects to participate together
with Xxxxx & Xxxxxxx Canada Inc., Carrier Corporation and OXFORD
(collectively the "Alliance") pursuant to an Alliance Agreement (the
"Alliance Agreement") dated October 23, 1998 (hereinafter, the
"Projects"). This Agreement also shall relate to projects which TEN
and OXFORD may pursue independently of the Alliance, provided, however,
that TEN agrees in writing to pursue each particular such lead and that
such leads meet reasonable qualifications that TEN may from time to
time establish. OXFORD shall conduct the activities set forth in this
Agreement in those territories prescribed in the Alliance Agreement
(hereinafter, the "Territory").
(b) OXFORD agrees to devote its reasonable efforts to solicit orders
for Projects in the Territory and agrees not to represent, sell, or
offer for sale in the Territory any products, equipment or services
which are competitive to the Projects defined herein, except as
permitted in the Alliance Agreement.
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(c) OXFORD shall use its expertise and know-how to identify and
prequalify potential projects, including, but not limited to, make
initial contacts, prepare and deliver sales presentations, and evaluate
and screen projects, all in accordance with the criteria for qualifying
leads and other requirements that the marketing committee of the
Alliance is to establish.
(d) OXFORD shall facilitate communications, meetings, discussions,
and follow-up documentation with prospective customers, and also shall
cooperate in the development of proposals and securing firm Project
agreements, all under the direction of TEN.
(e) OXFORD shall participate in bi-monthly conference calls as and
when scheduled by the marketing committee of the Alliance or such other
of its representatives as the Alliance members may designate, to
report all sales leads and assist in development of required
Sales/Marketing information, literature and lead qualification data.
(f) All leads and/or potential projects identified and reported by
OXFORD to the members of the marketing committee of the Alliance at the
bi-monthly conference calls (or at such other time and/or place as the
members of the marketing committee shall determine) shall be deemed
"Qualified Leads" for purposes of this Agreements provided i) such lead
on potential project conforms to Section 1.1 of the Alliance Agreement,
ii) the members of the marketing committee unanimously so agree, and
iii) such leads and potential projects meet the criteria to be
established by the Alliance marketing committee.
(g) All leads and potential projects which OXFORD currently has
identified, and any of such leads and potential projects which are
deemed to be Qualified Leads, are reflected on Exhibit A hereto.
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2. LEGAL STATUS AND AUTHORITY OF OXFORD
TEN and OXFORD acknowledge that OXFORD is an independent contractor and
in no event shall OXFORD, its employees, agents or representatives be
considered agents or employees of TEN, except as otherwise set forth in the
Alliance Agreement.
OXFORD shall comply with all federal, state, county and local laws and
regulations regarding an independent contractor and corporate employer.
The parties therefore agree that the legal status and authority of OXFORD
pursuant to this Agreement shall be strictly construed and limited solely to
the obligations set forth in Section I hereof. OXFORD agrees that OXFORD
has the responsibility while conferring or dealing with third parties, to
reasonably describe its relationship with TEN under this Agreement and its
relationship to parties of the Alliance Agreement, in such a way that no
greater legal status or authority may be inferred by such third parties.
3. CONSULTING FEES
A Consulting Fee shall be paid to OXFORD within five (5) days of the
execution of a contract for a Project by a Qualified Lead (as defined above
in Section 1 (f) provided that the schedule for development of such Project
requires the execution of contracts for equipment within 45 days, otherwise
payment of such consulting fee to be deferred to a date not later than
forty-five (45) days prior to execution of such equipment contracts. The
Consulting Fee payable with respect to each Project shall be based upon
Capitalized Costs of the Project according to the following schedule:
Capitalized Costs Consulting Fee
----------------- --------------
first $20,000,000 3.0%
over $20,000,000 2.0%
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The term "Capitalized Costs" is defined as the sum of the budgeted costs
plus contributed items stated at fair market value for each project
allocated as balance sheet tangible assets such as property, plant and
equipment, plant assets, or fixed assets, including but not limited to,
land, building structures, machinery, equipment, furniture, tools and the
following intangible costs: Architecture fees, engineering fees, legal fees
and any fees to be earned by TEN, if capitalized. The term "Capitalized
Costs" shall exclude all capitalized interest, internal labor and the
Consulting fee to be paid hereunder. In addition, OXFORD shall be paid a
Consulting Fee for any fees that may be earned by TEN in the initial year of
any arrangement pursuant to which TEN provides service, operation,
management and/or construction services with an OXFORD qualified lead, equal
to four percent (4%) of the revenue to be received by TEN, but only in those
instances where TEN does not own the Project.
In the event that TEN closes subsequent Project(s) with a previous
Qualified Lead, OXFORD shall be entitled to a Consulting Fee as set forth
above, provided OXFORD performs its responsibilities as set forth in this
Agreement. However, if a Project is closed with the same OXFORD Lead within
six (6) months from the date that the prior Project contract was executed
with said OXFORD Lead, Consulting Fees shall be calculated on the
Capitalized Costs on a cumulative basis.
