EXHIBIT 10.14
MANAGEMENT AGREEMENT
This Management Agreement ("Agreement") is made and entered into as of
the day of August, 1996, by and among (i) SHARED TECHNOLOGIES FAIRCHILD, INC., a
Delaware corporation (the "Manager"), (ii) ICS COMMUNICATIONS, INC., a Delaware
corporation ("ICS"), (iii) INTERACTIVE CABLE SYSTEMS, INC., a California
corporation ("Interactive"), which is a subsidiary of ICS (Interactive and
Interactive's subsidiaries are referred to herein collectively as the
"Company"), and (iv) MCI TELECOMMUNICATIONS CORPORATION, a Delaware corporation
("MCI").
RECITALS:
The Company is engaged in the business of installing,
operating, maintaining and managing telephone, cable and other communications
systems in multi-unit residential buildings (collectively, the "Company's
Business"); and
The Company desires that the Manager provide management
personnel and services for the Company's Business, and the Manager desires and
agrees to provide the necessary personnel and services therefor; and
In order to induce the Manager to enter into this Management
Agreement, MCI has agreed to indemnify the Manager as is more specifically set
forth herein.
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF THE MANAGER.
Subject to the terms and conditions set forth herein, the Company
hereby appoints and employs the Manager as the Company's exclusive agent to
provide management services set forth in Section 4 hereof in connection with the
Company's Business. The Manager accepts the appointment as exclusive agent and
agrees to manage the Company's Business during the term of this Agreement, in
accordance with the terms and conditions hereinafter set forth.
2. TERM.
2.1 The effective date of this Agreement shall be August 1, 1996 (the
"Commencement Date"), and this Agreement shall continue in effect until (a)
terminated as provided in Section 9, or (b) the execution of a management
agreement by ICS Holdings LLC, a limited liability company
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("LLC") and the Manager for the management of LLC's business (the "LLC
Management Agreement").
3. COMPENSATION OF THE MANAGER.
3.1 Base Compensation. The Company will pay to the Manager a monthly
fee of One Million Dollars ($1,000,000) (the "Base Compensation") on August 9,
1996 and on the first day of each month thereafter until termination pursuant to
Section 9. In the event termination (computed to include all cure periods if
applicable) occurs prior to the last day of a month, the Manager shall be
entitled to retain only that pro rata portion of the Base Compensation for the
month in which termination occurs as the number of days of such month prior to
and including the date of termination bears to the total number of days of such
month. Upon termination, the Manager shall remit to Company the difference (if
any) between the amount of Base Compensation paid for such month and the amount
to which the Manager is entitled pursuant to this paragraph.
3.2 Service Fees for Additional Services. In addition to its Base
Compensation, the Manager shall also be entitled to receive from the Company as
compensation for Additional Services provided pursuant to Section 4.3 hereof the
following fees and expenses (collectively, the "Service Fees"):
a. an amount equal to $2.50 per month per billing statement
generated by the Manager for telecommunications services (regardless of the
number of telephone or facsimile lines reflected on any one billing statement)
pursuant to the Statement of Work attached hereto as Exhibit A (the "Billing
Fee"); plus
b. an amount equal to $3.00 per month per telecommunications
subscriber line monitored and maintained by the Manager pursuant to the
Statement of Work attached hereto as Exhibit B (the "Maintenance Fee") and
actual replacement costs of equipment; plus
c. an amount equal to $50.00 per hour (or pro rata portion
thereof) for changes, additions or modifications of telephone numbers, plus the
actual cost of equipment and hardware installed or provided in connection
therewith pursuant to the Statement of Work attached hereto as Exhibit C (the
"Installation Fee").
provided, however, that to the extent the Company is able to obtain from another
provider more favorable pricing (considered on comparable terms and conditions)
with respect to the services described in clauses 3.2(a), 3.2(b), and/or 3.2(c),
the Company shall so notify the Manager in writing and shall provide written
substantiation of the third-party provider's offer. The Manager shall either (1)
agree to lower the Billing Fee, the Maintenance Fee, and/or the hourly component
of the Installation Fee, as the case may be, payable under this Agreement to the
level proposed by the third-party provider; or (2) agree to allow the
third-party provider to provide the services described in clauses 3.2(a),
3.2(b), and/or 3.2(c).
