CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is made and entered into
this 24th day of June, 1999 by and between AXCES, Inc., a Delaware corporation
having its principal executive office at 0000 Xxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 (hereinafter referred to as the "COMPANY"), and MTM Holdings
Corporation, a Texas corporation having its principal executive office at 2748
Bingle, Xxxxxxx, Xxxxx 00000 (hereinafter referred to as the "CONSULTANT").
W I T N E S S E T H :
Whereas, the parties desire to evidence their agreement that the
Consultant provide consulting services to the Company under the terms of this
Agreement.
Now, therefore, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Consultant hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the meanings prescribed below:
ACQUIROR shall have the meaning assigned thereto in Section 4.2.
ACQUISITION OPPORTUNITY means an opportunity for the Company, Parent or
any Other Subsidiary to acquire the assets, business or stock, whether by
purchase, merger, consolidation or other means, of any other partnership,
corporation, limited liability company, trust or other entity.
BOARD OF DIRECTORS means the board of directors of the Company; provided
that with respect to any determinations, selections or decisions to be made by
the Board of Directors, including with respect to the existence of any
Disability or the termination of this Agreement, such determinations, selections
and decisions may be made by the board of directors of the Parent.
CAUSE shall have the meaning assigned thereto in Section 5.2 hereof.
CODE means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
COMMISSION shall have the meaning assigned thereto in Section 4.2 hereof.
COMMON STOCK means the Company's common stock, par value $.0001 per
share.
COMPANY OBLIGATIONS shall have the meaning assigned thereto in Section
2.2 hereof.
COMPLETED ACQUISITION shall have the meaning assigned thereto in Section
4.2 hereof.
CONFIDENTIAL INFORMATION shall have the meaning assigned thereto in
Section 8.2 hereof.
CONSULTANT OBLIGATIONS shall have the meaning assigned thereto in Section
2.1(c) hereof.
CONSULTING PERIOD shall have the meaning assigned thereto in Section 3
hereof.
DATE OF TERMINATION means the earliest to occur of (i) the date of MM's
death, (ii) the date on which the Consultant terminates this Agreement for any
reason, (iii) the date of receipt of the Notice of Termination, or such later
date as may be prescribed in the Notice of Termination in accordance with
Section 5.5 hereof or (iv) the date on which MM ceases to be the President of
Consultant.
DISABILITY means an illness or other disability which prevents, as
determined in good faith by the Board of Directors, or will prevent, as
determined by a qualified doctor selected by the Board of Directors, MM from
discharging his responsibilities on behalf of the Consultant under this
Agreement for a period of 180 consecutive calendar days, or an aggregate of 180
calendar days in any calendar year, during the Consulting Period.
EFFECTIVE DATE means the date upon which the stock of the Parent is
issued and sold pursuant to a registration statement filed under the Securities
Act of 1933, as amended.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Consulting Period.
MM means Xxxxxxx Xxxxxxxx, the President of Consultant.
NOTICE OF TERMINATION shall have the meaning assigned thereto in Section
5.6 hereof.
OTHER SUBSIDIARY means any Subsidiary of Parent except the Company.
PARENT means OmniLynx Communications Corporation, a Delaware corporation.
PURCHASE PRICE shall have the meaning assigned thereto in Section 4.2
hereof.
RETAINER shall have the meaning assigned thereto in Section 4.1 hereof.
SUBSIDIARY, when used with respect to any such entity, shall mean any
corporation or other business entity a majority of whose outstanding voting
stock or the equivalent entitled to vote for the election of directors is at the
time owned by such entity and/or one or more of its subsidiaries.
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WITHOUT CAUSE shall have the meaning assigned thereto in Section 5.4
hereof.
2. GENERAL DUTIES OF THE COMPANY AND THE CONSULTANT.
2.1 (a) During the term of this Agreement, Consultant shall
endeavor to identify, and notify the Company of any Acquisition
Opportunity identified by the Consultant which is believed to be an
Acquisition Opportunity suitable for the Company's, the Parent's or any
Other Subsidiary's acquisition. Contemporaneously with such notice or as
soon thereafter as is reasonably possible, the Consultant shall provide
the Company with a reasonably detailed description of such Acquisition
Opportunity (any such notices together with the required detailed
description being herein referred to as an "ACQUISITION NOTICE").
