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EXHIBIT - 10.14
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT ("AGREEMENT") is made effective
January 2, 1997, by and between TELEHUB COMMUNICATIONS CORPORATION, a Nevada
corporation ("TELEHUB"), whose address is 0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000, and INTERNATIONAL TELECOMMUNICATIONS CONSULTING,
INC., a Cayman corporation, whose address is Xxx 000, Xxxxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx Xxxx Indies ("CONSULTANT").
WHEREAS, TeleHub desires to engage Consultant to provide consulting
services to TeleHub and Consultant wishes to provide such services to TeleHub
all upon the various terms and conditions as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants of the parties
contained herein, THE PARTIES AGREE AS FOLLOWS:
1. Consulting.
1.1 Consultant shall provide consulting services to TeleHub, its
subsidiaries and affiliate corporations as may be directed, in writing, by the
board of directors of TeleHub (the "BOARD") or the president of TeleHub.
1.2 TeleHub shall not request Consultant to render services within the
United States during the term of this Agreement and shall limit the hours of
consultation requested to 75 hours, including travel time, in any given month.
1.3 Consultant represents and warrants that Xxxxxxx X. Xxxxxx will remain
the President and Chief Executive Officer of Consultant as long as Xxxxxxx X.
Xxxxxx is alive.
2. Consulting Fee.
2.1 TeleHub will compensate Consultant, free of tax withholding of any kind
or amount for Consultant's services in a net amount equal to $175,000.00
annually ("CONSULTING FEE") for the duration of this Agreement. TeleHub shall
pay the Consulting Fee in equal monthly installments of $14,583.33, on the last
day of each month.
2.2 In the event that TeleHub fails to make a payment when due, Consultant
shall notify TeleHub, and TeleHub shall have 10 business days from date of
receipt of notice to pay the overdue amounts. If TeleHub fails to pay the
overdue amount within that cure period, TeleHub shall pay interest in the amount
of 1.5% per month on the past due amount.
2.3 As between TeleHub and Consultant, Consultant shall be responsible for
any and all taxes, including, but not limited to, interest, fines, or penalties
due to any taxing authority ("TAXES"). In the event that TeleHub is required to
pay any amounts for any Taxes with respect to
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actual or constructive payments to Consultant, at TeleHub's discretion, either
(i) TeleHub may offset the amount of such Taxes against future payments to
Consultant under this or any other agreement, or (ii) Consultant shall promptly
reimburse TeleHub for the amount of such Taxes upon TeleHub's request. In the
event that Consultant is required to pay any Taxes, Consultant will not seek,
nor will Consultant be entitled to any form of, reimbursement for such Taxes
from TeleHub. Neither party shall enter into any arrangement with any tax
authority to provide information about the other party, unless ordered to do so
by a court or other regulatory body having jurisdiction.
2.4 No other consulting fees will be paid to Consultant, other than
those amounts set forth in this Section 2.
3. Expenses. TeleHub shall further reimburse Consultant for reasonable
expenses incurred in the travel of Consultant's employees for the purposes of
providing consultation services, all as specifically requested and pre-approved
in writing by TeleHub and upon receipt of an itemized expense report.
4. Duration. The term of this Agreement ("TERM") shall commence on January
1, 1997, and continue through February 28, 2002. TeleHub may not cancel this
Agreement prior to the earlier of: (i) February 28, 2002; or (ii) the death of
the Consultant's president and chief executive officer.
5. Effect of Termination. All payments of any unaccrued installments of
Consulting Fees will cease upon the earlier of (i) the death of the president
and chief executive officer of Consultant, or (ii) the end of the Term.
6. Confidentiality. The relationship between TeleHub and Consultant is one
of confidence and trust. Consultant agrees that the provisions of this Section
are fair and reasonable because, as a result of its consulting relationship with
TeleHub ("CONSULTANCY"), Consultant will have access to proprietary TeleHub
information and that such information is a highly-valued asset of TeleHub.
6.1 Confidential Information. The term "CONFIDENTIAL INFORMATION" means
all information relating to TeleHub, its subsidiaries and affiliate
corporations, and its customers and suppliers considered by TeleHub to be
confidential, including, but not limited to:
6.1.1. TeleHub's plans, products, processes and personnel;
6.1.2. the nature of TeleHub's services and any area where such
services are performed or planned to be performed;
6.1.3. research, development, manufacturing, purchasing, and
engineering;
6.1.4. markets, marketing strategies, customer lists and prospect
lists;
6.1.5. merchandising, selling, pricing, tariffs or contractual
terms,
6.1.6. inventions, discoveries, concepts and ideas, whether
patentable or not, processes, methods, formulas, and
techniques, trade secrets, related improvements and
knowledge;
6.1.7. financial and accounting information;
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6.1.8. TeleHub's technology, expertise or business; and
6.1.9. any component of Confidential Information or anything
derived from Confidential Information.
TeleHub's determination that specific information constitutes Confidential
Information shall be binding, except for information already in the public
domain other than by Consultant's act and except for information which is no
longer a trade secret as defined by the Uniform Trade Secrets Act.
6.2. Non-disclosure. Consultant agrees that it shall at no time, whether
during the Consultancy or at any time thereafter, disclose or use any
Confidential Information for any purpose other than the conduct of TeleHub's
business. Upon the breach of this covenant by Consultant, TeleHub shall be
entitled without notice to obtain relief pursuant to Section 11 below.
6.3. Notice to Consultant. Consultant will immediately notify TeleHub if
Consultant learns that Confidential Information has been disclosed or is about
to be disclosed, whether by Consultant's acts, acts of third parties, law,
regulation or court order. Consultant will cooperate with TeleHub's efforts to
prevent or limit disclosure of Confidential Information.
