1
Exhibit 4.11
CONSULTING AGREEMENT
BETWEEN
E.B. ADVISORY LIMITED
AND
SECURFONE AMERICA, INC.
This Consulting Agreement (the "Agreement") is made and is effective as
of the 1st day of August, 1996, by and between E.B. Advisory Limited, a Jersey
corporation ("E.B.A."), and SecurFone America, INC., a Delaware corporation
("S.A.I."), with reference to the following facts:
RECITALS:
A. S.A.I. is engaged in the business of providing prepaid cellular
and landline telephone services.
B. E.B.A. has been organized to engage in the business of providing
consulting and technical advice to businesses with respect to
operations throughout the world and, in particular, the United
Kingdom, the European Community, and the Caribbean.
C. S.A.I. wishes to obtain the consulting and advisory services of
E.B.A. to provide advice and assistance in connection with the
location and negotiation of opportunities by which S.A.I. can sell
and install its products and equipment throughout the world.
AGREEMENTS:
Now, therefore, in consideration of the foregoing recitals and of
the mutual covenants and conditions hereinafter set forth, the
parties hereto agree as follow:
1. INDEPENDENT CONTRACTOR RELATIONSHIP
1.1 ENGAGEMENT. S.A.I. hereby engages E.B.A. and E.B.A.
hereby accepts engagement by S.A.I., subject to all of
the terms and conditions set forth in this consulting
agreement, during the term specified in Section 3, below,
of this
2
Consulting Agreement.
1.2 RELATIONSHIP CREATED. For purposes of this Consulting
Agreement, the
1.3 relationship created between E.B.A. and S.A.I. shall be
that of independent contractor, and not that of
employer/employee, principal/agent, partner, joint
venturers, vendor/vender, or otherwise. It is understood
that each party to this Consulting Agreement is placing
its trust and confidence in each other's best interests
and thus create a reciprocal confidential relationship.
2. Duties of E.B.A.
2.1 GENERAL DUTIES. E.B.A. shall do and perform all services,
acts or things necessary or advisable to advise counsel
and assist S.A.I. in locating business opportunities
throughout the world for the sale of the products and
services of S.A. I., subject always to the policy set by
the Board of Directors of S.A.I. Notwithstanding any
other provision of this Consulting Agreement, E.B.A.
shall not have the authority to sign or to enter into any
contracts on behalf of S.A.I. without the prior written
approval of the board of directors of S.A.I. Specifically
E.B.A. shall:
l. Provide feasibility analysis to SecurFone America
regarding potential of licensing technology and potential
licensees.
2. Create specific license program and platform for
SecurFone America to benefit from technology it has
developed.
3. Assist in determination of licensee valuations and
payment options.
2.2 DEVOTION OF TIME. E.B.A. shall devote such productive
time, ability, and attention to the business of S.A.I. as
E.B.A. shall determine in its sole discretion.
3
During the term hereof, E.B.A. may devote time to other
business interests, including without limitation, other
consulting clients, provided however, that E.B.A. shall
not act on behalf of any other person firm or company
which is engaged, directly or indirectly in a business
which competes with the business of S.A.I.
2.3 LIMITATION ON PLACE OF SERVICES. It is expressly
understood and agreed that E.B.S., shall not render any
services pursuant to this Consulting Agreement within the
United States of America or within any possessions or
territories thereof.
3. TERMS AND TERMINATION
3.1 TERM. The initial term of this Consulting Agreement shall
be for a period of two (2) years, commencing as of the
effective date of this Consulting Agreement and ending on
August 31, 1998, unless sooner terminated pursuant to the
provisions of this Section 3. Unless otherwise
terminated, this Consulting Agreement may be extended
from year to year by agreement of the parties.
3.2 TERMINATION BY E.B.A. E.B.A. may terminate this
Consulting Agreement with or without cause at any time
upon ten (10) days written notice to S.A.I.
4. COMPENSATION OF E.B.A.
As compensation for services to be rendered by E.B.A.
hereunder, E.B.A. shall receive a consulting fee (the "Fee")
during the term of this Consulting Agreement in the amount of SEE
ATTACHED SCHEDULE, plus reimbursement of any out-of-pocket
expenses reasonably incurred by E.B.A. in carrying out its
services hereunder which are approved in advance by the board of
directors of S.A.I. Any sales or value added taxes payable with
respect to such compensation shall be borne entirely by E.B.A. Any
exchange control or other permits or approvals necessary to carry
out the payment terms of this Consulting Agreement shall be
obtained by E.B.A. at its
4
own expense.
