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Exhibit 10.41
METRO ONE TELECOMMUNICATIONS, INC.
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made on December 1, 1996 by
and between METRO ONE TELECOMMUNICATIONS, INC., an Oregon corporation, having
its principal place of business at 0000 XX Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx
00000 (the "Company"), and G. XXXXXXX XXXXXX located at 0000 XxXxxx Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx X0X 0X0 (the "Consultant").
INTRODUCTION
WHEREAS, the Company is in the business of designing, marketing and
providing Enhanced Directory Assistance Services ("EDA") and desires to retain
Consultant to perform services for the Company and Consultant desires to serve
the Company in such capacity on the terms and conditions contained in this
Agreement.
NOW THEREFORE, in consideration of the above premises and the mutual
promises and covenants contained herein, the parties agree as follows:
1. INCORPORATION: The introductory statements set forth above are
incorporated herein by this reference.
2. APPOINTMENT: The Company hereby retains the Consultant as an
independent contractor, and the Consultant accepts such retainer. The Consultant
shall serve at the direction of the Board of Directors of the Company during the
term of this Agreement.
3. SERVICES TO BE RENDERED: The Consultant shall perform the following
Services (the "Services") for the Company:
- Advise on enhancement of profitability in the provision of EDA.
- Advise on technical and personnel matters.
- Advise on financial and budgetary matters.
- Advise on business development customer matters.
4. TIME AND PLACE OF WORK: Consultant shall provide the Company an
estimated 40 to 50 hours of service per month at the request and under the
direction of the Board of Directors of the Company. The Services shall be
performed at Consultant's and Company's facilities.
5. COMPENSATION:
5.1 RATE: The Company shall pay the Consultant at the rate
$5,000 per month payable on or before the 10th day of the month following the
month in which the consulting services were rendered.
5.2 STOCK OPTION: The Board of Directors has granted to the
Consultant a ten-year option to purchase 30,000 shares of its common stock at a
price of $12.00 per share (the "1996 Option"). The 1996 Option shall be
evidenced by a stock option agreement in the Company's standard form, attached
hereto as Exhibit A, and the shares of common stock issuable upon exercise of
the 1996 Option shall bear piggyback registration rights as described in Exhibit
A.
5.3 EXPENSES: The Company shall reimburse the Consultant for
reasonable and necessary travel expenses incurred by him in the performance of
this Agreement. The expenses shall be pre-approved by the Company. Consultant
shall comply with the terms and conditions of the Company's Travel Policy as it
is revised from time to time. A current copy of the Company's Travel Policy is
attached as Exhibit B.
5.4 LIMITATION: The Consultant shall not be obligated to
render services and incur costs hereunder and the Company shall not be obligated
to remunerate and reimburse the Consultant for costs and services other than
those referenced
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in Sections 3, 4 , 5.1, 5.2 and 5.3 above, unless and until the Company shall
have changed these obligations by written notice to the Consultant.
6. TERM: The term of this Agreement will begin on December 1, 1996 and
will end on November 30, 1998 (the "Expiration Date") unless terminated earlier
as otherwise set forth herein. This Agreement will be automatically renewed for
a one-year period beginning December 1, 1998 and ending November 30, 1999,
unless terminated by either party through written notice given at least 30 days
prior to the commencement of the renewal period.
7. TERMINATION: This Agreement will terminate upon the earlier of any
of the following events: (a) the Expiration Date; (b) the Consultant's death,
legal incapacity or serious illness or injury which prevents the Consultant from
performing his services in a timely manner; or, (c) immediately upon
Consultant's receipt of written notice by the Company for any breach of this
Agreement by the Consultant, including, without limitation, the Consultant's
failure to perform under this Agreement. Upon termination of this Agreement for
any cause whatsoever, the Consultant shall promptly deliver to the Company all
work, whether or not completed and in whatever form, and all drawings, designs,
plans, notes, and documents in any form which results from or relates to the
Services; Consultant shall also deliver all copies of the foregoing items.