6.4. Ownership. Any Confidential Information that is directly originated,
developed or perfected to any degree by Consultant during the Consultancy shall
be and remain the sole property of TeleHub and shall be deemed trade secrets of
TeleHub. To the extent that any Confidential Information constitutes an original
work of authorship by Consultant which is protectable by copyright, Consultant
acknowledges that such work is a "work for hire" as defined by the U.S.
Copyright Act (17 U.S.C. Section 101 et seq.).
6.5. Assignment. Consultant hereby assigns TeleHub all of its intellectual
property rights (including copyrights, patents, and trademarks) that may exist
due to its direct involvement with TeleHub.
6.6. Return of Confidential Information. Upon termination of the
Consultancy or upon request by the Board at any time, Consultant or his legal
representative shall deliver to TeleHub all original and duplicates and/or
copies of all documents, records, notebooks, computer records or media, and
similar materials containing Confidential Information then in his possession.
6.7. Further Assurances. Consultant agrees to execute such separate and
further confidentiality agreements embodying and enlarging upon the provisions
of this Section as TeleHub may reasonably request.
7. Non-solicitation.
7.1. Consultant shall not directly or indirectly:
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7.1.1. induce any employee of TeleHub to leave the employ of
TeleHub;
7.1.2. interfere with the relationship between TeleHub and any
employee;
7.1.3. hire any TeleHub employee to work for any organization of
which Consultant is an officer, director, employee,
consultant, independent contractor or owner of an equity or
other financial interest;
7.1.4. solicit or service any actual or prospective supplier,
client, customer of TeleHub who was solicited or serviced
during the Consultancy by or on behalf of TeleHub; or
7.1.5. interfere or attempt to interfere with any transaction
involving TeleHub;
until the expiration of the Covenant Period as defined in subsection 7.2. below.
7.2. Covenant Period. The covenants contained in this Section shall
continue until one year after the later of:
7.2.1. termination of the Consultancy;
7.2.2. TeleHub receives revenue from wholesale long distance
services;
7.2.3. TeleHub receives revenue from Open Access Mediation
Services; or
7.2.4. TeleHub becomes subject to the reporting requirements of
sections 12 or 15(d) of the federal Securities Exchange Act
of 1934.
(the "COVENANT PERIOD"). Subsections 7.2.2, 7.2.3, and 7.2.4 do not apply if
they have not occurred within one year after termination of the consultancy.
8. Relationships of Parties.
8.1 Both TeleHub and Consultant agree that Consultant will act as an
independent contractor in the performance of its duties under this Agreement.
Under this Agreement, Consultant is not a legal representative of TeleHub for
any purpose other than acting as Consultant, and is not granted, by the terms or
execution of this Agreement, any right or authority to assume or create any
responsibility on behalf of, or in the name of, TeleHub, or to bind TeleHub in
any manner whatsoever.
8.2 Consultant retains the right to exercise full control of and
supervision over the performance of Consultant's obligations, and full control
over the employment, direction, compensation and discharge of all of its
employees assisting in the performance of such obligations. Consultant shall be
responsible for Consultant's own acts and those of Consultant's employees,
representatives, agents, and assigns during the performance of Consultant's
obligations under this Agreement.
9. Notices. Any notice or other communication required or permitted hereunder
shall be delivered by hand, courier, or registered or certified mail, return
receipt requested, airmail postage prepaid, addressed to the president of the
receiving party at the respective address as set forth above
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(or at such other address as either party shall designate to the other in
writing for such purpose), and shall be effective upon delivery if delivered by
hand or courier, or three days after the date of mailing if delivered by mail.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement may not be assigned by either party
without the prior express written consent of the other party.
11. Injunctive Relief. Upon a material breach or threatened material breach
by Consultant of any of the provisions of Sections 6 or 7 of this Agreement,
TeleHub shall be entitled to an injunction restraining Consultant from such
breach, together with any other relief or remedy available, for such breach or
threatened breach, including the recovery of damages. Nothing herein shall be
construed as prohibiting TeleHub from pursuing any other remedies for such
breach or threatened breach. If TeleHub takes legal action to enforce the
provisions of this Agreement or to enjoin Consultant from violating this
Agreement, the prevailing party, as part of its damages, shall be entitled to
recover its legal fees and expenses incurred in such action from the losing
party.
12. Governing Law and Venue. This Agreement shall be governed by, and shall
be construed and regulated in accordance with the laws of the State of
California. Any action to enforce this Agreement shall be brought in any court
of competent jurisdiction located in or having jurisdiction over Walnut Creek,
California.
13. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such Section in the particular jurisdiction in which
such adjudication is made.
14. Waivers. A waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent, or
other, breach.
15. Amendments. No provision of this Agreement shall be altered, amended,
revoked or waived, except by an instrument in writing, signed by TeleHub and
Consultant.
16. Paragraph Headings. The paragraph headings used in this Agreement are
solely for the convenience of the parties and in no way restrict or limit the
provisions contained therein.
17. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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18. Entire Agreements. This Agreement sets forth the entire agreement and
understanding of the parties and supersedes all prior understandings,
agreements, or representations by or between the parties, whether written or
oral.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its duly authorized officer effective as of the day and year first
above written.
TeleHub: TELEHUB COMMUNICATIONS CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chief Executive Officer
Consultant: INTERNATIONAL TELECOMMUNICATIONS
CONSULTING, INC.,
a Cayman Islands corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
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