EXHIBIT 10.29
CONSULTING AGREEMENT
This Consulting Agreement is dated effective as of September 1, 2001,
and is entered into by and between AMERIVISION COMMUNICATIONS, INC., an Oklahoma
corporation (the "COMPANY"), and XXXXX X. XXXXXX, an Oklahoma resident (the
"CONSULTANT").
BACKGROUND INFORMATION
The Company is engaged in the business of providing telecommunications
and related services (the "SERVICES") to the public, with primary effort being
directed to Christian-based organizations and their members. As a founder and
former officer of the Company, the Consultant possesses significant experience
and expertise in dealing with issues confronted by the Company in its contacts
with existing and prospective customers and the organizations whose members or
employees are or may become customers. The Company therefor desires to retain
Consultant as an independent sales and marketing representative, and the
Consultant is willing to be so engaged, but only upon the terms and subject to
the conditions set forth below.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
OPERATIVE PROVISIONS
SECTION 1. ENGAGEMENT AND TERM.
The Company hereby engages the Consultant and the Consultant hereby
accepts engagement by the Company for the period commencing September 1, 2001
(the "COMMENCEMENT DATE") and expiring May 24, 2004 (the "INITIAL TERM"), which
engagement shall be automatically extended for unlimited successive one year
periods (each a "SUCCESSOR TERM") unless it is terminated during the pendency of
any such Term, whether Initial or Successor, by the occurrence of one of the
events described in Section 6. hereof, or at the end of any such Term by one
party furnishing the other with notice, at least 90 days prior to the expiration
of such Term, of an intent to terminate the Consultant's engagement under this
Agreement upon the expiration of such Term. As used herein, the word, "TERM",
refers to the then current term of this Agreement, whether Initial or Successor.
SECTION 2. DUTIES
During the Term of this Agreement, the Consultant shall render services
to the Company as an independent sales and marketing consultant. In the
performance of such services the Consultant shall have responsibilities, as
reasonably designated by the Company, to assist in the areas of:
a. recruitment of Company sales and marketing personnel;
b. development of Company sales and marketing strategies and
tactics;
c. identification of and undertaking of marketing contacts with
organizations, pre-qualified by the Company, whose membership
might have an interest in using the Company's Services; and,
d. contact and visitation with organizations, pre-qualified by
the Company, and the leadership personnel thereof, whose
members or employees constitute existing or potential Company
customers. Pre-qualification shall be deemed met in those
instances in which the Consultant is approached, on an
unplanned and unsolicited basis, at a telecommunications
product or services convention, show or other public gathering
by an organization's representative who seeks information
concerning the Company and its business activities.
The Consultant shall be required to obtain the Company's approval (to be
provided by the Company's chairman or his designee) prior to (a) utilizing the
services of any other individual or entity in the solicitation of customers for
enrollment; or (b) offering to any contacted entity or individual any discounted
rate of payment in exchange for which any of its members or employees might be
enrolled in or otherwise make use of the Company's Services; and he shall also
be expected to protect the Company's interests to the best of his ability, to
perform his duties with care and loyalty, and to perform such additional duties
appropriate to his primary responsibilities and skills as may be agreed upon by
the Consultant and the Company's Board of Directors or its chief executive
officer.
During the Term of this Agreement, the Consultant shall devote such
amount of his normal business activities to the performance of the services to
be rendered hereunder to the Company as he prudently and reasonably, with good
faith, deems appropriate to satisfactorily perform the duties contracted for
hereunder, and will at all times use his best efforts to promote the interests
and reputation of the Company. Such services shall be rendered on a
non-exclusive basis, but always with attention to performing the duties set
forth hereunder in a diligent, trustworthy, loyal, businesslike and efficient
manner, all for the purposes of advancing the business of the Company.
SECTION 3. INDEPENDENT CONTRACTOR STATUS.
The services of the Consultant are to be rendered by him as an
independent contractor and not as an employee of the Company. In that regard,
the Consultant shall not be deemed to be employed by the Company for purposes of
the Federal Social Security Act or any federal or state law concerning
employment, compensation for employment services rendered or insurance for
injuries sustained in the performance of his services, and Consultant shall be
required to file all tax forms required of an independent contractor and shall
be solely responsible for the payment and reporting of any taxes due on whatever
remuneration is paid
by the Company to Consultant hereunder. Consultant shall have unilateral control
over the manner in which he shall provide the consulting services herein
contracted for, inclusive of work schedule and the location and operation of any
business office, and the Company shall have no direct or implied authority over
Consultant's work nor supervisory power over the procedures employed by the
Consultant, other than to assure itself with regard to the Consultant's
adherence to reasonable standards for the conduct of the services contracted for
hereunder.
