1
EXHIBIT 10(q)(iiii)
REPRESENTATIVE AGREEMENT
THIS AGREEMENT is entered into as of May 1, 1996 (the "Effective
Date") by and between LCI INTERNATIONAL TELECOM CORP. ("LCI") with offices at
8180 Greensboro Drive, Ste. 800, McLean, VA 22102 and AMERICAN COMMUNICATIONS
NETWORK, INC. ("ACN" or "Representative"), with principal offices at 100 West
Big Beaver, Suite 400, Troy, Michigan 48084.
WHEREAS, LCI is a provider of long distance and other
telecommunications services;
WHEREAS, in consideration of the promises, covenants, and agreements
set forth herein, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, Representative desires to
represent LCI in selling LCI Services (as defined herein and as may be
mutually amended from time to time); and
WHEREAS, this Agreement shall supersede (a) the Distributor Program
Agreement, dated June 10, 1993, as amended by Amendment dated
September 29, 1993 and Addendum #2 dated September 1, 1994 and (b) the
Contractor Agreement, dated January 18, 1993, as amended by Addendum
dated January 18, 1993 and Amendment No. 1 dated August 10, 1994.
NOW, THEREFORE, the parties hereto intending to be legally bound agree
as follows:
1. Conditions.
a. Definitions: "Representative" or "ACN" shall mean American
Communications Network, Inc. and its employees, agents,
parent, subsidiaries, or Affiliates. "Representative
Independent Contractors" are defined as those individuals or
entities selling for or on behalf of Representative, including
but not limited to subcontractors, distributors, and sales
agents. "Change in Control" means the events or transactions
described in Sections 5(a) and 5(d) of this Agreement [
*************************** *****] defined in Section 6(a) and
described in Sections 6, 7 and Exhibit "C" ("Change in
Control" shall not include any event or transactions described
in Sections 5(b) and 5(c) herein).
b. Representative hereby agrees to promote the sale and
solicitation of orders of the LCI Services described in
Exhibit A, attached hereto and incorporated by reference
hereof, as may be amended from time to time upon the mutual
written consent of both parties (hereinafter referred to as
"LCI Services").
c. Representative agrees that it shall operate as an independent
contractor, and neither Representative nor the Representative
independent contractors, shall be deemed to be, or treated as,
employees, agents, or franchisees of LCI. Nothing in this
Agreement or in the activities contemplated by the parties
pursuant to this Agreement shall be deemed to create a general
agency, partnership, employment, or joint venture relationship
between the parties. Each party shall be deemed to be acting
solely on its own behalf and, except as expressly stated, has
no authority to pledge the credit, incur obligation, or
perform any acts, or make any statement on behalf of the other
party. Neither party shall represent to any person or permit
any person to act upon the belief that it has any such
authority from the other party. Representative further agrees
that its employees and Representative Independent Contractors
shall not be treated as employees of LCI for purposes of the
1
CONFIDENTIAL
2
Federal Insurance Contributions Act, Social Security Act, the
Federal Unemployment Tax Act, Income Tax Withholding, or any
laws covering employees.
d. No materials may be used in the advertising or promotion of
LCI Services, unless they have been provided by LCI or have
been approved, in writing, by LCI. At least fifteen (15) days
prior to any publication, Representative shall submit to LCI
for approval, all materials to be used in advertising or
promoting LCI Services. In the event that LCI does not
respond in writing within such fifteen (15) day period,
Representative shall confirm in writing its intent to use such
advertising and/or promotional materials. The notice shall be
provided in accordance with Section 33 below, and
Representative shall have the right to use such material two
(2) business days after LCI's receipt of the second notice of
intent to use such materials.
e. REPRESENTATIVE SHALL MAKE NO REPRESENTATIONS OR WARRANTIES
RELATING TO THE LCI SERVICES EXCEPT AS SET FORTH IN SALES
LITERATURE APPROVED IN WRITING BY LCI OR AS SET FORTH IN THE
FORM OR FORMS OF ORDERS PROVIDED TO REPRESENTATIVE BY LCI, OR
AS OTHERWISE EXPRESSLY PERMITTED BY LCI. REPRESENTATIVE SHALL
INCLUDE THE REQUIREMENTS OF THIS SECTION 1(e) IN ITS STANDARD
AGREEMENT WITH ALL OF THE REPRESENTATIVE INDEPENDENT
CONTRACTORS AND STRICTLY ENFORCE THE REQUIREMENTS INCLUDING,
WITHOUT LIMITATION, PROVIDING WRITTEN NOTICE TO REPRESENTATIVE
INDEPENDENT CONTRACTORS: (A) BY COMMISSION CHECKS AND
NOTIFICATION IN FULFILLMENT ORDERS OF REPRESENTATIVE
INDIVIDUAL CONTRACTORS AND (B) REVISING THE STANDARD AGREEMENT
FOR ALL REPRESENTATIVE INDEPENDENT CONTRACTORS TO CONTAIN THE
REQUIREMENTS OF THIS SECTION 1(e).
f. In recognition that LCI may be selling and marketing its "All
America Plan" Affinity Program to a variety of organizations,
Representative agrees to identify in writing in advance to LCI
all organizations it solicits or will solicit pursuant to this
Agreement and agrees, upon written notification from LCI, not
to sell and/or market any similar affinity program to
organizations who have a relationship with LCI or to
organizations who have received verbal or written proposals
from LCI regarding its "All American Plan" Affinity Program.
g. Without liability or obligation to Representative, LCI shall
have the sole right to accept or reject all orders for LCI
Services, to fix the prices of LCI Services, establish the
terms and conditions of offering LCI Services and to
discontinue offering or selling any service.
h. Representative acknowledges and agrees that any and all
telecommunications customers solicited by Representative on
LCI's behalf shall be deemed customers of LCI and not of any
other company or entity including, without limitation,
Representative or any of its Affiliates. Accordingly, those
customers will be billed and serviced by LCI.
i. The parties have mutually agreed upon the principles and
requirements under which each party shall perform certain of
its obligations hereunder, and both parties agree that, within
thirty (30) days of the execution of this Agreement by both
parties, such
2
CONFIDENTIAL
3
principles and requirements shall be finalized in writing and
incorporated into this Agreement, as amended Exhibit "H"
(hereinafter referred to as "Performance Specifications") The
Performance Specifications shall be in addition to each
party's other obligations hereunder.
2. Term.
The Agreement shall be effective as of May 1, 1996 when executed by
both parties and approved by their respective Boards of Directors and
shall extend until April 30, 2011, unless terminated in connection
with a Change in Control or terminated pursuant to this Agreement. In
the event of a Change in Control, the Term will terminate upon the end
of the Stay Period (as defined herein) which may extend beyond April
30, 2011.
3. Commissions.
a. With the exception of revenue obtained by Representative's
acquisition of another entity that sells or solicits LCI
Services or assignment of such other entity's revenue, LCI
shall pay to Representative the following commission on
"Collected Revenue" (as defined below) for LCI Services sold
or commissionable under this Agreement:
(i) From the Effective Date of this Agreement until
December 31, 1996, LCI shall pay to Representative
the specified commission rate set forth in Exhibit
"G" for the particular LCI Services; provided,
however, that in the event of a Change in Control
prior to or on December 31, 1996, as of the legally
completed Change in Control date, all levels of
commissions for Collected Revenue will be adjusted to
[********************] The Change in Control
Commission Adjustments referenced in Section 6 and
Section 7 will not be applicable.
(ii) On or after January 1, 1997, LCI shall pay to
Representative [***************************]
commission on all Collected Revenue as provided in
Exhibit "J"; provided, however, that in the event of
Change in Control on or after January 1, 1997, the
Change in Control Commission Adjustments referenced
in Section 6 and Section 7 will be applied.
(iii) In addition, if, after April 30, 1998, Representative
has generated average monthly Collected Revenue of [
**************************] based on the average
monthly Collected Revenue for February 1998, March
1998, and April 1998, Representative
[**********************************************]
which such increase will be applied prospectively to
all Collected Revenue as of May 1, 1998.
b. All commission payments shall be made to Representative within
forty-five (45) days following the end of each month (the
"Payment Date") based upon monthly Collected Revenue. In the
event that any such commission payment is made more than sixty
(60) days following the end of a month, LCI will pay one
percent (1%) per month interest accruing from the Payment Date
until payment is made by LCI to Representative. In the event
that Representative acquires an entity currently or formerly
selling or soliciting LCI Services or is an assignee of LCI
revenues generated by another LCI sales agent or distributor,
Representative shall be paid a commission rate on LCI Services
in
3
CONFIDENTIAL
4
accordance with the agreement between LCI and the acquired
entity that was in effect on the day prior to the acquisition
by Representative ("Acquired Commission").
c. Collected Revenue: "Collected Revenue" shall be defined
herein as charges billed by LCI for LCI Services (as set forth
in Exhibit "A") actually sold by Representative at the time
such Commissions are owed, excluding LCI Services subsequently
sold to Existing Customers or ACN-Sold Customers by LCI or any
other third party, and excluding any promotional (or other)
credits granted by LCI, taxes, installation charges,
surcharges (with the exception of the per minute surcharge for
LCI 800 Geographic Routine Service, non-revenue based per call
surcharges associated with the use of LCI credit cards, and
similar surcharges), subscription fees paid to third parties
or passed-through from third parties, local loops, or sales to
"Existing Customers" (as defined herein in Section 13(a)) for
same or similar type of service (collectively referred to as
the "Adjustments"). Collected Revenue shall include Collected
Revenue from the National Exchange Carrier Association
("NECA") and the United States Independent Telephone Company
Organization ("USINTELCO") regions only to the extent that
Collected Revenue therefrom does not exceed [ **********] of
the total Collected Revenue per month. Representative will
not be paid commissions on any NECA and USINTELCO revenue
exceeding [ ****************]. Collected Revenue will also
include the revenue from ACN-Sold Customers signed up for LCI
Services initially and exclusively by Representative or
Representative Independent Contractors but subsequently
converted by LCI to another LCI Service listed in Exhibit "A".
