CONSULTING AGREEMENT
TubiTec GmbH
Moerser Xxxxxxxxxxx 000 Date: June 1, 2000
47802 Krefeld
Germany
Re: Engagement as Consultant
We are pleased to retain TubiTec GmbH ("TubiTec") as a consultant with
PickSat, Inc., a Delaware corporation ("Company"), as follows:
CONSULTING SERVICES. During the term ("Term," defined below) of the Consulting
Agreement ("Agreement") attached, TubiTec shall provide to Company a strategic
operations consultant ("Consulting Services") in connection with the providing
of terrestrial or wireless/satellite broadband high speed internet and
communications services ("Field"). The designated consultant, Xxxxx Xxxxxxxx,
will be available for consultation on a schedule to be determined by mutual
arrangement between TubiTec and the President and CEO of PickSat, to whom the
consultant will report to during the Term. In addition, you will be available
for a reasonable number of telephone and written consultations.
TERM. The Agreement shall be for an initial term of commencing on June
1, 2000 "Effective Date" and ending on June 1, 2003, and may be extended for
additional periods, at Company's option and with TubiTec's consent.
COMPENSATION AND PAYMENT.
(A) Cash for Services As compensation for the Consulting Services, Company shall
pay TubiTec the sum of $120,000 per year at a rate of $10,000.00 per month.
Company shall pay the Consultant's representative a living allowance as needed
for the time periods he works in the United States. Payments shall be made to
the following foreign address: TubiTec GmbH, Moerser Xxxxxxxxxxx 000, Xxxxxxx,
Xxxxxxx.
(B) Deferral Consultant has agreed to defer the first payment of consulting fees
until October 15, 2000, to allow Company to build its revenue base. On October
15, 2000, Company shall pay Consultant shall the sum of $40,000.00, (the sum due
for the period June 1, 2000 through October 1, 2000 ("Deferral Period")). In
recognition of this deferral, Company's parent company, PICK Communications Corp
("PICK Com"), a Nevada corporation, shall grant and convey to Consultant the
amount of Two Thousand Five Hundred (2,500) shares per month of PICK Com common
stock at $0.001 par value during the Deferral Period, with piggyback rights for
any registration of PICK Com's stock occurring after execution of this
Agreement. Upon execution of this Agreement, these shares are deemed vested for
the entire Deferral Period.
(C) Equity Company and PICK Com, as appropriate, shall also transfer to
Consultant, or its nominee/designee, the installments of equity as described
below:
- One Hundred Fifty Thousand (150,000) shares of the common stock of
PICK Com at $0.001 par value with piggyback rights for any registration of PICK
Com's stock occurring after execution of this Agreement. These shares shall be
issued upon the full execution of this Agreement.
- Seventy Thousand (70,000) shares of Company's common stock at
fifty-percent (50%) of the price per share sold in Company's last exempt sale of
equity or exercise of options. These shares shall be available for distribution
to Consultant upon the establishment of a Company affiliate or joint
venture/strategic alliance in Mexico.
CONSULTING AGREEMENT. This engagement letter, together with Company's
standard Consulting Agreement, form a binding agreement between Consultant and
Company with respect to the consultancy. Among its terms and conditions, the
Consulting Agreement sets forth Consultant's obligations to Company with respect
to confidentiality, the exclusivity of TubiTec's services to Company in the
Field, and ownership of Developments.
Two copies of each of this engagement letter and Company's standard
Consulting Agreement are enclosed. Please sign both copies of each, obtain
Institution's consent, retain one set for your records, and return one set to
the Legal Department. Also, so that withholding taxes will not have to be
withheld from your payments, please fill out and return the enclosed IRS Form
W-9.
Sincerely yours, AGREED TO AND ACCEPTED
PICKSat, Inc. TubiTec GmbH
By: By:
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Xxxxxxxx Xxxxxx, President and CEO Xxxxx Xxxxxxxx,
Managing Director
Agreed and Accepted by PICK Communications Corp.
