Exhibit 10.27
CONSULTING AGREEMENT
Agreement made as of the 11th day of September, 1999, between Group
Long Distance, Inc., a corporation organized under the laws of the State of
Florida (the "Company"), and Torbay Management Services, Inc., a corporation
organized under the laws of the State of Florida ("Torbay").
WHEREAS, the Company desires to engage Torbay to provide consulting
services, and Torbay desires to provide consulting services to the Company, but
only on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Torbay hereby agree as follows:
1. The Company shall engage Torbay and Torbay shall serve the Company, for
the period beginning September 11, 1999 and expiring on January 10, 2000 (the
term of this Agreement).
2. During the term of this Agreement, Torbay shall be available to
provide such consulting services as may be requested of it by the Company, it
being expected that such services will require approximately eighty (80) hours
of Torbay's time each month. It is anticipated that the services to be performed
by Torbay during the term of this Agreement will consist of the following:
answering inquiries from and assisting officers and employees of the Company
concerning the Company's operations including, but not limited to, collating,
accounting and tax information concerning the Company's operations, providing
background information, as necessary on the Company's operations, preparing
replies for officers and employees of the Company regarding administrative
matters relating to inquiries, whether pending or which arise during the term of
this Consulting Agreement, from regulatory authorities such as public service
commissions, public utilities commissions, State Attorney General's offices and
the Federal Communication Commission and attending meetings and providing other
services normally associated with assisting in the management of the Company as
may be requested by the Company from time to time. In providing consulting
services under this Agreement, Torbay (and any of its officers, directors and
employees) will not have the authority to bind the Company and may not hold
itself out as a representative or agent of the Company. All of Torbay's
consulting services shall be performed to the satisfaction of the Company.
(a) During the term of this Agreement, the Company shall pay Torbay a
consulting fee of twenty four thousand dollars ($24,000.00) (the "Consulting
Fee"), payable as follows: (payable in equal monthly installments of six
thousand dollars ($6,000.00) over the term of this Agreement.)
(b) At the option of Company, this Consulting Agreement can be extended for
two (2) additional months, at six thousand dollars ($6000.00) per month, by
giving thirty (30) days written notice to Torbay prior to the expiration of the
initial four (4) month term of this Consulting Agreement. In the event all of
the securities or assets of the Company are sold or acquired or if legal
proceedings or legal actions for the liquidation of the Company are initiated
during the period of this Consulting Agreement, the Consulting Fee shall become
due and payable as of the date of acquisition. In the event the date of
acquisition is prior to the expiration of the initial four (4) month term of
this Consulting Agreement, the term Consulting Fee shall include those payments
due for the extended two (2) month period, as if Company had exercised its right
to extend the term of this Consulting Agreement.
(c) In the event that Company is acquired during the term of this
Consulting Agreement, then any payments by the acquirer, or any person or entity
on the acquirer's behalf, paid to Xxxxx X. Xxxxx ("Xxxxx"), or to any person or
entity on Xxxxx'x behalf, then any Consulting Fee payments made or due to Torbay
under this Consulting Agreement shall be offset against the funds paid to and
due to Torbay under this Consulting Agreement. The Company's right of offset for
sums paid to Torbay under this Consulting Agreement shall apply to any portion
of funds due to Xxxxx by the acquirer in excess of one hundred twenty thousand
dollars ($120,000.00). As an example, in the event the acquirer is to pay Xxxxx
in excess of one hundred twenty thousand dollars ($120,000.00), Xxxxx shall
direct the acquirer to pay to the Company any amount in excess of one hundred
twenty thousand dollars ($120,000.00) and up to the amount paid to Torbay under
the terms of this Consulting Agreement. Torbay agrees to execute any documents
necessary to facilitate the acquirer's payment of any such funds to the Company.
(d) Other than out-of-pocket expenses preapproved by Company, Torbay shall
not be entitled to payment or reimbursement for any expense in connection with
performance of the services under this Consulting Agreement. Company shall not
be responsible to provide Torbay or any of its employees with reimbursement for
automobile, medical or disability insurance benefits and shall not be
responsible for the direct payment of any such benefits.
