Exhibit 10.10
CONSULTING AGREEMENT
THIS AGREEMENT, dated as of September 1, 1998 is between Gemini II, Inc.
(the "Company"), and Benchmark Equity Group, Inc., a Delaware corporation (the
"Consultant").
WITNESSETH:
WHEREAS, the Consultant is a founding shareholder of the Company;
WHEREAS, the Company has agreed to engage the Consultant to provide the
Company with strategic advice related to the Company's overall business
strategy, including financial and strategic planning, corporate planning and
entry to capital markets;
WHEREAS, the Consultant has agreed to provide such services upon the
terms and for the consideration described herein;
WHEREAS, the Company and the Consultant now desire to memorialize their
agreement in formal written agreement.
NOW THEREFORE, in consideration of the mutual promises and benefits to be
derived from this Agreement, the Company and the Consultant hereby agree as
follows:
1. APPOINTMENT; SERVICES.
(a) Effective upon September 1, 1998 the Company retains Consultant to
render management consulting services, as described below, to the Company for a
period terminating on September 1, 2000 (the "Term").
(b) During the Term, Consultant shall render to the Company management
consulting advice in the areas of strategic planning, business
strategy, corporate planning, administration, entry to capital
markets and such other related management services as shall
reasonably be requested by the Board of Directors of the Company
in connection with the operation of the business of the Company.
2. PAYMENTS TO CONSULTANT.
The Company shall pay to Consultant the following:
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(a) The Company shall reimburse Consultant for all reasonable expenses
incurred by the Consultant on behalf of the Company during the Term based upon
the Schedule of Fees attached to this Agreement. Such expenses will be paid
within 30 days after receipt by the Company of evidence of such expenses but
shall accrue until receipt by the Company of the proceeds of any form of equity
or debt financing the amount of $500,000 or more.
(b) The Consultant will receive a monthly fee of fourteen thousand
dollars ($14,000.00) for each month during the Term, which shall accrue until
such time as the Company receives the proceeds of any form of equity or debt
financing in the amount of $500,000 or more, at which time the Company shall
make payment to the Consultant.
5. CONFIDENTIAL INFORMATION.
The parties hereto recognize that the Company desires to preserve its
specialized knowledge, trade secrets, and confidential information. The
strength and goodwill of the Company is derived from the specialized knowledge,
trade secrets, and confidential information generated from experience with the
activities undertaken by the Company and its subsidiaries. The disclosure of
this information and knowledge to competitors would be beneficial to them and
detrimental to the Company, as would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and its
subsidiaries. By reason of his being a Consultant to the Company, Consultant
has or will have access to, and will obtain, specialized knowledge, trade
secrets and confidential information about the Company's operations and the
operations of its subsidiaries, which operations extend through the United
States. Therefore, Consultant hereby agrees as follows, recognizing that the
Company is relying on these agreements in entering into this Agreement:
(a) During and after the Term, Consultant will not use, disclose to
others, or publish any inventions or any confidential business information about
the affairs of the Company, including but not limited to confidential
information concerning the Company's products, methods, engineering designs and
standards, analytical techniques, technical information, customer information,
employee information, and other confidential information acquired by him in the
course of his past or future services for the Company. Consultant agrees to
hold as the Company's property all memoranda, books, papers, letters, formulas
and other data, and all copies thereof and therefrom, in any way relating to the
Company's business and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment or on demand of the Company, at
any time, to deliver the same to the Company within twenty four hours of such
termination or demand. Notwithstanding anything to the contrary construed
herein, however, Consultant shall have the right to disseminate confidential
information regarding the Company to prospective investors, whether in the
Company or in an entity intending to combine with the Company.
(b) During the Term, Consultant will not induce any employee of the
Company to leave the Company's employ or hire any such employee (unless the
Board of Directors of the
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Company shall have authorized such employment and the Company shall have
consented thereto in writing).
