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EXHIBIT 10.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into effective
as of May 1, 1996, by and between STAR VENDING, INC., a Nevada corporation (the
"Company") and XXXXXX XXXXXXXX, XX.
("Consultant").
RECITALS:
A. Consultant has certain skills relating to the telecommunications
industry and the business of the Company.
B. Consultant has been using such skills to benefit the Company, and
Company has been compensating Consultant for such services.
C. The parties desire to enter into an agreement to insure that the
Company shall continue to receive the benefit of Consultant's future advisory
services under the terms and conditions set forth in this Agreement.
AGREEMENTS:
NOW, THEREFORE, the parties, intending to be legally bound, do agree as
follows:
1. ENGAGEMENT OF SERVICES.
1.1 ENGAGEMENT OF CONSULTANT. The Company shall engage
Consultant and Consultant shall accept such engagement and perform the services
required of Consultant in an efficient, trustworthy and businesslike manner on
the terms and conditions, and during the Term (as defined in Section 2), set
forth in this Agreement.
1.2 SERVICES. Consultant shall perform operations and other
tasks as requested from time to time by the Chief Executive Officer, President
or the Board of Directors; and Consultant shall remain available during the Term
of this Agreement for reasonable consultation with the members of the Company's
professional staff in response to specific requests by the Company.
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2. TERM.
The term of Consultant's engagement shall commence on May 1, 1996,
and shall continue until April 30, 1998, unless earlier terminated (the "Term").
3. FEES AND EXPENSES.
3.1 MONTHLY COMPENSATION. The Company shall compensate Consultant
for services provided during the Term of this Agreement by making payments to
Consultant in the amount of $10,000 per calendar month. Such payments shall be
made no less frequently than once per month during the Term. All payments shall
be by means of check payable to Consultant sent via United States mail to
Consultant's address for notices as set forth on the signature page of this
Agreement, or such other address which Consultant shall provide in writing to
the Company from time to time.
3.2 STOCK OPTIONS. As additional consideration for Consultant's
agreement to provide the services, the Company shall grant Consultant
nonstatutory stock options to purchase a total of 100,000 shares of the
Company's common stock pursuant to the Nonstatutory Stock Option Agreement in
the form attached as Exhibit A.
3.3 REIMBURSABLE EXPENSES. The Company shall reimburse Consultant
for authorized expenses reasonably incurred by Consultant in the performance of
his duties under this Agreement, and documented in accordance with the Company's
expense reimbursement policy.
4. CONFIDENTIAL INFORMATION.
4.1 NONDISCLOSURE. Consultant agrees not to publish, reveal or
disclose, other than to an authorized employee of the Company, any information,
data or the like obtained during the performance of Consultant's duties under
this Agreement, including any information relating to the Company's business,
customers, contracts, bids, proposals, trade practices, trade secrets or
know-how, without the prior express written consent of an officer of the
Company, and that on termination of this Agreement for any reason, Consultant
shall not remove or retain without the express consent of an officer of the
Company any letters, papers, business plans, documents or other information of
any type or description pertaining to the Company or its affairs. The foregoing
provisions of this Section shall not include information data or the like which
is or becomes publicly available, enters the public domain, or is known or
becomes
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independent of this Agreement known to Consultant, or which Consultant is
required to disclose to a third party pursuant to Court order.
4.2 USE OF INFORMATION. Consultant agrees that Consultant will not,
during the term of this Agreement or for a period of three (3) years after the
term of this Agreement, directly or indirectly use or utilize, for Consultant's
own benefit or for the benefit of any other person or concern, any confidential
information of the Company, including any information of the type described in
Section 4.1, above, without the prior express written consent of an officer of
the Company.
4.3 PROPRIETARY RIGHTS. Consultant agrees to promptly disclose to
the Company all discoveries, improvements and inventions conceived or made by
Consultant resulting from or attributable to the performance of his duties under
this Agreement and that Consultant will execute such documents, disclose and
deliver all information and data, and do all other things which are necessary or
desirable in order to transfer ownership in or to impart a full understanding of
such discoveries, improvements, inventions and copyrights to the Company.
5. NO SOLICITATION OF EMPLOYEES.
Consultant shall not during the Term, and for a period of twelve
(12) months thereafter, directly or indirectly, for himself, or as agent, or on
behalf of or in conjunction with any other person, firm, partnership,
corporation or other entity, induce or entice any employee of the Company or its
affiliates to leave such engagement or cause anyone else to do so.