(e) During the term of this Consulting Agreement, Company shall provide
Torbay with office space and support necessary to the performance of Torbay's
consulting services, such office space and support services to be determined by
Company.
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(f) Torbay (and any of its officers, directors and employees) shall
be an independent contractor, not an employee of the Company, in the performance
of the consulting services under this Agreement, and, accordingly, shall be
responsible for the payment of any and all taxes associated with the Consulting
Fee.
(g) (g) All of Torbay's consulting services shall be performed by Xxxxx. In the
event Xxxxx fails to perform such consulting services or if Xxxxx dies during
the term of this Agreement, then this Agreement shall terminate and the Company
shall not be obligated to pay the Consulting Fee.
3. The parties acknowledge that Torbay, for the term of this Agreement,
will be covered under the Company's Professional Indemnity Insurance policy and
will not be covered under the Company's Directors and Officers Insurance policy.
4. Torbay (and any of its officers, directors and employees) shall not
divulge or communicate to any person (except in performing the consulting
services under this Agreement) or use for its own purposes trade secrets,
confidential commercial information, or any other information, knowledge or data
of the Company or of any of its affiliates which is not generally known to the
public and shall use its best efforts to prevent the publication or disclosure
by any other person of any such secret, information, knowledge or dat All
documents and objects made, compiled, received, held or used by Torbay while
performing consulting services for the Company in connection with the business
of the Company shall be and remain the Company's property and shall be delivered
by Torbay to the Company upon the termination of this Agreement or at any
earlier time requested by the Company.
5. In the event of any dispute between the parties hereto arising out of
or relating to this Agreement (except any dispute with respect to paragraph 5
hereof), such dispute shall be settled by arbitration in Fort Lauderdale,
Florida, in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association, except that there shall be one arbitrator
selected with respect to any such arbitration proceeding. Judgment upon the
award rendered may be entered in any court having jurisdiction thereof.
Notwithstanding anything herein to the contrary, if any dispute arises between
the parties under paragraph 5, the Company shall not be required to arbitrate
such dispute or claim but shall have the right to institute judicial proceedings
either at law or in equity, in any court of competent jurisdiction with respect
to such dispute or claim. If such judicial proceedings are instituted, the
parties agree that such proceedings shall not be stayed or delayed pending the
outcome of any arbitration proceeding hereunder.
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6. Any notice or other communication required or permitted under this
Agreement shall be effective only if it is in writing and delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Company: Xxxxx Xxxxx, Executive Vice President
Group Long Distance, Inc.
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
with copy to: Xxxxxx X. Xxxxx, Esq.
Brinkley, McNerney, Xxxxxx, Xxxxxxx & Xxxxx, LLP
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
If to Torbay: Xxxxx X. Xxxxx
00000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
1. This Agreement constitutes the entire agreement between the parties
hereto with respect to Torbay's relationship with the Company, and supersedes
and is in full substitution for any and all prior understandings or agreements
with respect to Torbay's consulting relationship with the Company.
2. This Agreement may be amended only by an instrument in writing signed
by the parties hereto, and any provision hereof may be waived only by an
instrument in writing signed by the party or parties against whom or which
enforcement of such waiver is sought. The failure of either party hereto at any
time to require the performance by the other party hereto of any provision
hereof shall in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party hereto of a breach of any
provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
3. This Agreement is binding on and is for the benefit of the parties
hereto and their respective successors, heirs, executors, administrators and
other legal representatives. Neither this Agreement nor any right or obligation
hereunder may be assigned by the Company (except to an affiliate) or by Torbay.
4. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida (without giving effect to its choice of law
principles).
5. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
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6. The obligations of Torbay set forth in paragraphs 5 and 6 represent
independent covenants by which Torbay is and will remain bound notwithstanding
any breach by the Company, and shall survive the termination of this Agreement.
7. In the event of any dispute between the parties arising from this
Separation Agreement, the prevailing party shall be entitled to its costs and
reasonable attorney's fees, including all appellate levels.
8. IN WITNESS WHEREOF, the Company and Torbay have executed this Agreement
as of the date first written above.
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TORBAY COMPANY
TORBAY MANAGEMENT SERVICES, INC. GROUP LONG DISTANCE, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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