CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is entered into as of the
18th day of February, 2005 (the "Effective Date"), by and between Incentra
Solutions, Inc., a Nevada corporation (the "Company") and FGBB, Inc., a Nevada
corporation (the "Consultant").
WITNESSETH:
WHEREAS, the Company, the Consultant, STAR SOLUTIONS of Delaware, Inc.,
of which the Consultant is a controlling stockholder ("Star") and Incentra
Merger Corp., a wholly-owned subsidiary of the Company (the "Merger Sub") have
entered into that certain Agreement and Plan of Merger dated as of February 18,
2005 (the "Merger Agreement"), pursuant to which Star would merge with and into
Merger Sub, and Merger Sub, as the surviving entity, would change its name to
STAR SOLUTIONS of Delaware, Inc. ("Star Solutions");
WHEREAS, the Company is a leading provider of data protection solutions
and services;
WHEREAS, subject to the terms and conditions of this Agreement, the
Company has requested, and the Consultant has agreed, to act as a consultant to
the Company for purposes of assisting the Company in connection with the
Company's sales and marketing efforts to its customers; and
WHEREAS, it is a condition precedent to the Closing under the Merger
Agreement that the Company enter into this Agreement with the Consultant.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows.
ARTICLE I
APPOINTMENT OF THE CONSULTANT
1.1 APPOINTMENT. The Company hereby engages the Consultant to act as a
consultant to the Company for the purpose of providing the Services described
below. The Consultant hereby accepts such appointment.
ARTICLE II
DUTIES AND RESPONSIBILITIES OF THE CONSULTANT
2.1 DESCRIPTION OF SERVICES. The Consultant shall provide the following
services (collectively, the "Services") to the Company during the Term (as
defined below): the Consultant will consult with the Company from time to time
in connection with the Company's sales and marketing efforts to its customers.
2.2 ADDITIONAL DUTIES. At all times when acting pursuant hereto, the
Consultant shall (i) comply with all applicable laws; and (ii) consult with the
Company prior to providing any oral
or written information about the Company to any entities which information has
not been pre-approved for such dissemination by the Company.
2.3 REQUIRED LICENSES. The Consultant shall procure and maintain, at
its sole expense, all material licenses which may be required by applicable law
to legally perform the Services.
2.4 RECORDS. The Consultant shall maintain reasonable records of all
transactions performed pursuant to this Agreement.
2.5 EXPENSES INCURRED IN CONNECTION WITH PERFORMANCE OF SERVICES. The
Company shall pay or reimburse the Consultant for all travel and other
reasonable expenses incurred by the Consultant or its employees or agents in the
course of performing Services under this Agreement, PROVIDED HOWEVER, that the
Company shall have no obligation to pay or reimburse the Consultant for such
expenses unless such expenses have been authorized in writing in advance by the
Company. The Company shall pay against any invoices submitted by the Consultant
for such expenses within thirty (30) days from the date on which the Company
receives such invoice. Appropriate receipts and a written description must
support all expenses for which reimbursement is sought.
ARTICLE III
DUTIES AND RESPONSIBILITIES OF THE COMPANY
3.1 PROVISION OF INFORMATION TO THE CONSULTANT. The Company shall
provide the Consultant with all materials and information the Consultant
reasonably requires in order to provide the Services under this Agreement.
3.2 PAYMENT. The Company shall pay to the Consultant the compensation
set forth in Article V of this Agreement in the manner provided for in such
Article.
ARTICLE IV
TERM AND TERMINATION
4.1 TERM. The term of this Agreement (the "Term") shall be for a period
of two (2) years, commencing on February __, 2005 and ending on February __,
2007.
4.2 TERMINATION. Notwithstanding the foregoing, this Agreement may be
terminated (i) by the Consultant prior to expiration of the Term upon ten (10)
days written notice to the Company, or (ii) by either party on a material breach
of this Agreement by the other party if such default is not cured within ten
(10) days after written notice is given to the breaching party. For purposes of
this provision, the term "material breach" shall not include any matters arising
from or related to the quality or frequency of the Services to be performed by
the Consultant hereunder.
4.3 EFFECT OF TERMINATION. In the event that this Agreement is
terminated, then this Agreement shall forthwith become void and have no further
effect, without any liability or obligation on the part of the Company or the
Consultant except as follows: Notwithstanding anything contained in this
Agreement, (i) if this Agreement is terminated by Consultant, the Company shall
pay the unpaid amount of the Consulting Fee prorated from the commencement
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date through the date of termination and unpaid expenses of the Consultant
properly incurred under this Agreement through the termination date; and (ii)
nothing herein shall relieve any party from any liability (in contract, tort or
otherwise, and whether pursuant to an action at law or in equity) for any breach
by such party of any of its covenants or agreements in this Agreement.
