EXHIBIT 10.30
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
by and between Fibertech & Wireless, Inc., a Delaware corporation (the
"Company"), and Xxxxxx Xxxxx, who resides at 0 Xxxxxxxxx Xxxxx, Xxxx Xxxx, XX
00000 (the "Consultant"), effective as of June __, 2000 (the "Effective Date").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to retain the services of Consultant as a
consultant to the Company on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and certain other good and valuable consideration, the receipt and
sufficiency which is hereby acknowledged, the parties agree as follows:
1. Term. The Company hereby engages Consultant to perform certain
consulting services described herein, and Consultant hereby accepts such
engagement with the Company for an initial term of twelve (12) months,
commencing on the Effective Date, which term shall automatically be extended for
an additional twelve-month period unless either party shall notify the other of
its election not to so extend, not later than thirty (30) days prior to the
expiration of the initial term.
2. Services to be Provided.
(a) During the term hereof, Consultant will provide such services as
the Company may request from time to time, including without limitation
[advising on selection of facilities in buildings that will house major
communications carriers (the "Co-location Facilities"); making preliminary
inquiries regarding the Co-location Facilities; and negotiating, with such
officers as the Chief Executive Officer of the Company shall designate, leases
or options for the Co-location facilities.] Consultant's services will be on an
as needed basis to be reasonably and mutually agreeable.
(b) Consultant, in addition to any other obligations set forth in
this Agreement, shall:
(i) Perform such services diligently and to the best of his
ability.
(ii) At all times honestly, fairly, accurately and in good faith
present the Company's products and services.
(iii) Perform his duties in strict compliance with all
applicable laws, rules and regulations of duly constituted governmental
authorities.
(iv) Perform his duties in compliance with the instructions,
directives and policies issued by officers of the Company (except any directives
or policies that may reasonably be construed to violate any applicable laws or
public policy as determined by a court of law) and the terms of this Agreement.
(v) Promptly provide the officers of the Company all significant
information relating to the business of the Company that is received by or under
the control of Consultant.
(vi) Promptly return all correspondence and information relating
to the Company's business obtained by Consultant during or prior to the term of
this Agreement upon termination or expiration of this Agreement.
(c) The Consultant shall not enter into any agreement or arrangement
which purports to bind the Company or to represent to any party that he has the
authority to do so.
3. Compensation.
(a) Consulting Fee. In full consideration for the performance by
Consultant of his obligations hereunder. Consultant shall be entitled to receive
options to acquire 250,000 shares of the Company's Class A Common Stock, subject
to the terms and conditions set forth in that certain Stock Option Agreement by
and between the Company and Consultant, dated as of the date hereof.
(b) Reimbursement of Expenses. In addition, the Company shall
reimburse Consultant for all reasonable expenses incurred by Consultant in
performing services for the Company under this Agreement in accordance with
normal company policies and procedures.
4. Notices. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be delivered personally, by
overnight delivery of other courier service or by first class certified or
registered mail, return receipt requested, postage prepaid to a party at the
address set forth below or such other address as such party may specify by
notice to the other party in the manner provided in this Section 4:
If to the Company: Fibertech & Wireless, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
If to Consultant: Xxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
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5. Confidentiality, Inventions and Noncompete Agreement. Concurrently
with the execution of this Agreement, Consultant agrees to execute the
Confidentiality, Inventions and Non-Compete Agreement attached hereto as
Exhibit A.
6. General Provisions.
(a) Governing Law. This Agreement shall be governed by the laws of
the State of Delaware without reference to any rules of conflict of laws.
(b) Payment of Costs. The prevailing party in any action brought
under this Agreement shall be entitled to reasonable attorney's fees and other
related costs and expenses.
(c) Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future law, then (i) such
provision shall be fully severable, (ii) this Agreement shall be construed and
enforced as if such provision was never a part of this Agreement and (iii) the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by illegal, invalid, or unenforceable provisions or by
their severence.