(b) In the event the Consultant delivers an Acquisition Notice
to the Company which describes an Acquisition Opportunity which is
already being pursued or developed independently by the Company, Parent,
or any Other Subsidiary, the Company shall, within fifteen (15) days from
receipt of the Acquisition Notice, notify the Consultant that the
Acquisition Opportunity is one which is currently being pursued or
developed by the Company, the Parent or an Other Subsidiary, and
thereafter each party shall have the right to pursue and develop the
Acquisition Opportunity independently of the other party.
(c) During the term of this Agreement and subject to the terms
hereof, the Consultant agrees to perform the following obligations
(collectively referred to as the "CONSULTANT OBLIGATIONS"):
(i) endeavor to identify Acquisition Opportunities and
devote such time, attention, energy and skill as necessary to
perform the Consultant's other duties hereunder and use its best
efforts to perform faithfully and efficiently such other duties
and responsibilities;
(ii) organize and coordinate all relevant meetings;
(iii) provide such reasonable additional support as may be
necessary in connection with the acquisition of any Acquisition
Opportunity; and
(iv) provide reasonable assistance to the Company, the
Parent or any Other Subsidiary in the resolution of any disputed
matters arising out of, incidental to, or in connection with any
Acquisition Opportunity.
It is agreed by the Company that, notwithstanding the foregoing,
the performance by the Consultant of the Consultant's Obligations shall
be limited to such matters and to such actions as are customarily
required of business advisors and that the Consultant will not undertake
activities hereunder on behalf of the Company that will cause the
Consultant
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to incur unreasonable costs or cause the Consultant unwillingly to devote
an unreasonable amount of time to any particular Acquisition Opportunity,
it being understood that the Consultant is not providing its services
exclusively to the Company and that the Consultant operates its own
business interests.
2.2 During the term of this Agreement and subject to the terms
hereof the Company agrees to perform the following obligations with
respect to all Acquisition Opportunities (collectively, the "COMPANY
OBLIGATIONS"):
(a) to provide technical skills, if so required;
(b) to provide pricing estimates and other relevant
financial analysis;
(c) to provide legal support and contract preparation,
negotiation and development service; and
(d) to pay promptly the Consultant the compensation set
forth in Section 4 hereof (unless the amount of said compensation
is being disputed by the Company or the Parent, on behalf of the
Company, in good faith).
3. TERM. Unless sooner terminated pursuant to other provisions
hereof, the term of this Agreement shall be the period beginning on the
Effective Date and ending on the third anniversary thereof. The period of time
beginning on the Effective Date and ending on the third anniversary thereof
(notwithstanding termination of this Agreement prior to the end of such period
pursuant to other provisions hereof) is referred to elsewhere herein as the
"CONSULTING PERIOD."
4. COMPENSATION.
4.1 BASE SALARY. As compensation for services to the Company,
the Company shall pay to the Consultant until the Date of Termination an
annual retainer of $115,000 (the "RETAINER"). The Retainer shall be
payable in equal semi-monthly installments.