6. INDEMNIFICATION.
The Company will indemnify Consultant (and its legal representatives or
other successors) to the fullest extent permitted by the laws of the State of
Delaware, against all costs, charges and expenses whatsoever incurred or
sustained by Consultant and its legal representatives and employees in
connection with any action, suit or proceeding to which Consultant (or
Consultant's legal representatives, successors, employees or agents) may be made
a party by reason of his being or having been a director, officer, employee,
consultant or agent of the Company or any of its subsidiaries.
7. ARBITRATION OF DISPUTES, LITIGATION EXPENSES.
(a) Any controversy or claim arising out of or relating to any acts or
omissions of either party hereto or any of the Company's officers, directors,
agents, affiliates, associates, employees or controlling persons shall be
settled by arbitration under the Federal Arbitration Act in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA") and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. In such arbitration proceedings, the parties shall
be entitled to any and all remedies that would be available in the absence of
this Section and the arbitrators, in rendering their decision, shall follow the
substantive laws that would otherwise be applicable. The parties acknowledge
that the subject matter of this Agreement is of unique value to Consultant and
agree that Consultant shall have the right to specific enforcement of this
Agreement. Notwithstanding the foregoing in order to preserve the status quo
pending the resolution an injunctive or equitable nature, any party, as required
by this Section, may simultaneously or thereafter seek a temporary restraining
order or preliminary injunction from a court of competent jurisdiction pending
the outcome of the arbitration. Any arbitration held pursuant to this Section
shall be held in Houston, Texas.
(b) In the event of any litigation or other proceeding between the
Company and the Consultant with respect to the subject matter of this Agreement
and the enforcement of the rights hereunder, the losing party shall reimburse
the prevailing arty for all of his/its reasonable costs and expenses, as well as
any forum fees, relating to such litigation or other proceeding, including
without limitation, his/its reasonable attorneys' fees and expenses, provided
that such litigation or proceeding results in a
(i) final settlement requiring payment to the prevailing party;
or
(ii) final judgment.
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8. ADVERTISEMENT.
The Company agrees that the Consultant has the right, after successful
consummation of any private or public financing, merger or acquisition to place
advertisements in financial and other newspapers and journals at its own expense
describing its services to the Company. Such expense shall not be reimbursable
under paragraph 2 hereof.
9. SURVIVAL OF OBLIGATIONS.
The obligations of the parties under Sections 6 and 7 of this Agreement
shall survive the termination for any reason of this Agreement (whether such
termination is by the Company, by the Consultant, upon the expiration of this
Agreement or otherwise).
10. SEVERABILITY.
In case any one or more of the provisions or part of the provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect to any jurisdiction, such invalidity, illegality
or unenforceability shall be deemed not to affect any other jurisdiction or any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed in such jurisdiction as if such provision or
part of a provision held to be invalid or illegal or unenforceable had never
been contained herein and such provision or part reformed so that it would be
valid, legal and enforceable in such jurisdiction to the maximum extent
possible. In furtherance and not in limitation of the foregoing, the Company
and Consultant each intend that the covenants contained in Sections 4 and 5
shall be deemed to be a series of separate covenants, one for each county of the
State of Texas and one for each and every other state, territory or jurisdiction
of the United States and any foreign country set forth therein. If, in any
judicial proceeding, a court shall refuse to enforce any of such separate
covenants, then such enforceable covenants shall be deemed eliminated from the
provisions hereof for the purpose of such proceedings to the extent necessary to
permit the remaining separate covenants to be enforced in such proceedings. If,
in any judicial proceeding, a court shall refuse to enforce any one or more of
such separate covenants because the total time thereof is deemed to be excessive
or unreasonable, then it is the intent of the parties hereto that such
covenants, which would otherwise be unenforceable due to such excessive or
unreasonable period of time, be enforced for such lesser period of time as shall
be deemed reasonable and not excessive by such court.
11. ENTIRE AGREEMENT, AMENDMENT.
This Agreement contains the entire agreement between the Company and the
Consultant with respect to the subject matter thereof. This Agreement may not
be amended, waived, changed, modified or discharged except by an instrument in
writing executed by or on behalf of the party against whom any amendment waiver,
change, modification or discharge is sought.
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12. NOTICES.