ARTICLE V
COMPENSATION
5.1 COMPENSATION. As compensation for the Services rendered on behalf
of the Company by the Consultant hereunder, the Consultant shall receive a
consulting fee in connection with the provision of Services hereunder in the
amount of Five Hundred Thousand Dollars ($500,000.00) (the "Consulting Fee").
5.2 TIME OF PAYMENTS. The Consulting Fee shall be paid to the
Consultant in twenty four (24) equal consecutive monthly installments of Twenty
Thousand Eight Hundred Thirty Three and 33/100 Dollars ($20,833.33) each. Each
monthly installment of the Consulting Fee shall be due and payable in arrears
without notice, demand, deduction, withholding or setoff on or prior to the
fifth (5th) day of each calendar month during the Term, commencing on March 5,
2005 and ending on February 5, 2007.
ARTICLE VI
OWNERSHIP OF THE COMPANY RECORDS
All records of the Company shall be and remain at all times
the property of the Company; provided however, that the Consultant shall be
entitled to copies of documents related to this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 INDEPENDENT CONTRACTOR STATUS. It is specifically recognized and
agreed that the Services of the Consultant are those of an independent
contractor with respect to the Company. Nothing contained in this Agreement
shall be construed to create a joint venture, partnership, association, or other
affiliation or like relationship between the parties. In no event shall either
party be liable for the debts or obligations of the other. The Consultant
understands and agrees that: (i) the Consultant will not be treated as an
employee of the Company for federal tax or other purposes; (ii) the Company will
not withhold on behalf of the Consultant any sums for income tax, unemployment
insurance, or social security; and (iii) all of such payments, withholding
obligations and benefits, shall be the sole responsibility of the Consultant.
Consultant shall defend and hold the Company harmless from any and all tax or
withholding obligations arising out of Consultant's failure to pay taxes or
withholdings as required under this Agreement.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (without regard to principles
of conflict of laws).
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7.3 AMENDMENTS. This Agreement may not be amended, altered or modified
except by a writing signed by all parties hereto.
7.4 WAIVER. Any failure of any party to comply with any obligation,
covenant, agreement or condition herein may be waived in writing by the other
parties. Any such waiver or failure to insist upon compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
7.5 SEVERABILITY. If any provision of this Agreement is invalid,
illegal or unenforceable, the balance of this Agreement shall remain in effect
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances. If the
scope or duration of any covenant contained in this Agreement is deemed
unreasonable by a court of law with appropriate jurisdiction, the parties agree
that the court may modify the Agreement to make it conform to law.
7.6 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand
delivery, or by facsimile (with confirmation of transmission), or by overnight
courier, or by registered or certified mail, return receipt requested, postage
prepaid, in each case addressed as follows:
If to the Consultant: FGBB, Inc.
910 Seasage Drive
Delray Beach, FL 33483
Fax No. (561) 208-3953
Attention: Alfred Curmi
with a copy (which shall not constitute notice
pursuant to this Section 7.6) to:
David Bates, Esq.
Gunster, Yoakley & Stewart, P.A.
777 South Flagler Drive
Suite 500, East Tower
West Palm Beach, FL 33401
Fax No. (561) 655-5677
If to the Company: Incentra Solutions, Inc.
1140 Pearl Street
Boulder, Colorado 80302
Fax No.: (303) 440-7114
Attention: Thomas P. Sweeney III
with a copy (which shall not constitute notice
pursuant to this Section 7.6 to:
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Reed Guest, Esq.
94 Underhill Road
Orinda, CA 94563
Fax No.: (925) 254-9226
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. A notice shall be deemed received upon hand
delivery, upon telephone confirmation of receipt of the facsimile, three (3)
days after posting in United States Mail or one (1) day after dispatch by
overnight courier.
7.7 ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the non-assigning party.
7.8 ATTORNEYS FEES. In any litigation, action, suit or proceeding
arising out of or in connection with this Agreement, the prevailing party shall
be entitled to an award of reasonable attorneys' fees and disbursements incurred
by such party in connection therewith, including fees and disbursements in
bankruptcy, insolvency, regulatory and appellate proceedings.
7.9 RECITALS. The above recitals are true and correct and are
incorporated herein by reference.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year indicated below.
INCENTRA SOLUTIONS, INC.,
a Nevada corporation
By: /s/Thomas P. Sweeney III
-----------------------------------------
Thomas P. Sweeney III, Chief Executive Officer
FGBB, INC.,
a Nevada corporation
By: /s/Alfred Curmi
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Alfred Curmi, President
MIAMI 406249.3
2/15/05
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