4.2 COMMISSION. If, during the term hereof or within one year
after the Date of Termination, the Company, Parent or any Other
Subsidiary (the "ACQUIROR") consummates the acquisition of any
Acquisition Opportunity that as the subject of an Acquisition Notice
(a "COMPLETED ACQUISITION"), unless the Company notifies the Consultant
that such Acquisition Opportunity was being previously pursued in
accordance with Section 2.1(b) of this Agreement, the Company shall pay,
or cause the Parent or Other Subsidiary, as applicable, to pay to
Consultant a commission (the "COMMISSION") as follows: (i) if the net
cash and value of any other consideration (as determined in accordance
with the terms of the definitive agreement applicable to such Completed
Transaction), including, without limitation, the amount of any assumed
liabilities and the value of any consulting, non-competition or other
agreement with the principals or owners of the acquired entity, payable
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by the Acquiror for such Completed Acquisition (the "PURCHASE PRICE") is
not more than $1,000,000, the Commission shall be 3% of the Purchase
Price; (ii) if the Purchase Price exceeds $1,000,000 but is not more than
$2,000,000, the Commission shall be $30,000 plus 2% of the amount of the
Purchase Price that exceeds $1,000,000; or (iii) if the Purchase Price
exceeds $2,000,000, the Commission shall be $50,000 plus 1% of the amount
of the Purchase Price that exceeds $2,000,000; provided, however, that
the Commission shall be reduced by the amount of any Retainer previously
paid to the Consultant under this Agreement that has not previously been
deducted from any Commission payable to Consultant. The Commission shall
be due and payable on the date of consummation of the Completed
Acquisition. If any portion of the Purchase Price is retained in escrow
or otherwise held back, a prorata portion of the Commission shall be
retained and a proportionate part of such portion shall be payable as, if
and when any amount of such portion is paid to the selling entity. If
any portion of the Purchase Price may be payable only upon the occurrence
of some future event, then the prorata amount of the Commission shall be
retained and be payable only upon the occurrence of such event and in
proportion to the amount of the Purchase Price that becomes payable upon
the occurrence thereof.
4.3 REIMBURSEMENT OF EXPENSES. With the prior consent of the
Company, the Consultant may from time to time until the Date of
Termination incur various business expenses customarily incurred by
consultants of like responsibility, including, without limitation, travel
and similar expenses incurred for the benefit of the Company. Subject to
the Company's policy regarding the reimbursement of such expenses as in
effect from time to time during the Consulting Period, the Company shall
reimburse the Consultant for such expenses from time to time, at the
Consultant's request, and the Consultant shall account to the Company for
all such expenses.
5. TERMINATION.
5.1 The Company's obligations under this Agreement are
conditioned specifically on the continuing involvement of MM on behalf of
the Consultant. According, (i) this Agreement shall terminate
automatically upon the death of MM or on the date MM ceases to be
President of the Consultant, and (ii) the Company may terminate this
Agreement, upon written notice to the Consultant delivered in accordance
with Sections 5.5 and 12.1 hereof, upon the Disability of MM.
5.2 CAUSE. The Company may terminate this Agreement for Cause.
For purposes of this Agreement, the Company shall have "CAUSE" to
terminate this Agreement upon (A) breach of this Agreement by the
Consultant, (B) the willful failure by the Consultant to substantially
perform its duties hereunder (other than any such failure resulting from
MM's incapacity due to physical or mental illness) or failure to follow
the specific reasonable directives of the Board of Directors, after
demand for substantial performance that specifically identifies the
manner in which the Company believes the Consultant has not substantially
performed its duties is delivered to the Consultant by the Company, or
(C) the
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willful engaging by the Consultant in misconduct which is materially
injurious to the Company, monetarily or otherwise. For purposes of this
paragraph, no act, or failure to act, on the Consultant's part shall be
considered "willful" unless done, or omitted to be done, by it not in
good faith and without reasonable belief that its action or omission was
in the best interest of the Company. Notwithstanding the foregoing, this
Agreement shall not be deemed to have been terminated for Cause without
(i) 15 days notice to the Consultant setting forth the reasons for the
Company's intention to terminate for Cause and (ii) delivery to the
Consultant of a Notice of Termination in accordance with Section 5.5
hereof, from the Board of Directors finding that, in the good faith
opinion of the Board of Directors, the Consultant was guilty of conduct
set forth above in clause (B) of this Section 5.2 and specifying the
particulars thereof in detail. For purposes of this Section 5.2, Section
8 and Section 9, the "Consultant" shall include Consultant's officers,
directors, shareholders, agents and employees.
5.3 WITHOUT CAUSE. The Company may terminate this Agreement
Without Cause, upon written notice to the Consultant delivered in
accordance with Sections 5.5 and 12.1 hereof. For purposes of this
Agreement, this Agreement will be deemed to have been terminated "Without
Cause" if this Agreement is terminated by the Company for any reason
other than Cause, Disability of MM or death of MM.
5.4 BY THE CONSULTANT. The Consultant may terminate this
Agreement for any reason, upon written notice to the Company delivered in
accordance with Sections 5.5 and 12.1 hereof.