All notices, request demands and other communications hereunder shall be
in writing and shall be deemed to have duly given if delivered or mailed,
postage prepaid, first class as follows:
To the Company: To the Consultant:
Gemini II, Inc Benchmark Equity Group, Inc.
000 Xxxxxx, Xxxxx 000 700 Gemini, Suite 100
Houston, TX 77058 Xxxxxxx, XX 00000
ATTN: Xxxxx Xxxxx, President ATTN: Xxxxx X. XxXxxx,
President
and/or to such other persons and addresses as any party shall have specified in
writing to the other.
13. ASSIGNABILITY.
This Agreement shall be assignable by either party on the express consent
of the other and shall be binding upon, and shall inure to the benefit of, the
successors and assigns of the parties.
14. GOVERNING LAW.
This Agreement shall be governed by and construed under the laws of the
State of Delaware.
15. WAIVER AND FURTHER AGREEMENT.
Any waiver of any breach of any terms or conditions of this Agreement
shall not operate as a waiver of any other breach of such terms or conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof.
Each of the parties hereto agrees to execute all such further instruments and
documents and to take all such further action as the other party may reasonably
require in order to effectuate the terms and purposes of this Agreement.
16. HEADING OF NO EFFECT.
The paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GEMINI II, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Xxxxx Xxxxx, President
BENCHMARK EQUITY GROUP, INC.
By: /s/ Xxxxx X. XxXxxx
-----------------------------------
Xxxxx X. XxXxxx, President
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SCHEDULE OF FEES
Duplicating $0.10 per page
Laser Printing $0.10 per page
Postage Cost
Telephone, Courier and Express At rates reported by the provider,
Delivery Services without the benefit of any volume or
negotiated discounts
Travel Expenses and Meals for the Cost
benefit of the Company
Secretarial Overtime $7.50 per hour
Consultant has the right to modify the foregoing fee schedule upon notice to the
client.
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AMENDMENT NUMBER ONE
TO
CONSULTING AGREEMENT
This Amendment Number One (this "Agreement"), dated June 1, 1999, to that
certain Consulting Agreement (the "Consulting Agreement") dated as of
September 1, 1998 by and between Gemini II, Inc. ("OmniLynx") and Benchmark
Equity Group, Inc. ("Consultant") amends the Consulting Agreement as follows:
1. As of June 1, 1999, Consultant shall be reimbursed in an amount up to
$165,000 in respect of its expenses accrued under the Consulting Agreement
to that date.
2. From June 1, 1999, Consultant hereby waives, and shall no longer be
entitled to receive, its $14,000 monthly consulting fee. Consultant shall
continue to be entitled to reimbursement for its expenses under the
Consulting Agreement.
IN WITNESS WHEREOF, each party has duly executed this Amendment Number One as
of the date first set forth herein.
BENCHMARK EQUITY GROUP, INC.
By: /s/ Xxxxx X. XxXxxx
----------------------------------
Xxxxx X. XxXxxx, President and CEO
GEMINI, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxx, President
AMENDMENT NUMBER TWO
TO
CONSULTING AGREEMENT
This Amendment Number Two (this "Amendment"), dated June 24, 1999, to that
certain Consulting Agreement (the "Consulting Agreement") dated as of
September 1, 1998 by and between Gemini II, Inc. ("OmniLynx") and Benchmark
Equity Group, Inc. ("Consultant") amends the Consulting Agreement as follows:
1. As of June 1, 1999, Consultant shall be reimbursed in an amount up
to $105,000 in respect of its expenses accrued under the Consulting
Agreement to that date.
2. Consultant hereby waives, and shall no longer be entitled to receive,
any monthly consulting fee. Consultant shall continue to be entitled to
reimbursement for its expenses under the Consulting Agreement.
IN WITNESS WHEREOF, each party has duly executed this Amendment Number Two as
of the date first set forth herein.
BENCHMARK EQUITY GROUP, INC.
By: /s/ Xxxxx X. XxXxxx
----------------------------------
Xxxxx X. XxXxxx, President and CEO
GEMINI II, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxx, President
