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EXHIBIT 10.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement"), dated as of July 30, 2001,
is made and entered into by and between Novo Networks Operating Corp. (the
"Corporation"), a Delaware corporation with its principal office in Texas, and
Xxxx X. Xxxxxxx (the "Consultant"), an individual who resides in Nevada.
WHEREAS, the business of the Corporation and its subsidiaries, Axistel
Communications, Inc., Novo Networks Global Services, Inc., Novo Networks
International Services, Inc. and e.Volve Technology Group, Inc. (the "Other
Companies") is providing telecommunications services over a facilities-based
network (the "Business"); and
WHEREAS, the Consultant has significant experience in the
telecommunications industry, including the business of telecommunications
services, and the Corporation desires to retain the Consultant to perform
certain advisory services upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Corporation and the Other Companies (together, the
"Debtors") commenced chapter 11 cases in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court") on July 30, 2001; and
WHEREAS, the Corporation intends to submit their retention of the
Consultant to the Bankruptcy Court for approval if such approval is determined
to be necessary or appropriate; and
WHEREAS, the Consultant is willing to make its expertise and experience
available to the Corporation and the other Debtors upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Term. The consulting relationship contemplated by this
Agreement shall be effective as of July 30, 2001, and continue until the earlier
of (i) the consummation of a sale, merger or other corporate transaction
involving the Debtors or (ii) November 17, 2001, unless terminated earlier by at
least seven (7) days' written notice of termination by either party.
2. Services. During the Term the Consultant shall provide to the
Corporation and the other Debtors the following services: general advice on
network operations, design, configuration, and deployment, general advice on
customer and vendor relations and general advice on business development.
3. Fees. In consideration of his agreement to act as a Consultant
pursuant to the terms of this Agreement, the Consultant shall be compensated as
follows: $25,000 per month.
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4. Expenses. In connection with the services he provides to the
Corporation hereunder, the Corporation shall reimburse the Consultant for his
reasonable and necessary documented expenses incurred at the request of the
Corporation.
5. Confidentiality. All information, knowledge and data relating
to or concerned with the operations, business and affairs of either the
Consultant, the Corporation or the other Debtors, as the case may be, which are
exchanged by the parties hereto in connection with the performance by the
Consultant of his duties hereunder shall be the property of the Corporation or
the other Debtors, as the case may be, and be treated as confidential
information and shall be held in a fiduciary capacity by the parties hereunder.
The Consultant shall not disclose or divulge such information to any firm,
person, corporation or other entity other than in connection with the
performance of its duties hereunder.
6. Independent Contractor. In performing the services provided
for hereunder, the Consultant is acting as an independent contractor. Nothing
herein shall be deemed to cause the relationship among the Consultant and the
Corporation or the other Debtors to be considered that of principal and agent,
employer and employee, master and servant, or that of partners or joint
venturers. Any employees or representatives of the Consultant at any time during
the term of this Agreement shall be in the employment of and under the
supervision and responsibility of the Consultant. No person employed or retained
by the Consultant either directly or indirectly shall be deemed by virtue of
this Agreement, or any other agreement related to the Business, to be the
servant, agent or employee of the Corporation or the other Debtors or any
affiliate thereof for any purpose whatsoever.
7. Assignment. By virtue of the nature of this Agreement as a
personal service contract, the Consultant shall not be entitled to assign any of
its rights or delegate any of its duties under this Agreement without the
express written consent of the Corporation. Any assignment without the consent
of the Corporation shall be void and of no effect.
8. Confidentiality and Noncompetition. The Consultant
acknowledges that in the course of his duties hereunder, he may have access to
or the Debtors may disclose to him, certain confidential and proprietary
information and trade secrets relating to their businesses and work. The
Consultant acknowledges that he will neither use for any purpose other than the
performance of his duties hereunder nor will he disclose, and that he will keep
confidential, all information learned by or disclosed to him in the course of
his performance hereunder which is not widely known or publicly disseminated
(the "Information"), except as follows: (i) if the Consultant is required by law
to make such disclosure; (ii) if the Consultant proposes to disclose Information
to a prospective buyer, lender, merger candidate, investor or other party to a
corporate transaction, then the Consultant shall (x) first identify such person
or entity and obtain the Corporation's prior written consent to the scope and
content of the proposed disclosure, and (y) prior to the Consultant's disclosure
of any such Information to a prospective buyer, lender, merger candidate,
investor, or other party to a corporate transaction, the Consultant shall first
cause such person or entity to execute a confidentiality and noncompetition
agreement in a form acceptable to the Corporation, such agreement to be executed
by the Debtors only through its Chief Executive Officer. The Consultant agrees
to bind his employees, agents or representatives, if any, to confidentiality and
to take reasonable measures to ensure that confidentiality is
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observed and to prevent the negligent transmission of Information, including the
marking of documents as confidential and safekeeping thereof.