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4. MANAGEMENT OF THE COMPANY'S BUSINESS.
4.1 In General. The Manager shall use reasonable efforts to manage and
direct the Company's Business in accordance with good operating practices in the
telecommunications and cable industry and shall use reasonable efforts to
achieve the objectives of the Company's Business Plan ("Business Plan"), a copy
of which is attached hereto as Exhibit E. Notwithstanding anything to the
contrary herein, the Manager hereby agrees (a) to consult with the Company and
to obtain the approval of the Company with respect to any and all "Major
Actions" (as defined in Section 4.4 below); and (b) to use reasonable efforts to
manage and direct the Company's Business in accordance with the guidelines and
requirements set forth herein and in compliance with all obligations and
covenants of the Company.
4.2 Duties of the Manager. Without limiting the generality of the
foregoing, the Manager shall be and is hereby granted the authority and has the
obligation, in accordance with the Business Plan, to supervise, direct and
oversee the following activities:
a. Hiring, compensation, supervision, and discharge, on behalf
of the Company, of all employees and personnel of the Company necessary
for the operation of the Company's Business.
b. Preparation and maintenance of accurate, full and complete
books and records for the Company, including without limitation,
accounting books and records relating to the Company's Business in
accordance with generally accepted accounting principles and the
provisions of this Agreement for accounting purposes, and in accordance
with federal income tax accounting principles utilizing the accrual
method of accounting for tax purposes; and, completion, on a timely
basis, of all reports, filings, tax returns and other documents
required of the Company by any governmental entity or person having
jurisdiction over, or authority concerning the Company's Business, with
regard to the operation of the Company's Business.
c. From time to time, negotiation of leases, licenses, service
contracts, franchise and other agreements for all aspects of the
Company's Business upon the Company's direction.
d. Procurement, maintenance and compliance with all permits,
licenses and other governmental approvals as are necessary to operate
the Company's Business.
e. Provision on a quarterly basis, or as otherwise required,
of information or preparation of financial statements or reports for
any filings with regulatory agencies, such as, but not limited to, the
Internal Revenue Service, and information for any filings with lending
institutions; and preparation of and delivery to the Company as soon as
available, and in any event within 90 days after the close of each
Fiscal Year during the term of this Agreement, the consolidated and
consolidating balance sheets
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of the Company and its subsidiaries as of the close of the Fiscal Year,
and the respective statements of income and retained earnings and
changes in financial position (on a consolidated basis) of the Company,
and its subsidiaries for the Fiscal Year, in each case setting forth in
comparative form the figures for the preceding Fiscal Year.
f. The operation of the Company's Business in the ordinary
course of business, including, without limitation, the purchase and
timing of purchase of inventory, payments of accounts payable, and
collection of accounts receivable.
g. Generally, the performance of all things necessary for the
overall management, direction and supervision of the Company's Business
and personnel in accordance with the Business Plan.
4.3 Additional Services. In addition to the Manager's duties set forth
in Sections 4.1 and 4.2 above, the Manager hereby agrees to provide the
following additional services for the compensation set forth in Section 3.2: (i)
generation and mailing of monthly billing statements for telecommunications
services; (ii) monitoring and maintenance of telecommunications lines; and (iii)
changes, additions or modifications of telephone numbers. The Manager's
responsibility with respect to each service is described in detail in Exhibits
B, C and D, respectively (collectively, the "Additional Services").
