CONSULTING AGREEMENT
AGREEMENT made as of the 8th day of July, 1999 by and between PICK
Communications Corp. and its subsidiaries (the "Company") with an address at 000
Xxxxx 00 Xxxx, Xxxxx, Xxx Xxxxxx 00000 and Xxxxxx X. Xxxxxx (the "Consultant"),
an individual residing at 0000 Xx. Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, the Consultant has resigned from employment and as a member of
the Board of Directors of the Company effective July 8, 1999 and simultaneously
entered into a Confidential Separation Agreement and Release of All Claims
("Separation Agreement") which remains in full force and effect;
WHEREAS, the Company also desires to retain the Consultant to provide
consulting services; and
WHEREAS, the Consultant desires to be retained to render such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. The Company hereby retains the Consultant and the Consultant hereby
accepts such retention to perform consulting services related to:
a. assisting in the preparation of budgets, projections and business
plans for the Company;
b. assisting in the recruitment of all senior management including,
but not limited to, his replacement as Chief Executive Officer;
c. assisting the Company in screening, evaluating, and recommending
commercial and investment bankers, underwriters and professional consultants in
order to carry out the Company's financing goals, including, but not limited to,
when necessary, assisting in the structuring of any required financings;
d. assisting the Company on the preparation and attendance at
appropriate presentations to consummate any desired financing;
e. market the products and services of PickSat and XxxxXxxxxx.xxx to
corporations and be compensated for such services under a separate compensation
agreement.
In regard to the foregoing, subject to the terms set forth below, the
Consultant shall furnish to the Company advice and recommendations with respect
to such aspects of the business and affairs of the Company as the Company shall,
from time to time, reasonably request upon no
less than three business day's notice, unless the Consultant agrees to a lesser
amount of notice for specific requested services hereunder.
2. In addition, the Consultant shall hold himself ready to assist the
Company in evaluating and negotiating particular contracts or transactions, if
requested to do so by the Company, upon reasonable notice. Nothing herein shall
require the Company to utilize the Consultant's services for any item enumerated
in Paragraph 1 or in any particular transaction, nor shall it limit the
Company's obligations arising under any other agreement or understanding.
3. This Agreement is for a term of twelve (12) months from the date
hereof, unless mutually agreed to and extended in writing and subject to earlier
termination as provided in Section 7 below.
4. (a) For the services described in Paragraphs 1 and 2 of the
Agreement, the Company shall extend the time provided in Consultant's Stock
Option Agreement dated March 16, 1999, to purchase an additional 500,000 shares
of the Company's common stock at a price of $.50 per share as follows: options
corresponding to 125,000 shares are exercisable commencing upon the execution of
this Agreement; options corresponding to the next 125,000 shares are exercisable
at any time on or after October 8, 1999; options corresponding to the next
125,000 shares are exercisable at any time on or after January 8, 2000; and
options corresponding to the last 125,000 shares are exercisable at any time on
or after April 8, 2000 until July 8, 2001, provided this Agreement is not
terminated as provided in Section 7 below. Pursuant to the terms of the
Separation Agreement, the Consultant currently may exercise up to 1,000,000
options at $.50 per share until July 8, 2000.
(b) In addition the extension of the options described above, the
Company will reimburse the Consultant within 14 days of submission to the
Company for all reasonable travel and out-of-pocket expenses incurred by the
Consultant in the performance of his duties hereunder, and the Consultant shall
account for such expenses to the Company; provided, however, that any expense in
excess of $500 shall require the prior written approval of the Company and all
airfare arrangements are to be made by the Company on Company credit cards. The
Consultant shall receive no other consideration from the Company other than as
described in this Section 4.
5. The Company agrees, at its sole expense, to use its best efforts to
cause the common stock underlying the Options under this Agreement as well as
under the Separation Agreement to become registered under the Securities Act of
1933, as amended (the "Act"), as soon as practicable, on the next registration
statement on Form S-8 filed by the Company.