6. ASSIGNMENT.
Consultant shall not have any right to delegate or transfer any duty
or obligation to be performed by him to any third party, nor to assign or
transfer the right, if any, to receive payments.
7. TERMINATION.
This Agreement, the engagement of Consultant hereunder, and any
future obligation of the Company to make any payments hereunder, may be
terminated at any time:
7.1 By mutual agreement;
7.2 By the Company if Consultant dies or becomes physically or
mentally disabled (the term "disabled" as used
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herein shall mean any mental or physical illness or disability that renders the
Consultant unable to perform the essential functions of his position hereunder
for at least 30 days during any consecutive 180 day period);
7.3 By the Company, for cause, if Consultant (1) has committed
any material act of dishonesty, fraud or misrepresentation or any act of moral
turpitude; (2) is in default in the performance of Consultant's material
obligations, services or duties hereunder which default is not cured by
Consultant after reasonable notice from the Company; or (3) has failed to
execute specific instructions from the Company's Board of Directors or executive
officers, which failure is not corrected by Consultant after reasonable notice
from the Company;
7.4 By the Company, without cause, at any time during the term
of this Agreement, after ninety (90) days prior written notice to Consultant; or
7.5 By the Consultant if the Company is in default of its
material obligations or duties hereunder.
In the event of any termination under this section, Consultant
(or, in the event of Consultant's death, his estate) shall be entitled to
receive compensation accrued and payable to him as of the date of termination or
death, and all other amounts payable hereunder, including, but not limited to,
incentive compensation, shall thereupon cease.
8. REPRESENTATIONS AND WARRANTIES OF CONSULTANT.
Consultant represents and warrants that there are no
agreements or arrangements, whether written or oral, that would be breached by
Consultant upon the execution or performance of this Agreement or that would
impair or prevent Consultant from rendering services to the Company during the
Term, and that Consultant has not made and will not make any commitment or do
any act in conflict with this Agreement. Consultant acknowledges that the
Company has relied on the above representations and warranties in entering into
this Agreement. Consultant shall indemnify and hold harmless the Company and its
affiliates from all losses, costs, expenses (including, without limitation,
reasonable attorneys' fees and expenses) or liabilities for any breach of
Consultant's representations or warranties. The representations, warranties and
agreements made by Consultant in this Section shall survive the termination of
this Agreement.
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9. INDEPENDENT CONTRACTOR.
9.1 STATUS. Consultant acknowledges that, in performing his services
under this Agreement, Consultant shall be an independent contractor and not an
employee of the Company. Consultant shall not be entitled to incur any liability
or expense in the name of the Company, or, except as specifically provided in
this Agreement, to participate in any benefit programs established by the
Company for the benefit of its employees, or to be covered by Company's worker's
compensation insurance. Consultant shall be solely responsible for the means of
accomplishing the projects assigned to Consultant.
9.2 INCOME TAX WITHHOLDING. Consultant acknowledges that the Company
will not make any income tax withholdings from the fees payable to Consultant
under this Agreement. Consultant agrees to report all income paid to him for
state and federal income tax purposes, to pay all state and federal income,
social security and related taxes thereon when due, and to indemnify and hold
the Company free and harmless from any liability, damage, cost or expense
resulting from the failure of Consultant to make such tax payments when due.
10. PARTIAL INVALIDITY.
If any Term or provision of this Agreement is determined to be
invalid or unenforceable to any extent, the remainder of this Agreement shall
not be affected, and each term and provision of this Agreement shall be valid
and be enforced to the fullest extent permitted by law.
11. MISCELLANEOUS.
This Agreement, and the legal relations between the parties, shall
be governed by and construed in accordance with the laws of the State of
California. This Agreement, together with the attached Exhibit A, supersedes all
prior agreements between the parties concerning the subject matter hereof and
constitutes the entire agreement between the parties. This Agreement may be
modified only with a written instrument duly executed by each of the parties. No
waiver by any party of any breach of this Agreement shall be deemed to be a
waiver of any proceeding or succeeding breach. The headings and titles to the
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed a part of or effect the construction or interpretation or any provision.
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original, and all such counterparts together shall constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
STAR VENDING, INC., a Nevada
corporation
__________________________________ ____________________________
Date By:
Xxxx Xxxxx, President
Address for Notices:
STAR Vending, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
CONSULTANT
_______________________________
Xxxxxx Xxxxxxxx, Xx.
__________________________________
Date
Address for Notices:
c/o GH Associates
0000 Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
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EXHIBIT A