By:
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Name:
--------------------------------
Duly authorized as:
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of this 1 day of June, 2000 by and
between PICKSat, Inc., a Delaware corporation with a business address at 0000
Xxxxxxxxx 00xx Xxxxxxx, Xxxxx, XX 00000 ("Company"), and TubiTec GmbH, a German
corporation ("Consultant").
1. Background
Company and Consultant have signed an engagement letter, a copy of
which is attached to this agreement, pursuant to which Consultant has agreed to
provide certain Consulting Services in the Field for Company's benefit. The
engagement letter and this agreement (together, the "Agreement") establish all
of the terms and conditions of Consultant's consultancy with Company.
2. Definitions
In addition to the capitalized terms defined in the engagement letter,
the following terms have the meanings set forth below:
2.1. "CONFIDENTIAL INFORMATION" means any scientific, technical, trade,
or business information possessed, obtained by, developed for, or given to
Company which is treated by Company as confidential or proprietary including,
without limitation, Research Materials and Developments (defined below),
formulations, techniques, methodology, assay systems, formulae, procedures,
tests, equipment, data, reports, know-how, sources of supply, patent
positioning, relationships with consultants and employees, business plans and
business developments, information concerning the existence, scope or activities
of any research, development, manufacturing, marketing, or other projects of
Company, and any other confidential information about or belonging to Company's
suppliers, licensors, licensees, partners, affiliates, customers, potential
customers, or others.
"Confidential Information" does not include information which (a) was
known to Consultant at the time it was disclosed, other than by previous
disclosure by Company, as evidenced by Consultant's written records at the time
of disclosure; (b) is at the time of disclosure or later becomes publicly known
under circumstances involving no breach of this Agreement; or (c) is lawfully
and in good faith made available to Consultant by a third party who did not
derive it, directly or indirectly, from Company.
2.2. EXAMPLES OF CONFIDENTIAL INFORMATION. For purposes of
illustration, the Confidential Information may be contained in various media,
including, without limitation, records of research data and observations,
records and results of preclinical and clinical trials, patent applications,
regulatory filings, computer programs, manuals, plans, drawings, designs,
specifications, supply and customer lists,
internal financial data and other documents and records of Company, whether or
not labeled or identified as "Confidential," or prepared in full or in part by
Consultant.
2.3. "DEVELOPMENTS" include, without limitation, ideas, concepts,
discoveries, inventions, developments, know-how, trade secrets, techniques,
methodologies, modifications, innovations, improvements, writings,
documentation, data, Research Materials, and rights (whether or not protectible
under state, federal, or foreign patent, trademark, copyright or similar laws)
that are conceived, discovered, invented, developed, created, made, or reduced
to practice or tangible medium by Consultant or under his or her direction
(solely or with others) during the Term and that (a) are developed by use of
Company's equipment, facilities, or intellectual property or at Company's
expense; or (b) are directly or indirectly related to the Consulting Services
and/or the Field.
3. Consulting Relationship
Consultant agrees, as a condition of this Agreement, to the following
terms:
3.1. EXCLUSIVITY. During the Term, Consultant will render advice and
services in the Field only to Company and will not enter into any other
agreement, arrangement, understanding, or other relationship pursuant to which
Consultant is obligated to render advice and services to any third party in the
Field.
3.2. ABSENCE OF RESTRICTIONS. Consultant is under no contractual or
other obligation or restriction which is inconsistent with Consultant's
execution of this Agreement or the performance of the Consulting Services.
During the Term, Consultant will not enter into any agreement, either written or
oral, in conflict with Consultant's obligations under this Agreement. Consultant
will arrange to provide the Consulting Services in such manner and at such times
that the Consulting Services will not conflict with Consultant's
responsibilities under any other agreement, arrangement, or understanding or
pursuant to any employment relationship Consultant has at any time with any
third party (including, without limitation, Institution).
