EXHIBIT 10.55
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of this 5th day of July, 2000, by and between ACCESS ONE COMMUNICATIONS CORP., a
New Jersey corporation (the "Company"), and MCG CREDIT CORPORATION, a Delaware
corporation (the "Consultant").
RECITALS
A. The Company, XXXX.XXX, INC., a Delaware corporation ("Talk"), and
Aladdin Acquisition Corp., a wholly-owned subsidiary of Talk, are parties to
that certain Agreement and Plan of Merger dated March 24, 2000 (the "Merger
Agreement").
B. The effectiveness of this Agreement is conditioned on the closing of
the Merger Agreement (the "Closing") and shall be assumed by Talk at such time.
C. The Company desires to retain the Consultant to provide certain
services to the Company, and the Consultant desires to provide such services,
all on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. RETAINER. The Company hereby retains the Consultant, and the
Consultant hereby accepts such retention by the Company, upon the terms and
subject to the conditions set forth herein.
2. TERM. Subject to earlier termination pursuant to Section 5 hereof, the
term of this Agreement (the "Term") shall commence as of the date of the Closing
and shall continue until terminated by either party upon prior written notice of
at least 10 business days (the "Notice Period") to the other party; provided,
however, that during the Notice Period, the Consultant shall use commercially
reasonable efforts to complete, or bring to a reasonable point of transition,
any project for which it was performing Consulting Services (as such term is
hereinafter defined) at the time the termination notice was given.
3. SERVICES. During the Term, the Consultant shall render to the Company,
on a non-exclusive basis, such services regarding strategic opportunities as the
Consultant and the Company may hereafter mutually agree from time to time,
including with respect to the bundling of elements of local and long-distance
telecommunications services (the "Consulting Services"). The scope, terms,
timing and deliverables associated with the provision of any such Consulting
Services shall also be subject to the mutual agreement of the Company and the
Consultant from time to time. Subject to compliance by the Consultant with the
confidentiality restrictions under Section 6, however, the Company hereby
acknowledges and consents to the Consultant
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providing similar services to, investing in and otherwise engaging in
transactions with (including the provision of financing to) other enterprises
that operate in the same or related industries and/or markets.
4. COMPENSATION. As compensation for the execution, delivery and
performance of this Agreement, the Consultant shall receive a Warrant to
purchase 300,000 shares of the Common Stock, par value $0.01 per share, of Talk
at the Closing pursuant to a Warrant containing customary and mutually
acceptable terms, conditions, rights and protections. Without limiting the
foregoing, the Warrant (a) shall be immediately exercisable, (b) shall be
effective for a period of 10 years from the date of issuance, (c) shall provide
for a cashless exercise alternative, and (d) shall have an exercise price equal
to the average closing price of Common Stock as reported on the NASDAQ during
the 10 business days immediately preceding the Closing. The Warrant shall be
fully earned for all purposes as of the Closing Date.
5. TERMINATION.
5.1 Notwithstanding anything herein to the contrary, the Company may
immediately terminate this Agreement by written notice to the Consultant upon
any of the following events: (i) the Consultant's material breach of this
Agreement; (ii) the Consultant's breach of any of the provisions of Article 6
hereof; or (iii) the Consultant's bankruptcy, whether voluntary or involuntary.
5.2 In the event that the Merger Agreement is not consummated, this
Agreement shall be deemed null and void ab initio.
6. CONFIDENTIALITY. The Consultant shall employ reasonable procedures to
treat as confidential all written, non-public information delivered to the
Consultant pursuant to or in connection with the services provided under this
Agreement concerning the performance, operations, assets, structure and business
plans of the Company. While other or different confidentiality procedures may be
employed by the Consultant, the actual procedures employed by the Consultant for
this purpose will be conclusively deemed to be reasonable if they are at least
as protective of such information as the procedures generally employed by the
Consultant to safeguard the confidentiality of the Consultant's own confidential
information. Notwithstanding the foregoing, the Consultant may disclose any
information concerning the Company in the Consultant's possession from time to
time (a) to any lender to or investor in the Consultant (including prospective
lenders and investors), but subject to a reasonable confidentiality agreement
regarding any non-public confidential information thereby disclosed, and (b) in
response to credit inquiries consistent with general banking practices, and (c)
to any federal or state regulator of the Consultant, and (d) to the Consultant's
affiliates, employees, legal counsel, appraisers, accountants and agents, and
(e) to any person pursuant to compulsory judicial process, and (f) to any
judicial or arbitration forum in connection with enforcing this Agreement or the
Warrant or defending any action based upon this Agreement or the Warrant or the
relationship between the Consultant and the Company, and (g) to any other person
with respect to the public or non-confidential portions of any such information.
Moreover, the Consultant
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(without any compensation, remuneration or notice to the Company) may also
include operational and performance and structural information and data relating
to the Company in compilations, reports and data bases assembled by the
Consultant (or its affiliates) and used to conduct, support, assist in and
validate portfolio, industry and credit research and analysis for itself and
other persons; provided, however, that the Consultant may not thereby disclose
to other persons any information relating to the Company in a manner that is
attributable to the Company unless (1) such disclosure is permitted under the
standards outlined above in this Section or (2) the Company otherwise separately
consents thereto.
