CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made as of June 21, 1996 by
and between Xxxx X. Xxxxxx ("Consultant") and SA Telecommunications, Inc., a
Delaware corporation (the "Company").
In consideration of the premises and the mutual agreements hereinafter
contained, the parties hereby agree as follows:
1. TERM. Consultant shall be retained by the Company as a consultant
hereunder effective as of June 1, 1996, and shall continue until August 31,
1996.
2. DUTIES. During the term of this Agreement, Consultant shall serve
as a consultant to the Company in all phases of acquisitions, dispositions,
and/or investments by the Company in third parties, including, without
limitation, planning and implementation thereof, performance of due
diligence, participation in negotiations when requested, rendering financial
and business advice, coordination of acquisition activities, seeking
opportunities for the acquisition or disposition of assets and/or business
entities that may be in the best interest of the Company, and such other
matters as may be determined from time to time by the Chairman and Chief
Executive Officer of the Company. Consultant shall devote such time as is
reasonably necessary to perform his duties hereunder, but in no event less
than 40 hours per week.
3. COMPENSATION. In consideration of the services rendered hereunder,
the Company will pay Consultant $13,333.33 per month on the last business day
of the month in which such services are rendered. Consultant shall submit
statements for services rendered during each month during the term of this
Agreement.
4. EXPENSES. The Company agrees to reimburse Consultant for any
reasonable sums expended by him for travel, hotels and similar out-of-pocket
expenses in rendering services requested by the Company, upon presentation of
bills and/or vouchers therefore in a form satisfactory to the Company.
5. RESTRICTIVE COVENANTS.
(a) Except as required in his duties to the Company, Consultant
will not disclose any confidential information (including, without
limitation, all business, technological and financial information
(other than the financial statements and notes thereto of the Company
and its consolidated subsidiaries included in the Company's annual,
quarterly or other reports required to be filed under the Securities
Exchange act of 1934 or in any registration statement or prospectus
filed under the Securities Act of 1933), intellectual property, trade
secrets, compensation data, customer lists, vendor lists, customer
preferences, marketing strategies, acquisition targets, plans and
strategies, pending projects, contracts and proposals and proprietary
processes
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and other information belonging to the Company or relating
to the Company's business, technology or customers, which is not
available to the general public) obtained by Consultant under this
Agreement concerning matters affecting or related to the business and
operations of the Company or any of its affiliated companies.
Consultant hereby agrees, as an agent of the Company with a need to
know such information, to be bound by the terms and conditions of all
confidentiality agreements and non-disclosure agreements entered into
between the Company and third parties with respect to acquisitions,
dispositions and debt or equity financings as if Consultant were
originally a party thereto.
(b) Upon the termination of this Agreement, all documents,
records, notebooks, computer files and similar repositories,
containing confidential information, and all forms, materials,
processes and information developed for or on behalf of the Company by
Consultant or others during the term of this Agreement shall remain
the exclusive property of the Company and will be left with the
Company.
(c) During the term of this Agreement, and for a period of six
months following the date of the termination of this Agreement,
Consultant will not, without the written permission of the Company:
(i) personally solicit, directly or indirectly, any employee or any
person who has been an employee within the 12 months prior to such
solicitation of the Company or any of its affiliated companies; or
(ii) personally solicit directly any customers, prospective
customers, acquisition targets or potential acquisition targets with
whom preliminary discussions have been held by the Company and
Consultant or any of its affiliated companies and Consultant, for the
purpose of competing with the Company in its telecommunications
business. In the event of a violation of this covenant not to
compete, the Company shall be entitled, in addition to any other
remedies provided by law or equity, to obtain specific performance of
this covenant. If any provision of this covenant is invalid in part
or in whole, it shall be curtailed, whether as to time, area covered,
or otherwise as and to the extent required for its validity under
applicable law and, as so curtailed, shall be enforceable.
6. TERMINATION. In the event of termination of this Agreement by the
Company or by Consultant for any reason prior to August 31, 1996, no party
shall have any further duty or obligation hereunder to the other party
including any payment obligation under Section 3 hereof after the date of
such termination; provided, however, that Consultant shall remain subject to
the provisions of Section 5 of this Agreement. Either the Company or
Consultant may terminate this agreement upon three (3) days prior written
notice.
7. ENTIRE AGREEMENT. This Agreement expresses the entire agreement of
the parties with respect to the subject matter hereof and may be amended only
by a written agreement signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
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8. NOTICES. All notices hereunder shall be given in writing by
registered or certified mail, postage prepaid, or by prepaid overnight
courier service, addressed to the parties at the following respective
addresses, or at such other address as may be designated in writing by either
party to the other:
To the Company: SA Telecommunications, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
To Consultant: Xxxx X. Xxxxxx
Xxxxx 0, Xxx 000X0
XxXxxxxx, Xxxxx 00000
9. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas, and the obligations hereunder
are performable in Dallas, County, Texas.
10. NO WAIVER. The waiver by the Company of any breach of any provision
of this Agreement by Consultant shall not operate or be construed as a waiver
or continuing waiver by the Company of the same or any subsequent breach of
any provision of this Agreement by Consultant.
11. DEFINITION. As used herein, the term "affiliated companies" of the
Company refers to any corporation or entity which controls, is controlled by,
or is under common control with the Company.
12. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon, the Company and its successors and assigns. This
Agreement may not be assigned by Consultant.
14. INDEPENDENT CONTRACTOR. The parties acknowledge and agree that
the Consultant is an independent contractor and not an employee of the
Company.
15. REPRESENTATION. Consultant represents and warrants to the Company
that Consultant is under no legal disability, by virtue of contract or
otherwise, that would prevent Consultant from entering into this Agreement or
performing the services contemplated hereby or would give any other person or
entity the right to damages or injunctive relief against the Company or any
of its affiliated companies.
16. LIMITATION OF LIABILITY. The Company shall, in no event, be liable to
Consultant for
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damages of any kind, including, but not limited to, direct or indirect,
special or consequential damages or loss of production or loss of profits,
resulting from any cause whatsoever, including but not limited to, breach of
warranty, delay, act, error or omission of the Company or the termination of
this Agreement.
17. INDEMNIFICATION. The Company agrees to indemnify and hold harmless
the Consultant from and against all claims, demands, obligations, liabilities
and expenses (including reasonable attorney's fees) incurred by Consultant
arising out of Consultant's performance of duties under this Agreement on
behalf of the Company; provided, however, in no event shall the Company be
required to indemnify and hold harmless Consultant to the extent that such
loss, claim, liability or expense is the result of Consultant's bad faith,
willful misconduct or gross negligence.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above written.
SA TELECOMMUNICATIONS, INC.
------------------------------
XXXX X. XXXXXX
By: --------------------------
Xxxx X. Xxxx, Xx.
Chairman & Chief Executive Officer
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