3.3. CONFIDENTIAL INFORMATION OF THIRD PARTIES. The performance of the
Consulting Services does not and will not breach any agreement which obligates
Consultant to keep in confidence any confidential or proprietary information of
any third party or to refrain from competing, directly or indirectly, with the
business of any third party. Consultant shall not disclose to Company any such
confidential or proprietary information.
3.4. COMPLIANCE WITH POLICIES AND REGULATIONS. In performing the
Consulting Services, Consultant shall comply with all business conduct,
regulatory, and safety guidelines or regulations established by Company or any
governmental authority with respect to Company's business.
4. Ownership of Developments
4.1. OWNERSHIP BY COMPANY. All Developments are works made for hire and
shall remain the exclusive property of Company. Company may use or pursue them
without restriction or additional compensation.
4.2. ASSIGNMENT OF DEVELOPMENTS. Consultant assigns and agrees to
assign to Company all of Consultant's right, title, and interest in and to any
Developments. During and after the Term, Consultant will cooperate fully in
obtaining patent and other proprietary protection for such Developments, all in
the name of Company and at Company's cost and expense, and, without limitation,
shall execute and deliver all requested applications, assignments, and other
documents, and take such other measures as Company shall reasonably request, in
order to perfect and enforce Company's rights in the Developments. Consultant
appoints Company its attorney to execute and deliver any such documents on
Consultant's behalf in the event Consultant fails to do so.
4.3. WORK AT THIRD-PARTY FACILITIES. Unless covered by an appropriate
agreement between any third party and Company, Consultant shall not engage in
any activities or use any third-party facilities or intellectual property in
performing the Consulting Services which could result in claims of ownership to
any Developments being made by such third party.
5. Confidentiality, Noncompetition, and Nonsolicitation
5.1. CONSULTANT ACKNOWLEDGMENT REGARDING CONFIDENTIALITY AND OWNERSHIP.
Company has developed and will develop the Confidential Information over a
substantial period of time at substantial expense. The Confidential Information
is of great importance to Company's business. During the Term, Consultant may
develop, become aware of, or have access to the Confidential Information.
Consultant acknowledges Company is and shall at all times remain the sole owner
of the Confidential Information.
5.2. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the Term and
thereafter, Consultant shall not directly or indirectly publish, disseminate, or
otherwise disclose, deliver, or make available to any third party any
Confidential Information, other than in furtherance of the purposes of this
Agreement, and only then with the prior written consent of Company. Consultant
may disclose the Confidential Information to a governmental authority or by
order of a court of competent jurisdiction, provided that such disclosure is
subject to all applicable governmental or judicial protection available for like
material and reasonable advance notice is given to Company.
5.3. NONUSE OF CONFIDENTIAL INFORMATION. During the Term and
thereafter, Consultant shall not directly or indirectly use any Confidential
Information for Consultant's own benefit or for the benefit of any third party.
5.4. PHYSICAL PROTECTION OF CONFIDENTIAL INFORMATION. During the Term
and thereafter, Consultant shall exercise all commercially reasonable
precautions to physically protect the integrity and confidentiality of the
Confidential Information. Consultant will not remove any Confidential
Information or copies thereof from Company's premises except to the extent
necessary to fulfill the Consulting Services, and then only with Company's prior
consent.
5.5. NONCOMPETITION. During the Term and for a period of six (6) months
thereafter, Consultant shall not directly or indirectly engage in (whether for
or without compensation) any business or activity which competes with any
business of Company related to the Field. It shall not be considered a
competitive activity within the meaning of this Section for Consultant to be a
member of the faculty or staff of a university, college, or other educational or
nonprofit research institution.
5.7. NONSOLICITATION. During the Term and for a period of one (1) year
thereafter, Consultant shall not solicit any person who is employed by or a
consultant to Company or any affiliate or subsidiary of Company to terminate
such person's employment by or consultancy to Company, such affiliate or
subsidiary. As used herein, the term solicit, shall include, without limitation,
requesting, encouraging, assisting, or causing, directly or indirectly, any such
employee or consultant to terminate such person's employment by or consultancy
to Company, affiliate, or subsidiary.