(d) No Assignment. This Agreement may not be assigned by either
party without the prior written consent of the other party, except that the
Company may assign its rights (but not its obligations) hereunder to any of its
affiliates.
(e) Headings. The headings used in this Agreement are for
convenience of reference only and shall be of no legal effect in the
interpretation of the provisions hereof.
(f) Entire Agreement. This Agreement, including the Confidentiality,
Inventions and Noncompete Agreement attached as Exhibit A hereto and required to
be executed by Consultant pursuant to Section 5 hereof, constitutes the entire
agreement and understanding between the Company and Consultant relating to the
subject matter hereof and supersedes and merges all prior discussions,
writings, negotiations, understandings, and agreements with respect thereto and
shall not be amended or modified (nor shall any right be waived) except by a
written amendment that is completely executed by both the Company and
Consultant. By signing below, each of the parties hereto acknowledges that it
has read, understands, and agrees to this Agreement as being effective for all
purposes as of the Effective Date, notwithstanding any later date of execution
set forth elsewhere in this Agreement
(g) Independent Contractor. The parties hereto acknowledge and
understand that Consultant is an independent contractor. Nothing contained in
this Agreement shall be deemed or construed to create partnership or joint
venture, an employee/employer of principal/agent relationship, or any liability
whatsoever of either party with respect to indebtedness, liabilities,
obligations or actions of the other party or of any of their respective
employees or agents.
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IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement as of the date set forth above.
FIBERTECH & WIRELESS, INC.
By:_______________________________
A Xxxx Xxxx
Chief Executive Officer
/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
ACKNOWLEDGEMENT
---------------
The undersigned hereby acknowledges the above Consulting Agreement (the
"Consulting Agreement") by and between Fibertech & Wireless, Inc. ("Fibertech")
and Xxxxxx Xxxxx ("Marks"). In consideration of Fibertech's agreement to pay the
undersigned for time and effort expended by Marks in fulfilling the terms of the
Consulting Agreement, such payment not to exceed under any circumstances
$25,000 for any executed lease entered into by and between Fibertech and a
lessor and subject to Fibertech's receipt of appropriate invoices, the
undersigned hereby waives its rights to any brokerage fees it might otherwise
collect for services rendered by Marks.
FIRST NEW YORK REALTY, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Title: E.V.P.
By:/s/ Xxxxxxxx Xxxxx
-------------------------------
XXXXXXXX XXXXX
PRESIDENT
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Exhibit A
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Confidentiality, Inventions and Noncompete Agreement
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EXHIBIT A
Termination Certification
This is to certify that I do not have in my possession, nor have I failed
to return any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, computer programs or listings, other documents or property or any
reproductions of any of these materials belonging to Fibertech & Wireless, Inc.,
its subsidiaries, affiliates, successors or assigns (collectively, the
"Company").
I further certify that I have complied with the terms of the Company's
Confidentiality, Inventions and Noncompete Agreement signed by me, including the
reporting of any intellectual property (as defined in that Agreement) conceived
or made by me (solely or jointly with others) covered by that Agreement.
I further agree that, in compliance with the Confidentiality, Inventions
and Noncompete Agreement, I will preserve as confidential all trade secrets,
confidential knowledge, data or other proprietary information relating to
intellectual property or products, including but not limited to unannounced
products, research and development activities, requirements and specifications
of specific customers and potential customers, non-public financial information,
and quotations or proposals given to customers, including any information
disclosed to the Company in confidence by any third party.
I further agree that for two (2) years from this date, I will not (i)
solicit, induce, or encourage any of the Company's employees to leave their
employment (ii) solicit, divert or take away any clients or potential clients
of the Company or (iii) compete with the Company in violation of the
Confidentiality, Inventions and Noncompete Agreement.
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
-------------------------------
Date: 8-1-2000
__________________________
MIT
____________________________
CONFIDENTIALITY, INVENTIONS AND
NONCOMPETE AGREEMENT
CONFIDENTIALITY, INVENTIONS AND NONCOMPETE AGREEMENT (this "Agreement"),
dated 8-1-2000, made by Xxxxxx Xxxxx ("Consultant") in favor of Fibertech &
Wireless, Inc., a Delaware corporation (the "Company").