5.5 NOTICE OF TERMINATION. Any termination of this Agreement
by the Company for Cause, Without Cause or as a result of the Disability
of MM, or by the Consultant for any reason, shall be communicated by
Notice of Termination to the other party hereto given in accordance with
this Agreement. For purposes of this Agreement, a "NOTICE OF
TERMINATION" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of this Agreement under the provision so indicated and
(iii) specifies the termination date, if such date is other than the date
of receipt of such notice (which termination date shall not be more than
15 days after the giving of such notice).
6. OBLIGATIONS OF COMPANY UPON TERMINATION.
6.1 CAUSE; BY THE CONSULTANT; DISABILITY. If this Agreement
shall be terminated (i) by the Company for Cause or Death or Disability
of MM or (ii) by the Consultant for any reason, the Company shall pay to
the Consultant, in a lump sum in cash within 30 days after the Date of
Termination, the aggregate of the following amounts:
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(i) if not theretofore paid, the Retainer through the
Date of Termination; and
(ii) the amount of any Commission due and payable that
has not previously been paid as of the Date of Termination.
6.2 WITHOUT CAUSE. If this Agreement shall be terminated by
the Company Without Cause:
6.2.1 the Company shall pay to the Consultant, in a lump
sum in cash within 30 days after the Date of Termination, the
aggregate of the following amounts:
(i) if not theretofore paid, the Retainer through
the Date of Termination; and
(ii) the amount of any Commission due and payable
that has not previously been paid as of the Date of
Termination.
6.2.2 the Company shall pay to the Consultant Commission
on any Completed Acquisition consummated within one year following
the Date of Termination in accordance with the provisions of
Section 4.2 hereof, except for any Completed Acquisition relating
to an Acquisition Opportunity that was the subject of a notice
from the Company in accordance with Section 2.1(b) hereof; and
6.2.3 the Company shall pay to the Consultant, in equal
monthly installments, the Retainer for a period of 6 months after
the Date of Termination.
7. RELATIONSHIP AND LIMITED AUTHORITY. Consultant shall not have,
and shall not represent itself or allow any of its affiliates or its or their
respective officers, directors, shareholders, agents or employees to represent
that it or any of them has, any authority to commit the Company, the Parent or
any Other Subsidiary, by negotiation or otherwise, to any contract, agreement,
or other legal commitment in the name of or otherwise binding the Company, the
Parent or any Other Subsidiary, or to pledge or extend the credit of the
Company, the Parent or any Other Subsidiary. The Consultant shall perform the
Consultant Obligations as an independent contractor and consultant; not as an
employee, agent, partner, or joint venturer of the Company, the Parent or any
Other Subsidiary.
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8. CONSULTANT'S CONFIDENTIALITY OBLIGATION.
8.1 The Consultant hereby acknowledges, understands and agrees
that all Confidential Information is the exclusive and confidential
property of the Company, Parent and the Other Subsidiaries which shall at
all times be regarded, treated and protected as such in accordance with
this Section 8. The Consultant acknowledges that all such Confidential
Information is in the nature of a trade secret.
