Exhibit 10.38
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made this ______ day of
February ___, 2001, between UbiquiTel Inc., a Delaware corporation with its
principal place of business located at Xxx Xxxx Xxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000 ("UbiquiTel"), and Instant Phone, LLC, a California
limited liability company wholly owned by Xxxxx X. Xxxxxx, with an address of
0000 Xxxxxxxxx Xxxx, Xxxxxx, XX 00000 ("Consultant").
RECITALS
UbiquiTel has entered into a Merger Agreement contemporaneously
herewith to acquire VIA Wireless, LLC, of which Consultant is currently the
President. Consultant has knowledge and skills in the commercial mobile services
industry that will be useful to UbiquiTel once the Merger has been consummated.
UbiquiTel wants to engage Consultant as a consultant, and Consultant is willing
to provide consulting services to UbiquiTel.
NOW, THEREFORE, the parties agree as follows:
1. TERM OF AGREEMENT
This Agreement shall become effective upon the Closing (as defined in
the Merger Agreement), and shall continue in effect for two years unless earlier
terminated in accordance with Section 9 of this Agreement. Sections 4, 10 and 11
shall survive the termination or expiration of this Agreement and continue in
effect indefinitely. In the event that Consultant's employment with VIA
Wireless, LLC is terminated at or during the time that a Management Agreement
exists between Ubiquitel and VIA Wireless, LLC, this Agreement shall commence
concurrent with such termination of employment and continue through the term of
the Management Agreement plus two full years from the Closing; provided,
however, that if the Closing has not occurred within nine months of such
commencement, unless otherwise agreed in writing by the parties, this Agreement
shall terminate and neither party shall have any further obligations to the
other not accruing before the termination.
2. SCOPE OF ENGAGEMENT
Consultant shall advise and consult with UbiquiTel within the scope of
his expertise concerning strategic planning, technical analyses, and advice on
structural issues, all as may be requested by UbiquiTel. For the first eight
months of the term of this Agreement, UbiquiTel shall be entitled to not less
than three days per week of Consultant's time. Thereafter, Consultant shall be
available to advise and consult at UbiquiTel's request. Consultant shall not
subcontract any services to be provided to UbiquiTel hereunder or use any other
person to provide such services without UbiquiTel's prior written consent, which
consent may be conditioned on Consultant's obtaining or requiring insurance
regarding the performance of services hereunder by such subcontractors or other
persons and Consultant's agreeing to indemnify UbiquiTel for the acts and
omissions of such subcontractors or other persons in connection with the
performance of services.
3. FEES AND PAYMENTS
(a) In consideration for the services to be performed by
Consultant, UbiquiTel agrees to pay Consultant at the monthly rate of
$18,035.00 ("Monthly Payment") for the term of this Agreement as follows:
(1) RETAINER. UbiquiTel shall pay to Consultant a
$22,835.00 retainer upon execution of this Agreement and prior to commencement
of services, of which $18,035.00 shall be held by Consultant and applied to
the last Monthly Payment due to Consultant from UbiquiTel under this Agreement
and $4,800.00 shall be used by Consultant as an allowance for automobile
expenses for the initial twelve-month period during the term.
(2) MONTHLY PAYMENT. UbiquiTel shall pay Consultant the
Monthly Payment by no later than the fifteenth (15th) day of each month during
the term, provided that, in accordance with the prepayment by UbiquiTel of the
last Monthly Payment pursuant to paragraph (1) above, UbiquiTel shall not be
obligated to pay Consultant the last Monthly Payment during the last month of
the term.
(3) ALLOWANCE FOR AUTOMOBILE EXPENSES. UbiquiTel shall
pay Consultant an allowance for automobile expenses (which shall include
gasoline and mileage, but shall not include tolls and other similar
travel-related expenses) ("Automobile Allowance") of $400.00 for each month
during the term by no later than the fifteenth (15th) day of each month during
the term, provided that, in accordance with the prepayment by UbiquiTel of the
Automobile Allowance for the first twelve months of the term pursuant to
paragraph (1) above, UbiquiTel shall not be obligated to begin such monthly
payments for Automobile Allowance until the thirteenth (13th) month of the
term.
