EXHIBIT 10.22
CONSULTING SERVICES AGREEMENT
This CONSULTING SERVICES AGREEMENT ("Agreement") is entered into
effective as of March 6, 2000, by and between InterPacket Networks, Inc., a
Delaware corporation (the "Company") and Xxxxx Xxxxxxxxx ("Consultant").
R E C I T A L S:
A. The Company is engaged in the business of managing a satellite
based broadband Internet network.
B. Consultant was formerly employed at the Company as executive
Chairman of the Board of Directors and as a member thereof until he voluntarily
resigned from both positions effective March 6, 2000.
C. The Company desires to retain the services of Consultant, on an
independent contractor basis, to provide assistance on specific projects,
including and relating to marketing, IPO road show presentations and related
matters, and Consultant desires to be retained to provide such services.
D. The Company and Consultant anticipate that this Agreement will
continue until the projects envisioned by this Agreement are completed.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein, the parties agree as follows:
ARTICLE I
GENERAL DUTIES OF CONSULTANT
1.1 APPOINTMENT AND ACCEPTANCE. The Company hereby retains Consultant
on a full-time basis to perform consulting and assistance on specific projects,
including and relating to marketing, IPO road show presentations and related
matters as designated from time to time by the Company (the "Services") and
Consultant hereby agrees to do so, in accordance with the terms and conditions
set forth in this Agreement.
1.2 MANNER OF RENDERING OF SERVICES. Consultant agrees to render the
Services and to devote his full time and attention to discharge his Services.
Consultant shall be responsible for the specific manner and means by which the
Services are carried out. Consultant agrees to devote his best efforts and
skills in rendering the Services and further agrees to furnish the Services to
the Company in a professional manner.
1.3 NATURE OF CONTRACT. Nothing contained in this Agreement or in the
relationship of the Company and Consultant shall be deemed to constitute a
partnership, joint venture, employer/employee or any other relationship, and
Consultant shall at all times be deemed an independent contractor for purposes
of this Agreement. Consultant's (and his employees and agents, if any) authority
to bind the Company is limited expressly by this Agreement and Consultant (his
employees and agents, if any) has no other express or implied ability or power
to bind the Company.
ARTICLE II
AGREEMENT TERM
2.1 TERM OF AGREEMENT. Unless terminated pursuant to Section 2.2 of
this Agreement, the term of this Agreement shall commence on the effective date
hereof and continue until June 6, 2000. Unless terminated pursuant to Section
2.2 of this Agreement, the term of this Agreement will be automatically extended
("Initial Extension") until October 6, 2000. Thereafter, the term of this
Agreement may be extended at the option of the Company and Consultant for a
period of up to two years and eight months, provided that the Company's
determination with respect to such extensions shall be based on the
determination of the Outside Member of the Board of Directors described in
Section 2.2(g) below.
For the Initial Extension, Consultant will continue to provide
services to the Company on part-time basis. It is the intention of the parties
that Consultant will provide a work statement, to be mutually agreed to by the
parties, setting forth his duties during the Initial Extension and any
additional extension(s), if applicable. The terms and conditions of the Initial
Extension and any additional extension(s) are to be negotiated to the mutual
agreement of the parties at the time of the extension.
2.2 TERMINATION FOR CAUSE. The Company shall have the right to
terminate this Agreement, upon written notice to Consultant, in the event of: a)
the death of Consultant; b) the physical or mental incapacity or disability of
Consultant which renders him unable to perform substantially all of the Services
contemplated by this Agreement for a continuous period of thirty (30) days; c)
the commission of an act of fraud, dishonesty or embezzlement by Consultant; d)
the willful neglect by Consultant in the performance of the Services
contemplated by this Agreement; e) the failure of Consultant to perform the
Services hereunder on a full-time basis during the term of this Agreement; on a
part-time basis during the Initial Extension; and, if applicable, on a mutually
agreed upon basis after the Initial Extension; f) the breach by Consultant of
any of his covenants or obligations under this Agreement; or g) a determination
made by the vote of 75% of the Outside Members of the Board of Directors that
the Company no longer needs the services of Consultant. For purposes of this
Agreement, "Outside Member of the Board of Directors" shall mean any member of
the Board of Directors who is not an executive officer or employee of the
Company.