4.4 Major Actions. "Major Actions" shall mean each of the following:
a. any merger or consolidation with, or acquisition of all or
substantially all of the assets or capital stock of, another person (or
a division or other business unit of another person) or other business
combination or any dissolution and winding-up of the Company;
b. except as contemplated by the Business Plan, entering into
any material transaction or agreement, which obligates or subjects the
Company to pay a liability in excess of $100,000;
c. except as contemplated by the Business Plan, incurring any
indebtedness for borrowed money which would result, at any time after
the incurrence, in the total outstanding indebtedness of the Company
for borrowed money (excluding indebtedness incurred by the Company
pursuant to the Business Plan) exceeding $100,000;
d. except as contemplated by the Business Plan, entering into,
amending, granting any waiver with respect to or terminating any
agreement outside of the ordinary course of business to the extent that
the agreement provides for (or, pursuant to its terms, could reasonably
be expected to result in) the payment or receipt by the Company of more
than an aggregate amount of $100,000 during the term thereof;
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e. except as contemplated by the Business Plan, entering into
any agreement or transaction which has a term in excess of two years;
f. except as contemplated by the Business Plan, entering into
any employment or consulting agreement (or series of related employment
or consulting agreements with the same person) with a term of more than
one year or which provides for (or, pursuant to its terms, could
reasonably be expected to result in) payments (including any payments
pursuant to an employment or consulting agreement between the Company
and the employee or consultant) to the employee or consultant in excess
of $100,000;
g. other than this Agreement, and except as specifically
contemplated by the Business Plan from time to time, entering into any
transaction or agreement (i) with the Manager or any Affiliate of the
Manager or (ii) in which the Manager or any Affiliate of the Manager
has a substantial financial interest;
h. appointment or removal of any principal executive officer
of the Company;
i. appointing or changing the Company's independent certified
public accountants;
j. except as required by GAAP or applicable law, adopting or
changing any accounting principle;
k. commencing or settling any litigation, arbitration or
governmental proceeding which is likely to result in costs or
liabilities in excess of $100,000, or is likely to have a material
impact on the Company or the Company's Business;
l. adopting or modifying or amending in any material respect
the Business Plan;
m. except as contemplated by the Business Plan, making any
loans, investments or advances to, or guaranteeing the obligations of,
any person;
n. incorporating, forming or otherwise organizing a subsidiary
of the Company;
o. the sale of any assets of the Company having a fair market
value of $100,000 or more;
p. changing the location of the principal office of the
Company;
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q. the filing by the Company of a voluntary petition in
bankruptcy or for reorganization or for the adoption of an arrangement
or an admission seeking the relief therein provided under any existing
or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors;
r. except as contemplated by the Business Plan, permitting any
material encumbrances on any assets of the Company; or
s. entering into any options, contingent agreements or other
arrangements which if exercised or consummated in accordance with their
terms would result in an action constituting a "Major Action."
4.5 Personnel.
a. The Manager's Personnel. The Manager shall at all times,
assign and maintain sufficient employees and personnel, including, without
limitation, executive officers, office personnel, general bookkeeping staff, and
other personnel as may be required to provide proper supervision and management
of the Company and to otherwise comply with the obligations of the Manager set
forth in this Agreement. The Manager shall provide its own personnel for the
performance of the Additional Services described in Section 4.3 hereof.
b. The Company's Personnel. The Manager shall supervise the
work of, control, hire and discharge, employees of the Company. All employees of
the Company shall remain under the supervision and control of the Manager, and
all wages, salaries and other compensation paid thereto, including, without
limitation, unemployment insurance, social security, workman's compensation and
disability benefits, shall constitute operating expenses of the Company's
Business and shall be chargeable to the Company.
5. CONDUCT OF BUSINESS IN THE COMPANY'S NAME
5.1 Use of the Company's Name. The Manager shall have the right and
power to contract with third parties for, on behalf of, and in the name of the
Company or otherwise bind the Company to the extent permitted pursuant to the
terms of this Agreement. Third parties dealing with the Company shall be
entitled to rely conclusively upon the power and authority of the Manager.
5.2 Reimbursement for Liabilities of the Company. All debts and
liabilities arising in the course of the operations of the Company's Business
are and shall be the obligations of the Company, and the Manager shall not be
liable for any of the obligations by reason of its management of the Company's
Business for the Company.
