Consulting Agreement - Benchmark Equity Group Inc., I-Storm Inc. and LVL Communications Corp.
<DESCRIPTION>BENCHMARK EQUITY GROUP, INC. CONSULTING AGREEMENT
<TEXT>
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Exhibit 10.5
August 31, 1998
Mr. Calbert Lai
President
I-Storm, Inc.
480 Cowper Street
Palo Alto, California 94301
Dear Mr. Lai:
You have communicated the desire of I-Storm, Inc. and its wholly-owned
subsidiary, LVL Communications Corporation (the "Company") to engage the
management and financial consulting services of Benchmark Equity Group, Inc.
("Benchmark") management consulting services, including, but not limited to,
financial and strategic planning, and corporate and investment planning for the
period of twelve months commencing as of April 1, 1998. The purpose of this
letter agreement is to consummate and memorialize an agreement between Benchmark
and the Company for that purpose. In consideration of providing the foregoing
services, Benchmark will receive the following:
- The Company shall pay Benchmark and/or its designees an annual
fee of $175,000 in twelve equal monthly payments, commencing
thirty days following March 1, 1998; provided, however, that the
Company may defer any such monthly payment until the earlier of
the time as the Company has received $2,000,000 in debt or equity
financing, or January 1, 1999 (First Payment Date). Upon the First
Payment Date, the Company shall pay the sum of all outstanding
monthly payments that have accrued to such First Payment Date.
- The Company shall reimburse Benchmark for all reasonable
out-of-pocket expenses, which shall include, but are not limited
to, the fees and disbursements of Benchmark's counsel, fees and
disbursements of accountants or auditors employed by Benchmark,
and due diligence costs, within five (5) business days following
receipt of statements from Benchmark.
- The Company will execute an indemnity agreement, satisfactory in
form and substance to Benchmark, which will indemnify and hold
harmless Benchmark, its affiliates, officers, shareholders,
employees, counsel, and any experts retained in connection with
this transaction.
The terms hereof shall be construed and enforced in accordance with the
laws of the State of Texas without regard to the principles of conflicts of laws
thereof and shall inure to the
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Mr. Calbert Lai
August 31, 1998
Page 2
benefit of and be binding upon Benchmark and the Company and the respective
legal successors and assigns of each.
The Company represents, warrants, covenants and agrees that any
controversy or claim brought in any capacity by the Company against Benchmark or
any members, officers, directors, agents, affiliates, associates, employees or
controlling persons of Benchmark shall be settled by expedited arbitration under
the Federal Arbitration Act in accordance with the commercial arbitration rules
of the American Arbitration Association ("AAA") and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. In arbitration proceedings under this section, the parties shall be
entitled to any and all remedies that would be available in the absence of this
section and the arbitrators, in rendering their decision, shall follow the
substantive laws of the State of Texas. The arbitration of any dispute pursuant
to this paragraph shall be held in the State of Texas.
Notwithstanding the foregoing, in order to preserve the status quo
pending the resolution by arbitration of a claim seeking relief of an injunctive
or equitable nature, any party, upon submitting a matter to arbitration as
required by this section, may simultaneously or thereafter seek a temporary
restraining order or preliminary injunction from a court of competent
jurisdiction pending the outcome of the arbitration. This section is intended to
benefit the members, managers, agents, affiliates, associates and employees of
Benchmark, each of whom may enforce this section to the full extent that
Benchmark could do so if a controversy or claim were brought against it.
The waiver by any party of any provision or breach hereof shall not
operate as or be construed to be a waiver of any other provision here or of any
other breach of any provision hereof.
Any and all notices from either party to the other which may be
specified by, or otherwise deemed necessary or incident hereto shall, in the
absence of hand delivery with return receipt requested, be deemed duly given
when mailed if the same shall be sent to the address of the party set out on the
first page hereof by registered or certified mail, return receipt requested, or
express delivery (e.g., Federal Express).
The provisions hereof shall be considered severable in the event that
any of such provisions are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable. Such invalid, void or otherwise
unenforceable provisions shall be automatically replaced by other provisions
which are valid and enforceable and which are similar as possible in term and
intent to those provisions deemed to be invalid, void or otherwise
unenforceable. Notwithstanding the foregoing, the remaining provisions hereof
shall remain enforceable to the fullest extent permitted by the law.
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Mr. Calbert Lai
August 31, 1998
Page 3
Except for the Indemnification Agreement to be executed pursuant to
this agreement, this letter agreement contains the entire agreement between the
parties with respect to the subject matter hereof. This letter agreement may not
be amended, changed, modified or discharged, nor may any provision hereof be
waived, except by an instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change, modification of
discharge is sought. No course of conduct or dealing shall be construed to
modify, amend or otherwise affect any of the provisions hereof. Any and all
prior agreements between or among Benchmark and the Company are hereby
terminated.
Please confirm that the foregoing is in accordance with your
understanding by signing and returning the duplicate(s) of this letter.
Very truly yours,
BENCHMARK EQUITY GROUP, INC.
By:
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Agreed to and accepted as of this
31st day of August, 1998.
I-STORM, INC.
By:
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Name: Calbert Lai
Title: President