SECTION 4. CONSULTANT REMUNERATION.
4.1 NO EMPLOYEE SALARY OR BENEFITS. For the services rendered by
Consultant hereunder, he shall receive no salary or other employment
compensation nor shall he be eligible to receive any benefits made available to
Company employees such as medical, dental or life insurance or the right to
participate in Company retirement or other employee benefit plans.
4.2 INDEPENDENT CONTRACTOR REMUNERATION. For the services rendered by
Consultant hereunder, the Company shall pay him, while he is engaged hereunder,
and the Consultant shall accept in exchange for such services, a monthly
remuneration of $25,000, payable in arrears in substantially equal installments
coinciding with the Company's normal remuneration payment cycle or pursuant to
such other arrangement as the parties may agree upon; provided that payment of
each increment of such remuneration (whether monthly, bi-monthly or otherwise)
shall be dependent upon and subject to the Company's prior receipt from
Consultant of an invoice identifying the services performed during the period
with respect to which payment is requested, by date, hours worked and the nature
of the Section 2. duties undertaken (it being agreed that the content of any
such invoice shall not be used by the Company as a basis for denying its
responsibility for payment of the incremental remuneration then due.)
4.3 EXPENSES. Subject to the Consultant's adherence to the Company's
announced policies regarding (a) the nature and amount of business expenses that
may be incurred by independent contractors for which the Company will accept
responsibility, and (b) the substantiation that will be required in advance of
payment by the Company, the Company shall either reimburse the Consultant for
the expenses incurred by him or advance to Consultant the expenses to be
incurred by him, in either case in the direct performance of the services to be
rendered by him hereunder, provided that, in either instance, the general nature
and estimated amount of such expenses are approved, in advance of their
incurrence, by the Company's chairman, chief executive officer or director of
public relations. The categories of expenses contemplated by this provision
shall include:
a. Automobile mileage at the current Company approved rate of
31.5 cents per mile (subject to increase as and when increased
by the Company), measured from and to his business office and
not his residence, together with related tolls and parking
expenses;
b. Reasonable lodging and meal expenses;
c. Reasonable expenses incurred by Consultant in paying for the
meals consumed by customers or potential customers of the
Company or executive personnel of organizations whose members
or employees have been targeted by the Company as prospective
customers;
d. Round trip coach class air fare (for Consultant and, if
pre-approved by the Company's chairman, then for his spouse as
well) and rental car expense to (i) make sales calls or other
substantial Company business contacts; or, (ii) attend any
business meeting of the Company's employees, officers or
directors to which he shall be invited; but in each case only
if such call, contact or meeting shall occur outside the State
of Oklahoma; and,
e. Reasonable other expenses incurred by Consultant in performing
his duties hereunder.
If such Company payment is made in the form of a reimbursement of
pre-approved expenses actually incurred by Consultant, it shall be made within
30 days following the later of the date upon which (i) Consultant shall submit
an invoice and adequate supporting documentation for the same, or (ii) any
dispute concerning whether pre-approval was actually granted or the adequacy of
the tendered substantiation is resolved. Conversely, if such payment is to be
made in the form of an advance of pre-approved expenses to be incurred by
Consultant in the future, the Consultant shall be required to submit a proposed
expense budget, by hand delivery, to the Company's chief financial officer or
his designee, no fewer than five full business days prior to Consultant's
departure on Company business; and the Company's failure to pre-approve such
budget either on the date of delivery or within the succeeding two business day
period shall be deemed to constitute the Company's approval thereof. No expense
incurred by Consultant in the performance of any duty hereunder which shall
involve (i) travel of two or more days in duration outside the state of
Oklahoma, or (ii) an amount exceeding $500, shall be subject to reimbursement,
and in each such instance Consultant shall be required to submit the
above-referenced advance expense budget for approval.
The Company acknowledges that it shall be solely responsible for
pre-approved (a) manufacturing and shipping costs of table-top, convention or
trade show display items, and related expenses, including trade show/convention
reservation or space fees, utility charges, assembly and disassembly charges and
like costs; and (b) costs of providing to Consultant a suitable quantity of
Company literature, in printed or digital format, including, when available and
approved by the Company, a PowerPoint or similar computerized presentation of
Company products and services for exhibition to prospective customers.