6. COMPLIANCE WITH LAWS.
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6.1 The Manager shall comply with and abide by all applicable laws,
rules, regulations, requirements, orders, notices, determinations and ordinances
of any federal, state or municipal authority having jurisdiction over the
Company's Business.
6.2 With respect to any material violation of any requirements
described in the foregoing paragraph, the Manager shall promptly notify the
Company in writing of its receipt of any non-compliance notice, and the Company
shall have the right to contest or to require that the Manager contest any of
the foregoing. The Manager shall also provide the Company with a written
statement detailing the specific steps that will be taken (i) to bring the
Company into compliance with the requirement alleged to have been violated and
(ii) to prevent future violations of that requirement; provided, however, that
if the Manager is in good faith and with due diligence contesting the alleged
violation, the Manager shall not be obligated to provide the written statement
described in the foregoing clause, but shall be required only to state in its
notice that the Manager is contesting the alleged violation and the Manager's
basis therefor.
7. RIGHT OF INSPECTION
ICS, Interactive, and their respective agents, officers, accountants,
attorneys or any other party designated by ICS or Interactive, shall have the
right during reasonable business hours to examine or make extracts from any and
all books and records maintained by the Manager or its affiliates in connection
with the operation of the Company's Business in order to examine any part of the
work performed by the Manager in connection with this Agreement or for any other
purpose which the Company, in its sole discretion, shall deem necessary or
advisable. All books and records described in the foregoing sentence are
acknowledged to be the property of the Company.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of MCI, ICS and Interactive. MCI,
ICS and Interactive represent and warrant to the Manager as follows:
(A) Corporate Power. MCI is a corporation duly organized and
in good standing under the law of the State of Delaware. ICS is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and Interactive is a corporation duly organized, validly
existing and in good standing under the laws of the State of California, and
each has the full and unrestricted corporate power and corporate authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. Each of ICS and Interactive is qualified and in good
standing as a foreign corporation in every jurisdiction where the nature of its
business or the character of its properties makes qualification necessary. Each
of ICS and Interactive has the full and unrestricted corporate power and
corporate authority to own, operate and lease its properties and to carry on its
business.
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(B) Authorization. All corporate action on the part of MCI,
ICS and Interactive necessary for the authorization, execution, delivery and
performance by MCI, ICS and Interactive, respectively of this Agreement and the
consummation of the transactions contemplated herein, has been taken or will be
taken on or before August 12, 1996.
(C) Validity; Execution. This Agreement is a valid and binding
obligation of each of MCI, ICS and Interactive, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting enforcement of
creditors' rights generally. The execution, delivery and performance by each of
MCI, ICS and Interactive of this Agreement and compliance therewith will not
result in any violation of and will not conflict with, or result in a breach of
any of the terms of, or constitute a default under, any provision of state or
Federal law to which MCI, ICS or Interactive is subject, or any mortgage,
indenture, agreement, instrument, judgment, decree, order, rule or regulation or
other restriction to which MCI, ICS or Interactive is a party or by which it is
bound, or result in the creation of any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of MCI, ICS or Interactive. None of
MCI, ICS nor Interactive is subject to any law, ordinance, regulation, rule,
order, judgment, injunction, decree, charter, bylaw, contract, commitment,
lease, agreement, instrument or other restriction or any kind that would prevent
MCI's , ICS's or Interactive's consummation of this Agreement or any of the
transactions contemplated hereby without the consent of any third party, that
would require the consent of any third party to the consummation of this
Agreement or any of the transactions contemplated hereby, or that would result
in any penalty, forfeiture or other termination as a result of their
consummation (except, in each case, to the extent that consents and/or waivers
have been obtained).
8.2 The Manager's Representations and Warranties. The Manager
represents and warrants to Company as follows:
(A) Corporate Power. The Manager is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the full and unrestricted corporate power and corporate
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. The Manager is qualified and in good standing
as a foreign corporation in every jurisdiction where the nature of its business
or the character of its properties makes qualification necessary. The Manager
has the full and unrestricted corporate power and corporate authority to own,
operate and lease its properties and to carry on its business.