8.2 For purposes of this Agreement, "CONFIDENTIAL INFORMATION"
means information which is used in the business of the Company, Parent or
any Other Subsidiary and (i) is proprietary to, about or created by the
Company, Parent or any Other Subsidiary, (ii) gives the Company, the
Parent or any Other Subsidiary some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could
be detrimental to the interests of the Company, Parent or any Other
Subsidiary, (iii) is designated as Confidential Information by the
Company, Parent or any Other Subsidiary, is known by the Consultant to be
considered confidential by the Company, Parent or any Other Subsidiary,
or from all the relevant circumstances should reasonably be assumed by
the Consultant to be confidential and proprietary to the Company, Parent
or any Other Subsidiary, or (iv) is not generally known by non-Company
personnel; provided, however, that "Confidential Information" shall not
include (a) such information which becomes known to the public generally
through no fault of Consultant, (b) information required to be disclosed
by law or the order of any governmental authority under color of law,
provided, that prior to disclosing any information pursuant to this
clause (b), Consultant shall, if possible, give prior written notice
thereof to the Company and provide the Company with opportunity to
contest such disclosure, or (c) information the disclosure of which
Consultant reasonably believes is required in connection with the defense
of a lawsuit against Consultant. Such Confidential Information includes,
without limitation, the following types of information and other
information of a similar nature (whether or not reduced to writing or
designated as confidential):
8.2.1 Internal personnel and financial information of the
Company, Parent or any Other Subsidiary, vendor information
(including vendor characteristics, services, prices, lists and
agreements), purchasing and internal cost information, internal
service and operational manuals, and the manner and methods of
conducting the business of the Company, Parent or any Other
Subsidiary;
8.2.2 Marketing and development plans, price and cost
data, price and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques, forecasts and forecast
assumptions and volumes, and future plans and potential strategies
(including, without limitation, all information relating to any
acquisition prospect and the identity of any key contact within
the organization of any acquisition prospect) of the Company,
Parent or any Other Subsidiary, which have been or are being
discussed;
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8.2.3 Names of customers and their representatives,
contracts (including their contents and parties), customer
services, and the type, quantity, specifications and content of
products and services purchased, leased, licensed or received by
customers of the Company, Parent or any Other Subsidiary; and
8.2.4 Confidential and proprietary information provided to
the Company, Parent or any Other Subsidiary by any actual or
potential customer, government agency or other third party
(including businesses, employees and other entities and
individuals).
8.3 As a consequence of the Consultant's acquisition or
anticipated acquisition of Confidential Information, the Consultant shall
occupy a position of trust and confidence with respect to the affairs and
business of the Company, Parent and the Other Subsidiaries. In view of
the foregoing and of the consideration to be provided to the Consultant,
the Consultant agrees that it is reasonable and necessary that the
Consultant make each of the following covenants:
8.3.1 Until the Date of Termination and for a period of
three years thereafter, the Consultant shall not, and shall cause
its affiliates and its and their respective officers, directors,
shareholders, agents and employees not to disclose Confidential
Information to any person or entity, either inside or outside of
the Company, other than as necessary in carrying out the
Consultant's duties and responsibilities as set forth in Section 2
hereof, without first obtaining the Company's prior written
consent (unless such disclosure is compelled pursuant to court
orders or subpoena, and at which time the Consultant shall give
notice of such proceedings to the Company).
8.3.2 Until the Date of Termination and for a period of
three years thereafter, the Consultant shall not use, copy or
transfer Confidential Information other than as necessary in
carrying out its duties and responsibilities as set forth in
Section 2 hereof, without first obtaining the Company's prior
written consent.
8.3.3 On the Date of Termination, the Consultant shall
promptly deliver to the Company (or its designee) or destroy all
written materials, records and documents made by the Consultant,
its affiliates or its and their respective officers, directors,
shareholders, agents and employees or which came into its or their
possession on or before the Date of Termination (even if prior to
the date hereof) concerning the business or affairs of the Company
Parent or any Other Subsidiary, including, without limitation, all
materials containing Confidential Information.
9. DISCLOSURE OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS,
DISCOVERIES AND INVENTIONS. As part of the Consultant's duties to the Company,
the Consultant agrees that during the term of this Agreement and for a period of
one year following the Date of Termination, the
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Consultant shall promptly disclose in writing to the Company all information,
ideas, concepts, improvements, discoveries and inventions, whether patentable
or not, and whether or not reduced to practice, which are conceived,
developed, made or acquired by the Consultant, either individually or jointly
with others, and which relate to the business, products or services of the
Company, Parent or any Other Subsidiary, irrespective of whether the
Consultant used the Company's time or facilities and irrespective of whether
such information, idea, concept, improvement, discovery or invention was
conceived, developed, discovered or acquired by the Consultant on the job, at
home, or elsewhere. This obligation extends to all types of information,
ideas and concepts, including information, ideas and concepts relating to new
types of services, corporate opportunities, acquisition prospects, the
identity of key representatives within acquisition prospect organizations,
prospective names or service marks for the Company's business activities, and
the like.
10. OWNERSHIP OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS,
DISCOVERIES AND INVENTIONS, AND ALL ORIGINAL WORKS OF AUTHORSHIP.
