1
EXHIBIT 6.5
SECOND AMENDMENT AGREEMENT TO
NON-COMPETITION AND CONSULTING AGREEMENT
THIS SECOND AMENDMENT AGREEMENT TO NON-COMPETITION AND CONSULTING
AGREEMENT (the "Amendment") is made and entered into as of the 16th day of
November, 1995, by and between CABLE LINK, INC. an Ohio corporation and formerly
known as Cable Link, Incorporated (the "Company") and E. XXXX XXXXX ("Xxxxx").
Capitalized terms not defined herein have the meanings given them in the
Agreement (as such term is defined below).
W I T N E S S E T H:
WHEREAS, the Company and Xxxxx are parties to a Non-Competition and
Consulting Agreement, dated as of the 18th day of October, 1994, as amended by a
First Amendment dated June 1, 1995 (the "Agreement") and desire to further amend
the terms of the Agreement by this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto, intending to be legally bound, agree
as follows:
SECTION 1. Amendment of Section 2.2. Section 2.2 of the Agreement is
hereby amended and restated in its entirety to read as follows:
2.2. At anytime through the last day of the term of this
Agreement, Xxxxx shall consult with and advise the Company with respect
to the business engaged in by the Company. In the performance of Xxxxx'
consulting services, Xxxxx and Company agree that: (a) Xxxxx shall not
be required to provide consulting services for more than forty (40)
hours during each calendar month; (b) Xxxxx shall not be required to be
present in the Company offices more than six (6) times per year,
preferably on a bi-monthly basis; (c) at such time as Xxxxx' presence
shall be required at the Company offices, Company shall pay all of
Xxxxx' reasonably travel expenses from Bradenton, Florida to Columbus,
Ohio as well as Xxxxx' reasonable living expenses in Columbus, Ohio;
(d) each day that Xxxxx is required to spend at the Company offices
shall be considered to be equal to ten (10) hours of consulting service
time for the purpose of calculating Xxxxx' number of consulting hours
to be performed under the terms of this Agreement; (e) in the
performance of his consulting services, Xxxxx shall receive
instructions from and shall report to Xxxxxxx Xxxxxx, the Vice Chairman
and Chief Operating Officer of the Company; and, (f) all requests for
the performance of consulting services shall be delivered to Xxxxx in
written form with sufficient description of the services desired so as
to permit Xxxxx to fully understand the task presented to him;
provided, however, that Xxxxx hereby acknowledges that the first
project to be performed by him shall be a comprehensive report of
competitive intelligence, the first draft of which shall be due no
later than January 15, 1996 and the final version of which shall be due
no later than February 15, 1996.
SECTION 2. New Section 2.3. A new Section 2.3. is hereby added to the
Agreement to read as follows:
2.3. No later than November 30, 1995, the Company shall, at a
regular or special meeting of the Board of Directors of the Company,
cause Xxxxx to be elected as a director of the Company for a term which
shall expire at the next annual meeting of the Company, and shall cause
Xxxxx to be nominated for re-election at such meeting subject to Xxxxx
providing the Company with all information to be included in the
Company's proxy statement which is customary or legally required.
SECTION 3. Amendment of Section 5.1. Section 5.1. of the Agreement is
hereby amended and restated in its entirety to read as follows:
80
2
5.1. Payments for Non-Competition. In consideration of Xxxxx'
covenant not to compete with Company and Xxxxx' other covenants and
obligations hereunder, the Company shall pay $25,000 to Xxxxx, payable
in seven monthly installments of $1,099.53; 25 monthly installments of
$666.67; and, a final installment of $635.54.
SECTION 4. Amendment of Section 5.2. Section 5.2. of the Agreement is
hereby amended and restated in its entirety to read as follows:
5.2. Payments for Consulting. In consideration of the
consulting services of Xxxxx hereunder and Xxxxx' other covenants and
obligation hereunder, the Company shall pay $350,000 top Xxxxx, payable
in seven monthly installments of $15,393.51; 25 monthly installments of
$9,333.33; and, a final installment of $8,912.18.
SECTION 5. Amendment of Section 5.3. The first sentence of 5.3. is
hereby amended and restated to read as follows:
The first six monthly installment payments pursuant to each of Section
5.1. and 5.2. have been paid commencing as of June 1, 1995, the receipt
of which by Xxxxx is hereby acknowledged; and the remaining monthly
installments shall be paid on the first day of each calendar month for
27 months starting December 1, 1995.
SECTION 6. New Section 5.5. A new Section 5.5. is hereby added to the
Agreement to read as follows:
5.5. Special Fee. As a one time fee, Xxxxx shall receive
$1,750 on the later of January 15, 1996 or the date that the first
version of the report on competitive intelligence is presented to
Xxxxxxx Xxxxxx, and a further $1,750 on the later of February 15, 1996
or the dated that the final report on competitive intelligence is
presented to Xxxxxxx Xxxxxx.
SECTION 7. New Section 5.6. A new Section 5.6. is hereby added to the
Agreement to read as follows:
5.6. Medical Coverage. During the term of this Agreement, as
additional consideration for the consulting services to be provided
by Xxxxx hereunder, Company shall, in accordance with its
normal employment policies, provide medical and hospitalization
coverage for Xxxxx, either, at Xxxxx' option, under: (a) subject to
the provisions of the last sentence of this Section 5.6, such of the
Company's medical and hospitalization plans as may be in existence
during the term of this Agreement as shall provide Xxxxx with the same
medical and hospitalization benefits as would be available to Xxxxx if
he were considered to be an employee of the Company, the cost of which
shall be equally divided between Xxxxx and the Company; or, (b) an
independently issued health care coverage policy or plan thereby
requiring Xxxxx to seek coverage under the Company's existing medical
and hospitalization plans, Xxxxx and the Company agree to further
amend this Non-Competition and Consulting Agreement in a mutually
agreeable and reasonable fashion to the extent that such amendments
may be necessary in order to permit Xxxxx to qualify for medical and
hospitalization coverage as an employee of the Company.
SECTION 8. Amendment of Section 8.4. The provisions of Section 8.4.
relating to the place of delivery for notices or other communications to Xxxxx
is hereby amended and restated in its entirety to read as follows:
If to Xxxxx:
E. Xxxx Xxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to:
81
3
Harllee, Porges, Xxxxxx & Xxxxxxx, P.A.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
SECTION 9. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original and all of which,
together, shall constitute one and the same Amendment.
SECTION 10. Board Action. As soon as is reasonably possible, but in no
event later than November 30, 1995, the Company shall present this Amendment to
its Board of directors for its approval.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first mentioned above.
CABLE LINK, INC.
By:
-------------------------- ---------------------------
Xxx Xxxxxx E. Xxxx Xxxxx
82