(B) Authorization. All corporate action on the part of the
Manager necessary for the authorization, execution, delivery and performance by
the Manager of this Agreement and the consummation of the transactions
contemplated herein has been taken or will be taken prior to August 9, 1996.
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(C) Validity; Execution. This Agreement is a valid and binding
obligation of each of the Manager, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general application affecting enforcement of creditors' rights
generally. The execution, delivery and performance by the Manager of this
Agreement and compliance therewith will not result in any violation of and will
not conflict with, or result in a breach of any of the terms of, or constitute a
default under, any provision of state or Federal law to which the Manager is
subject, or any mortgage, indenture, agreement, instrument, judgment, decree,
order, rule or regulation or other restriction to which the Manager is a party
or by which it is bound, or result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Manager.
The Manager is not subject to any law, ordinance, regulation, rule, order,
judgment, injunction, decree, charter, bylaw, contract, commitment, lease,
agreement, instrument or other restriction or any kind that would prevent the
Manager's consummation of this Agreement or any of the transactions contemplated
hereby without the consent of any third party, that would require the consent of
any third party to the consummation of this Agreement or any of the transactions
contemplated hereby, or that would result in any penalty, forfeiture or other
termination as a result of their consummation (except, in each case, to the
extent that consents and/or waivers have been obtained).
9. RIGHTS OF TERMINATION
9.1 Joint Rights of Termination. Either the Company or the Manager may
terminate this Agreement without cause upon thirty (30) days prior written
notice.
9.2 The Manager's Rights of Termination. The Manager shall have the
right to terminate this Agreement upon the occurrence of any of the following
events:
a. A material breach by MCI, ICS or Company (as the case may
be) under this Agreement; or
b. In the event Base Compensation is not paid when due.
9.3 Company's Rights of Termination. The Company shall have the right
to terminate this Agreement upon occurrence of any of the following events:
(a) willful misconduct or gross negligence by the Manager in
the performance of its duties under this Agreement or a material breach by the
Manager under this Agreement; or
(b) the dissolution, liquidation, bankruptcy or insolvency of
the Manager (including (i) the filing of a voluntary petition seeking
liquidation, reorganization, arrangement or readjustment in any form, of its
debts under Title 11 of the United States Code or any other federal or state
insolvency law, or its filing of an answer consenting to or acquiescing in the
subject petition, (ii) the making of any assignment for financing purposes, or
(iii) the expiration
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of 90 days after the filing of an (A) involuntary petition under Title 11 of the
United States Code, (B) an application for the appointment of a receiver for its
assets, or (C) an involuntary petition seeking liquidation, reorganization,
arrangement or readjustment of its debts under any other federal or state
insolvency law, provided that the same shall not have been vacated, set aside or
stayed within the 90-day period).
9.4 Exercise of the Right of Termination.
(a) Upon the occurrence of any event listed in Section 9.2, the Manager
shall not have the right to terminate this Agreement until it has given written
notice to the Company stating that in the Manager's opinion an event described
in Section 9.2 has occurred that gives the Manager the right to terminate this
Agreement; provided, however, that (i) upon the occurrence of any event listed
in Section 9.2(a), the Company shall have fifteen days following delivery of the
notice described in the foregoing clause to cure or cause to be cured the breach
under this Agreement, or a longer period of reasonable duration if the default
or breach is not capable of being cured within fifteen days and the Company is
using diligent efforts to cure the default or breach, and (ii) upon the
occurrence of any event listed in Section 9.2(b), the Company shall have one day
following delivery of the notice described in the foregoing clause to cure or
cause to be cured the failure to pay the Base Compensation (in either case, the
"Cure Period"). Upon the expiration of the Cure Period, the Manager may
terminate this Agreement unless the Company has cured or caused to be cured its
default or breach. The Company shall remain liable for amounts, if any, payable
to the Manager pursuant to Sections 3, 4 or 5 hereof for accrued but unpaid
compensation or unreimbursed expenses to the last day of the calendar month in
which termination occurs.
