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EXHIBIT 10.114
MIDCOM COMMUNICATIONS INC.
CONSULTING AGREEMENT
Agreement is made effective the 25th day of November, 1996, by and
between MIDCOM COMMUNICATIONS INC. ("MIDCOM") and XXXX XXXXXXX ("Consultant").
1. SCOPE OF WORK. During the term of this Agreement, Consultant shall
(i) when called upon, appear as a factual or an expert witness on behalf of
MIDCOM in any legal proceeding involving the ADNET DIVISION of MIDCOM (other
than an action brought by or on behalf of consultant), (ii) advise and assist
MIDCOM with respect to the business concerns of Advanced Network Design (a
subsidiary acquired in the acquisition by MIDCOM) and (iii) act as an advisor to
MIDCOM concerning ADNET DIVISION's history prior to the merger of ADNET into
MIDCOM ("Consulting Agreement").
Consultant shall begin such consulting services on or about
December 27, 1996, and shall not be required to devote more than ten (10)
hours in any consecutive thirty (30) day period to such activities.
2. COMPENSATION/EXPENSES.
2.1 In consideration in part for the grant of a stock option
for 150,000 shares of MIDCOM Common Stock ("Stock Option") substantially in the
form attached hereto as Exhibit 2.1 to Consultant, Consultant shall perform the
scope of work identified herein in accordance with the professional standards
normally appropriate for a consultant in such circumstances.
2.2 EXPENSES. MIDCOM shall reimburse Consultant for
reasonable, ordinary and necessary travel expenses and other reasonable,
ordinary and necessary out-of-pocket expenses incurred by or on behalf of
Consultant; however, expenses in excess of $500 per month shall be subject to
prior written approval by MIDCOM.
3. CONFIDENTIALITY. In connection with the consulting services to be
performed hereunder, MIDCOM may and may have disclosed technical or other
information in strict confidence to Consultant, and Consultant agrees to hold
such information in strict confidence and agrees to indemnify and hold MIDCOM
harmless against and from all damages, injuries, costs and fees, including
attorney fees, and losses arising out of disclosure of such information by
Consultant for a period of six (6) months beyond the termination of this
Consulting Agreement.
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4. TERM AND TERMINATION.
4.1 TERM. This Consulting Agreement shall commence on
November 25, 1996, and subject to Section 4.2 shall continue until the
Termination Date as defined in that certain Amendment to Agreement and Plan of
Reorganization between MIDCOM, Xxxx Xxxxxxx and other parties of even date
herewith. Upon termination or completion of performance, or at any time prior
thereto upon MIDCOM's written request, Consultant shall return to MIDCOM all
documentary information or materials received from MIDCOM or developed by
Consultant for MIDCOM.
4.2 TERMINATION.
Either party shall have the right to terminate the
consulting relationship at any time upon ninety (90) day's written notice.
MIDCOM may terminate the consulting relationship at any time (i) in the event of
any willful, continued and material failure by the Consultant to hold himself
available to perform the services (other than resulting from the Consultant's
sickness, accident or disability), but only if, within ten (10) days after
written notice, Consultant fails to cure such willful and continued material
failure, (ii) without notice in the event of the willful engaging by the
Consultant in criminal misconduct that is materially injurious to MIDCOM, or
(iii) if Consultant breaches the material terms and conditions of this
Consulting Agreement. Termination of the Consulting Agreement shall not affect
the Stock Option granted to Consultant.
5. INDEPENDENT CONTRACTOR. MIDCOM appoints and Consultant agrees that
Consultant shall perform all services required hereunder in such manner as
Consultant deems appropriate and effective without the direct supervision by
MIDCOM as an independent contractor and not as an agent or employee of MIDCOM.
MIDCOM shall not be liable in contract or in tort to Consultant, or to a
supplier of Consultant for incidental or consequential damages arising out of
the performance or non-performance of MIDCOM's obligations hereunder.
6. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Washington.
7. SEVERABILITY. If any insignificant provision of this Agreement is
determined to be invalid or unenforceable by a court of competent jurisdiction,
such determination shall not affect the validity or enforceability of any of the
material provisions of this Consulting Agreement.
8. ASSIGNMENT. Neither this Consulting Agreement nor the rights,
obligations or duties of either party may be assigned or delegated to any other
person except that Consultant may choose his own assistants at his cost and
expense.
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9. ENTIRE AGREEMENT. This Consulting Agreement sets forth the entire
understanding between the parties and may not be amended except in writing
signed by both parties.
10. DRAFTING. The parties have had an equal opportunity to participate
in the drafting of this Consulting Agreement and no ambiguity shall be construed
against any party based upon a claim that that party drafted the applicable
provision.
11. BINDING EFFECT. This Consulting Agreement is binding upon the
parties hereto and their successors and assigns.
12. WAIVER. Failing or delaying on the part of either party in the
exercise of any right, power, or privilege shall not be deemed a waiver of any
exercise of such right, power or privilege thereafter.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement
as of the date first written above.
CONSULTANT MIDCOM COMMUNICATIONS INC.
By: /s/ XXXXX XXXXXXX By: /s/ XXXX X. XXXXX
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XXXX XXXXXXX XXXX X. XXXXX
Its: Vice President & General Counsel
Address 10622 Villa Del Cerro
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Xxxxx Xxx, XX 00000
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EXHIBIT 2.1 TO CONSULTING AGREEMENT
MIDCOM COMMUNICATIONS INC.
REVISED AND RESTATED 1993 STOCK OPTION PLAN
AS AMENDED ON FEBRUARY 21, 1994, MARCH 28, 1994, JULY 26, 1995 AND JULY 25, 1996
STOCK OPTION AGREEMENT
[Filed as Exhibit 10.115 to Amendment No. 1 to the Company's
Registration Statement on Form S-1 (file No. 333-14427)]