BACKGROUND
---------
WHEREAS, it is recognized by the undersigned Consultant that the
performance of his obligations under that certain Consulting Agreement by and
between the Company and Consultant, dated as of the date hereof (the
"Consulting Agreement"), is likely to give or require access to confidential
Company records and sources of information and to bring Consultant into contact
with others engaged in confidential work for the Company;
WHEREAS, it is further recognized by Consultant that is fulfilling the
obligations under the Consulting Agreement, he may create or develop
intellectual property (including inventions, ideas, discoveries, trade secrets
and copyrightable works) resulting from or arising out of the work performed by
the undersigned within the scope of his responsibilities, or with the Company's
facilities, equipment or supplies, or resulting from his use or knowledge of
confidential or trade secret information which is proprietary to the Company.
NOW THEREFORE, in consideration of the Consulting Agreement and of
prospective assignments to work on confidential matters which Consultant
acknowledges is sufficient consideration for this Agreement, Consultant agrees
to the following continuing obligations.
1. Confidentiality. During the period of the Consulting Agreement,
Consultant agrees except in the course of Consultant's duties on behalf of the
Company.
(a) to keep secret and treat confidentially all confidential
information of the Company pertaining to Company customers and prospective
customers, customer requirements, customer financial information, and other such
confidential information compiled or maintained internally by the Company
concerning its customers and prospective customers; and
(b) to keep secret and treat confidentially all confidential
information of the Company pertaining to Company products, costs, marketing
plans and contemplated activities, financial matters, research and development,
production, engineering, product design, and other such confidential information
compiled or maintained internally by the Company concerning its business,
operations and activities, by way of illustration, but not limitation,
confidential information includes inventions, processes, formulas, data,
computer programs (whether in source or object code form) and all information
relating to programs now existing or under development, computer program
listings, know-how improvements, discoveries, developments, designs, techniques,
marketing plans, strategies, forecasts, new products, unpublished financial
statements, budgets, projections, licenses, prices, costs, customer and supplier
lists and compilations of information. Confidential information does not include
information (i) which is or becomes generally known to the public (other than
through a breach of this agreement); (ii) made available to Consultant by a
person or entity not affiliated with the Company, provided that such party is
not under any obligation of confidentiality to the Company which is known to
Consultant; or (iii) experience are such that the enforcement of the
restrictions in this Section 5 will not unreasonably interfere with Consultant's
ability to earn a living.
6. Termination. In the event of termination of the Consulting Agreement
for any reason, I agree to sign and deliver the "Termination Certification"
attached to this Agreement as Exhibit A. I also agree that the Company may
give notice to my new employer or client of my duties under this Agreement.
7. Miscellaneous. (a) All of the covenants and provisions herein contained
are severable; in the event that any of said covenants or provisions shall be
held by any court of competent jurisdiction to be invalid or unenforceable, this
agreement shall be construed as if any such invalid or unenforceable covenant
or provision were not herein contained. Consultant acknowledges and agrees that
any breach by Consultant of any provision of this Agreement would cause
irreparable injury to the Company and could not be remedied solely by monetary
damages. In addition to any other available remedies in enforcing this
agreement, the Company shall be entitled to equitable relief, including, without
limitation, injuctive relief and specific performance with proof of actual
damages. No delay or omission by the Company in exercising any right under this
agreement shall operate as a waiver of that or any other right. A written waiver
or consent given by the Company on any one occasion shall be effective only in
that instance and shall not be construed as a ban or waiver of any right on any
other occasion.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware. Consultant agrees that notwithstanding
Consultant's place of residence at the time of or subsequent to any breach by
undersigned of this agreement, that he or she shall be subject to suit in the
state or Federal courts located in New York county.[????]
IN WITNESS WHEREOF, the undersigned has executed this Confidentiality,
Inventions and Noncompete Agreement as of the day and year first above written.
Consultant:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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