8. RELATIONSHIP, RIGHTS & OBLIGATIONS OF THE PARTIES:
8.1 NATURE OF RELATIONSHIP:: The parties agree that the
Consultant, in performing the services herein specified, is an independent
contractor and that Consultant is not considered an employee of the Company for
any purpose whatsoever.
8.2 RIGHTS AND OBLIGATIONS OF THE COMPANY:
8.2.1 NO LIABILITY: The Company shall incur no
liability for the acts or omissions of the Consultant while Consultant is
engaged in the work specified herein. Nor shall the Company incur any liability
under any contract executed by the Consultant in furtherance of the Consultant's
duties hereunder.
8.2.2 BENEFITS: The Company shall not provide any
medical insurance, pension plan, bonuses or other benefits. The Company shall
not include the Consultant in its worker's compensation, disability or other
insurance plans.
8.2.3 INDEMNIFICATION: Notwithstanding Section 8.2.1,
the Company shall indemnify Consultant and hold him harmless from any claim by
any third party unless the Consultant was dishonest or guilty of wilful
misconduct; the term "wilful misconduct" to include but not be limited to any
act or failure to act which is determined to be in gross dereliction of his
duties under this Agreement.
8.3 RIGHTS AND OBLIGATIONS OF THE CONSULTANT:
8.3.1 TAXES: The Consultant shall assume full
responsibility for the filing and payment of his Federal, State, Provincial and
local taxes, if any, including income tax and any other applicable tax
obligations.
8.3.2 CLAIMS: The Consultant shall not file any claims
for unemployment insurance, disability payments or for other governmental
entitlements based on Consultant's association with the Company under this
Agreement.
8.3.3 CONSULTING FOR OTHER ORGANIZATIONS: During the
term of this Agreement, the Consultant shall be free to render consulting
services to other organizations. Provided however, that without prior written
approval of the Company, Consultant shall not perform services similar in nature
of subject matter to those required by this Agreement for any other individual,
company. association or other organization (collectively "Organization") if such
Organization is engaged in the design, development, manufacture and distribution
of EDA services. Consultant agrees to promptly notify the Company of the
identity of any such Organization for which Consultant performs services during
the term of this Agreement. Consultant agrees to advise the Company of any
conflict of interest, or potential conflict of interest, which may exist or
develop during the term of this Agreement.
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8.3.4 SURVIVAL OF OBLIGATIONS: Consultant's
obligations pursuant to Paragraphs 9, 10, 11, 12, 13 and 14 hereof shall survive
any termination of this Agreement.
8.3.5 NO LIABILITY FOR ACT OR OMISSION: The
Consultant shall incur no liability for any act or omission in connection with
his duties under this Agreement unless the Consultant was dishonest or guilty of
wilful misconduct; the term "wilful misconduct" to include but not be limited to
any act or failure to act which is determined to be in gross dereliction of his
duties under this Agreement.
9. PROPRIETARY RIGHTS AND ASSIGNMENTS:
9.1 DEFINITION: For purposes of this Agreement, the phrase
"Designs and Materials" shall have the following meaning: all designs,
developments, drawings, notes, documents, information and materials made,
conceived or developed or reduced to practice by the Consultant alone or with
others that result from or relate to the Services, or that the Consultant may
receive from the Company while performing Services for the Company.
9.2 ASSIGNMENT: The Consultant hereby forever exclusively
assigns to the Company all right, title and interest, if any, in and to the
above-defined Designs and Materials. These Designs and Materials shall be the
sole property of the Company. The Company shall have the sole right to determine
the treatment of any such Designs and Materials, including, but not limited to
the following: (a) the right to keep the same as trade secrets; (b) to file and
execute patent applications thereon; (c) to use and disclose the same without
prior patent application; (d) to file registrations for copyright or trademark
thereon in its own name; (e) to sell, assign or transfer the same outright or
subject to the terms of a license; or (f) to follow any other procedure that the
Company deems appropriate.
9.3 DISCLOSURE AND COOPERATION: The Consultant agrees (a) to
promptly disclose in writing to the Company all such Designs and Materials; and
(b) to cooperate with and assist the Company in applying for and executing any
applications and/or documents which are reasonably necessary to obtain any
patent, copyright, trademark , service work or other statutory protection for
such Designs and Materials in the Company's name as the Company deems
appropriate. These obligations to disclose, assist and execute shall be
performed on a time and material fee basis and shall survive any termination of
this Agreement.