In the event that an ACN-Sold Customer is converted to a
service, offering or promotion not identified on Exhibit "A"
or subscribes to any additional service, offering, or
promotion, the parties shall mutually agree in writing on the
commission rate, if any, for the new LCI offering or promotion
and Exhibit "G" or "J" (depending on the date) shall be
amended accordingly. LCI may pay commissions based on billed
revenue less the Adjustments and allowance for Bad Debt (as
defined below). If LCI elects this method, the limitations
stated above with respect to NECA and USINTELCO shall apply,
and the revenue for converted LCI accounts originally and
exclusively sold by Representative shall also be included.
"Bad Debt" is defined as four percent (4%) of billed revenue
as of the effective date of this Agreement and, once
determinable by LCI, the actual ACN uncollectables and local
exchange carrier (LEC) holdbacks based on a representative
sampling of a majority of the ANIs submitted by
Representative. Any adjustment to the Bad Debt percentage
based on an updated calculation shall only be applied
prospectively and, [ ************** ], will be adjusted by
LCI [*****************]. The LCI commission payments required
pursuant to this Agreement are in consideration and
anticipation of the continuing sale of LCI services and
support of LCI customer relationships by Representative, and
its Representative Independent Contractors, with the exception
of the expiration or termination of the Agreement by LCI
(excluding termination of the Agreement by LCI for
Representative's breach of the exclusivity and
non-interference provisions contained in Sections 12 and 13 of
this Agreement), and Representative termination of the
Agreement for Change in Management pursuant to Section 14.
d. After expiration of the Agreement, written mutual termination
of this Agreement, Representative's termination of the
Agreement for cause, or LCI's termination of the Agreement
without cause, LCI will continue to pay commissions to
Representative at the applicable Service commission level in
effect as of such expiration or termination date.
4
CONFIDENTIAL
5
The continuing commission payments will be based upon
Collected Revenue for current LCI customers signed up by
Representative [************************* ************
*****************]. Upon termination of this Agreement by LCI
for cause prior to the expiration of the Term, LCI shall pay
Representative Actual Downstream Commissions as defined by
Section 18 (excluding termination of the Agreement by LCI for
breach of the exclusivity and non-interference provisions
contained in Sections 12 and 13 of this Agreement). If
Representative terminates the Agreement without cause, LCI
shall have no obligation to pay Actual Downstream Commissions
or any applicable commission in effect at the time of such
termination.
4. Signing Bonus.
In consideration of the Term, exclusivity requirements, and
non-interference commitments contained in this Agreement, LCI will pay
a total payment, payable in two installments, of [**************]
(referred to as the "Initial Signing Bonus" and an "Incremental
Signing Bonus" (defined below) in Section 4(b)) as follows:
a. Initial Signing Bonus.
(i) LCI shall make the first payment of
[*****************************] plus interest at the
rate of one percent (1%) per month from the Effective
Date to the "Signing Bonus Payment Date" (defined as
five (5) business days from the later of (i) full
execution of this Agreement by both parties or the
(ii) approval of this Agreement by the LCI Board of
Directors, which determination shall be made no later
than thirty (30) days from when the Agreement is
signed by LCI), and
(ii) On January 1, 1997, LCI shall make to Representative
a second (2nd) payment of [ ****************] Dollars
with interest of one percent (1%) per month from the
Effective Date of the Agreement until January 1,
1997.
b. Incremental Signing Bonus. On or after May 1, 1998, provided
no LCI Change in Control has occurred and the Agreement has
not been terminated by either party or breached by
Representative, Representative shall receive the following
payments set forth in subsections (i) and (ii) below, subject
to the conditions of this Section 4(b) (defined as the
"Incremental Signing Bonus"):
(i) The [ *********************] of Representative's
Collected Revenue ("Actual Amount") less
[********************************************
*************] (the "Target Amount") calculated in
accordance with Exhibit "B". In the event that the
Actual Amount is greater than the Target Amount, LCI
shall pay to Representative the difference between
the Actual Amount and the Target Amount plus interest
of one percent (1%) per month from the Effective Date
of the Agreement to the "Incremental Signing Bonus
Payout Date" (defined below), in accordance with
Exhibit "B". In the alternative, if Representative's
Actual Amount is less than the Target Amount,
Representative shall pay to LCI the difference plus
interest between the Actual Amount and the Target
Amount plus interest of one percent (1%) from the
Effective Date of the Agreement to the "Incremental
Signing Bonus Payout Date. The "Incremental Signing
Bonus Payout Date" is defined as June 15, 1998.
5
CONFIDENTIAL
6
(ii) In addition, if, after April 30, 1998, Representative
has generated average monthly Collected Revenue of
[*******************]based on the average monthly
Collected Revenue for February 1998, March 1998, and
April 1998, Representative will receive
[**********************] paid to Representative no
later than the Incremental Signing Bonus Payout Date.
5. Change in Control.
a. In the event that (i) LCI International, Inc. ("LCII") sells
or otherwise transfers for value all or substantially all of
its assets to any Person or Group, other than to (a) one or
more members of LCII's Control Group, or (b) Warburg Pincus &
Company ("Warburg") or an Affiliate of Warburg; or (ii) LCII
is purchased by or merges or consolidates with or into any
Person or Persons, other than (a) one or more members of
LCII's Control Group, or (b) Warburg or an Affiliate of
Warburg, and immediately after giving effect to such purchase,
merger or consolidation the stockholders of LCII immediately
prior to such purchase, merger or consolidation do not
beneficially own immediately after such purchase, merger or
consolidation at least 50% of the total number of Equity
Securities of the successor in such purchase, merger or
consolidation, then, in any such event, Representative shall
[**********************] as described in Section 6
[************************************] or Section 7 for a
[************************************************************]
this Section 5(a) shall be [*********************************
*******************] Section 5(d) herein.
b. In the event that (i) LCII or any member of LCII's Control
Group sells or otherwise transfers for value in a single
transaction or a series of transactions more than 50% of the
Equity Securities of any member of LCII's Control Group to any
Person or Group, other than (a) one or more members of LCII's
Control Group, or (b) Warburg or an Affiliate of Warburg; or
(ii) any member of LCII's Control Group sells or otherwise
transfers for value in a single transaction or a series of
transactions all or substantially all of its assets to any
Person or Group, other than to (a) one or more members of
LCII's Control Group, or (b) Warburg or an Affiliate of
Warburg; or (iii) any member of the LCII Control Group is
purchased by or merges or consolidates with or into any Person
or Persons, other than (a) one or more members of LCII's
Control Group, or (b) Warburg or an Affiliate of Warburg, and
immediately after giving effect to such purchase, merger or
consolidation LCII and/or one or more members of the LCII
Control Group do not beneficially own in the aggregate at
least 50% of the Equity Securities of the successor in such
purchase, merger or consolidation, (hereinafter referred to as
"Partial Divestiture Event") then, in such event,
Representative [***********************************
************************** ] prior to the occurrence of
the Partial Divestiture Event from the ACN-Sold Customers of
the member of LCII's Control Group referenced in this Section
5(b) [*******************************************************
***************].The intent of this Section 5(b) is to
[**************************** *************************** ] in
the event that LCII or any member of LCII's Control Group
effects a Partial Divestiture Event described in any of the
foregoing clauses (i), (ii) or (iii), such as, for example,
(1) a transaction in which LCII or one of its subsidiaries (or
any subsidiary or a subsidiary of LCII) sells or otherwise
transfers for value more than 50% of the Equity Securities of
one of its subsidiaries or (2) a
6
CONFIDENTIAL
7
transaction in which a subsidiary of LCII (or any subsidiary
or a subsidiary of LCII) sells or otherwise transfers for
value all or substantially all of its assets or merges or
consolidates with or into any Person or Persons, other than to
or with Warburg or an Affiliate of Warburg or another
subsidiary (or a subsidiary of another subsidiary) of LCII.