10.1 All information, ideas, concepts, improvements, discoveries
and inventions, whether patentable or not, which are conceived, made,
developed or acquired by the Consultant or which are disclosed or made
known to the Consultant, individually or in conjunction with others,
during the term of this Agreement and which relate to the business,
products or services of the Company, Parent or any Other Subsidiary
(including, without limitation, all such information relating to
corporate opportunities, research, financial and sales data, pricing and
trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity
of key contacts within the customers' organizations or within the
organization of acquisition prospects, marketing and merchandising
techniques, and prospective names and service marks) are and shall be the
sole and exclusive property of the Company. Furthermore, all drawings,
memoranda, notes, records, files, correspondence, manuals, models,
specifications, computer programs, maps and all other writings or
materials of any type embodying any of such information, ideas, concepts,
improvements, discoveries and inventions are and shall be the sole and
exclusive property of the Company.
10.2 In particular, the Consultant hereby specifically sells,
assigns, transfers and conveys to the Company all of its worldwide right,
title and interest in and to all such information, ideas, concepts,
improvements, discoveries or inventions, and any United States or foreign
applications for patents, inventor's certificates or other industrial
rights which may be filed in respect thereof, including divisions,
continuations, continuations-in-part, reissues and/or extensions thereof,
and applications for registration of such names and service marks. The
Consultant shall assist the Company and its nominee at all times, until
the Date of Termination and at all times thereafter, in the protection of
such information, ideas, concepts, improvements, discoveries or
inventions, both in the United States and all foreign countries, which
assistance shall include, but shall not be limited to, the execution of
all lawful oaths and all assignment documents requested by the Company or
its nominee in connection with the preparation, prosecution, issuance or
enforcement of any applications for United States
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or foreign letters patent, including divisions, continuations,
continuations-in-part, reissues and/or extensions thereof, and any
application for the registration of such names and service marks.
10.3 In the event the Consultant creates, during the term of
this Agreement, any original work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as,
videotapes, written presentations on acquisitions, computer programs,
drawings, maps, architectural renditions, models, manuals, brochures or
the like) relating to the Company's, the Parent's or any Other
Subsidiary's business, products or services, whether such work is created
solely by the Consultant or jointly with others, the Company shall be
deemed the author of such work if the work is prepared by the Consultant
within the scope of its duties hereunder; or, if the work is not prepared
by the Consultant within the scope of its duties hereunder, but is
specially ordered by the Company as a contribution to a collective work,
as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation or as an
instructional text, then the work shall be considered to be a work made
for hire, and the Company shall be the author of such work. The
Consultant agrees to assist the Company, Parent or any Other Subsidiary,
at all times, until the Date of Termination and at all times thereafter,
in the protection of the Company's worldwide right, title and interest in
and to such work and all rights of copyright therein, which assistance
shall include, but shall not be limited to, the execution of all
documents requested by the Company or its nominee and the execution of
all lawful oaths and applications for registration of copyright in the
United States and foreign countries.
11. CONSULTANT'S NON-COMPETITION OBLIGATION.
11.1 Until the Date of Termination, and for a period of one year
thereafter, neither the Consultant nor MM shall not, acting alone or in
conjunction with others, directly or indirectly, in any of the business
territories in which the Company, Parent or any Other Subsidiary, is as
of the Date of Termination conducting business, invest or engage,
directly or indirectly, in any business which is competitive with that of
the Company, Parent or any Other Subsidiary as of the Date of Termination
or render services to such a competitor as an agent or consultant;
provided, however, that the beneficial ownership by the Consultant of up
to three percent of the voting stock of any corporation subject to the
periodic reporting requirements of the Exchange Act shall not violate
this Section 11.1.
11.2 In addition to the other obligations agreed to by the
Consultant and MM in this Agreement, the Consultant and MM agree that
until the Date of Termination, and for a period of one year thereafter,
they shall not at any time, directly or indirectly, (i) induce, entice or
solicit any employee of the Company to leave his employment, (ii)
contact, communicate or solicit any customer or acquisition prospect of
the Company derived from any customer list, customer lead, Company mail,
printed matter or other information secured from the Company or its
present or past employees or (iii) in any other manner use any
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customer lists or customer leads, mail, telephone numbers, printed
material or other information of the Company relating thereto.