10. CONFIDENTIAL INFORMATION: Consultant acknowledges that he may
acquire from the Company and through the Services, development information,
materials, and knowledge of the business, products, programming techniques,
experimental work, customers, clients and suppliers of the Company. Consultant
agrees that all such knowledge, information and materials acquired or developed,
and the terms and conditions of this Agreement, shall be the trade secrets and
confidential and proprietary information of the Company ("Confidential
Information"). Confidential Information shall not include, however, any
information which is or becomes part of the public domain through no act of the
Consultant.
10.1 NON-DISCLOSURE: The Consultant agrees to hold such
Confidential Information in strict confidence, not to disclose it to others or
use it in any way, commercially or otherwise, except in performing the Services.
Consultant agrees not to allow any unauthorized person access to the
Confidential Information without the prior written consent of the Company,
either before or after the termination of this Agreement. The Consultant further
agrees to take all action reasonably necessary and satisfactory to the Company
to protect the confidentiality of the Confidential Information. Such protective
action may include, without limitation, the implementation and enforcement of
operating procedures to minimize the possibility of unauthorized use or copying
of the Confidential Information.
11. THIRD PARTY RELATIONSHIPS: The Consultant will not enter into any
agreement or incur any obligation on the Company's behalf, or commit the Company
in any other manner without the Company's prior written consent. The Consultant
shall not, in connection with performance under the Agreement, make any payments
out of funds received from the Company to third parties if such payment is in
violation of the laws or regulations of any governmental entity. The Consultant
acknowledges that no employee of the Company or of any of its divisions has any
authority to give any direction, written or oral, regarding Consultant's
commitments to third parties, in contravention of the foregoing.
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12. SEVERABILITY: If any provision of this Agreement is adjudicated by
a court of competent jurisdiction to be void, invalid or unenforceable, such
adjudication shall not affect the validity or enforceability of the remainder of
this Agreement or any of its other provisions.
13. REPRESENTATIONS AND WARRANTIES: The Consultant represents and
warrants that he has the right to disclose to the Company all information
transmitted under this Agreement and in relation thereto. Consultant further
represents and warrants that all Services rendered to or on behalf of the
Company shall be in strict accordance with all applicable federal, state and
local laws, rules and regulations. The Consultant agrees to indemnify and hold
harmless the Company in event of any breach by the Consultant of this Agreement
or these representations and warranties and will further indemnify the Company
against any third party claims resulting from infringement of patents,
copyrights and the like that result from services rendered under this agreement.
14. ENTIRE AGREEMENT: This Agreement shall constitute the entire
agreement between the parties relating to the subject matter hereof and
supersedes all previous communications, written and oral. No understandings or
representations on the within subject matter shall be binding on either party
except as expressly set forth herein. All amendments or modifications of this
Agreement shall be in writing and shall be executed by the Consultant and by an
authorized representative of the Company.
15. NO WAIVER: No waiver of any of the provisions of this Agreement
shall be deemed to be or shall be construed as a waiver of any other provisions.
Nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
16. NOTICES: All notices shall be in writing and shall be either
delivered personally or sent by registered or certified mail, postage prepaid,
to the respective addresses of the parties as those address appear on page one
of this Agreement.
17. NO ASSIGNMENT OR SUBCONTRACT: The Consultant agrees that he may not
assign this Agreement to any other party without the prior written consent of
the Company. Any attempted assignment without Company consent shall be void. The
Consultant agrees that he, and only he, will perform the services required under
this agreement.
18. GOVERNING LAW AND VENUE: This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon. Any dispute
resulting from this agreement shall be mediated, arbitrated or otherwise
adjudicated in Portland, Oregon.
Executed on the date first above written:
METRO ONE TELECOMMUNICATIONS, INC. G. XXXXXXX XXXXXX
By: By:
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Xxxxxxx X. Xxxxxxx G. Xxxxxxx Xxxxxx
President and Chief Executive Officer