If a Partial Divestiture Event occurs, Representative shall be
released from the exclusivity requirement, as set forth in
Section 12, for the specific LCI Services (included in the
Collected Revenue) in the specific geographic area(s) used by
the ACN-Sold Customers of the member of LCII's Control Group
sold or transferred for value in accordance with the Partial
Divestiture Event. Further, [ **************************
******************************** ] this Section 5(b),
[*************************************************************
***************************************************************
**************************************************** *****].
Subject to the sentence immediately hereafter, the parties
acknowledge and agree that [********************
*************************************** ]. Any
[************************************************************
*********************************************************** ]
this Section 5(b[********************************************
***************************************************************
**************************************************** ******].
In addition, the revenue from the ACN-Sold Customers of the
member of LCII's Control Group sold or transferred for value
in the Partial Divestiture Event shall be excluded from
Collected Revenue (as defined in Section 3(c)) and the payment
of commissions hereunder.
c. In the event that LCII or any member of LCII's Control Group
sells or otherwise transfers for value in a single transaction
or a series of transactions to a Person or Group, other than
to one or more members of LCII's Control Group, any of the
ACN-Sold Customers (hereinafter referred to as an "Asset
Divestiture Event") then Representative shall
[**************************************************************
*** ********************] prior to the occurrence of the Asset
Divestiture Event for such specific ACN-Sold Customers
involved in such sale or transaction [***********************
****************************************].
The[*********************************************************
***************************************************]. If an
Asset Divestiture Event occurs, Representative shall be
released from the exclusivity requirement, as set forth in
Section 12, for the specific LCI Services (included in the
Collected Revenue) in the specific geographic area(s) used by
the ACN-Sold Customers involved in such Asset Divestiture
Event. Further, even if an [***************************] this
Agreement[*****************************************************
******** * *************************************]. Subject to
the sentence immediately hereafter, the parties acknowledge
and agree that [******************** ******************]. Any
[*****************************************] this Section 5(c)
[***********************************************************].
In addition, the revenue from the ACN-Sold Customers sold or
transferred for value in an Asset Divestiture Event shall be
excluded from Collected Revenue (as defined in Section 3(c))
and the payment of commissions hereunder.
d. In the event of a stock repurchase or buyback program by LCII
resulting in any Person or Group being the beneficial owner in
the aggregate of at least 50% of the Equity Securities of LCII
for a period of more than ninety (90) days, then, in such
event, Representative
[**********************************************************
***************************************************************
**********************************]. This provision shall
not apply to (a) one (1) or more
7
CONFIDENTIAL
8
members of LCII's Control Group or (b) Warburg or an Affiliate
of Warburg. Any [***
***************************************************************
****************************************************
**********************].
e. For purposes of this Section 5, the following terms shall be
defined as set forth below:
(i) "Affiliate" of any Person means any other Person
controlling, controlled by or under common control
with such Person, where control is defined as the
power to influence the management and conduct the
affairs of such Person;
(ii) "Equity Securities" means (a) in the case of a
corporation, the shares of capital stock entitled to
vote generally in the election of directors; (b) in
the case of a limited liability company, membership
interests therein entitled to profits or losses or
distributions upon the dissolution and liquidation of
such limited liability company that are not fixed in
amount or percentage (other than by reference to the
percentage interest of a member of such limited
liability company); and (c) in the case of a
partnership, joint venture, association, trust or
other entity, the equity interests therein entitled
to profits or losses or distributions upon the
dissolution and liquidation of the entity that are
not fixed in amount or percentage (other than by
reference to the percentage interest of a partner,
member, beneficiary of or other participant in such
entity);
(iii) "Group" means any two or more Persons acting together
for the purposes of effecting any transaction
referred to in this Section 5;
(iv) "LCII's Control Group" means any corporation, limited
liability company, partnership, joint venture or
other entity in which LCII (a) directly owns at least
50% of the Equity Securities, or (b) indirectly,
through one or more other Persons, owns at least 50%
of the Equity Securities of such entity;
(v) "Person" means any individual, partnership, joint
venture, association, limited liability company,
trust, corporation or other entity.
6.
[**********************************************************************
*******************************].
a. In the event of [*****************] (as defined herein)
[**************] Representative
[**********************************************************
****] which will
[*****************************************************] for
the [********************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
************************************************* ]. Further,
Representative will [ ****************************************
***************************************************************
**************************************************************
*************************************]. Upon the beginning
8
CONFIDENTIAL
9
of the Stay Period (defined above), Representative's various
commission levels will be reduced ("Change in Control
Commission Adjustments") by [********
******************************] on Collected Revenue. For
example:
Commission rate for Collected Revenue prior to
[*******************] for certain LCI Services: [****]
Change in Control Commissions Adjustment: [********]
New Commission Rate as of the beginning of the Stay Period:
[*******************]
b. LCI may
[*************************************************************
********************].
7.
[**********************************************************************
***** **************************************]
In the event of [*************] (as defined above in Paragraph 5)
[********************] Representative [****************************
********************************************************] pursuant to
Paragraph 4 (b)(ii) above) [*****************************************
*********************************************************************
******* ] (as defined herein) [*************************************
*********************************************************************
**************************].The [************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
**************************************] or, in the alternative,
[****** *********************] if [**********************************
*****] after [**********************************] as provided in
Paragraph 3(a)(iii)above. [******************************************
*********************************************************************
*******************************************] provided in Section 6
above.
9
CONFIDENTIAL
10
8. Letters of Authorization.
a. Representative shall only submit to LCI primary interexchange
carrier (PIC) letters of authorization ("LOAs") that are
compliant in all respects with applicable FCC regulations.
Further, Representative shall only use LOAs that have been
approved and authorized for current use by LCI. In the event
a local exchange carrier (LEC) or any regulatory or judicial
entity assesses or levies against LCI or any LCI Affiliate
(defined herein as LCII, any entity controlled by LCII or its
direct or indirect subsidiaries and any entity under common
control with LCII or its direct or indirect subsidiaries) any
charges, fines, or forfeitures for improper or invalid PIC
authorizations relating to any LCI Services ordered through or
by Representative (collectively referred to as "Fines"),
Representative shall promptly reimburse LCI or LCI Affiliate
for all Fines plus an LCI management fee not to exceed
[********************] per customer telephone number
ordered through or by Representative that is deemed to lack
proper PIC authorization and/or is not compliant with 47 CFR
64.1150 of the FCC rules or such amended rules that might be
issued by the FCC or other regulatory agency in the future
(defined herein as "Fees"). LCI will make best efforts to
provide Representative with a copy of such amended rules
relating to PIC authorizations and LOAs. The payment for any
such Fees and Fines may be withheld by LCI from otherwise
payable commissions as follows: LCI shall have the right to
offset all Fees and Fines against payable commissions up to
[***********************] of such Fine or Fee per occurrence.
Any Fees and Fines above the
[**********************************] threshold shall be offset
against Representative's payable commissions by fifty percent
(50%) and the fifty percent (50%) remaining balance will be
paid (not offset against Representative's payable commissions)
by Representative to LCI within thirty (30) days of written
notification from LCI. Upon the request of LCI,
Representative shall promptly and in good faith provide to
LCI, LCI Affiliate, or the LEC, at Representative's expense,
any documentation required by the LEC or regulatory agency
regarding PIC selections or authorizations for customers sold
hereunder. In addition, Representative shall completely and
in good faith cooperate with LCI and all LEC's and regulatory
and enforcement agencies in attempting to resolve all PIC
selection and authorization and related disputes including,
but not limited to, promptly responding to inquiries or
complaints from governmental bodies or private individuals or
entities and providing original LOAs and order forms
containing customer signatures. Further LCI, in its sole
discretion and without obligation or liability for possible or
actual reduction of commission payments to Representative, may
suspend the acceptance of orders by Representative in any
state where there is any actual or threatened investigation or
litigation involving the sales practices or marketing
activities of Representative or any Representative Independent
Contractor. The obligations under this Section are in
addition to Representative's obligations under Section 10
below.
b. In the event of a dispute between the parties regarding
liability under this Section, the parties shall attempt to
resolve such dispute prior to initiating Arbitration.
9. Trademarks and Tradenames.
Representative shall sell the LCI Services under the trademarks and
tradenames of LCI or LCI Affiliate only as approved in writing in
advance by LCI. Representative, its Affiliates (defined herein as
Representative's parent company, any entity in which Representative
directly or
10
CONFIDENTIAL
11
indirectly owns an equity or partnership interest, or any entity under
common control with Representative, its parent company, or its direct
or indirect subsidiaries) and Representative Independent Contractors
shall not use, in its business, trade or corporate name the name
"LCI", any name of a service provided by LCI or any LCI Affiliate, the
LCI trademark or service mark of LCI or LCI Affiliate, or any LCI or
LCI Affiliate's symbol, registered mark, or other intellectual
property without the prior, express written consent of LCI.
Representative shall actively and promptly enforce the requirements of
this Section 9 against any misuse or infringement by Representative,
its Affiliates, and/or Representative Independent Contractors
including, without limitation, taking prompt disciplinary action
against such person or entity, terminating the distributorship or
Representative Independent Contractor relationship, and/or withholding
such person's or entity's commissions. In addition, upon request from
LCI, Representative shall promptly cooperate with LCI in connection
with having any third party discontinue any unauthorized use of LCI's
or LCI Affiliate's trademarks or tradenames including, without
limitation, unauthorized use of any LCI registered mark on the
Internet.