6. Termination
6.1. TERMINATION BY COMPANY FOR CAUSE. Company may terminate this
Agreement for cause at any time upon thirty (30) days' prior written notice to
Consultant. Cause shall mean (a) material breach by Consultant of this Agreement
where such breach, if curable, is not remedied to Company's reasonable
satisfaction within such thirty (30) day period; (b) the physical or mental
inability of Consultant to perform the Consulting Services; or (c)
unsatisfactory performance of the Consulting Services which shall continue after
specific notice thereof has been received by Consultant, and the thirty (30) day
period shall have passed after the receipt of such notice during which
Consultant fails to cure such specific unsatisfactory performance.
6.2. EFFECT OF TERMINATION. Upon termination, neither Consultant nor
Company shall have any further obligations under this Agreement, except that (a)
the liabilities accrued through the date of termination; and (b) the obligations
which by their terms survive termination, including, without limitation, the
applicable confidentiality, noncompetition, and nonsolicitation provisions of
this Agreement, shall survive termination. Upon termination, and in any case
upon Company's request, Consultant shall return immediately to Company all
Confidential Information and copies thereof.
7. Miscellaneous
7.1. INDEPENDENT CONTRACTOR. All Consulting Services will be rendered
by Consultant as an independent contractor and this Agreement does not create an
employer-employee relationship between Company and Consultant. Consultant shall
have no rights to receive any employee benefits, such as health and accident
insurance, sick leave, or vacation which are accorded to regular Company
employees. Consultant shall not in any way represent himself to be an employee,
partner, joint venturer, agent, or officer with or of Company.
7.2. PUBLICITY. Consultant consents to the use by Company of
Consultant's name and likeness in written materials and oral presentations to
current or prospective customers, partners, investors, or others.
7.3. NOTICE. All communications and notices from one party to the other
shall be in writing and shall be given by addressing the same to the other at
the address or facsimile number set forth in this Agreement, or at such other
address or facsimile number as either may specify in writing to the other.
Communications and notices to Company will be marked "Attention: Legal
Department." All notices shall become effective when deposited in the U.S. Mail
with proper postage for first class registered or certified mail prepaid, return
receipt requested, or when delivered personally, or, if promptly confirmed by
mail as provided above, when dispatched by facsimile.
7.4. ASSIGNMENT. This Agreement is a personal services agreement, and
the rights and obligations hereunder, may not be assigned or transferred by
either party without the prior written consent of the other party, except that
Company may assign this Agreement to an affiliated company or in connection with
the merger, consolidation, or sale of all or substantially all of its assets.
7.5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with regard to its subject matter and supersedes all previous
written or oral representations, agreements, and understandings between Company
and Consultant.
7.6. NO MODIFICATION. This Agreement may be changed only by a writing
signed by both parties.
7.7. SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Agreement, and
all other provisions shall remain in full force and effect. If any of the
provisions of this Agreement are held to be excessively broad, it shall be
reformed and construed by limiting and reducing it so as to be enforceable to
the maximum extent permitted by law.
7.8. APPLICABLE LAW. This Agreement shall, in all events and for all
purposes, be governed by and construed in accordance with the internal laws of
the State of Florida, excluding conflicts of law principles. Venue for any
disputes arising
from or connected to this Agreement shall be in the Federal, state, or local
courts situated in Miami-Dade County.
IN WITNESS WHEREOF, Consultant and a duly-authorized representative of
Company have signed this Agreement as document under seal as of the Effective
Date.
COMPANY
PICKSAT, INC.
By:
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Xxxxxxxx Xxxxxx,
President and CEO
Date:
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CONSULTANT
TubiTec GmbH
----------------------------------------
Xxxxx Xxxxxxxx
Managing Director
Date
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Address Moerser Xxxxxxxxxxx 000
00000 Xxxxxxx
Xxxxxxx
Telephone (011) 49-2151/0 00 00 00
Telecopier (011) 49-2151/9 65 40 80