6. All obligations of the Consultant contained herein shall be subject
to the Consultant's reasonable availability for such performance, in view of the
nature of the requested service and the amount of notice received. The
Consultant shall devote such time and effort to the performance of its duties
hereunder as the Consultant shall determine is reasonably necessary
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for such performance. The Consultant may look to such others for such factual
information, investment recommendations, economic advice and/or research, upon
which to base its advice to the Company hereunder, as it shall deem appropriate.
The Company shall furnish to the Consultant all information relevant to the
performance by the Consultant of its obligations under this Agreement, or
particular projects as to which the Consultant is acting as advisor, which will
permit the Consultant to know all facts material to the advice to be rendered,
and all material or information reasonably requested by the Consultant.
In the event that the Company fails or refuses to furnish any such
material or information reasonably requested by the Consultant, and thus
prevents or impedes the Consultant's performance hereunder, any inability of the
Consultant to perform shall not be a breach of his obligations hereunder.
7. If, during the term of this Agreement, the Consultant voluntarily
terminates his services or is terminated by the Company for Cause, as such term
is defined below, then the term of this Agreement shall end without further
action by either part hereto, and all rights and obligations of the parties
hereunder, shall terminate as of such date except options already vested
pursuant to Section 4(a), and obligations set forth in Paragraphs 8, 9 and 10
hereof and under the Separation Agreement. For the purposes of this Agreement,
"Cause" shall mean either the non- performance of the Consultant's duties set
forth herein, as reasonably determined by the Company, or the conviction of the
Consultant for a felony or a crime of moral turpitude.
8. Consultant will adhere to the confidentiality/non-compete agreement,
dated April 30, 1999, entered into by and between the Company and the Consultant
which is incorporated by reference herein.
9. The Company and Consultant agree that neither party will disparage
the reputation and/or character of the other party to any third party.
Furthermore, the content and/or wording of any press release or other public
disclosure that refers to Consultant's separation from the Company as Chief
Executive Officer and retention as a Consultant shall be mutually agreed to by
and between the Consultant and the Company in advance of its release.
10. The Company and the Consultant agree to indemnify and hold each
other harmless, including their respective partners, employees, agents,
representatives and controlling persons (and the officers, directors, employees,
agents, representatives and controlling persons of each of them) from and
against any and all losses, claims, damages, liabilities, costs and expenses
(and all actions, suits, proceedings or claims in respect thereof) and any legal
or other expenses in giving testimony or furnishing documents in response to a
subpoena or otherwise (including, without limitation, the cost of investigating,
preparing or defending any such action, suit, proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in which the
Consultant or the Company is a party), as and when incurred, directly or
indirectly, caused by, relating to, based upon or arising out of the
Consultant's service pursuant to this Agreement. This Paragraph shall survive
the termination of this Agreement.
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11. This Agreement may not be transferred, assigned or delegated by any
of the parties hereto without the prior written consent of the other party
hereto.
12. The failure or neglect of the parties hereto to insist, in any one
or more instances, upon the strict performance of any of the terms or conditions
of this Agreement, or their waiver of strict performance of any of the terms or
conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
13. Any notices hereunder shall be sent to the Company and to the
Consultant at their respective addresses set forth above. Any notice shall be
given by registered or certified mail, postage prepaid, and shall be deemed to
have been given when deposited in the United States mail. Either party may
designate any other address to which notice shall be given by giving written
notice to the other of such change of address in the manner herein provided.
14. This Agreement has been made in the State of New Jersey and shall
be construed and governed in accordance with the laws thereof without giving
effect to principles governing conflicts of law.
15. This Agreement contains the entire agreement between the parties,
may not be altered or modified, except in writing and signed by the party to be
charged thereby, and supersedes any and all previous agreements between the
parties relating to the subject matter hereof.
16. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 10, and their respective heirs,
administrators, successors and permitted assigns.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
PICK COMMUNICATIONS CORP.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Chairman of the Board
CONSULTANT:
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, individually
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