10. Warranties and Representations.
Representative hereby warrants and covenants that, during the Term
hereof, it, and all of its employees and agents, shall abide by the
following terms and conditions:
a. Representative shall notify LCI in writing within five (5)
business days if it becomes aware of any actual or threatened
investigation or litigation of Representative's or any
Representative Independent Contractor's sales or marketing
activities by any federal, state, or local governmental body
or agency or Representative becomes subject to or enters into
any consent decree, judgment, injunction, restraining order,
settlement agreement, or agreement or order relating to the
conduct of its business;
b. Representative is now in compliance with and will, for the
duration of the Term, comply in all material respects with all
foreign and domestic laws, statutes, ordinances, rules,
regulations, and orders applicable and material to this
Agreement and performance of its obligations hereunder
including, without limitation, FCC rules and regulations
pertaining to presubscription of customers and LOAs;
c. Representative and its Representative Independent Contractors
shall sell LCI Services only to those potential customers who
meet all eligibility requirements as set forth in LCI's
applicable state and federal tariffs (the "Tariff"). Further,
throughout the Term hereof, Representative shall use best
efforts to ensure that the LCI Services sold by Representative
and its Representative Independent Contractors are offered in
accordance with the rates, terms and conditions set forth in
the Tariff and all sales representations and activities remain
in full compliance with all applicable laws, regulations, and
orders of any court or regulatory agency. Representative
shall actively and continuously provide formal training and
updated information to its employees and Representative
Independent Contractors in order to ensure compliance with
this commitment;
d. Representative and its Representative Independent Contractors
agree to use only those means of marketing and selling of LCI
Services that are acceptable to LCI. Representative
specifically acknowledges that solicitation by direct mail,
telemarketing, barter arrangement, sweepstakes, contests, or
drawings are not permitted by
11
CONFIDENTIAL
12
Representative or its Representative Independent Contractors,
without prior written approval of LCI;
e. Representative is and will continue to be duly organized,
validly existing and in good standing under the laws of
Michigan and is and will continue to be authorized to do
business in the jurisdictions in which the ownership of its
properties or assets or conduct of its business legally so
requires;
f. Representative agrees that the consummation of this Agreement
is not in conflict in any respect with, and will not
constitute a default under, any other agreements or judicial
or administrative orders to which Representative is a party or
by which it may be bound; and
g. Representative is not in default or otherwise in
non-compliance in any material respect with any contract,
agreement or other arrangement for goods, services or
technology, the termination of which might reasonably be
expected to have a material adverse effect on Representative's
ability to perform any of its obligations hereunder.
11. LCI Customers.
Representative agrees that LCI has the right to market all of its
products and services to Existing Customers (as defined below) and
customers sold or solicited by Representative. No consent is needed
from Representative in order for LCI to contact these customers
directly as these are LCI customers, and LCI shall remain responsible
for all aspects of the customer relationship.
12. Exclusivity and Non-Competition.
a. Representative and its Representative Independent Contractors
shall, throughout the Term and subject to Sections 12(c) and
12(d) below, continuously and actively market and sell LCI
local and long distance services, regardless of the
facilities used, (including, without limitation, inbound and
outbound, switched and dedicated, interLATA, intraLATA, and
interexchange services) on an exclusive basis. In
consideration of the payments and commitments made by LCI to
Representative, Representative and its Representative
Independent Contractor shall not, directly or indirectly, sell
to or solicit local and/or long distance services, regardless
of the facilities used, (including, without limitation,
inbound and outbound, switched and dedicated, interLATA,
intraLATA, and interexchange services or related services) on
behalf of itself or any other carrier, entity or individual
including, but not limited to, any future or existing
Affiliate and shall not compete, directly or indirectly,
against LCI or any LCI Affiliate in any manner during the Term
within the Restricted Territory, defined as everywhere within
the United States (collectively the "Forbidden Activities");
provided, however, that, if LCI terminates this Agreement as a
result of a breach by Representative, Representative shall not
engage in any of the Forbidden Activities within the
Restricted Territory for a period of eighteen (18) months from
the effective date of the termination.
b. Representative shall, as a material term of this Agreement,
require its executives and any future employees with duties
similar to those of the executives (identified in Exhibit "D")
(the "Executives), to sign a Non-Compete and Non-Solicitation
Agreement with
12
CONFIDENTIAL
13
Representative (as provided in Exhibit "E" ) within thirty
(30) days of the execution of this Agreement by both parties
or prior to the hiring of the Executives and shall provide a
fully executed copy of the Non-Compete and Non-Solicitation
Agreements to LCI within ten (10) days of their execution.
Representative agrees that LCI and LCI Affiliates shall be
deemed third party beneficiaries of each such executed
Non-Compete and Non-Solicitation Agreement. Representative
shall promptly and strictly enforce the terms and conditions
of all Non-Compete and Non-Solicitation Agreements entered
into with any of the Executives and shall take no action which
may limit, restrict or preclude the full and complete
enforcement of any such Non-Compete and Non-Solicitation
Agreement.
c. The parties acknowledge that the services specifically
identified in Exhibit "F" are expressly excluded from the
exclusivity requirements of this Section 12 (a) above
("Non-Exclusive Services"). Within thirty (30) days after
receipt of a written request by Representative to add to the
Non-Exclusive Services list, Representative and LCI agree to
negotiate in good faith to determine whether to grant
Representative's request. If the parties cannot reach
agreement to determine whether Representative's request will
result in a breach of Section 12(a) above, the parties shall
have the issue decided through arbitration (as set forth in
Section 22) and Representative shall not actively market any
requested new service or product pending the final resolution
of any such arbitration.
d. The parties also agree that Representative's
[****************************** *****************] of this
Section 12 until LCI [*************************
***************************************************************
******** *********] In the event that Representative
[*************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
**************************************************************
***************************************************************
************************] In order to [***********************
***************************************************************
**************************************************************
***************************************************************
**********************************************].
e. In consideration of the payments by LCI to Representative
hereunder, LCI shall have a Right of First Refusal to acquire
Representative's cellular and/or paging customer base in
accordance with the procedures of Section 15. In the event
that LCI elects to purchase Representative's cellular and/or
paging customer base, paging and cellular services will be
deleted from Exhibit "F" and the exclusivity requirement
contained herein shall apply to such services. Under no
circumstances shall the cellular and/or paging services
revenue purchased by LCI be included in the definition of
Collected Revenue.
13
CONFIDENTIAL
14
13. Non-Interference.
a. During this Agreement, Representative shall not sell any
telecommunications services similar to LCI Services in type or
manner to any existing LCI customers not originally sold by
Representative ("Existing Customers"). LCI shall have no
obligation to pay commission for any sale in breach of
Representative's obligations under this Section and shall have
the right to "chargeback" Representative the amount of
commissions that may have been paid for any sales in breach of
Representative's obligations under this Section.
b. In the event this Agreement is terminated for cause by LCI for
the grounds set forth in Section 17 below, expires, or a
Change in Control (as defined herein) occurs, Representative
further covenants and agrees that, for a period of two (2)
years from the effective date of the termination, expiration,
or Change in Control, it shall not, directly or indirectly,
divert, entice, knowingly call upon or actually sell or
solicit, or take away Existing Customers or any ACN-Sold
Customers (defined as LCI customers whose usage of LCI
Services is included in the calculation of Collected Revenue)
(such activities are collectively referred to herein as
"Solicitation"). Throughout the Term, Representative shall,
both through Representative's policies and procedures and in
the Representative Individual Contractor agreements with
Representative, retain in full force and effect and strictly
and uniformly enforce the covenant of no Solicitation and the
protection of competitively sensitive information pertaining
to ACN-Sold Customers and Existing Customers. Within thirty
(30) days of the execution of this Agreement, Representative
shall revise its policies and procedures to comply with the
covenants and obligations of this Section 13(b).
Subsequently, Representative shall promptly and in good faith
submit such policies and procedures to LCI for review and
comment.
c. Further, Representative and LCI acknowledge and agree that LCI
shall be a third party beneficiary pertaining to the
enforcement of the covenant of no Solicitation and the
protection of such ACN Proprietary and Confidential
Information and LCI Proprietary and Confidential Information
as set forth in Exhibit "I". LCI, as such third party
beneficiary, shall be conferred with the rights in its sole
discretion, to take any action or pursue any remedy that it
deems necessary in order to enforce the provisions hereof as
to which it would be entitled to if it were a party executing
the Representative Individual Contractor agreements.
d. Upon the expiration or termination of this Agreement, the
parties acknowledge and agree that the provisions of Sections
13(a) and 13(b) shall not apply to conversion of any active
Representative Independent Contractors who is also a customer
at the time of such expiration or termination of LCI to an LCI
competitor.
14. Change in Management.
a. At Representative's discretion, if a Change in Management
occurs (as defined below): (i) this Agreement will be
terminated and (ii) the exclusivity and non-competition
requirement of Section 12 shall terminate upon the legally
completed Change in Management Date (defined below). In the
event that Representative elects to terminate this Agreement
because of a Change in Management of LCI, the Commissions for
all Collected Revenue paid to Representative as of the Change
in Management Date will be reduced by [ ****************]
(For example, commissions paid by LCI of [*******
14
CONFIDENTIAL
15
********************] on certain LCI Services will be reduced
to [***************]
b. "Change in Management" is defined as a transaction or series
of transactions or events which result in (i) a person or
entity beneficially owning (as defined in Rule 13(d)(2)(B)
under Section 13 of the Securities and Exchange Act of 1934)
twenty percent (20%) or more of the outstanding voting
securities of LCI entitled to vote in the election of
Directors ("Voting Securities") (other than Warburg or Warburg
Affiliates), and (ii) if, within a six (6) month period, of
such transaction or transactions described herein, all three
(3) of the following LCI officers employed as of the Change of
Management Date cease to be employed with LCI in the following
capacities or capacities similar thereto for any reason other
than death, disability, or retirement after age 62: Chairman,
President, and Chief Financial Officer.
c. "Change in Management Date" is defined as the date that
Representative provides LCI with written notice of its
election to terminate this Agreement because of the Change in
Management (as defined in Section 14(b) above); provided such
notice must be received by LCI within six (6) months of the
Change in Management.
