Exhibit 2.11E
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of November 22, 1997, by and between
Radio Movil Digital Americas, Inc., a Delaware corporation (the "Company"),
and Xxxxxx Xxxxxx ("Consultant").
WHEREAS, concurrently with the execution of this Agreement, the
Company, International Wireless Communications Holdings, Inc. ("IWC") and
[RMD Acquisition Sub], a wholly owned subsidiary of IWC, are entering into an
Agreement and Plan of Merger (the "Merger Agreement"), dated as of the date
hereof;
WHEREAS, IWC intends to enter into a non-competition agreement with
Consultant (the "Non-Competition Agreement"), dated as of the date hereof;
and
WHEREAS, the Company desires to engage Consultant to assist in the
Company's business operations, and Consultant desires to provide consulting
services to aid the Company in connection with its business operations.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. ENGAGEMENT.
The Company hereby engages Consultant to provide consulting
services to the Company and IWC and their respective subsidiaries and related
entities, and Consultant hereby accepts such engagement. During the time
that Consultant is performing services for the Company under this Agreement,
and for all purposes hereunder, the status of Consultant shall be that of an
independent contractor of the Company and Consultant shall not have the
benefits, rights and privileges ordinarily accorded to an employee of the
Company.
Consultant shall be available to advise and counsel IWC and the
Company, including their respective subsidiaries and related entities, and
consult with its employees, representatives, agents or contractors as to such
matters and to perform such other services as the Company shall reasonably
request. Consultant shall make himself available to provide such services
at such time or times as the Company shall request for the performance of the
services contemplated hereby. During the first six weeks of this Agreement,
the Company shall request the Consultant to perform services on a full-time
basis and for the next six weeks of this Agreement, the Company shall request
the Consultant to perform services for 2.5 days per week. Consultant agrees
to make all reasonable efforts to make himself available at the Company's
offices or at such other locations as the Company may reasonably request for
the Consultant to perform such services.
2. TERM. The period of engagement of Consultant hereunder shall
commence on the date of the closing of the transactions contemplated by the
Merger
Agreement and shall terminate on the earlier of May 1, 1998 and the three
month anniversary of such date, unless sooner terminated as hereinafter
provided. During the term of this Agreement as provided herein, Consultant
may engage in any business and perform any service for his own account,
provided that such business or service shall not violate any provision of the
Non-Competition Agreement.
3. CONSULTING FEES. For each day of services rendered hereunder,
Consultant shall be entitled to receive from the Company an amount equal to
$3,000 per day during which the Consultant performs services at the Company's
request or during which the Company requests that the Consultant make himself
available to perform such services, which amount shall be calculated and paid
at the end of each month during the term of this Agreement. As used in this
Agreement, a "day" shall refer to a period of service of eight cumulative
hours, whether or not performed in a single calendar day, but excluding
travel time of Consultant unless (i) during such travel time Consultant is
performing services for the Company pursuant to this Agreement or (ii) such
travel is to or from California or Latin America at the Company's request.
The parties hereby acknowledge and agree that all amounts paid to
the Consultant during the term of this Agreement shall represent fees for his
consulting services as an independent contractor, and shall therefore be paid
without any deductions or withholdings taken therefrom for taxes or any other
purpose. Consultant further acknowledges that the Company makes no warranties
as to any tax consequences of such payments, and specifically agrees that the
determination of any tax liability or other consequences of the payment set
forth above is his sole and complete responsibility and that he will pay all
federal, state, local and foreign taxes, if any, assessed on such payments.
4. TERMINATION OF CONSULTING ENGAGEMENT. Notwithstanding any
other provision of this Agreement to the contrary, the engagement of
Consultant hereunder may be terminated, at the option of the Company, in the
event of: (i) Consultant's willful failure or refusal to perform the
consulting services required by Section 1 hereof upon 10 days advance notice
from the Company and provided that Consultant shall have a reasonable
opportunity to cure such failure or refusal within such 10 days,(ii) willful
fraud or material dishonesty in connection with Consultant's performance
hereunder, (iii) the death or disability of Consultant; for purposes hereof,
disability shall exist if Consultant shall be rendered incapable of
performing his duties hereunder by reason of any physical or mental
impairment, (iv) Consultant's conviction for, or plea of NOLO CONTENDERE to,
a charge of commission of a felony or (v) any violation by Consultant of any
provision of the Non-Competition Agreement.
Upon the termination of this engagement for any of the foregoing
reasons, Consultant shall be entitled to receive, on the scheduled payment
dates, any accrued but unpaid consulting fees through the date of such
termination.
5. EXPENSES. During the term of this Agreement, Consultant may be
required to incur business expenses in connection with the performance of its
duties
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hereunder. The Company shall reimburse Consultant for all such expenses that
are reasonable and are appropriately documented in accordance with the
Company's policies.
6. MISCELLANEOUS.
A. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument, but
only one of which need be produced.
B. MODIFICATION; AMENDMENT; WAIVER. No modification,
amendment or waiver of any provisions of this Agreement shall be effective
unless approved in writing by both parties. The failure at any time to
enforce any of the provisions of this Agreement shall in no way be construed
as a waiver of such provisions and shall not affect the right of either party
thereafter to enforce each and every provision hereof in accordance with its
terms.
C. GOVERNING LAW; JURISDICTION. This Agreement and
performance under it, and all proceedings that may ensue from its breach,
shall be construed in accordance with and under the laws of the State of
Delaware, and the parties submit to the jurisdiction of the courts of the
State of Delaware for purposes of any actions or proceedings that may be
required to enforce this Agreement.
D. SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
E. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and the successors and assigns of the Company. The Company may
assign its rights under this Agreement in connection with any sale, transfer
of other disposition of all or a substantial portion of the stock or assets
of the Company. The Consultant may not assign his duties or obligations
hereunder.
F. EFFECTIVENESS. This Agreement shall become effective upon
consummation of the transactions contemplated by the Merger Agreement and
prior thereto shall be of no force and effect. If the Merger Agreement shall
be terminated in accordance with its terms, this Agreement shall
automatically be deemed to have been terminated and shall thereafter be of no
force or effect.
G. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given in person or by telegraph,
telefax or first class mail, certified or registered with return receipt
requested, and shall be deemed to have been duly given when delivered
personally or three days after mailing or one day after transmission of a
telegram or telefax, as the case may be, to the respective persons named
below:
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If to the Company:
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If to the Consultant:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
RADIO MOVIL DIGITAL AMERICAS,
INC.
By:
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Name:
Title:
XXXXXX XXXXXX
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