SECTION 5. FINANCIAL INFORMATION.
During the Term hereof, in his separate capacity as an advisor to the
Company's board of directors, the Consultant will have access to whatever
confidential financial information is provided to Company board members, subject
at all times to the terms of that certain Confidentiality Agreement, dated as of
the date hereof.
SECTION 6. PROPRIETARY INTERESTS.
During or at any time after the expiration of his service to the
Company, the Consultant shall not communicate or divulge to, or use for the
benefit of, any individual or entity other than the Company, any proprietary
information of the Company received by the Consultant by virtue of his
engagement, without first being in receipt of the Company's written consent to
do so.
SECTION 7. RESTRICTIVE COVENANTS.
7.1. AGAINST COMPETITION. During the Term of this Agreement, Consultant
shall not engage or become interested in, directly or indirectly, as owner,
shareholder, member, partner, co-venturer, director, officer, employee, agent,
consultant or otherwise, any activity which is then engaged in by the Company,
nor employ or attempt to employ any employee of the Company, or otherwise
encourage or attempt to encourage any employee of the Company to leave the
Company's employ. Beneficial or record ownership of not more than one percent of
the outstanding capital stock of any publicly traded corporation for which the
Consultant performs no active management or consulting services shall not be a
violation of this Section.
7.2. NON-DISCLOSURE OF PROPRIETARY INFORMATION; NON-INTERFERENCE WITH
RESTRICTED CUSTOMERS. The Consultant acknowledges that all Company records with
respect to its customers or its employees ("ASSOCIATED EMPLOYEES") and all lists
of customers, proposed customers or Associated Employees of the Company,
prepared by or on behalf of the Company, are proprietary and valuable to the
Company and not readily available from other sources, and that all personal,
financial or business information concerning the customers, proposed customers
or Associated Employees of the Company, obtained by the Consultant during the
course of the Consultant's engagement by the Company, are similarly proprietary
and valuable to the Company and not readily available in the form maintained by
the Company from other sources. During the Consultant's engagement by the
Company and following the termination thereof, the Consultant will not at any
time disclose any of such records, lists or information, nor utilize the same
for any reason not previously authorized in writing by the Company. Further,
during the period that the Consultant is restricted from competing with the
business of the Company pursuant to Subsection 7.1. above, Consultant shall not,
directly or indirectly:
a. solicit, divert or take away, or attempt to solicit, divert or
take away, from the Company the business of any Restricted
Customer for any product or service
of the Company's business sold (or offered for sale or planned
or proposed to be offered for sale) by the Company during the
12 month period prior to the date of the Consultant's
termination; or
b. attempt to cause any Restricted Customer to refrain, in any
respect, from acquiring from or through the Company any
product or service of its business sold (or actively offered
for sale on a current basis or planned or proposed to be
offered for sale under a development program to which the
Company has devoted substantial resources) during the 12 month
period prior to the date of the Consultant's termination.
The capitalized term, "RESTRICTED CUSTOMER," shall be deemed to refer to (a) any
actual customer to whom goods or services of the Company's business were
provided by the Company during the 12 month period prior to the date of the
Consultant's termination, and (b) any prospective customer solicited by the
Company (or for whom the Company prepared a specific sales proposal with respect
to its business) during that same period.
7.3. DIVISIBILITY OF COVENANT PERIOD. If any portion of the restrictive
covenant contained herein is held to be unreasonable, arbitrary or against
public policy, each covenant shall be considered divisible both as to time and
geographic area, such that each month within the specified period shall be
deemed a separate period of time and each state shall be deemed a separate
geographical area, resulting in an intended requirement that the longest lesser
time and largest lesser geographic area determined not to be unreasonable,
arbitrary or against public policy shall remain effective and be specifically
enforceable against the Consultant.
7.4. COVENANT INDEPENDENT. Each restrictive covenant to which the
Consultant shall be obligated under this Agreement shall be construed as a
covenant independent of any other covenant or agreement to which the Company
shall be obligated, whether contained in this Agreement or any other and whether
fully performed or executory, and any claim or cause of action directed by the
Consultant against the Company predicated upon such other covenant or agreement,
except if based upon the Company's failure to make timely payment of the
remuneration to which the Consultant is entitled hereunder, shall not constitute
a defense to the enforcement by the Company of any of the Consultant's covenants
made hereunder.