15. Right of First Refusal.
During the Term of this Agreement, in the event Representative desires
to sell its cellular and/or paging customer base (the "Transaction")
upon receipt of a bone fide third party offer that Representative is
prepared to accept for the Transaction, Representative shall provide
LCI written notice setting forth all material terms and conditions of
the offer for the Transaction ("the Offer"). LCI shall have a right
of first refusal to purchase or accept the Offer, as the case may be,
upon the terms and conditions specified in the Offer, or upon
economically equivalent terms and conditions. LCI must give
Representative written notice of its election to exercise its right of
first refusal no later than thirty (30) days following its receipt of
Representative's notice provided that, in the event the Offer received
by Representative is conditioned upon a response of less than thirty
(30) days, LCI shall be required to provide written notification to
Representative of its exercise of the right of first refusal by such
lesser time period as specified by the Offer but, in no event, shall
LCI have less than fifteen (15) business days. In the event that LCI
either fails to give timely notice, or gives notice that it declines
to exercise its right, Representative may thereafter proceed with the
Transaction, as applicable, with the proposed buyer, but only on
terms which do not materially vary from those presented to LCI. If
the terms and conditions of the Transaction changes with the proposed
buyer, LCI will receive a renewed Right of First Refusal from
Representative.
In the event that Representative determines to proceed with a
Transaction but has not received any bona fide Offer, Representative
shall notify LCI of its desire to seek a buyer at least sixty (60)
days prior to making a Transaction available to any third party. In
the event that a Letter of Intent and other written agreement is not
executed by Representative and/or LCI within such sixty (60) day
period after each of the parties has negotiated in good faith to
consummate the Transaction, thereafter, Representative may enter into
negotiations with a third party in which event, the right of first
refusal described above shall not apply. If the Transaction offered
to a third party, however, is not materially similar to that made
available to LCI, LCI shall have an opportunity to re-bid.
Representative shall not accept an offer that has materially similar
or less favorable terms without giving LCI an opportunity to re-bid.
15
CONFIDENTIAL
16
16. Non-Hiring Notice of or Solicitation of Employees.
During the Term hereof and for a period of two (2) years after
termination or expiration of this Agreement, neither party shall
solicit or offer employment to any employee of the party without prior
written notification to the other party.
17. Termination.
A. Termination Without a Cure Period
1. Either party may terminate this Agreement immediately at any
time by written notice if any of the following occurs:
a. The other party ceases to do business as a going concern other
than following a merger, consolidation or other similar
transaction with an entity controlled by or under common
control with such party;
b. The other party makes a general assignment for the benefit of
creditors;
c. The other party is unable, or admits in writing to its
inability, to pay its debts as they become due;
d. The other party is adjudicated to be insolvent, bankrupt, or
is in receivership;
e. The other party authorizes, applies for, or consents to the
appointment of a trustee or liquidator for the sale, transfer,
or assignment of all or a substantial portion of its assets,
or has proceedings seeking such appointment commenced against
it which are not terminated within sixty (60) days of such
commencement;
f. The other party files a voluntary petition under any
bankruptcy or insolvency law or files a voluntary petition
under the reorganization or arrangement provisions of the laws
of the United States pertaining to bankruptcy or any similar
law of any jurisdiction or has proceedings under any such law
instituted against it which are not terminated within sixty
(60) days of such commencement;
g. The other party has any substantial part of its property
subjected to any levy, seizure, assignment or sale for or by
any creditor or governmental agency without such levy,
seizure, assignment or sale being released, lifted, reversed
or satisfied within ten (10) days;
2. LCI may terminate this Agreement immediately at any time by
written notice if any of the following occurs:
a. Representative intentionally fails (except in limited
instances where Representative has withheld commission
payments from Representative Independent Contractors due to a
good faith dispute or a violation of Representative's policies
and/or procedures) or is unable to pay or is knowingly more
than forty-five (45) days late in paying its Representative
Independent Contractors the required percentage and amount of
16
CONFIDENTIAL
17
commissions in accordance with its contractual obligations to
such individuals and/or entities. This provision does not
apply to commission payments owed to its Representative
Independent Contractors during the first ninety (90) days of
their affiliation with Representative; or
b. Any willful or intentional action by Representative which
adversely affects LCI's reputation in the marketplace and is
in any way related to the sale or marketing of LCI service; or
c. Three (3) of the five (5) Executives ("Key Persons") cease to
be actively employed on a full-time basis by Representative
within any six (6) month period. The Key Persons are:
[**************************************************************
******************************************]
If a court of competent jurisdiction determines, under applicable bankruptcy
laws, that this Agreement may not be terminated by LCI pursuant to this Section
17, Representative agrees that, upon such ruling, LCI shall only be obligated
to pay the Actual Paid Downstream Commissions in accordance with Section 18
during the remainder of the Term.
B. Termination With A Thirty (30) Day Cure Period.
1. Termination By Either Party With A Thirty (30) Day Cure Period.
Either party may terminate this Agreement if the other party is in
material breach and/or negligently or intentionally fails to perform
the mutually agreed upon Performance Specifications provided in
Exhibit "H" herein, as may be amended by the parties in writing, and
the defaulting party fails to cure such breach and/or non-performance
within thirty (30) days after receiving written notice from the
non-defaulting party.
2. Termination By LCI With A Thirty (30) Day Cure Period.
Representative shall not engage in any transaction or act that,
directly or indirectly, shall result in a breach of any of the
Individual Non-Competition and Solicitation Agreements set forth in
Exhibit "E", Section 12 and/or 13, and Representative fails to cure
such breach within thirty (30) days of receiving written notice from
LCI.
18. Remedies.
(a) (i) Except for LCI's termination of this Agreement for
breach of the exclusivity and/or non-interference
requirements set forth in Sections 12, 13, and/or
17(B)(2), respectively, LCI's obligation to pay Actual
Paid Downstream Commissions is subject to and
contingent upon Representative's full compliance with
Section 17(2)(a) above. With the exception of the
termination of this Agreement by LCI because of
Representative's breach of the exclusivity and/or
non-interference obligations contained in Sections 12,
13, and 17(B)(2) of this Agreement, in the event that
LCI terminates the Agreement with cause, LCI will
continue to pay the Actual Paid Downstream
Commissions, and LCI will be entitled to seek all
remedies available to it, at law or equity including,
without limitation, injunctive relief without posting
a bond or other security (such
17
CONFIDENTIAL
18
remedies will also be available to LCI for any breach of
Section 12, 13, and 17(B)(2)). "Actual Paid Downstream
Commissions" are defined herein as that portion of Collected
Revenue (resulting from the actual use of LCI Services by
customers signed up exclusively by Representative) that is
actually being paid by Representative to its Representative
Independent Contractors, based on the methodology and criteria
in place twelve (12) months prior to such termination
("Calculation Date") and documented as set forth in Section
18(a)(ii) below; provided, however, in the event that
Representative changes its methodology and/or criteria used to
calculate the Actual Paid Downstream Commissions and such
changes result in a reduction of the Actual Paid Downstream
Commissions actually paid by Representative during any of the
twelve (12) months prior to such termination, then LCI shall
only be obligated to pay the reduced Actual Paid Downstream
Commissions. In no event shall LCI's obligations under this
Section 18 be applied or construed to require that LCI pay
more than the applicable commission level in effect for each
LCI Service at the time of LCI's obligation to pay such Actual
Paid Downstream Commissions. Such Actual Paid Downstream
Commissions shall be paid to Representative in consideration
of the continuing support of LCI customer relationships, and
LCI will reasonably cooperate to assist Representative in
fulfilling this continuing obligation. Such payment shall not
include any commission payments or other revenue that would
ordinarily and/or actually be retained by Representative, its
employees, executives and/or Affiliates and shall supersede
commission payments currently being paid to Representative.
Representative shall advise LCI promptly in writing of any and
all changes to the methodology and criteria used to calculate
Actual Paid Downstream Commissions during the Term.
Representative acknowledges and agrees that no third-party
beneficiary obligation will be created between LCI and
Representative's Representative Independent Contractors or any
other third party as the result of any LCI obligation to pay
the Actual Paid Downstream Commissions to Representative or
any provision of this Agreement and Representative shall
remain solely responsible for paying the Actual Paid
Downstream Commissions to Representative Independent
Contractors along with addressing any claims or disputes that
might arise as a result of its obligations to make such
payments.
(ii) Within thirty (30) days of the execution of this Agreement,
Representative shall submit to LCI in writing the following:
1. All documentation which establishes the basis for the
current methodology used for determining, calculating,
applying, and actually paying and distributing the
Actual Paid Downstream Commissions; and
2. All documentation reflecting an actual example of the
Actual Paid Downstream Commissions paid at each level
of Representative's Multi-Level Marketing Plan for the
three (3) month period prior to the Effective Date
shall be provided to an independent third party
engaged by LCI, and shall be held by such third party
under seal until LCI is obligated to pay Actual Paid
Downstream Commissions hereunder. In addition, at any
time during the Term of this Agreement and
notwithstanding anything to the contrary contained in
Section 21 of this
18
CONFIDENTIAL
19
Agreement, LCI shall have the right to audit the
commission payments made to Representative Independent
Contractors as well as the right to review the written
agreement(s) between Representative and the individual
Representative Independent Contractor(s).