7. MISCELLANEOUS.
7.1 Independent Relationship; Taxes. The Consultant is not authorized
by this Agreement to assume or to create any obligation or responsibility,
express or implied, on behalf of or in the name of the Company or to bind the
Company in any manner or to anything whatsoever. The Consultant shall perform
all services hereunder as an "independent contractor" and not as an employee,
agent, distributor, representative, affiliate, partner or joint venturer of the
Company. Notwithstanding anything to the contrary herein, this Agreement in no
manner shall be construed to create an employment or employee/employer
relationship between the Company and the Consultant. The Consultant is not
authorized to assume or create any obligation or responsibility, express or
implied, on behalf of, or in the name of, the Company or to bind the Company in
any manner. The Company shall not be responsible for the withholding or payment
of federal, state or other taxes, including, but not limited to, income,
workers' compensation, unemployment and social security taxes, payable by reason
of services rendered by the Consultant to the Company.
7.2 Entire Agreement. This Agreement together with that certain
Agreement Regarding MCG Warrants and Options dated effective as of July 5, 2000,
by and among Talk, MCG Finance Corporation (an affiliate of the Company) and the
Consultant collectively constitute the entire agreement of the parties with
respect to the provision of the Consulting Services (other than with respect to
the compensation therefor), and supersede and terminate any and all prior
agreements or contracts, oral or written, entered into between the parties
relating to the provision of the Consulting Services.
7.3 Amendments. This Agreement shall not be amended or otherwise
modified except by a written instrument duly executed by the parties hereto.
7.4 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE COMMONWEALTH OF
VIRGINIA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE COMMONWEALTH OF VIRGINIA OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
COMMONWEALTH OF VIRGINIA. Each of the parties submits to the jurisdiction of any
state or federal court sitting in the Commonwealth of Virginia in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each party also agrees not to bring any action
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or proceeding arising out of or relating to this Agreement in any other court.
Each of the parties waives any defense of inconvenient forum to the maintenance
of any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other Party with respect thereto.
7.5 Assignment. Neither party may assign its respective rights
hereunder (other than to an affiliate of such party) without the prior written
consent of the other party (which consent shall not be unreasonably withheld,
delayed or conditioned); provided, however, that at the Closing, the Company
shall assign this Agreement to Talk, and Talk shall assume and succeed to all of
the Company's rights and obligations hereunder without any further act or deed
by either party hereto.
7.6 Notices. All notices, requests, consents, demands and other
communications that are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (i) personally
delivered; (ii) sent by telecopy or other wire transmission with successful
transmission acknowledged; (iii) sent by Federal Express or other overnight air
express; or (iv) sent by registered or certified mail, return receipt requested
and postage prepaid. All notices delivered to a party shall be sent to the
following respective addresses:
If to the Consultant:
MCG Credit Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CFO
Facsimile: 000-000-0000
And
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile: 000-000-0000
If to the Company:
Access One Communications Corp.
0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
and a copy to: Xxxx.xxx, Inc.
0000 Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Lawn, IV, Esq.
Executive Vice President -
General Counsel and Secretary
Facsimile: (000) 000-0000
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with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address and/or facsimile number as the party to receive the
notice or request so designates by written notice to the other. Notices pursuant
to subsection (i) or subsection (ii) shall be deemed given on the day delivered
or transmitted, respectively. Notices delivered pursuant to subsection (iii) or
subsection (iv) shall be deemed given on the second business day following the
day sent, whether or not such notice was actually received on such day.
7.7 No Waiver. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
7.8 Parties Intent to Save Provisions. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions hereof shall remain in full
force and effect.
7.9 Further Assurances. Each party agrees to take such further action
and execute, deliver and/or file such documents or instruments as are necessary
to carry out the terms and purposes of this Agreement.
7.10 Terminology and Construction; Section Headings. All words in this
Agreement, regardless of the number and gender in which they are used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context of this Agreement
may require. Unless otherwise indicated, any reference in this Agreement to a
Section, Article or Exhibit shall mean the applicable section, article or
exhibit of or to this Agreement. The term " Agreement" includes any and all
exhibits hereto and amendment hereto. The use herein of the word "parties" or
"party" shall mean the Consultant and/or the Company, as the case may be. The
section headings in this Agreement are intended solely for convenience and shall
be given no effect in the construction and interpretation hereof.
7.11 Limitation on Liability. THE COMPANY AND THE CONSULTANT EACH
AGREES THAT NEITHER PARTY HERETO (NOR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY TO ANY OTHER PARTY HERETO OR TO
ANY OTHER PERSON (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES OR
COSTS SUFFERED OR INCURRED IN CONNECTION WITH OR IN
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ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED
BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
HEREWITH, EXCEPT FOR FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY FROM SUCH
PARTY'S OWN GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. MOREOVER, WHETHER OR
NOT SUCH DAMAGES ARE RELATED TO A CLAIM THAT IS SUBJECT TO THE WAIVER EFFECTED
ABOVE AND WHETHER OR NOT SUCH WAIVER IS EFFECTIVE, NEITHER PARTY HERETO (NOR ANY
OF THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY WITH
RESPECT TO ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR NON-FORESEEABLE
DAMAGES SUFFERED BY ANY OTHER PARTY HERETO OR ANY OTHER PERSON IN CONNECTION
WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP
ESTABLISHED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION HEREWITH.
7.12 Waiver of Jury Trial. THE COMPANY AND THE CONSULTANT EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER AS CLAIM, COUNTER-CLAIM,
AFFIRMATIVE DEFENSE OR OTHERWISE) IN CONNECTION WITH OR IN ANY WAY RELATED TO
ANY OF THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), ACTIONS OR INACTIONS OF THE CONSULTANT OR THE
COMPANY.
7.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and both of which
together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement on the date first set forth above.
ACCESS ONE COMMUNICATIONS CORP.
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Name:
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Title:
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MCG CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
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