4. EXPENSES
All expenses and other costs attendant with the obligations of OXFORD
hereunder shall be borne by OXFORD. By way of example and not limitation,
should OXFORD utilize third party assistance in soliciting orders for
projects, any resulting compensation to such a third party shall be the
responsibility of OXFORD.
All expenses and other costs attendant with the obligations of TEN
hereunder shall be borne by TEN. By way of example and not limitation,
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should TEN utilize third party assistance in soliciting orders for projects,
any resulting compensation to such a third party shall be the responsibility
of TEN.
5. CONFIDENTIAL INFORMATION
TEN and OXFORD shall mutually treat as confidential and shall safeguard
all information, memoranda, reports and records pertaining to, or resulting
from, this Agreement or performance hereunder. Further, OXFORD agrees to be
fully bound by the terms and conditions of a Proprietary Information
Agreement dated April 22, 1998 executed by Oxford Industries of Connecticut,
Inc.
6. TRADEMARKS
OXFORD shall not use in any way, directly or indirectly, in whole or in
part, trade names or trademarks owned by TEN or other parties to the
Alliance Agreement, or trade names or trademarks confusingly similar thereto
in connection with OXFORD's business except in the manner and to the extent
that to which TEN or such parties may specifically consent in writing.
TEN shall not use in any way, directly or indirectly, in whole or in
part, trade names or trademarks owned by OXFORD or other parties to the
Alliance Agreement, or trade names or trademarks confusingly similar thereto
in connection with TEN s business except in the manner and to the extent
that to which OXFORD or such parties may specifically consent in writing.
7. OXFORD'S EMPLOYEES
All persons employed by OXFORD in connection with operations under this
Agreement shall be considered employees of OXFORD and shall in no way,
either directly or indirectly, be considered employees of TEN. Any taxes or
contributions levied by any governmental entity based upon the payrolls of
or employment by OXFORD shall be the exclusive liability of OXFORD and shall
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in no way be chargeable to TEN.
8. WARRANTIES BY OXFORD AND TEN
OXFORD hereby agrees to indemnify and hold harmless TEN from any claim,
damage, loss, penalty or expense (including legal fees) resulting from the
failure of OXFORD to comply with any of the terms or conditions of this
Agreement. TEN hereby agrees to indemnify and hold harmless OXFORD from any
claim, damage, loss, penalty or expense (including legal fees) resulting
from the failure of TEN to comply with any of the terms or conditions of
this Agreement.
9. TERMINATION
(a) This Agreement shall have a term which is coterminous with the
term of the Alliance Agreement, unless terminated earlier by either
party for any reason by the giving of thirty (30) days prior written
notice to the other party, delivered by registered mail addressed to
such party at its last known address. Such notice will be deemed to be
given on the date of mailing. In the event OXFORD or TEN withdraws,
voluntarily or involuntarily, from the Alliance Agreement, then this
Agreement also shall terminate.
(b) In the event of termination, TEN shall have no further
responsibility to OXFORD except:
(1) To pay any Consulting Fees due and owing;
(2) To pay, when due and owing, a Consulting Fee on any
prospective Project which becomes a Qualified Lead within one
hundred twenty (120) days subsequent to termination of this
Agreement but which was, solicited by OXFORD prior to such
termination; and
(c) In the event of termination, OXFORD also shall promptly return
to TEN any and all product models, price books, customer lists, and
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other sales aids furnished to it by, or developed jointly with, TEN and
all copies thereof, at the termination of this Agreement, OXFORD shall
submit a list of potential projects on which information has been
developed;
(d) OXFORD agrees to be bound by all of the termination provisions
of this Agreement and expressly waives any rights which it may have (i)
under any statute or other provision of law or regulation which rights
are not set forth in this Agreement, and further agrees to hold TEN
harmless from any damages or liabilities arising out of or based upon
any such statute or other provision of law or regulation; and, (ii)
under any statute in the Territory which requires TEN to pay OXFORD
upon termination, compensation, damages, penalties or the like based
upon OXFORD s representation of TEN in the Territory pursuant to this
Agreement or otherwise; and OXFORD further hereby expressly waives any
right to such payments, and further agrees to indemnify and hold
harmless TEN against any claim for, or based upon rights to, such
compensation, damages, penalties or the like.
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10. MISCELLANEOUS
(a) This Agreement is not exclusive. TEN and OXFORD may enter into
other agreements with third parties to provide similar services.
(b) This Agreement and the rights and obligations hereunder shall be
and hereby are personal and non-assignable, therefore, any assignment
or transfer thereof by OXFORD or TEN shall be void, except with the
written consent of the other party.
(c) This Agreement shall be construed in accordance with and
governed by the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties have hereto executed this Agreement in
the month, day and year first written above.
THE ENERGY NETWORK, INC. OXFORD TECHNOLOGIES INC.
By: S/ Xxxxx X. Xxxxxxx By: S/ Xxxxxxxx X. XxXxxxxx
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Xxxxx X. Xxxxxxx Xxxxxxxx X. XxXxxxxx
Its President, Its President,
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duly authorized duly authorized
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