7.5. INDEMNIFICATION. The Consultant hereby agrees to indemnify and
hold the Company harmless from and against any losses, claims, damages or
expenses, and/or all costs of prosecution or defense of his rights hereunder,
whether in judicial proceedings, including appellate proceedings, or whether out
of court, including without limiting the generality of the foregoing, attorney's
fees, and all costs and expenses of litigation, arising from or growing out of
the Consultant's breach or threatened breach of any covenant contained herein.
7.6. EXTENSION OF COVENANT PERIOD. The period of time during which the
Consultant is prohibited from engaging in the practices identified in 7.1. above
shall be extended by any length of time during which the Consultant is in breach
of such covenants.
7.7. SURVIVAL OF COVENANTS. All restrictive covenants contained in
this Agreement shall survive the termination of this Agreement.
8. REMEDIES FOR BREACH OF CONSULTANT'S OBLIGATIONS.
8.1 INJUNCTIVE RELIEF. The parties agree that the services of the
Consultant are of a personal, specific, unique and extraordinary character and
cannot be readily replaced by the Company. They further agree that in the course
of performing his services, the Consultant will have access to various types of
proprietary information of the Company, which, if released to others or used by
the Consultant other than for the benefit of the Company, in either case without
the Company's consent, could cause the Company to suffer irreparable injury.
Therefore, the obligations of the Consultant established under Sections 6 and 7
hereof shall be enforceable both at law and in equity, by injunction, specific
performance, damages or other remedy; and the right of the Company to obtain any
such remedy shall be cumulative and not alternative and shall not be exhausted
by any one or more uses thereof.
8.2 ARBITRATION. Any controversy, dispute or claim arising out of, in
connection with or otherwise relating to any provision of this Agreement, or to
the breach, termination or validity hereof or any transaction contemplated
hereby (any such controversy, dispute or claim being referred to as a
"DISPUTE"), shall be finally settled by arbitration conducted expeditiously in
accordance with the Commercial Arbitration Rules then in force (the "AAA Rules")
of the American Arbitration Association (the "AAA"), with application of the
following additional procedural requirements. A single arbitrator (the
"ARBITRATOR") shall be appointed by the AAA to consider such Dispute within five
business days after the demand for arbitration is received by the AAA and the
respondent in any such proceeding. The Arbitrator shall be a practicing
attorney, licensed in the State of Oklahoma, who is rated "AV" by
Xxxxxxxxxx-Xxxxxxx Law Directory, who is independent of each party and has no
less than 15 years' experience in the practice of law who shall not have
performed any legal services for any of the parties or person controlled by any
of the parties for a period of five years prior to the date the demand for
arbitration is received by the respondent. The Arbitrator's conduct shall be
governed by the current version of the Code of Ethics for Arbitrators in
Commercial Disputes that has been approved and recommended by the AAA and the
American Bar Association.
The situs for an arbitration pursuant to this Section shall be as
agreed to by the parties, failing which it shall be Oklahoma County, Oklahoma.
Each party may submit memoranda and other documentation as it or he deems
appropriate to aid the formulation of the Arbitrator's decision, and request a
hearing (which may be conducted in person or telephonically) so as to be able to
present oral testimony and argument. A final arbitration decision and award
shall be rendered as soon as reasonably possible and, in any event, within
30 business days following appointment of the Arbitrator; provided, however,
that if the Arbitrator determines that fairness so requires, such period may be
extended by no more than 30 additional days. The Arbitrator shall have the right
and power to shorten the length of any notice periods or other time periods
provided in the AAA Rules and to implement Expedited Procedures under the AAA
Rules in order to ensure that the arbitration process is completed within the
time frames provided herein.
The arbitration decision or award shall be reasoned and in writing, and
the Arbitrator shall have the right and authority to determine how the decision
or award as to each issue and matter in dispute may be implemented or enforced.
