EXHIBIT 10.14
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of this 15th day of
December, 1997 by and between ILD TELESERVICES, INC., a Delaware corporation
(hereinafter referred to as the "ILD" or the "Corporation") and STRATACOM, INC.,
a Georgia corporation (hereinafter referred to as "Consultant").
W I T N E S S E T H:
WHEREAS, Consultant has unique experience in the telecommunications
business;
WHEREAS, ILD desires to engage Consultant to assist in its
telecommunications operations, particularly in the development of its local
telephone operations; and
WHEREAS, Consultant is willing and able to provide consulting assistance to
ILD on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. CONSULTING SERVICES. ILD hereby retains Consultant as a consultant,
and Consultant hereby agrees to be retained by ILD, for part-time consulting
services relating to development of its local telephone operations and to assist
in other technical, marketing and engineering issues in the ongoing operations
of ILD. Consultant shall not be involved with ILD's management or financial
decisions.
2. TERM AND TERMINATION. The engagement of Consultant hereunder shall
commence as of the date hereof and shall continue until September 30, 2002. ILD
shall have no rights to terminate the consulting relationship represented
hereby.
3. FEES AND EXPENSES.
a. FEES. ILD shall pay to Consultant, as remuneration for
Consultant's consulting services hereunder, a consulting fee of $425,000
due and payable on June 1, 1998 and $425,000 due and payable on June 1,
1999.
b. EXPENSES. Consultant is expected to incur its own expenses, to
be reimbursed from the fees specified in a. above.
c. DELINQUENCY IN PAYMENTS. In the event that the aforesaid
consulting fees shall not be remitted when a payment is due, thereafter
the unpaid consulting fee installment shall bear interest at the rate of
fifteen percent (15%) per annum until the past due remuneration is paid.
4. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Consultant acknowledges
that pursuant to this Consulting Agreement, Consultant may receive and be
exposed to certain confidential and proprietary information and materials of
ILD, including but not limited to, technical and nontechnical data, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, products plans, and lists of actual or
potential customers and suppliers, from which ILD derives economic value, actual
or potential, from the same not being known to, and not readily ascertainable by
proper means by, persons who can obtain economic value from its disclosure or
use (hereinafter, "Trade Secrets"). Consultant also acknowledges that it may
receive and be exposed to certain confidential and proprietary information and
materials of ILD, other than Trade Secrets, that is material and not generally
known to the public, such as selling and pricing information and marketing
strategies (hereinafter, "Confidential Information"). Consultant hereby agrees
that all materials, data and information disclosed to it, or that will be
disclosed to it, during the consulting arrangement that are considered Trade
Secrets or Confidential Information of the Corporation are and have been
disclosed on a confidential basis solely in connection with and as a result of
his consulting arrangement, for use solely in connection therewith. Consultant
agrees to refrain from any disclosure or further use of: (a) any Trade Secrets
of ILD for so long as they remain a Trade Secret; and (b) any Confidential
Information of ILD for so long as it remains Confidential Information but for no
longer than seven years from the effective date hereof. Upon the termination of
this Agreement for any reason, Consultant shall return to ILD any and all
materials or property (together with any copies, abstracts, digests or summaries
thereof) that are in its possession or under his control that belong to ILD or
contain any Trade Secrets or Confidential Information of ILD. Consultant hereby
cknowledges and agrees that the prohibitions against disclosure of Trade Secrets
or Confidential Data recited herein are in addition to and not in lieu of, any
rights or remedies that ILD may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of trade secrets, and
the enforcement by any such corporation of its rights and remedies pursuant to
this Agreement shall not be construed as a waiver of any other rights or
available remedies that it may possess in law or equity absent this Agreement.
5. INDEPENDENT CONTRACTOR. It is the intention of the parties that
Consultant be an independent contractor and not an employee, agent, joint
venturer, or partner of ILD. Nothing in this Agreement shall be interpreted or
construed as creating or establishing the relationship of employer
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and employee between ILD and Consultant. Anything herein to the contrary
notwithstanding, the parties hereby acknowledge and agree that ILD shall have
no right to control the manner, means, or method by which Consultant performs
the services called for by this Agreement. Rather, ILD shall be entitled
only to direct Consultant with respect to the elements of services to be
performed by Consultant.
6. MISCELLANEOUS.
a. NOTICES. All communications provided for hereunder shall be in
notices and shall be deemed to be given when delivered in person or
deposited in the United States mail, first class, certified or registered,
return receipt requested, with proper postage prepaid and,
i) If to Consultant, addressed to:
STRATACOM, INC.
000 Xxxxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
with a copy to:
XXXXX, FRIEND & SAPRONOV, LLP
Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
b) If to ILD:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxxxxx
AND
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13000 Sawgrass Xxxxxxx Xxxxxx
Xxxxx 0
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxx
with a copy to:
XXXXXX, XXXXXX & XXXXXXX
Two Midtown Plaza, Suite 1900
0000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: C. Read Xxxxxx, Jr., Esq.
or at such other place or places or to such other person or persons as shall be
designated in writing by the parties hereto.
c. NO ASSIGNMENT; BINDING EFFECT. Consultant may not assign any
rights or obligations under this Agreement without the prior written
consent of ILD. This Agreement shall inure to the benefit of and shall be
binding upon Consultant, its successors and assigns, and ILD and its
successors and assigns.
d. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
of the parties hereto relating to the subject matter hereof and supersedes
all prior agreements and understandings concerning Consultant's consulting
relationship with ILD.
e. GOVERNING LAW; REMEDIES. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed and governed
by and in accordance with, the laws of the State of Georgia. Should ILD
default on any payment due Consultant hereunder, Consultant shall be
entitled to collect reasonable attorneys' fees and all other reasonable
costs and expenses from ILD. ILD must assert any alleged default by
Consultant hereunder within one year of the date of such alleged default or
ILD is forever estopped from asserting such claim. Should ILD allege any
default by Consultant hereunder within the one-year time frame, then ILD
shall provide written notice of such alleged default and Consultant shall
thereby have a ninety-day period to cure such alleged default.
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f. DISPUTE AND ARBITRATION. The parties agree that any dispute
hereunder shall be submitted to arbitration in accordance with the rules
then in effect of the American Arbitration Association (the "AAA").
Arbitration shall be conducted by one arbitrator acting under the rules of
commercial arbitration of the AAA in Atlanta, Georgia, U.S.A., or such
other place as the parties shall mutually agree upon. ILD shall bear all
costs of arbitration except as otherwise allocated by the arbitrator. Any
decision, judgment or ruling rising out of arbitration shall be final and
binding upon the parties.
g. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"CONSULTANT"
By: /s/ X. X. XxXxxxxxx
---------------------------------
Title: President
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"ILD"
ILD TELESERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx
Title: President
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