Representative shall cooperate fully in any LCI audit,
providing access to any books, records, and other
documents necessary to determine the Actual Paid
Downstream Commissions. The audit will be conducted
in accordance with Section 21 of this Agreement.
b. If Representative fails to pay any of its Representative
Independent Contractors or other third party in connection
with the performance of services related to this Agreement,
LCI shall have the right, after written notice to
Representative and Representative's failure to cure such
non-payment within thirty (30) days of such notice, in its
discretion, to withhold payment to Representative (final or
otherwise) such sums as are reasonably necessary or
appropriate to protect LCI and to enable LCI to assume payment
of such claims, provided that such withholding shall be
permitted only against claims that are not a subject of a
continuing bona fide dispute between Representative and such
third party. Any such withheld amount shall be applied by
LCI, after the above notice provision has been provided and
Representative has failed to cure the non-payment, in such
manner as LCI may reasonably deem proper to secure protection
or satisfy such claims. All sums so applied shall be deducted
from LCI's payments to Representative. LCI's failure to
withhold payment, final or otherwise, of a sum for any of the
above contingencies, even though such contingency has occurred
at the time of such payment, shall not be construed as a
waiver by LCI of its rights with respect to such contingency.
Neither the above-stated rights of LCI to withhold and apply
monies nor any exercise or attempted exercise of, or omission
to exercise, such rights by LCI shall create any obligation of
any kind on the part of LCI to Representative Independent
Contractors or any third party. Until actual payment is made
to Representative, its right to any amount to be paid
hereunder (even though such amount has already been certified
as due) shall be subordinated to the rights of LCI under this
Section.
c. In addition to all other remedies available to LCI in law or
equity and as set forth in this Agreement, in the event of a
breach of Section 13(b) by Representative, its Representative
Independent Contractors, or any Representative Affiliate,
Representative shall pay to LCI the following amounts within
ten (10) days of when either party becomes aware of such
breach: [****************************************************
***************************************************************
***************************************************************
***************************************************************
***************************************************************
***************************************************************
***************************************************************
***************************************************************
*************************************************************
****************]
19. Indemnification.
a. Each party shall indemnify, defend and hold the other party,
its officers, directors, employees, and Affiliates thereof,
harmless from and against any and all claims,
19
CONFIDENTIAL
20
demands, actions, losses, damages, assessments, charges,
liabilities, costs and expenses including, without limitation,
interest, penalties, and attorney's fees and disbursements,
which may at any time be suffered or incurred by, or be
asserted against, any or all of them, directly or indirectly,
on account of or in connection with:
(i) The other party's default under any material
provision herein, breach of any warranty or
representation herein, or failure in any way to
perform any material obligation hereunder; or
(ii) Bodily injury (including death) or damage to real or
tangible personal property of any person including,
without limitation, any employee of either party
and/or any third person, and any damage to or loss of
use of any tangible, real, or personal property.
b. Representative shall hold harmless and indemnify LCI from and
against any claim, demand, cause of action, loss, damage,
assessment, charge, cost, judgment, liability or expense
relating to or arising out of the negligent or intentional
acts/omissions of Representative or any Representative
Independent Contractor including, but not limited to,
misrepresentations to customers about LCI Services or the
terms under which the LCI Services are made available by LCI.
c. Any dispute regarding the indemnity obligations contained
herein will be resolved by arbitration in accordance with
Section 22.
d. Representative shall immediately notify LCI of any claims and
actions or proceedings brought against it that are related in
any way to the performance of this Agreement and shall
cooperate with LCI to facilitate the settlement or defense of
any such claim or action. LCI shall have the right to control
any litigation or claim, including, without limitation, the
right to defend and/or settle any lawsuits related to
Representative's indemnification obligations at
Representative's sole cost and expense, including attorney's
fees, and conduct any settlement negotiations on behalf of
itself and Representative. Selection of counsel shall be
mutually agreed upon by the parties, which such approval shall
not be unreasonably withheld or denied.
20. Liability.
a. With the exception of Sections 12, 13, and 18 above, neither
Representative nor LCI shall have any liability under this
Agreement for special, consequential, indirect or punitive
damages, including, without limitation, loss of profits, even
if advised of the possibility of such damages. With the
exception of willful or intentional acts by LCI and any
commissions and payments that may be due and owed by LCI
pursuant to Sections 3, 4, 6, 7, 14, and 18 above, in no event
shall LCI's total liability hereunder exceed one (1) month's
average commission paid to Representative (as calculated by
the commissions paid to Representative for the past ninety
(90) days prior to such event giving rise to LCI's liability).
b. LCI will have no liability to Representative for commissions
that might have been earned hereunder but for the inability,
delay, or failure of LCI to provide LCI Services to
20
CONFIDENTIAL
21
any person or entity solicited by Representative or in the
event of discontinuation or modification of LCI Services.
21. Audit.
LCI shall provide residential ACN-Sold Customer reports to
Representative as follows:
a. [************************************************************
***********************************************************]
b. [**************************************]
c.
[**************************************************************
****************************************************
*********************]
d. [***************************]
The parties shall mutually agree in writing on any additional reports
or information regarding residential and business ACN-Sold Customers
reasonably requested by Representative.
Not more than once annually, with the exception of Section 18 above,
and upon not less than fifteen (15) days' written notice to the other
party, LCI or Representative shall have the right to engage a
certified public accounting firm or such other assistance, other than
the assistance of a direct competitor, as it deems desirable to
conduct an audit of all books and records of the other party directly
related to the calculation and/or payment of commissions hereunder by
either party, but excluding the call detail of LCI customers and LCI
switch tapes. Either party may require any person or firm retained
for this purpose to execute a non-disclosure agreement in favor of the
other party. Such audit shall be conducted during regular business
hours at the offices of the audited party where such books and records
are regularly maintained and shall be paid for by the requesting
party. Upon the discovery of any overpayments or underpayments of
commissions by LCI or Representative, LCI will have the right to
offset Representative commissions against any commissions due or owed
and Representative shall promptly reimburse LCI, when applicable. If
Representative has been underpaid, LCI shall promptly reimburse
Representative for any such underpayment.
22. Arbitration.
Except for the right of either party to apply to a court of competent
jurisdiction for a temporary restraining order, a preliminary
injunction, or other equitable relief, any claim or controversy
arising out of or related to this Agreement, shall be settled by
binding arbitration before a single arbitrator administered by the
American Arbitration Association, in accordance with the Complex
Commercial Rules of the American Arbitration Association under its
Commercial Arbitration Rules and Supplementary Procedures for Large,
Complex Disputes, with the matter to be heard in Washington, D.C..
The arbitration shall be conducted in accordance with the United
States Arbitration Act (Title 9, U.S. Code) notwithstanding any choice
of law provision in this Agreement. The parties agree that, except
for misapplication of the law, judgment upon the award rendered in
such arbitration may be entered in and enforced by any court of
competent jurisdiction. Each party shall bear the cost of preparing
and presenting its case. The cost of the
21
CONFIDENTIAL
22
arbitration, including the fees and expenses of the arbitrator(s),
will be shared equally by the parties unless the award otherwise
provides.
23. Confidentiality.
The parties hereby agree to abide by the terms and conditions of the
mutual Non-Disclosure Agreement attached hereto as Exhibit "I".
24. Insurance.
Representative shall secure and maintain Worker's Compensation,
General Comprehensive liability insurance and automobile insurance in
sufficient amounts to comply with all applicable laws and to cover its
respective obligations under this Agreement, including claims for
bodily and personal injury, death, property damage, and all other harm
caused by or occurring in connection with Representative's performance
under this Agreement. Further, certificates of insurance shall be
submitted to LCI naming LCI an ADDITIONAL INSURED on such policies as
appropriate, prior to the execution of this Agreement. These
certificates shall certify that no material alteration, modification
or termination of such coverage shall be effective without at least
thirty (30) days advance notice to LCI. Upon request, Representative
shall furnish insurance certificates as evidence of such coverage.
At a minimum, Representative agrees to maintain the following
insurance coverage's.
a. Comprehensive or Commercial General Liability Insurance:
$1,000,000 per occurrence combined single limit/$2,000,000
general aggregate and will include coverage for the use of
independent contractors, products, and completed operations.
b. Business Automobile Liability Insurance
Business Automobile Liability Insurance including coverage for
owned, hired, leased, rented and non-owned vehicles as
follows:
$1 Million combined single limit per accident
c. Worker's Compensation and Employer's Liability Insurance:
Worker's Compensation in the statutory amounts and with
benefits required by the laws of the state in which the LCI
Services are sold and the states (in which employees and/or
Representative Independent Contractors are hired, if the
states(s) are other than that in which the LCI Services are
sold).
THE REQUIRED MINIMUM LIMITS OF COVERAGE SHOWN ABOVE WILL NOT IN ANY
WAY RESTRICT OF DIMINISH REPRESENTATIVE'S LIABILITY UNDER THIS
AGREEMENT.
25. No Waiver.
22
CONFIDENTIAL
23
The failure of either party to insist on the strict performance of any
terms, covenants and conditions of this Agreement at any time, or in
any one or more instances, or its failure to take advantage of any of
its rights shall not be construed as a waiver or relinquishment of any
such rights or conditions at any time and shall in no way affect the
continuance in full force and effect of all the provisions and
conditions of this Agreement.
26. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. Neither this
Agreement nor any rights or obligations of Representative shall be
transferable or assignable by Representative under any circumstances
including but not limited to, an assignment by operation of law, an
assignment in connection with a change in control of Representative,
or any other type of acquisition, without LCI's prior written consent.
Any attempted transfer or assignment hereof by Representative not in
accordance herewith shall be null and void. Further, the terms and
conditions of this Agreement shall have no effect on, or supersede or
amend the terms and conditions of, third-party agreements with other
LCI representatives.
27. Contingency.
This Agreement is subject to the timely approval by the Board of
Directors of LCI. If such approval is not obtained within 30 days
from the date this Agreement is executed by LCI, this Agreement shall
be null and void ab initio.
28. Survivability.
Notwithstanding any termination or expiration of this Agreement,
Sections 12, 13, and 18(c), and the Non-Compete and Non-Solicitation
Agreements (as provided in Exhibit "E), and any other provision
hereof, which, by its context, is intended to survive the termination
or expiration hereof, shall so survive.
29. Severability.
If any term or provision of this Agreement, or any exhibit is found to
be invalid or unenforceable in any situation or jurisdiction, such
determination shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction, and the remaining provisions
of this Agreement and all exhibits shall remain in full force and
effect.
30. Force Majeure.
Neither LCI nor Representative will be liable for loss or damage or
deemed to be in breach of this Agreement if its failure to perform its
obligations results from (a) compliance with any law, ruling, order,
regulation, requirement of any federal, state or municipal government
or department or agency thereof or court of competent jurisdiction;
(b) acts of God; (c) acts or omissions of the other party; (d) fires,
strikes, war, insurrection or riot; (e) or any other cause beyond its
reasonable control. Any delay resulting therefrom will extend
performance accordingly or excuse performance, in whole or in part, as
may be reasonable.
23
CONFIDENTIAL
24
31. Right to Renegotiate.
If, during the Term of this Agreement, the dynamics of the
telecommunication industry change in such a manner that telephone
calls are no longer measured, charged, or characterized as principally
local, long distance, and/or toll in nature, the parties shall
promptly negotiate in good faith to amend this Agreement to uphold the
intent and spirit of Representative's commitment to sell LCI's
telecommunications services on an exclusive and primary basis as set
forth in Section 12 above.
32. Entire Agreement.
This Agreement, its Exhibits and Attachments, contain the sole and
entire agreement between the parties hereto with respect to the
transactions contemplated herein and supersedes all prior written and
verbal discussions, promises, and agreements between the parties with
respect to the matters contained herein. No modifications or
amendments may be made to this Agreement except by written instrument
executed by both parties.
33. Notices.
All notices under this Agreement, whether addressed to LCI or
Representative, must be in writing and shall be sent by overnight
carrier service, return receipt requested, to the parties at the below
addresses:
If to LCI: LCI International
8180 Greensboro Drive, Suite 800
McLean, VA 22102
Attn: President
With An Additional
Copy to: LCI International
8180 Greensboro Drive, Suite 800
McLean, VA 22102
Attn: General Counsel
If to Representative: American Communications Network, Inc.
100 West Big Beaver, Suite 400
Troy, MI 48084
Attn: President
With An Additional
Copy to: David Steinberg, Esq.
Hertz, Schram & Saretsky
1760 South Telegraph Road, Suite 300
Bloomfield Hills, Michigan 48302
24
CONFIDENTIAL
25
34. Interpretation.
The parties have participated jointly in the negotiations and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of
any of the provisions of this Agreement.
35. Jurisdiction.
The parties hereto agree that this Agreement shall be construed in
accordance with and governed in all respects by the laws of the State
of New York.
36. Counterparts.
This Agreement may be signed in multiple counterparts, all of which
shall constitute an original.
IN WITNESS WHEREOF, the parties have executed this Agreement to become
effective as of the date first written above.
LCI INTERNATIONAL TELECOM CORP. AMERICAN COMMUNICATIONS NETWORK, INC.
("LCI") ("Representative")
By: /s/ THOMAS WYNNE 6/7/96 By:/s/ GREGORY PROVENZANO 6/7/96
-------------------------- ------- ----------------------------- -------
Thomas Wynne Date Gregory Provenzano Date
President President
25
CONFIDENTIAL
26
EXHIBIT "A"
LCI Services
All America Plan
Home 800
Extend Your Reach
WorldCard
LCI Alternative
Simply Business
Simply Guaranteed
Integrity
Audio Teleconferencing
Point-to-Point Products
WAL
Campus Talk
Cellular Lightcall
Lightcall Plus
LCI Services Not Currently Sold but Commissionable
MLM
S.F.I.
26
CONFIDENTIAL
27
EXHIBIT "B"
1) CALCULATION OF INCREMENTAL SIGNING BONUS PAYMENT
The Incremental Signing Bonus Payment is equal to the total net present value
of [***********] of each month's Actual Collected Revenue ("Monthly Amount")
from the Effective Date of the Agreement through April 30, 1998 [
*************** ********************************] ("Target Amount"). On July
1, 1998, each Monthly Amount will be discounted back to its net present value
as of the Effective Date of the Agreement at one (1%) percent per month
("Monthly Present Value"). The aggregated total of the Monthly Present Values
from May 1996 through April 1998 ("Actual Amount") less Target Amount shall
equal the Incremental Signing Bonus Payment.
A. Monthly Amount = [ **********] x actual monthly Collected Revenue
B. The Monthly Present Value calculation will be as follows:
Monthly Present Value = Monthly Amount [ *******************]
where "n" equals the number of months from the Effective Date
of the Agreement
Example:
The Monthly Present Value Calculation for month four (4) is as
follows:
Monthly Collected Revenue [***************]
Periods (n) = 4
[ ****] of Monthly Revenue ("Monthly Amount") [***************]
Monthly Present Value =[*******************] [***************]
C. The formula for calculating the Incremental Signing Bonus Payment shall be
as follows:
Actual Amount less Target Amount
D. For illustrative purposes, if the Agreement is effective as of May 1, 1996,
the Monthly Present Values and resultant Incremental Signing Bonus
Payment would be calculated as follows (the figures relied on below
are estimates only; Actual Collected Revenue will be used in computing
the calculation):
[********]
Monthly of Revenue Monthly
Collected ("Monthly Present
Month Revenue Periods Amount") Value
------ ------- ------- -------- -----
May-96 [************] 1 [***********] [**************]
Jun-96 [************] 2 [***********] [**************]
Jul-96 [************] 3 [***********] [**************]
Aug-96 [************] 4 [***********] [**************]
Sep-96 [************] 5 [***********] [**************]
Oct-96 [************] 6 [***********] [**************]
Nov-96 [************] 7 [***********] [**************]
Dec-96 [************] 8 [***********] [**************]
Jan-97 [************] 9 [***********] [**************]
Feb-97 [************] 10 [***********] [**************]
Mar-97 [************] 11 [***********] [**************]
Apr-97 [************] 12 [***********] [**************]
May-97 [************] 13 [***********] [**************]
Jun-97 [************] 14 [***********] [**************]
27
CONFIDENTIAL
28
Jul-97 [************] 15 [***********] [**************]
Aug-97 [************] 16 [***********] [**************]
Sep-97 [************] 17 [***********] [**************]
Oct-97 [************] 18 [***********] [**************]
Nov-97 [************] 19 [***********] [**************]
Dec-97 [************] 20 [***********] [**************]
Jan-98 [************] 21 [***********] [**************]
Feb-98 [************] 22 [***********] [**************]
Mar-98 [************] 23 [***********] [**************]
Apr-98 [************] 24 [***********] [**************]
("ACTUAL AMOUNT") [**************]
INCREMENTAL SIGNING BONUS PAYMENT = [***************************************]
2. PAYOUT OF INCREMENTAL SIGNING BONUS
1. Example 1:
If the Actual Amount is greater than the Target Amount,
based on the application of the foregoing formula for
calculating the Incremental Signing Bonus Payment, LCI
shall pay to Representative the difference, plus interest
at the rate of one percent (1%) per month accruing back
to the Effective Date of the Agreement on June 15, 1998
("Incremental Signing Bonus Payout Date"):
EXAMPLE:
Assuming:
Actual Amount [***************]
Target Amount [***************]
Effective Date of the Agreement = May 1, 1996
Incremental Signing Bonus Payout Date = June 15, 1998
Number of months = 25.5
LCI owes Representative:
[**********************************************]
2. Example 2
If the Actual Amount is less the Target Amount based on
the application of the foregoing formula for calculating
the Incremental Signing Bonus Payment, Representative
shall pay to LCI the difference, plus interest at the rate
of one percent (1%) per month accruing back to the
Effective Date of the Agreement on Incremental Signing
Bonus Payout Date.
EXAMPLE:
Assuming:
Actual Amount [***************]
Target Amount [***************]
Effective Date of the Agreement = May 1, 1996
Incremental Signing Bonus Payout Date = June 15, 1998
Number of months = 25.5
Representative owes LCI:
[***********************************************]
28
CONFIDENTIAL
29
EXHIBIT "C"
CALCULATION OF [********************]
A. Definitions:
1. [***********] The first three (3) full calendar months beginning on the
first day of the first full calendar month after the date of the
[*******************]
2. Monthly Revenue Average: The average per month of Collected Revenue
during the Transition Period.