Any decision or award shall be final and conclusive on the parties, may include
an award of damages, and will not be subject to appeal, review or re-examination
by a court of the Arbitrator, except for perjury, fraud, manifest clerical
error, or evident partiality or other misconduct by the Arbitrator that
prejudices the rights of a party. Judgment upon any decision or award may be
entered in any court of competent jurisdiction in the State of Oklahoma or
elsewhere; and the parties hereto consent to the application by any party in
interest to any court of competent jurisdiction for confirmation or enforcement
of such decision or award. The Arbitrator shall determine all the costs and
expenses of the arbitration, including travel, transcription and photocopying
expenses, any costs of obtaining a location for the arbitration hearing, and the
fees, costs and expenses of experts, witnesses, the AAA, the Arbitrator, court
reporters, and the attorneys of the parties to the Dispute; and shall include in
his or her award or decision an allocation for the foregoing fees, costs and
expenses between the parties to the Dispute on such basis as the Arbitrator
determines to be fair and reasonable under the circumstances, which may take
into account the outcome of the arbitration and provide for all those fees,
costs and expenses to be allocated to the losing party. Any arbitration held
pursuant to the provisions of this Section shall, to the extent not in conflict
with the express terms of this Agreement, be governed by the substantive law of
the State of Oklahoma. All arbitrations commenced pursuant to this Agreement
while any other arbitration hereunder shall be in progress shall be consolidated
and heard by the Arbitrator.
9. TERMINATION.
This Agreement is subject to termination by the Consultant prior to the
normal expiration of its Term upon his delivery to the Company of notice of such
intention, which notice shall be deemed to result in termination 30 days after
its receipt by the Company and subject to the right of the Company, following
such receipt, to accelerate the effective date of termination to such earlier
time as it deems appropriate but retaining the obligation to pay Consultant
whatever compensation may then be due for the period preceding such termination
date, inclusive of the full 30 day period.
The Company shall also be entitled to terminate this Agreement prior to
its normal expiration date, but only upon the occurrence of any one of the
following events: (i) the complete discontinuance of the Company's activities;
(ii) the death of the Consultant; (iii) the occurrence to Consultant of a
physical or mental disability which, in the judgment, reasonably exercised, of
the Company's Board of Directors, renders him unable to perform
his normal duties on behalf of the Company for a continuous period of seven
weeks (measured from the first day of the month immediately following the
occurrence of such disability); or (iv) a determination by the Company that
there is "CAUSE" to terminate the Consultant's services. The Company may
terminate the Consultant's employment hereunder for CAUSE by notifying the
Consultant, at least 30 days in advance of the termination, of each of the
grounds therefor. For purposes of this Agreement, CAUSE shall mean any of the
following:
a. the Consultant's breach, which continues or renews at any time
after notice and a reasonable opportunity to desist or
otherwise cure has been furnished, of any material duty or
obligation expressly provided for in this Agreement;
b. the Consultant's willful failure, which continues or renews at
any time after notice and a reasonable opportunity to desist
or otherwise cure has been furnished, to adhere to any
established, material policy of the Company which has been
disclosed to him in writing, including any policy relating to
ethical business practices; supplier relations; contracting or
otherwise working with government agencies; complying with
antitrust laws; equal employment opportunity; health, safety
and environmental protection; workplace regulations; sexual or
other forms of harassment; financial controls and records;
avoiding conflicts of interest; and xxxxxxx xxxxxxx and stock
tipping;
c. the Consultant's willful failure, which continues or renews at
any time after notice and a reasonable opportunity to desist
or otherwise cure has been furnished, to respond to a request
by the Company (acting by a majority vote of its Board of
Directors) that is related to the performance of the
Consultant's duties hereunder, and is reasonable and
consistent in light of those duties;
d. deliberate or intentional actions that result in a
significant, continuing and reasonably foreseeable detriment
to the Company, including the Consultant's conscious and
unauthorized disclosure of any trade secret or confidential
information or the Consultant's consciously giving any
competitor of the Company assistance in the conduct of such
competitor's business;
e. the Consultant's knowingly engaging in any act that
constitutes an usurpation of a business opportunity of the
Company, in either case without the advance approval of the
Company's Board of Directors;
f. a willful dishonest act having a direct material adverse
financial effect on the Company;
g. conviction of or the entering of a guilty or no contest plea
with respect to any felony or any other crime involving moral
turpitude; or
h. a good faith determination by the Company's Board of
Directors, supported by an opinion of counsel to the effect
that there is an adequate basis upon which such determination
may be made, that the Consultant has demonstrated a dependence
upon any addictive substance, including alcohol, controlled
substances, narcotics or barbiturates which has materially
affected his performance or has raised doubts as to his
ability to perform such duties.
