1
Exhibit 10.10
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of October 5, 1996 between APPLIEDTHEORY
COMMUNICATIONS, INC., a New York corporation (hereinafter referred to as the
"Company"), and XXXXXXX X. XXXXXXXX (hereinafter referred to as the
"Consultant").
W I T N E S S E T H
WHEREAS, the Consultant possess certain skills and abilities that would be
useful to the Company in connection with its operations, financing and business
planning; and
WHEREAS, the Company is desirous of being able to avail itself of the
Consultant's experience on the terms and conditions hereinafter set forth; and
WHEREAS, the Consultant is willing to render advisory and consulting
services to the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the mutual promises of
the parties, and other good and valuable consideration, it is hereby agreed as
follows:
1. Consulting Period. (a) The Company shall retain the Consultant, and
the Consultant shall serve the Company, in an advisory and consulting capacity
for the period commencing on the date hereof and ending on October 5, 2000
(such period, as extended pursuant to Section 1(b) or as shortened pursuant to
Section 1(c), being hereinafter referred to as the "Consulting Period").
2
(b) The Consulting Period shall automatically be renewed for successive
additional one-year periods on the same terms and conditions unless written
notice is provided to the other party hereto at least 90 days prior to the end
of the Consulting Period (as extended, if applicable).
(c) The Consulting Period may be terminated prior to the end of its
stated term by either party upon at least 90 days prior written notice (an
"Early Termination"). In the event of an Early Termination, the consulting fee
payable pursuant to Section 3(a) hereof shall terminate as of such date, but
any of the stock options set forth in Section 3(b) hereof that are not then
vested shall fully vest on the date that the Company concludes, contracts for,
or the Board of Directors of the Company approves a sale of equity securities
or securities convertible into equity securities, a merger, or consolidation,
issuance of a majority of its stock, a sale of a majority of its assets or a
similar transaction at any time during the Consulting Period or within a period
of two years from an Early Termination, provided, however, that (i) the
transaction or a similar transaction (the "Transaction") was introduced or
proposed by the Consultant or (ii) the Company consulted with the Consultant
regarding the Transaction prior to the Early Transaction.
2. Consulting Services. The Consultant agrees to render advisory and
consulting services during the Consulting Period, as mutually agreed, with
respect to the Company's operations, financing and business planning. In
particular, the Company agrees that, in all cases, it shall consult with the
Consultant regarding any proposed transaction of the type specified in Section
1(c) that arises or is under investigation or review by the Company or its
advisors during the Consulting Period.
2
3
3. Payments. (a) The Company will pay the Consultant a fee of Five
Thousand Dollars ($5,000) per month for each month during the Consulting Period.
(b) The Company has also issued a non-statutory stock option
for 100,000 shares of the Company's Common Stock at an option price of $1.00 per
share on the terms set forth in the Non-Statutory Stock Option Contract attached
hereto as Exhibit A, as modified by the provisions of Section 1(c) hereof.
4. Disclosure of Information. The Consultant recognizes and acknowledges
that the trade secrets and proprietary information and processes of the Company
and its affiliates, as they may exist from time to time, are valuable, special
and unique assets of the Company. The Consultant will not, in whole or in part,
disclose such secrets, information and processes to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
nor shall the Consultant make use of any such secrets, information and processes
for its own purposes or for the benefit of any person, firm, corporation or
other entity (except the Company) under any circumstances, provided that these
restrictions shall not apply to such secrets, information and processes which
are then in the public domain (provided that the Consultant was not responsible,
directly or indirectly, for such secrets, information or processed entering the
public domain without the Company's consent) or to disclosure of any such
secrets, information or processes as required by law or pursuant to court order.
The Consultant agrees that the restrictions in this Section shall extend to any
confidential proprietary information contained in all memoranda, books, papers,
letters and other data, and all copies thereof and therefrom, in any way
relating to the Company's business and affairs, whether made by the Consultant
or otherwise coming into the Consultant's possession.
3
4
5. Independent Contractor. Nothing contained herein shall constitute the
Consultant an employee or agent of the Company, and the relationship of the
Consultant to the Company for all purposes, including, without limitation, tax
purposes, shall be one of the independent contractor. Without limitation of the
forgoing, it is understood that, unless otherwise expressly agreed in writing,
the Consultant shall have no power or authority to execute any agreement or
instrument on behalf of the Company or otherwise bind the Company contractually
or legally.
6. Notices. All communications and notices pursuant to this Agreement
shall by in writing and shall be deemed given if and when delivered personally
or mailed certified or registered mail, postage prepaid, addressed as follows:
If to the Consultant:
Xx. Xxxxxxx X. Xxxxxxxx
0 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
If to the Company:
Applied Theory Communications, Inc.
00 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Chairman & CEO
Any party may, be written notice to the others, change the address to which
notices to such party are to be delivered to mailed, provided that any such
change of address shall only be effective upon receipt.
7. Parties in Interest and Assignment. This Agreement shall insure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
Neither party may assign its rights under this Agreement without the written
consent of
4
5
the other.
8. Representing. Each of the Consultant and the Company hereby
represents to the other that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder and that this Agreement
constitutes a legal, valid and binding obligation of such party, enforceable
against it in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally.
9. Complete Agreement. This Agreement, together with the Non-Stock
Option Contract attached hereto as Exhibit A, contains the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all previous negotiations, commitments and writings with respect thereto.
10. Amendment and Waivers. This Agreement may be amended, modified,
altered or terminated, and any of its provisions, waived, only in a writing
signed on behalf of the parties hereto.
11. Governing Law and Severability. This Agreement shall be governed
by and construed and enforced in accordance with laws of the State of New York.
If any provision of this Agreement is void, or is so declared, such provision
shall be deemed, and hereby is, severed from this Agreement, which otherwise
shall remain in full force and effect.
12. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5
6
13. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
6
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
5th day of October, 1996.
COMPANY:
APPLIEDTHEORY COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxxx
Chairman & CEO
CONSULTANT:
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
7