ARTICLE III
CONSIDERATION
3.1 CONSULTANT'S FEE. In consideration of the Services to be
performed under this Agreement, Consultant shall be paid a rate of Fourteen
Thousand Five Hundred Eighty Three Dollars and Thirty Three Cents ($14,583.33)
per month. Consultant hereby agrees that he is not entitled to any other
compensation for rendering the Services contemplated hereunder. During the
Initial Extension and any additional extension(s), Consultant shall be paid a
rate of Seventeen Thousand Five Hundred Dollars ($17,500.00) per month for
full-time work or, if Consultant works on a part-time basis, on a pro-rata
basis.
Consultant shall, at the beginning of each month, submit invoices for
Services rendered for the prior month and the Company shall review such invoices
and pay the amount of approved invoices within ten (10) days following the date
they are received by the Company. All such invoices shall state the date such
Services were rendered, the amount of time incurred by Consultant in the
rendering of the Services and provide reasonable detail as to the specific
Services rendered. Such invoices shall be delivered to the Company's Chief
Financial Officer.
3.2 EXPENSES. Consultant shall not be entitled to be reimbursed for
any general and/or administrative expenses or overhead in carrying out
Consultant's duties hereunder. Consultant may submit for the approval of the
Company (which approval will be handled in accordance with the Company's
reimbursement policy) written requests for reimbursements for reasonable and
ordinary out-of-pocket expenses incurred by Consultant on behalf of the Company
that directly relate to the business and affairs of the Company including,
without limitation, all travel, accommodation, meals, entertainment and other
reasonably necessary business expenses, provided that any such request is in
writing and includes reasonable supporting documentation such as invoices or
receipts. Such requests shall be delivered to the Company's Chief Financial
Officer.
In addition, during the term of this Agreement, the Initial Extension
and any additional extension(s), while Consultant is performing Services for the
Company, the Company shall reimburse Consultant for reasonable expenses for
temporary housing, leasing and automobile and periodic air travel to and from
the San Francisco Bay Area up to a maximum of $50,000.00 per year, provided that
any such request is in writing and includes reasonable supporting documentation
such as invoices, receipts or copies of checks.
3.3 RESIDENTIAL LEASE. One month prior to the end of the term of this
Agreement, Consultant shall use reasonable and good faith efforts to sublet his
residential property located at ____________________, California ________
("Property"). Should Consultant be unable to do so, then, provided that such
assignment is permitted, Consultant shall assign and the Company shall assume
such lease and the payment of all amounts due
thereunder. Consultant shall use his best efforts to obtain any consents
required in connection with the assignment of such lease.
3.4 NO PARTICIPATION IN EMPLOYEE PLANS. Consultant acknowledges and
agrees that neither he nor his employees or agents, if any, are entitled to
participate in any employee welfare or retirement plans or programs of the
Company (including, without limitation, medical insurance, life insurance, paid
leave, vacation, sick leave, pension, profit sharing, disability) and hereby
waives all rights to participate in such plans or programs. Further, Consultant
agrees that he shall not be entitled to the payment of any amounts in lieu of
participation in such plans and programs.
3.5 TAXES. It is understood and agreed that Consultant accepts full
and exclusive liability for the payment of any and all contributions and taxes
imposed by the provisions of the Internal Revenue Code of 1986, as amended, the
Federal Social Security Act, the California Revenue and Taxation Code and the
California Unemployment Insurance law and/or any and all contributions, taxes or
penalties for unemployment insurance or old age retirement benefits, pensions or
annuities, now or hereafter imposed by the government of the United States
and/or the government of any state which are measured by the wages, salaries, or
other remuneration paid to Consultant. Consultant also understands and agrees
that unless otherwise required by law, the Company will not withhold any federal
or state income taxes or deduct any federal or state employment taxes from
amounts paid to Consultant. Consultant shall protect, indemnify, and hold the
Company harmless from and against any and all claims which may be made against
the Company because of Consultant's failure to pay any such taxes and
contributions, including related penalties and interest.
ARTICLE IV
ADDITIONAL OBLIGATIONS OF CONSULTANT
4.1 INSURANCE. Consultant shall at all times, during the performance
of this Agreement, maintain at his own expense, in full force and effect, all
types of insurance which are usually and customarily maintained by independent
contractors performing such Services in this industry.
4.2 SAFETY. Consultant agrees that all Services to be performed
hereunder shall conform to the safety standards, rules, regulations and orders
of the Occupational Safety and Health Administration of the Federal Government
and Division of Industrial Safety, State of California, all other public
authorities having jurisdiction, and the Company's rules and regulations
pertaining to safety and operations.