9. Rights and Remedies. The Consultant hereby agrees that for
violation or threatened violation of any of the provisions of the preceding
paragraph, the Debtors will have no adequate remedy at law and, in addition to
other rights and remedies available hereunder or otherwise, shall be entitled to
an injunction to be issued by any court of competent jurisdiction including,
without limitation, the Bankruptcy Court's enjoining and restraining the
Consultant from committing any violation of this Agreement or a related
violation of applicable law and the Consultant hereby consents to the issue of
such injunction. The covenants in this Agreement are independent of any other
agreement to which the Consultant and the Corporation may be parties, and the
existence of any claim or cause of action, whether predicated upon any such
agreement or otherwise, shall not constitute a defense to the enforcement by the
Debtors of said covenants.
10. Duty of Consultant. For such time as the Consultant is engaged
hereunder, the Consultant shall perform its duties honestly in good faith and
with undivided loyalty and shall devote in good faith such time and effort as is
necessary or appropriate to carry out such duties. The Consultant agrees to
waive any consideration that might otherwise be payable by third parties to him
during the Term of this Agreement (as set forth in Section 1), including, but
not limited to, Qwest, pursuant to the Master Agent Agreement, as a result of
any sales of capacity or routes by such third parties to the Debtors. This
Agreement shall not preclude the Consultant from (i) seeking from any party a
fee or other compensation in connection with a sale, merger or other corporate
transaction involving the Debtors; (ii) making or participating in an offer
involving any purchase, merger or other corporate transaction with the Debtors;
or (iii) participating in such sales commission programs as may be instituted by
the Debtors during the term of this Agreement. The Declaration, dated August 21,
2001, executed by the Consultant, is incorporated herein by reference.
11. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if sent by registered or certified mail, return receipt requested,
with first-class postage fees prepaid, or if hand delivered against receipt or
if sent via facsimile transmission upon electronic confirmation of receipt
thereof during normal business hours, to the applicable party at the address
indicated below:
If to the Consultant:
Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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If to the Corporation:
Novo Networks Operating Corp.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
The Bayard Firm, P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Legal Department
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
or, to each party, to such other address as shall be designated by such party in
a written notice to the other party pursuant to the provisions of this Section
11. All such notices, requests, demands and other communications shall be
effective when sent.
12. Severability. In the event any part of this Agreement, for any
reason, shall be finally adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the remainder of
this Agreement and this Agreement shall be reformed consistent with the original
objectives of this Agreement. The invalidity of any part or parts of this
Agreement shall not relieve the parties from their other duties and obligations
under this Agreement.
13. Waiver. The failure of either party to enforce any provision
of this Agreement or exercise any right granted hereby shall not be construed to
be a waiver of such provision or right nor shall it affect the validity of this
Agreement or any part hereof or limit in any way the right of either party
subsequently to enforce any such provision or exercise such right in accordance
with its terms.
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14. No Third-Party Beneficiaries. This Agreement shall be
construed to be for the benefit of only the parties hereto and shall confer no
right or benefit upon any other person based on the theory of third party
beneficiaries or otherwise.
15. Amendments. The term of this Agreement may be amended,
modified, discharged, waived or terminated only by a written instrument executed
by both parties or, in the case of a waiver, by the party waiving compliance,
unless such waiver is conditional.
16. Titles and Headings. The titles and headings included in this
Agreement are inserted for convenience only and shall not be deemed to be a part
of or considered in construing this Agreement, nor limit or otherwise affect the
meaning hereof.
17. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, and which
together shall constitute but one and the same instrument.
18. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supercedes all other agreements, whether or written or oral. No amendment or
modification hereof shall be valid or binding unless made in writing and signed
by the party against whom enforcement thereof is sought.
19. Applicable Law. This Agreement shall be governed, interpreted
and construed in accordance with the laws of Delaware without regard to
choice-of-law principles thereof.
20. Amendments; Waiver. This Agreement, including this paragraph
20, may not be amended except by an instrument in writing signed by both the
Corporation (or its successor or assignee) and Consultant. Neither party shall
be deemed to have waived any provision of this Agreement in the absence of an
express written waiver. Any such waiver shall be limited to the specific
provision and instance referred to therein and shall not constitute a general
waiver of the provision waived or of any other provision.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date and year first above written.
CORPORATION
By: /s/ Xxxxxx X. Logilsci
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Xxxxxx X. Logilsci
Chief Executive Officer
Novo Networks Operating Corp.
CONSULTANT
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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