5. RELATIONSHIP OF PARTIES
5.1 E.B.A.'S EXPENSES. During the term of this Consulting
Agreement, E.B.A. shall be an independent contractor with
respect to S.A.I. Accordingly, except as provided herein,
E.B.A. shall hear all of its own expenses in performing
its services within British Virgin Islands pursuant to
this Consulting Agreement, including, without limitation,
automobile, telephone, travel within Europe and the
United Kingdom, office telephone business promotion
within Europe and the United Kingdom, entertainment
within Europe and the United Kingdom, taxes, insurance,
and legal and accounting expenses.
5.2. REIMBURSED EXPENSES. Notwithstanding the provisions of
Paragraph 5.1, immediately above, S.A.I. shall reimburse
E.B.A. for all reasonable travel, business promotion and
entertainment expenses incurred by E. B.A. outside of
Europe and the United Kingdom if and to the extent that
such expenses are reasonably calculated to further the
business interests of S.A.I. and are approved in advance
by the board of directors of S.A.I.
5.3. INDEPENDENCE OF PARTIES. No agency, employment,
partnership or joint venture is intended to be created by
this Consulting Agreement. Each party hereto shall
refrain from making any representation tending to create
an apparent agency, employment, partnership or joint
venture relationship between the parties.
6. GENERAL PROVISIONS
6.1 SEVERABILITY. The invalidity of any provision of this
Consulting Agreement, as determined by a court of
competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
6.2 WAIVERS AND CONSENT. No waiver of any provision hereof
shall be deemed a waiver of any other provision hereof,
or of any subsequent breach of the same or any other
provision. Consent to or approval by either party of any
action shall not be deemed to render
5
unnecessary the obtaining of such party's consent to or
approval of any subsequent acts.
6.3 ENTIRE AGREEMENT; AMENDMENT. This Consulting Agreement
constitutes the entire agreement between the parties
pertaining to the subject matter contained herein and
supersedes all prior negotiation, agreements, statements
of understanding, presentation, and proposals of the
parties. No supplement, modification, or amendment to
this consulting Agreement shall be binding unless
executed in writing by E.B.A. and S.A.I.
6.4 NOTICES. Any written notice, demand, request or other
communication required or permitted to be given hereunder
shall be in writing and may be served personally, by
telecopier, or by registered mail, postage repaid, and
return receipt request, addressed as follow:
If to E.B.A.: E.B. Advisory Limited
P.O. Box 544
Britannia Place
Bath Street
St. Helier, Jersey
Channel Island
If to S.A.I.: SecurFone America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
6.5 GOVERNING LAW. This Consulting Agreement shall be
governed by, and construed in accordance with, the laws
of the Jersey.
6.6 ARBITRATION; ATTORNEY'S FEES. Any dispute or conflict
arising out of or related to this Consulting Agreement
shall be submitted to binding arbitration before a single
retired judge of the Jersey Royal Court appointed by the
Clerk of the Royal Court or an ex parts motion by either
party. Said arbitration shall be conducted in St. Helier,
Jersey, and the parties shall be bound by the results of
such arbitration. Further, the prevailing party in such
arbitration or in any other legal proceeding arising out
of or resulting from this Consulting Agreement
6
shall be entitled to recover its costs and fees,
including reasonable attorney's fees, from the other
party.
6.7 SURVIVAL OF PROVISIONS. Each of the covenants,
agreements, representations and warranties contained
herein shall, to the extent applicable, survive the
termination of this Consulting Agreement.
6.8 AUTHORIZED AGENT. The persons executing this Consulting
Agreement on behalf of E.B.S. and S.A.I. hereby represent
and warrant to each other that they are the duly
authorized representatives of their respective entities
and that each has taken all necessary corporate action to
ratify and approve the execution of this Consulting
Agreement in accordance with its terms.
6.9 ADDITIONAL DOCUMENTS. Each of the parties to this
Consulting Agreement agrees to provide such additional
duly executed agreements, documents and instruments as
may be reasonably requested by the other party in order
to carry out the purposes and intent of this consulting
Agreement. Without limiting the generality of the
foregoing, E.B.A. shall at the request of S.A.I., provide
to S.A.I. such documents as S.A.I. withholding taxes upon
any payments from S.A.I. to E.B.A. pursuant to this
Consulting Agreement.
In Witness Whereof, the parties hereto have executed this Consulting Agreement,
consisting of 5 pages, including this page, as of the date set forth above.
E.B.A. E.B. Advisory Limited, a Jersey Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director
-----------------------------------------
S.A.I. SecurFone America, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇, CFO
7
SCHEDULE "A"
Compensation as expressed in % of SecurFone America Inc. issued stock.
SecurFone America Inc. license income E.B.A. compensation
------------------------------------- -------------------
$250,000 2.5%
$500,000 5.0%
$1,000,000 10.0%