(b) Upon the occurrence of any event listed in Section 9.3, the Company
shall not have the right to terminate this Agreement until it has given written
notice to the Manager stating that in the Company's opinion an event listed in
Section 9.3(a) or (b) has occurred that gives the Company the right to terminate
this Agreement; provided, however, that with respect to any event described in
Section 9.3(a), the Manager shall have thirty days following delivery of the
notice described in the foregoing clause to cure its default, or a longer period
of reasonable duration if the default is not capable of being cured within
thirty days the Manager is using diligent efforts to cure the default or breach
(in either case, the "Cure Period"). The Manager shall have no Cure Period with
respect to an the occurrence of an event described in Section 9.3(b). Upon the
expiration of the Cure Period, if any, the Company may terminate this Agreement
unless the Manager has cured its default or breach.
(c) The right of termination shall be in addition to other rights and
remedies as shall be available at law or in equity.
9.5 Transition Following Termination. Following any termination of this
Agreement, (i) the Manager agrees to deliver to the Company on or before the
date the termination will be effective all books and records related to the
Company's Business which are in the possession of the Manager; and (ii) the
Manager shall use reasonable efforts to cooperate
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in connection with effecting a business like and efficient transition of the
Company's operations and management, including transition to a newly selected
manager.
10. INDEMNIFICATION; LIMITATION OF LIABILITY
MCI, ICS and Company hereby agree jointly and severally to indemnify,
protect, defend and hold the Manager harmless from and against any and all
liability, damage, cost or expense, including without limitation, court costs
and reasonable attorney's fees and expenses (but excluding costs and expenses
specifically identified herein as being payable by the Manager) incurred by the
Manager in connection with, or as the result of, the performance by the Manager
of the Manager's duties and obligations hereunder, other than any liability,
damage, cost, or expense resulting from the willful misconduct or gross
negligence of the Manager relating to the Company's Business. This Section 10
shall survive any termination or expiration of this Agreement for a period of
three years from such termination or expiration.
11. MISCELLANEOUS
11.1 Limitation of the Manager's Liability
Notwithstanding anything to the contrary in this Agreement, the Manager
shall have no liability to the Company with respect to any breach of its
obligations or covenants or any failure to perform its duties and
responsibilities hereunder except to the extent that the Manager's breach of its
obligations or failure to perform hereunder is due to the Manager's willful
misconduct or gross negligence.
11.2 Consents; Waivers. Any and all consents, amendments, agreements,
approvals or waivers provided for or permitted by this Agreement shall be in
writing. Failure on the part of any party hereto to insist upon strict
compliance by any other party, with any of the terms, covenants, or conditions
hereto shall not be deemed a waiver of the term, covenant or condition.
11.3 Successors Bound; Assignment Prohibited. This Agreement shall be
binding upon and inure to the benefit of the Company, and their respective
successors and assigns, and shall be binding and inure to the benefit of the
Manager and its permitted successors and assigns. The Manager may not assign
this Agreement except (i) with the prior written consent of the Company or (ii)
to a wholly-owned subsidiary of the Manager.
11.4 No Partnership or Joint Venture. Nothing contained in this
Agreement shall constitute or be construed to be or create a partnership or
joint venture between the Company, its successors or assigns, on the one part,
and the Manager, its successors or assigns, on the other part.
11.5 Amendments. This Agreement may not be amended without the written
consent of each of the parties hereto.
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11.6 Headings. The Article and Section headings contained herein are
for convenience of reference only and are not intended to define, limit or
describe the scope or intent of any provision of this Agreement.
11.7 Third Parties. Any provisions herein to the contrary
notwithstanding, it is agreed that none of the obligations hereunder of any
party shall run to or be enforceable by any party other than another party to
this Agreement.
11.8 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersede all prior negotiations, commitments,
understandings and agreements among the parties hereto, whether formal or
informal, in respect of any and all matters contemplated hereby.