4.3 INDEMNIFICATION. Consultant shall protect, indemnify, and hold
the Company, its agents and employees, harmless from and against all claims,
demands, and causes of action of any nature arising from any actions,
statements, representations, action or inactions on the part of Consultant, his
employees, agents or subcontractors. Consultant shall, at his own expense,
defend all suits brought against the Company upon claims of every nature
arising from any actions, statements, representations, action or inactions on
the part of Consultant, his employees, agents or subcontractors.
4.4 USE OF COMPANY EQUIPMENT/FACILITIES. In the event that
Consultant, by rental, loan or otherwise, makes use of any of the Company's
equipment or other facilities, Consultant agrees that any such use shall be at
the sole risk of Consultant and, after Consultant has satisfied himself as to
the condition thereof, Consultant agrees to protect, indemnify, and hold the
Company harmless from and against all claims of every nature arising from the
use thereof. At the end of the term of this Agreement, Consultant will deliver
to Company all property of the Company, or any subsidiary or affiliate thereof,
including computers, computer tapes, records, lists, data, drawings, prints,
notes and written information (and all copies thereof) of whatever nature in his
possession relating to the Company, or any subsidiary or affiliate thereof, or
any of their products or services.
ARTICLE V
COVENANTS
5.1 CONFIDENTIALITY. Consultant acknowledges that, in the performance
of his duties hereunder, he will occupy a position of trust and confidence.
Consultant shall not, except as may be required to perform his duties hereunder
or as required by applicable law, for a period of two (2) years following the
termination of this Agreement or until such information shall have become public
other than by Consultant's unauthorized disclosure, disclose to others or use,
whether directly or indirectly, any Confidential Information regarding the
Company, its subsidiaries and affiliates. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers, that was learned by Consultant during the
performance of his duties hereunder for the Company, its subsidiaries and
affiliates including, without limitation, any proprietary knowledge, trade
secrets, data, formulae, information, client and customer lists and all papers,
resumes, and records (including computer records) of the documents containing
such Confidential Information. Consultant acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company,
its subsidiaries and affiliates, and that such information gives the Company a
competitive advantage. Consultant agrees to deliver or return to the Company, at
the Company's request at any time or upon termination or expiration of his
engagement hereunder or as soon thereafter as possible, (i) all documents,
computer tapes and disks, records, lists, data, drawings, prints, notes and
written information (and all copies thereof) furnished by the Company, its
subsidiaries and affiliates, or prepared by Consultant during the term of this
Agreement, and (ii) all notebooks and other data relating to research or
experiments or other work conducted by Consultant in the scope of employment.
5.2 NONCOMPETITION. During the term of this Agreement, Consultant
shall not, directly or indirectly, without the prior written consent of the
Company, provide consultative services or otherwise provide services to (whether
as an employee or a consultant, with or without pay), own, manage, operate,
join, control, participate in, or be connected with
(as a stockholder, partner or otherwise), any business, individual, partner,
firm, corporation, or other entity that is then a competitor of the Company, its
subsidiaries or affiliates (each such competitor a "Competitor of the Company");
provided that nothing herein shall prevent Consultant from the beneficial
ownership of up to 5% of the publicly traded securities of any person who may be
deemed to be a Competitor of the Company.
5.3 NON-SOLICITATION OF CUSTOMERS AND SUPPLIERS. During the term of
this Agreement and for a period of six (6) months thereafter, Consultant shall
not, directly or indirectly, influence or attempt to influence customers or
suppliers of the Company, or any of its subsidiaries or affiliates, or to divert
their business to any Competitor of the Company.
5.4 NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement
and for a period of six (6) months thereafter, Consultant agrees that Consultant
shall not, directly or indirectly, cause any person engaged or employed by the
Company or its affiliates (whether part-time or full-time and whether as an
officer, employee, consultant, agent, adviser or independent contractor) (an
"Employee") to voluntarily leave the employ of or engagement with the Company or
its affiliates, as the case may be, or to cease providing the services to or on
behalf of the Company or its affiliates, as the case may be, then provided by
such Employee. Consultant further agrees that, during the same time period, he
will not in any manner seek to engage or employ any such Employee (whether or
not for compensation) as an officer, employee, consultant, agent, adviser or
independent contractor for any person other than the Company.
