1
Exhibit 4.12
CONSULTING AGREEMENT
--------------------
THIS CONSULTING AGREEMENT (the "Agreement") entered into this 11th day
of November, 1996, by and between SECURFONE AMERICA, INC., a Delaware
corporation (hereinafter referred to as the "Company"), and XX XXXX, an
individual ("Consultant").
RECITALS:
WHEREAS, the Company is engaged in the wireless communications industry
and in the debit or prepaid cellular business industry (the "Company Business");
WHEREAS, Consultant has experience, knowledge and expertise related to
one or more facets of the Company Business;
WHEREAS, the Company desires to engage Consultant to perform various
consulting services as an independent contractor;
WHEREAS, Consultant has indicated to the Company a desire and
willingness to undertake an engagement as a consultant for the Company, upon the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, promises and representations contained herein, the parties
hereby agree as follows:
1. ENGAGEMENT. The Company does hereby engage Consultant, and
Consultant does hereby accept the engagement, to use Consultant's best efforts
in the furtherance of the following assignments: (i) to oversee network design
and implementation, (ii) to oversee indirect and direct sales, and (iii) to
serve as a liaison between the Company and carriers.
2. DUTIES. Consultant's duties hereunder shall be to engage in such
activities as will most efficiently accomplish the engagement described in
paragraph 1 above.
3. TERM. The term of this Agreement shall extend from October 15, 1996
through December 31, 1996.
4. COMPENSATION. The Company agrees to pay, as full compensation for
Consultant's labors, efforts, services, covenants and agreements provided for
herein, including any covenants of confidentiality and noncompetition,
consulting fees at the rate of Eight Thousand Five Hundred Dollars ($8,500) per
month during the term.
5. INDEPENDENT CONTRACTOR.
(a) The parties mutually acknowledge that Consultant is not an
employee of the Company for any purpose whatsoever, but is and shall be at all
times an independent
2
contractor. The Company shall not have control over Consultant as to the
location of Consultant's place of business, the employment of its personnel, or
the manner or means of its performance of its duties and responsibilities
hereunder (except as specifically provided in this Agreement).
(b) As an independent contractor, all overhead expenses for
the operation of Consultant's activities, including, without limitation,
insurance, employees (including the withholding and payment of all applicable
taxes with respect to employees), office rent, supplies, lights, stenographic
and clerical assistance, telephone, facsimile and telegrams, agency licenses and
taxes, etc. shall be borne by Consultant. The Company will provide the
Consultant with a cellular phone and will also reimburse the Consultant for any
other expenses incurred by the Consultant when conducting business on behalf of
the Company.
(c) Consultant is not authorized to enter into any agreements
in the name of the Company.
6. COVENANTS OF CONSULTANT. Consultant covenants and agrees as follows:
(a) Employee agrees to retain in strictest confidence, and not
use for the benefit of himself or others (except in connection with the business
and affairs of the Company) any and all information learned by Consultant in
connection with his employment at the Company, including without limitation,
information which is proprietary to the Company, is retained in confidence by
the Company, is treated as confidential information by the Company, constitutes
a trade secret of the Company, and/or which, by its nature, is sufficiently
sensitive that it should be deemed to be confidential.
(b) Consultant agrees that for a period of two (2) years
following the termination of his engagement hereunder, he will not, directly or
indirectly, contact or solicit any person or entity which was a customer of the
Company with which he worked during his engagement, or which Consultant
solicited on behalf of the Company, for the purpose of inducing such person or
entity to become a customer of a cellular/wireless or paging provider which
competes with the Company. Further, Consultant agrees that he will not provide
information to third parties which will enable them to accomplish indirectly
what the terms of this Agreement prohibit Consultant from doing directly.
(c) Consultant further agrees that, to the extent the Company
has, in the ordinary course of its business, entered into contracts with other
entities which subject the Company to non-disclosure requirements and covenants
not to compete which provide, by their terms, an intent to bind employees of the
Company, Consultant shall honor such provisions to the extent that they are
applicable to employees of the Company, so long as and to the extent that he has
knowledge of their existence.
(d) It is understood that the Company is a part of a group of
"affiliated" companies and that from time to time Consultant may perform
services for these affiliated companies and be compensated therefor. To the
extent Consultant performs such sevices for
-2-
3
affiliated companies, the rights of Consultant and the affiliated company shall
be subject to the terms and provisions of this Agreement, unless a separate
written agreement exists between the affiliated company and Consultant with
respect to such work.
7. TERMINATION.
(a) TERMINATION BY EITHER PARTY. Either party shall have the
right to terminate this Agreement if the other party is in breach or in default
in the performance of any of the terms, obligations, covenants, representations
or warranties under this Agreement which breach or default has not been waived
in writing by the non-defaulting party.
(b) EFFECT of TERMINATION. Upon the expiration of this
Agreement, or its termination for any reason: (i) Consultant shall immediately
thereupon cease and desist from acting on behalf of the Company in any manner
whatsoever; (ii) Consultant shall return to the Company any documents, forms,
written information, or other data provided by the Company to Consultant during
the course and operation of this Agreement, including both Confidential
Information and information which is not confidential; and (iii) the termination
shall not affect any financial obligations of either party to the other with
respect to obligations incurred prior to the date of termination.
8. NON-ASSIGNMENT. This Agreement is a personal services
contract and it is expressly agreed that the rights and interests of
Consultant and the Company hereunder may not be sold, transferred, assigned,
pledged or hypothecated; provided, however that the Company may assign its
rights and obligation hereunder to its parent company, wholly-owned subsidiary
or affiliate of the Company, whether presently existing or formed after the
date hereof.
9. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, agents and successors.
10. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
11. REMEDIES CUMULATIVE; NO WAIVER. All remedies specified
herein or otherwise available shall be cumulative and in addition to any and
every other remedy provided hereunder or now or hereafter available. No waiver
or failure (intentional or unintentional) to act with respect to any breach or
default hereunder shall be deemed to be a waiver with respect to any subsequent
breach or default, whether of a similar or different nature.
12. NOTICES. Whenever written notice is required herein, such
notice shall be given by registered or certified mail, return receipt
requested, as follows:
-3-
4
(a) As to the Company: SecurFone America, Inc.
Attn: President
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(b) As to Consultant: Xx. Xx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
(c) Nothing herein shall preclude or prevent the parties from
designating any additional or other persons or entities to whom notice is to be
given, provided written notification of such designation is first given to the
other party in the manner described in this paragraph.
13. GOVERNING LAW. This Agreement and all provisions hereunder
shall be governed by and construed in accordance with the substantive law of
the State of Delaware and shall, for all purposes, be deemed to have been
entered into in the State of Delaware.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
15. AMENDMENT. This Agreement may not be changed orally, but may
be amended, superseded, canceled or modified, and the terms hereof may be
waived, only by an instrument in writing signed by each of the parties, or, in
the case of a waiver, signed by the party against whom enforcement of such
waiver is being sought.
16. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the Company and Consultant with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect thereof.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
in duplicate original on the date and year first set forth above.
SECURFONE AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx XX
------------------------------
Its: CEO / President
------------------------------
/s/ Xxxxxxx Xxxx
XX XXXX
-4-