11.9 Severability. If any term, covenant, condition or provision of
this Agreement shall be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby, and each term, covenant, condition and
provision shall be valid and be enforced to the fullest extent permitted by law.
11.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to the
choice of law principles thereof.
11.11 Notices. Except for telephonic notices permitted herein, all
notices, requests, demands and other communications hereunder ("Notices") shall
be in writing and shall be deemed to have been duly given if (i) delivered
personally or sent by registered or certified mail, return receipt requested,
first class postage prepaid and properly addressed or (ii) made by facsimile
delivered or transmitted, to the party to whom the notice is directed. All
Notices sent by mail shall be effective upon being deposited in the United
States mail in the manner prescribed above. For purposes of this Agreement, all
Notices or other communications given or made hereunder shall be as follows:
If to ICS:
ICS Communications, Inc.
520 West Arapaho Road
Richardson, Texas 75080
Tel: (214) 669-6000
Fax: (214) 669-6113
If to the Company:
Interactive Cable Systems, Inc.
520 West Arapaho Road
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Richardson, Texas 75080
Tel: (214) 669-6000
Fax: (214) 669-6113
If to Manager:
Shared Technologies Fairchild, Inc.
100 Great Meadow Road, Suite 104
Wethersfield, CT 06109
Attn: Mr. Anthony D. Autorino
Tel: (860) 258-2403
Fax: (860) 258-2455
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If to MCI:
MCI Telecommunications Corporation
1801 Pennsylvania Avenue, N.W.
Washington, DC 20006
Attn: Mr. Bill Armistead
Tel: (202) 887-2113
Fax: (202) 887-2660
11.12 Further Instruments. The parties hereto shall execute and deliver
all other appropriate supplemental agreements and other instruments, and take
any other action necessary to make this Agreement fully and legally effective,
binding and enforceable as between the parties. Any expenses incurred in
connection therewith shall be borne by each party.
11.13 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy, and all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties shall not have signed the same counterpart.
11.14 Confidentiality.
a. Maintenance of Confidentiality. Each of the parties shall, during
the Term of this Agreement and at all times thereafter, maintain in confidence
all proprietary information provided by one party to the other party in
connection with this Agreement. Each of the parties further agrees that it shall
not use the proprietary or confidential information during the Term of this
Agreement or at any time thereafter for any purpose other than the performance
of its obligations under this Agreement. Each party shall take all reasonable
measures necessary to prevent any unauthorized disclosure of the proprietary or
confidential information by any of its employees, agents or consultants.
b. Permitted Disclosures. Nothing herein shall prevent any party, or
any employee, agent or consultant of any party from using, disclosing, or
authorizing the disclosure of any information it receives in connection with
this Agreement which:
(i) is disclosed in order to comply with a judicial order
issued by a court of competent jurisdiction or with government laws or
regulations, in which event, to the extent possible, the receiving
party shall give prior written notice to the disclosing party of the
disclosure as soon as practicable and the receiving party, at the
disclosing party's expense, shall cooperate with the disclosing party
in using all reasonable efforts to obtain an appropriate protective or
comparable confidentiality order;
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(ii) is lawfully acquired by the receiving party from a source
which the receiving party reasonably believes is not under any
obligation to the disclosing party regarding disclosure of the
information;
(iii) is already known to the receiving party at the time of
receipt or disclosure, or subsequently becomes publicly available other
than through disclosure by the receiving party in violation of this
Agreement or any other obligation of confidentiality,
(iv) is approved for release by prior written authorization of
the disclosing party; or
(v) is independently developed or formulated by the receiving
party without making use of any proprietary or confidential information
disclosed in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Management
Agreement to be executed by their duly authorized officers.
SHARED TECHNOLOGIES FAIRCHILD, INC.
By:
-----------------------------
ICS COMMUNICATIONS, INC.
By:
-----------------------------
INTERACTIVE CABLE SYSTEMS, INC.
By:
-----------------------------
MCI TELECOMMUNICATIONS CORPORATION
By:
-----------------------------
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