(b) UbiquiTel shall also reimburse Consultant for all reasonable
out-of-pocket expenses incurred in performing services under this Agreement,
including travel and lodging, upon presentation of invoices and receipts for
such expenses, in accordance with the policies and procedures of UbiquiTel for
reimbursement of business-related expenses as established from time to time
and provided to Consultant.
(c) UbiquiTel shall not withhold state or federal taxes or FICA
from the payments due to Consultant, make state or federal unemployment
contributions on behalf of Consultant, or obtain workers compensation
insurance on behalf of Consultant. Consultant shall not be entitled to any
medical or health insurance, or to participate in any pension or profit
sharing plan of UbiquiTel, or otherwise to receive any benefits from
UbiquiTel. Consultant shall not be entitled to any premium "overtime" rate.
4. CONFIDENTIALITY
Consultant acknowledges that UbiquiTel has a proprietary interest in
protecting information regarding its business. Consultant agrees that neither
Consultant nor any of
2
Consultant's subcontractors or assistants will disclose to or allow the use by
any third party of any non-public information relating to the business of
UbiquiTel or VIA Wireless, LLC that was obtained in the course of performing
services for UbiquiTel hereunder. Consultant further agrees that neither it
nor its personnel will make personal use of, reproduce, or divulge any such
information. Consultant agrees to indemnify and hold harmless UbiquiTel for
any and all losses, expenses, costs and other liabilities UbiquiTel incurs
(including reasonable attorneys' fees) arising from a violation of the
obligations set forth in this Section 4. This Section 4 shall not supersede
any separate confidentiality agreement executed by Consultant for the benefit
of UbiquiTel as a separate contract or as part of a broader contract delivered
prior to the date of this Agreement, but all such provisions of this Section 4
shall be read and applied together with any such confidentiality agreement to
achieve the intent of the parties to maintain the confidentiality of
UbiquiTel's and VIA Wireless, LLC's business information.
5. CONDUCT, INDEPENDENT STATUS, AND BENEFITS
Consultant shall provide competent, professional, and ethical services
in the required disciplines, using Consultant's own appropriate independent
skill and judgment, in the manner and means that appear best suitable to
Consultant to perform the services for UbiquiTel in accordance with industry
standards. UbiquiTel shall have no right or responsibility hereunder to
determine the manner and means used by Consultant, set the order or sequence for
performing services, or set Consultant's hours or location of work except that
Consultant may perform services on UbiquiTel's premises upon mutual agreement.
Consultant agrees to provide reasonable advance notice to UbiquiTel of addresses
and telephone numbers where Consultant may be reached by UbiquiTel during the
term of this Agreement. Consultant agrees to abide by all federal, state and
local laws in providing services under this Agreement. The parties agree that
the relationship created by this Agreement is that of an independent contractor.
6. WORK FOR OTHERS
Consultant may, to the extent consistent with this Agreement, provide
his services to others and through other firms when not performing work under
this Agreement.
7. COOPERATION
UbiquiTel agrees to provide information and materials relating to
UbiquiTel requested by Consultant and reasonably necessary for Consultant to
provide the services requested by UbiquiTel under this Agreement.
8. ASSIGNMENTS
Neither this Agreement nor any duties or obligations under this
Agreement may be assigned by UbiquiTel or Consultant without the prior written
consent of the other party; provided, however, that notwithstanding the
foregoing, UbiquiTel may, without Consultant's consent, assign this Agreement to
any entity controlling, controlled by or under common control with UbiquiTel
which agrees in writing to assume UbiquiTel's obligations hereunder. UbiquiTel
agrees to provide Consultant with notice of any such assignment within thirty
days thereof.
3
9. TERMINATION
(a) This Agreement shall terminate automatically on the occurrence
of any of the following events:
(1) Bankruptcy or insolvency of either party; or
(2) Sale of UbiquiTel's business.