The determination as to whether any of the foregoing Causes has
occurred shall be made in good faith by the affirmative vote of at least 75% of
the disinterested members of the Company's Board of Directors. Except for any
remuneration and unreimbursed expenses accrued, vested and unpaid as of the date
of any such termination, the Company shall be under no further financial
obligation hereunder to the Consultant and the Consultant no longer shall be
entitled to receive any remuneration under this Agreement; and all such
remuneration and expenses shall be paid to the Consultant no later than 30 days
following termination, or, if applicable, to his court appointed guardian or
personal representative or to his devisees or heirs at law, in any such case
within 30 days following the earlier of such appointment or entry of a court
order directing such distribution.
No termination or expiration of this Agreement, whether consummated by
action of either party or by operation of the terms hereof, shall relieve the
Consultant from his continued performance of the obligations established under
Sections 6 and 7 hereof.
SECTION 10. MISCELLANEOUS
10.1. NOTICE. All notices, consents, approvals, joinders, waivers and
other communications required or permitted under this Agreement (each a
"COMMUNICATION") shall be in writing and shall be personally delivered or sent
by facsimile machine (with a confirmation copy sent by one of the other methods
authorized in this Section), commercial courier or United States Postal Service
overnight delivery service, or, deposited with the United States Postal Service
and mailed by first class, registered or certified mail, postage prepaid, if to:
THE COMPANY: THE CONSULTANT:
x/x Xxxxxx X. Xxxx, Xxx. do Xxxxxxx X. Xxxxxxxxxxx, Esq.
Xxxx Xxxx Xxxxxxx Xxxxxx Xxxxx, Kline, Elliott, Xxxxxxxxxxx
& Xxxx, P.A. & Xxxxxx, P.C.
000 Xxxxx Xxxxxxxx Xxxxxx 000 XX 00xx Xxxxxx
Xxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
or to such other address as any shall have provided notice to the others in the
manner herein permitted. Each such Communication shall be deemed given upon the
earlier to occur of (i) actual receipt by the party to whom such Communication
is directed; (ii) if sent by facsimile
machine, on the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such Communication is directed) such Communication is sent
if sent (as evidenced by the facsimile confirmed receipt) prior to 5:00 p.m.
Central Time and, if sent after 5:00 p.m. Central Time, on the day (other than a
Saturday, Sunday or legal holiday in the jurisdiction to which such
Communication is directed) after which such Communication is sent (subject in
each case to the above-referenced confirmation copy being timely furnished);
(iii) on the first business day (other than a Saturday, Sunday or legal holiday
in the jurisdiction to which such Communication is directed) following the day
the same is deposited with the commercial carrier if sent by commercial
overnight delivery service; or (iv) the fifth day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such Communication is directed)
following deposit thereof with the United States Postal Service as aforesaid.
Each party, by notice duly given in accordance therewith may specify a different
address for the giving of any Communication hereunder.
10.2. GOVERNING LAW. This Consulting Agreement shall be construed and
enforced in accordance with the laws of the State of Oklahoma, excluding any
conflict-of-law rule or principle that might refer the governance or the
construction of this Consulting Agreement to the law of another jurisdiction. In
the event of any conflict between the Federal Arbitration Act and the Oklahoma
Uniform Arbitration Act (or successor provision), the Federal Arbitration Act
and the case law thereunder shall control.
10.3 ASSIGNMENT. The Company may assign its rights and delegate its
responsibilities under this Consulting Agreement to any corporation or other
legal entity which acquires all or substantially all of the operating assets of
the Company by merger, consolidation, dissolution, liquidation, combination,
sale or transfer of assets or otherwise on condition that such assignee is then
financially able to assume such responsibilities. Consultant may assign his
rights and delegate his responsibilities hereunder to any legal entity owned
exclusively by him on condition that such legal entity appoint Xxxxx X. Xxxxxx
to perform the duties of the Consultant hereunder. The rights and obligations of
this Consulting Agreement are otherwise not assignable by either party, and any
attempted assignment shall be void.
10.4 WAIVER OR MODIFICATION. This Consulting Agreement constitutes the
entire agreement of the parties hereto and may be modified, amended or waived
only by written instrument executed by both parties.
10.5 COUNTERPARTS. This Consulting Agreement may be executed in any
number of counterparts, by means of multiple signature pages each containing
less than all required signatures, and by means of facsimile signatures, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be duly executed and delivered effective as of the day and year
first above written.
Consultant AmeriVision Communications, Inc.
/s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
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Xxxxx X. Xxxxxx, an individual Xxxxxxx X. Xxxxx, Chairman