5.5 WORKS AND PROPERTY. Consultant shall disclose in writing, fully,
and on a timely basis, to the Company, any and all "Works and Property" (as such
term is herein defined) realized in connection with the performance of the
services under this Agreement. Consultant acknowledges and agrees that any and
all Works and Property shall constitute the sole and exclusive property of the
Company and Consultant shall not have any rights thereto and/or any interest
therein. Consultant shall assign, transfer and convey to the Company, without
further consideration, any and all Works and Property in accordance with this
Agreement. For purposes of this Agreement, the term "Works and Property" shall
mean any and all works and property including, but not limited to, all
intellectual properties, ideas, inventions, concepts, products, improvements,
innovations, discoveries, developments, methods, formulas, techniques, software,
know-how and writings which are made, conceived, reduced to practice, developed,
written, contributed to or prepared by Consultant whether or not patentable or
copyrightable and whether made solely by Consultant or jointly with others. All
Works and Properties shall unconditionally be, become, and remain the sole and
exclusive property of the Company or any of its affiliates, successors, or
assignees, as the case may be. Consultant will promptly execute, acknowledge and
deliver all applications, oaths, declarations and further documents and will
provide such additional assistance as the Company or its counsel may deem
necessary or desirable to evidence the Company's title to such Works and
Property. This section does not apply to Works and Property which qualifies as a
non-assignable invention under Section 2870 of the California Labor Code.
5.6 INTANGIBLE PROPERTY. Consultant hereby acknowledges and agrees
that all data, designs, drawings, blue prints, tracings, sketches, plans,
layouts, specifications, models,
programs, cards, tapes, disks, printouts, writings, manuals, guides, notes and
any and all other memoranda including, without limitation, any and all written
information which may be, or has been, furnished to Consultant or which may be
produced, prepared or designed by Consultant in connection with his duties
hereunder shall be, become and remain the exclusive property of the Company or
any of its affiliates, successors, or assignees, as the case may be. Upon the
termination of this Agreement, all originals, copies and reprints in
Consultant's possession, custody or control shall be promptly surrendered and/or
delivered to the Company, and Consultant shall thereafter make no further use,
either directly or indirectly, of any such material.
5.7 INJUNCTIVE RELIEF. It is expressly agreed that the Company will
or would suffer irreparable injury if Consultant were to disclose Confidential
Information, compete with the Company or solicit customers or suppliers of the
Company in violation of this Section 5, that money damages would be insufficient
to compensate the Company and that the Company would by reason of such
competition or disclosure be entitled to injunctive relief in a court of
appropriate jurisdiction.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices hereunder shall be in writing and shall be
either served by certified or registered mail, air courier, by hand, or by
facsimile, in each case with charges prepaid. Notices shall be deemed effective
when mailed, hand delivered, or faxed. Notices to Consultant shall be given at
the address set forth in the records of the Company for Consultant. Notices to
the Company shall be addressed to its principal place of business, currently
0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Fax No. (310)
000-0000, Attn: Xxxxxxx X. Xxxxxxxxx, Esq. This notice provision may be changed
with respect to any party by such party notifying the other of such change in
accordance with the provisions of this Section.
6.2 TRANSFER OR ASSIGNMENT. Consultant shall not assign, transfer,
pledge or hypothecate the rights or obligations under this Agreement, without
the prior written approval of the Company.
6.3 AGREEMENT BINDING. This Agreement shall inure to the benefit of
and be binding upon the respective heirs, successors, personal representatives,
administrators and assigns of the parties hereto.
6.4 ATTORNEYS' FEES. In the event of any action, suit, or proceeding
arising from or based on this Agreement brought by either party hereto against
the other, the prevailing party shall be entitled to recover from the other its
reasonable attorneys' fees and disbursements in connection therewith in addition
to the costs of such action, suit or proceeding.
6.5 GOVERNING LAW. This Agreement shall be governed, interpreted and
enforced in accordance with the laws of the State of California.
6.6 ENTIRE AGREEMENT, MODIFICATION, WAIVER. This Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter contained in it and supersedes all prior and contemporaneous
representations and understandings of the parties. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
the parties. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
6.7 SEVERABILITY. If any one or more covenants, agreements or
provisions herein contained shall be held or determined for any reason
whatsoever to be invalid or unenforceable, either in whole or in part, then such
covenants, agreements or provisions, or portions thereof, shall be null and void
and shall be deemed separable from the remaining
covenants, agreements or provisions hereof and shall in no way affect the
validity of any of the other provisions hereof.
6.8 SURVIVAL. Termination of this Agreement shall not affect the
continuing obligations of Consultant under Article V (Covenants), or any other
continuing obligations of Consultant under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"Company" INTERPACKET NETWORKS, INC.
By: /s/ Xxx Xxxx
-------------------------------
Name: Xxx Xxxx
Title: Chief Executive Officer
"Consultant"
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Xxxxx Xxxxxxxxx
