Exhibit 10(x)
[Manatt Jones Letterhead]
July 1, 2004
Michael J. Parrella
Chairman and CEO
Artera Group, Inc.
20 Ketchum Street
Westport, CT 06880
Re: Retention Agreement
Dear Mr. Parrella:
As requested, I am very pleased to forward this letter of engagement to provide
certain services to Artera Group, Inc. ("Artera" or "Client") in connection with
the proposed development of strategic business opportunities for Artera's
high-speed data communications and VoIP software applications in global markets
(the "Project").
We provide this Letter of Agreement ("Agreement") and the attached Standard
Terms and Conditions that confirm the arrangements, terms, and conditions
pursuant to which Manatt Jones Global Strategies, LLC ("Consultant"), agrees to
act on behalf of Artera ("Company").
The undersigned hereby agree to the following terms and conditions:
1. Scope of Services
-----------------
Using commercially reasonable efforts to provide non-legal advice and
support in connection with the proposed development of strategic business
opportunities for Artera's high-speed data communications and VoIP software
applications in global markets (the "Project"). This includes identifying,
on a World-Wide basis, appropriate strategic business partners, and
supporting the Company's efforts to consummate transactions with such
partners.
2. Term of the Agreement
---------------------
The effective date of this Agreement shall be July 1, 2004. The term of
this Agreement shall be for a period of sixteen (16) months, terminating on
October 31, 2005. At the conclusion of the term, should it decide in the
affirmative, the Company and Consultant shall conclude a new agreement with
respect to the specific scope of services to be provided, the term of the
agreement, and compensation.
1
3. Available Time
--------------
Consultant shall make available such time as it, in its sole discretion,
deems appropriate for the performance of its obligations under this
Agreement.
4. Compensation & Billing
----------------------
Company will pay to Consultant a monthly retainer in the amount of sixteen
thousand two hundred and fifty dollars ($16,250). The initial monthly
retainer at the beginning of the contract period, and in each subsequent
month, shall be payable on the 25th of each month, or, if the 25th falls on
a holiday or weekend, then on the last business day prior to the 25th of
each month.
5. Assignment
----------
This Agreement shall not be assignable by either party without the other
party's prior written consent. Consultant shall not retain outside
professional services or advisors without the Company's written consent.
6. Amendment
---------
This Agreement may not be amended or modified except in writing signed by
the Company and Consultant and may be executed in two or more counterparts,
each of which will be deemed to be an original, but all of which will
constitute one and the same agreement. All rights, liabilities and
obligations under this Agreement are binding upon and for the benefit of
the Company, Consultant and each Indemnified Party and their respective
successors and assigns.
Sincerely yours,
/s/ James R. Jones
-------------------------
James R. Jones
AGREED AND ACCEPTED:
By: /s/ Michael J. Parrella
--------------------------
Title:
Artera Group, Inc.
Date: July 14, 2004
2
MANATT JONES GLOBAL STRATEGIES STANDARD TERMS AND CONDITIONS
Written Agreement. This Retention Agreement sets forth the under this engagement are attorneys. Client further
basic terms and conditions relating to the retention of acknowledges and agrees that its retention of Manatt
Manatt Jones by Client. The Retention Agreement together Jones is not a retention of Manatt, Phelps & Phillips,
with these Standard Terms and Conditions (together LLP for conflicts purposes, and that Manatt, Phelps &
constituting the "Retention Agreement") comprise the entire Phillips, LLP may accept engagements adverse to Client
understanding between the parties, and any previously or its interests at the same time Manatt Jones is
stated understandings, either written or oral, are hereby representing Client.
rendered null and void. Any modification to the terms of
the Retention Agreement must be made in writing and Securities Laws. Manatt Jones will not be required to
executed by signature of both parties before it becomes take any action or perform any services which, in Manatt
effective. Jones' sole and absolute judgment, would cause Manatt
Jones to serve or function in the capacity of a
Relationship of the Parties. Client acknowledges and "broker," "dealer" or "investment advisor," as those
agrees that Manatt Jones is being engaged as an independent terms are defined for purposes of the United States
contractor. Client further acknowledges it has been securities laws or the securities laws of any other
advised that Manatt Jones is an affiliate of Manatt, Phelps state or jurisdiction, or which would subject Manatt
& Phillips, LLP, a law firm. Client agrees, Jones to regulation under any such laws or enabling
notwithstanding that some or all of the individuals regulations.