11.3 The parties hereto acknowledge and agree that (i) the
agreements and covenants set forth in this Section 11 are being made for
good and valuable consideration, the receipt and sufficiency of which is
acknowledged; (ii) the covenants contained in this Section 11 are an
important aspect of this Agreement, and the Company would not have
entered into this Agreement absent the inclusion of this Section 11; and
(iii) the restrictions imposed in this Section 11, including the
geographic area and duration of the covenants made herein, are reasonable
and necessary to protect the Company. If the Consultant or MM breaches
or indicates an intention to breach any term or provision of this Section
11, the parties hereto agree that the Company shall be entitled to the
right of both temporary and permanent injunctive relief and/or specific
performance. The right of the Company to such relief shall not be
construed to prevent the Company from pursuing, either consecutively or
concurrently, any and all other legal or equitable remedies available to
it for such breach or threatened breach, specifically including, without
limitation, the recovery of monetary damages. If any court determines
that any provision of this Section 11, or any part thereof, is
unenforceable because of the duration or geographic scope of such
provision, the parties hereto agree that such court shall have the power
to reduce the duration or geographic scope of such provision, as the case
may be, and the parties hereto agree to request the court to exercise
such power, and, in its amended form, such provision shall then be
enforceable and shall be enforced. MM acknowledges and agrees that he is
an officer and director of the Consultant and as such expects to receive
substantial benefit from this Agreement.
12. MISCELLANEOUS.
12.1 NOTICES. All notices and other communication required or
permitted hereunder or necessary or convenient in connection herewith
shall be in writing and shall be deemed to have ben given when delivered
by hand or mailed by registered or certified mail, return receipt
requested, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company to:
AXCES, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
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With a copy to:
OmniLynx Communications Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxxxxx Xxxxx
Chief Executive Officer
If to the Consultant to:
MTM Holdings Corporation
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
President
or to such other names or addresses as the Company or the Consultant, as
the case may be, shall designate by notice to the other party hereto in
the manner specified in this Section 12.1.
12.2 WAIVER OF BREACH. The waiver by any party hereto of a
breach of any provision of this Agreement shall neither operate nor be
construed as a waiver of any subsequent breach by any party.
12.3 ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the Company, the Consultant and their respective
successors, legal representatives and assigns; provided, however, the
Consultant agrees that its rights and obligations hereunder are personal
to it and may not be assigned without the express written consent of the
Company.
12.4 ENTIRE AGREEMENT; NO ORAL AMENDMENTS. This Agreement,
together with any exhibit attached hereto and any document, policy, rule
or regulation referred to herein, replaces and merges all previous
agreements and discussions relating to the same or similar subject matter
between the Consultant and the Company and constitutes the entire
agreement between the Consultant and the Company with respect to the
subject matter of this Agreement. This Agreement may not be modified in
any respect by any verbal statement, representation or agreement made by
any employee, officer, or representative of the Company or by any written
agreement unless signed by an officer of the Company who is expressly
authorized by the Company to execute such document.
12.5 ENFORCEABILITY. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be
determined to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions or applications of
this
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Agreement which can be given effect without the invalid or unenforceable
provision or application.
12.6 JURISDICTION; ARBITRATION. The laws of the State of
Delaware shall govern the interpretation, validity and effect of this
Agreement without regard to the place of execution or the place for
performance thereof. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration
located in Houston, Texas administered by the American Arbitration
Association in accordance with its applicable arbitration rules, and the
judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof, which judgment shall be binding upon
the parties hereto.
12.7 INJUNCTIVE RELIEF. The Company and the Consultant agree
that a breach of any term of this Agreement by the Consultant would cause
irreparable damage to the Company and that, in the event of such breach,
the Company shall have, in addition to any and all remedies of law, the
right to any injunction, specific performance and other equitable relief
to prevent or to redress the violation of the Consultant's duties or
responsibilities hereunder.
12.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be an original, but all of which
taken together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
AXCES, INC.
By: /s/ Xxxxxxx Avignon
---------------------------------------------
Name: Xxxxxxx Avignon
-------------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------------
MTM HOLDINGS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxx
President
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxx
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