However, in the event of the sale of UbiquiTel's business, provided
that Consultant is not then in breach of this Agreement, UbiquiTel shall pay
Consultant the sum of all Monthly Payments remaining for the term of this
Agreement concurrent with the consummation of the sale of UbiquiTel's business.
(b) Should Consultant default in the performance of this
Agreement or materially breach any of its provisions, UbiquiTel shall give
Consultant written notice of such default and Consultant shall have thirty
(30) days to cure such default. In the event Consultant does not cure its
default, UbiquiTel may terminate this Agreement, and in such event UbiquiTel
shall have no further payment obligations to Consultant hereunder except for
any amounts accruing prior to such termination.
(c) Should UbiquiTel default in the performance of this
Agreement or materially breach any of its provisions, Consultant shall give
UbiquiTel written notice of such default and UbiquiTel shall have thirty (30)
days to cure such default. In the event UbiquiTel does not cure its default,
Consultant may terminate this Agreement.
(d) In the event of an uncured default in the payment of
Consultant's compensation by UbiquiTel, Consultant shall be entitled to
accelerate and receive the remainder of all payments due under this Agreement
immediately, notwithstanding Consultant's right to terminate this Agreement.
10. INDEMNIFICATION
Because of the independent status of Consultant, Consultant is solely
and completely accountable for the services Consultant provides to UbiquiTel.
Consultant hereby indemnifies UbiquiTel against all liability, claims, actions,
damages, costs or other loss (including reasonable attorneys' fees), based upon
or arising out of (a) damage or injury (including death) to persons or property
caused by Consultant or sustained in connection with the services provided by
Consultant under this Agreement, except to the extent caused by the negligent or
intentional misconduct or omission of UbiquiTel, (b) any violation by Consultant
of any statute, ordinance, rule or regulation in connection with the services
provided by Consultant under this Agreement, and (c) payment of all federal,
state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax laws, with respect to Consultant's
services under this Agreement.
4
11. LIMITATION OF LIABILITY
CONSULTANT SHALL NOT BE LIABLE TO UBIQUITEL FOR SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF
PROFITS, ARISING FROM CONSULTANT'S BREACH OF, OR PROVISION OF SERVICES UNDER,
THIS AGREEMENT, EXCEPT WHERE SUCH DAMAGES ARE CLAIMED BY OR AWARDED TO A THIRD
PARTY IN A CLAIM OR ACTION AGAINST WHICH CONSULTANT HAS AN INDEMNIFICATION
OBLIGATION UNDER SECTION 10 OF THIS AGREEMENT.
12. GENERAL PROVISIONS
(a) Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing, by mail,
registered or certified, postage prepaid with return receipt requested, or by
prepaid overnight delivery service. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraph of this
Agreement, but each party may change the address by written notice in
accordance with this Section. Notices delivered personally will be deemed
communicated as of actual receipt; mailed notices will be deemed communicated
as of four (4) days after mailing; and notices sent by overnight delivery
service shall be deemed communicated on the next business day after mailing.
(b) This Agreement supersedes any and all agreements, either
oral or written, between the parties hereto with respect to the rendering of
services by Consultant for UbiquiTel and contains all the covenants and
agreements between the parties with respect to the rendering of such services
in any manner whatsoever. Each party to the Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this Agreement shall be valid or binding. Any modification of
this Agreement will be effective only if it is in writing and signed by both
parties.
(c) If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions will nevertheless continue in full force without being impaired or
invalidated in any way.
(d) If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party will be entitled to reasonable attorneys'
fees, which may be set by the court in the same action or in a separate action
brought for that purpose, in addition to any other relief to which that party
may be entitled.
5
(e) This Agreement is entered into, is to be performed in, and
will be governed by and construed in accordance with the laws of the State of
California.
Executed the date first above written at Fresno, California.
UBIQUITEL INC.: INSTANT PHONE, LLC:
By: By:
----------------------------- ----------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title:
----------------------
6