providing services under this engagement are attorneys,
this engagement is not intended to, and does not, create an Indemnification. Except for any loss arising out of or
attorney-client relationship between Manatt Jones and relating to gross negligence or willful misconduct of
Client, or between any person acting on behalf of Manatt Manatt Jones, Client agrees to defend, indemnify and
Jones and Client, or between Manatt, Phelps & Phillips, hold harmless Manatt Jones and its partners, employees,
LLP, and Client. Client understands that Manatt Jones will agents and affiliates from and against any and all
not be rendering legal advice or services to Client. In claims, losses, costs, damages, suits and expenses,
the event legal services are necessary or advisable with including reasonable attorneys fees and costs, relating
respect to accomplishing the objectives of this engagement, to, or arising out of, this engagement.
Client understands that it will contract directly with
Manatt, Phelps & Phillips, LLP, or such other law firm it Limited Liability. The total liability of Manatt Jones
may choose, for such legal services, and that the and its partners, employees, agents and affiliates for
compensation being paid to Manatt Jones for this engagement all claims of any kind arising out of this engagement
does not include the compensation to be paid for such legal shall be limited to the total fees paid to Manatt Jones
services, notwithstanding that the same persons may be on this engagement, except to the extent finally
providing both consulting services under this Retention determined to have resulted from the bad faith or
Agreement and legal services under a separate agreement intentional misconduct of Manatt Jones. Manatt Jones
with Manatt, Phelps & Phillips, LLP. shall in no event be liable for any punitive damages.
Confidentiality. Manatt Jones shall at all times during Arbitration. Client and Manatt Jones agree any dispute
and after the term of this Retention Agreement maintain all arising out of or relating to this engagement shall be
nonpublic information obtained from Client or Client's resolved by submission to binding arbitration in the
affiliates or agents in strictest confidence and shall not District of Columbia, before a retired judge or
make use of or disclose any confidential information to justice. If the parties are unable to agree on a
anyone other than in furtherance of this engagement. retired judge or justice, each party will name one
Manatt Jones shall be responsible for compliance with such retired judge or justice and the two persons so named
obligations by its affiliates and agents. All confidential will select a neutral judge or justice who will act as
information supplied by Client under this engagement is the sole arbitrator.
delivered on an "as is" basis.
The parties shall be entitled to take discovery in
Limitations on Reliance and Use. The analysis and opinions accordance with the provisions of the District of
provided on this engagement will be based upon the Columbia Superior Court Rules of Civil Procedure, but
information and assumptions provided by or on behalf of either party may request that the arbitrator limit the
Client to Manatt Jones. Manatt Jones will have no amount or scope of discovery and, in determining whether
obligation to confirm the accuracy, reasonableness, or to do so, the arbitrator shall balance the need for the
completeness of such information and assumptions. The discovery against the parties' mutual desire to resolve
conclusions, strategies, analysis, comments, and opinions disputes expeditiously and inexpensively.
expressed by Manatt Jones are provided strictly for the use
of Client and may not be disseminated to, used by, or The prevailing party shall be entitled to recover all
relied upon by any third party for any other purpose reasonable attorneys' fees, expert fees, expenses, and
without Manatt Jones' written consent. costs (whether or not such fees, expenses, and costs are
recoverable pursuant to the District of Columbia
Conflicts. Manatt Jones may be retained, in connection Superior Court Rules of Civil Procedure).
with other matters not substantially related to this
engagement, by parties who have interests that may not be No Warranty. Client acknowledges that Manatt Jones does
consistent with those of Client. Manatt Jones' not warrant any particular result will be achieved, and
determination of conflicts is based primarily on the that Client's obligation to pay the amounts due under
substance of the work, as opposed to the parties involved. this Retention Agreement is not contingent upon a
Manatt Jones reserves the right to accept engagements by favorable outcome to this engagement, except as
other parties consistent with this determination. Client otherwise expressly provided.
acknowledges that Manatt Jones is not subject to the same
rules regarding conflicts of interest that govern Survival. The respective obligations of the parties
attorneys, notwithstanding that some or all of the under these Basic Agreements shall survive the
individuals providing services termination of the Retention Agreement.
- ------------------------------------------------------------- ----------------------------------------------------------
3