3. Monthly Revenue Average With Attrition: The Monthly Revenue Average
adjusted by an Attrition Percentage (defined as (a) two and four tenths
percent (2.4%) per month during the Stay Period if LCI's successor is an
entity other than a facilities-based interexchange carrier;
(b)[******************* ] during the [**********************************
**************************************************************************
*****************************] or (c) [***********************************
********************************************************************]
4. [*******************************************************************] which
is comprised of the [******************************************************
*****************************]
5. [************] Seventy-Five (75) days from the beginning of the
[*********************]
6. Initial [***********************] One-half of the
[*****************************************] to Representative on the Payout
Date.
7. [************] The twenty-one (21) months beginning the fourth (4th) full
month after [*****************************************************]
8. [***********************************] The estimated one-half of
[************************************************************************
******************************************]
9. [*************************************************************************
**] subject to [******] (as provided in Section C below of this Exhibit C)
plus interest at the rate of one percent (1%) per month from
[********************************************************]
10. [********************] Seventy-Five (75) days after the end of
the[*******************]
11. Monthly Adjustment: The percentage of monthly Collected Revenue above
the Monthly Revenue Average divided by the number of months in
[***********], or the percentage of monthly Collected Revenue below the
Monthly Revenue Average with Attrition divided by the number of months
[*************] whichever is applicable. The Monthly Adjustment will be
calculated for each month of [******************]
12. Total Adjustment Factor: Total of Monthly Adjustments over[***********]
13. Adjusted [********************************************] adjusted by the
Total Adjustment factor but not including any interest.
B. Calculation of [****************]
EXAMPLE: Assume that [***********************************************
******************* ] would be the three full calendar months of
February, 1999, March, 1999, and April, 1999.
[***************] Monthly Collected Revenue During [****************]
----------------------------------------------------
February, 1999 [**********]
March, 1999 [**********]
April, 1999 [**********]
------------
Total Collected Revenue during [*************] [**********]
29
CONFIDENTIAL
30
Monthly Revenue Average = $90,000,000 / 3 = $30,000,000
[***********************************************]
C) Calculation of Monthly Revenue Average [***************]
Each month following the first month of [************************************
**] will be calculated as follows:
(previous month's Monthly Revenue Average [**********] x (1- [****************
*********] (%))
Example
[***************] begins May 1, 1999
[***********************] per month [*************************************]
Monthly
Revenue
Month Average
----- [*********]
May-99 [************]
Jun-99 [************]
Jul-99 [************]
Aug-99 [************]
Sep-99 [************]
Oct-99 [************]
Nov-99 [************]
Dec-99 [************]
Jan-00 [************]
Feb-00 [************]
Mar-00 [************]
Apr-00 [************]
May-00 [************]
Jun-00 [************]
Jul-00 [************]
Aug-00 [************]
Sep-00 [************]
Oct-00 [************]
Nov-00 [************]
Dec-00 [************]
Jan-01 [************]
D) Calculation of [*******************]
1. The [ ***********************************************
******************************] in accordance with an [**************] to
be mutually agreed to in writing by both parties prior to [******] In
consideration of Representative being entitled to receive interest at the
rate of one percent (1%) per month for the [*********************
*********************] LCI shall be entitled to
[********************************************** *********** *************]
The[****************************************** ] Two (2) months after the
end of the [******** *************************************] will be subject
to a [******] prior to [ ******************************
*********************************************** **********************] will
be calculated as follows:
For each month during the [*****************] a Monthly Adjustment
will be calculated.
If any month's Monthly Collected Revenue during [**************]
is greater than the Monthly Revenue Average, the month's Monthly
Adjustment amount will equal:
30
CONFIDENTIAL
31
((Monthly Collected Revenue - Monthly Revenue Average)/(Monthly
Revenue Average)) x (1/21)
If any month's Monthly Collected Revenue during the [**********] is less
than the Monthly Revenue Average, but greater than the month's Monthly
Revenue Average [*************] the month's Monthly Adjustment will
equal zero (0).
If any month's Monthly Collected Revenue during [ ************** ] is less
than the Monthly Revenue Average with [*********** ] the month's Monthly
Adjustment amount will equal:
((Monthly Collected Revenue - Monthly Revenue Average
[***********]/ (Monthly Revenue Average [****************] x
(1/21)
The Total Adjustment Factor will equal the total of the all Monthly
Adjustment Factors
EXAMPLE:
Percentage
Percentage Below
Monthly Above Monthly
Monthly Monthly Revenue Monthly Revenue Monthly
Collected Revenue Average Revenue Average Adjustment
Month Revenue Average [*********] Average [******] Factor
------ ------- ------- ----------- ------- -------- ------
May-99 [*********] [**********] [**********] [**********] [*********] [**********]
Jun-99 [*********] [**********] [**********] [**********] [*********] [**********]
Jul-99 [*********] [**********] [**********] [**********] [*********] [**********]
Aug-99 [*********] [**********] [**********] [**********] [*********] [**********]
Sep-99 [*********] [**********] [**********] [**********] [*********] [**********]
Oct-99 [*********] [**********] [**********] [**********] [*********] [**********]
Nov-99 [*********] [**********] [**********] [**********] [*********] [**********]
Dec-99 [*********] [**********] [**********] [**********] [*********] [**********]
Jan-00 [*********] [**********] [**********] [**********] [*********] [**********]
Feb-00 [*********] [**********] [**********] [**********] [*********] [**********]
Mar-00 [*********] [**********] [**********] [**********] [*********] [**********]
Apr-00 [*********] [**********] [**********] [**********] [*********] [**********]
May-00 [*********] [**********] [**********] [**********] [*********] [**********]
Jun-00 [*********] [**********] [**********] [**********] [*********] [**********]
Jul-00 [*********] [**********] [**********] [**********] [*********] [**********]
Aug-00 [*********] [**********] [**********] [**********] [*********] [**********]
Sep-00 [*********] [**********] [**********] [**********] [*********] [**********]
Oct-00 [*********] [**********] [**********] [**********] [*********] [**********]
Nov-00 [*********] [**********] [**********] [**********] [*********] [**********]
Dec-00 [*********] [**********] [**********] [**********] [*********] [**********]
Jan-01 [*********] [**********] [**********] [**********] [*********] [**********]
TOTAL ADJUSTMENT FACTOR [*****]
2. The Total Adjustment Factor will be applied to the [**********************]
in order to determine the Adjusted [****************************].
31
CONFIDENTIAL
32
EXAMPLE (WHEN TOTAL ADJUSTMENT FACTOR IS GREATER THEN -50%)
ASSUMING:
[*******************************] [***************]
Total Adjustment factor [***************]
Initial [*************************] [***************]
Number of Months back to [*****************] [***************]
Adjusted [******************************************************]
[***************************************************************]
[*******************************************************]
The [**********************************]
EXAMPLE (WHEN TOTAL ADJUSTMENT FACTOR IS LESS THAN -50.00%):
ASSUMING:
[*******************************] [***************]
Total Adjustment factor [***************]
Initial [*************************] [***************]
Number of Months back to[*********] [***************]
Adjusted [*********************************************************]
[******************************************************************]
[********************************************************************]
The [*******************************************]
32
CONFIDENTIAL
33
EXHIBIT "D"
"EXECUTIVES"
- - [****************]
- - [****************]
- - [****************]
- - [****************]
- - [****************]
- - Any employee in a position equivalent to a corporate officer of
Representative
33
CONFIDENTIAL
34
EXHIBIT "E"
NON-COMPETITION AND SOLICITATION AGREEMENT
THIS NON-COMPETE AND SOLICITATION AGREEMENT ("Non-Compete Agreement") dated this
_____ day of ____________, 1996, is between American Communications Network,
Inc. ("ACN") and ___________________, an individual ("Executive").
WHEREAS, ACN is a party to the Representative Agreement dated
____________________ (the "Agreement") between ACN and LCI International Telecom
Corp. ("LCI") pursuant to which ACN agrees to sell LCI Services on an exclusive
basis and abide by certain non-solicitation covenants for a specified time
period.
WHEREAS, capitalized terms and names used in this Non-Compete Agreement and not
otherwise defined herein shall have the meaning assigned to them in the
Agreement;
WHEREAS, as a material condition of the Agreement, ACN agreed and covenanted
that certain Executives shall not a) compete with LCI or any LCI Affiliates,
either directly or indirectly, in the sale or provisioning of local and/or long
distance services, regardless of the facilities used; or b) engage, directly or
indirectly, in any Solicitation;
WHEREAS, in consideration of Executive's continued employment with ACN and the
benefits that Executive has and will receive by virtue of ACN's arrangement with
LCI and to protect ACN from the potential breach of the Agreement, ACN desires
to restrict Executive in the use of his or her specialized knowledge and
experience from competing with LCI in the sale of local and long distance
services;
WHEREAS, to induce LCI to enter into the Agreement with ACN and make substantial
payments to ACN, ACN agreed that certain Executives will enter into this
Non-Compete Agreement with LCI on the terms and conditions set forth below and
Executive is aware of this ACN commitment and has agreed to it as part of
his/her employment with ACN;
NOW, THEREFORE, in consideration of the promises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
I. COVENANT NOT TO COMPETE OR SOLICIT
1. Restrictions. Executive shall not Compete and/or Solicit in
the Restricted Territory (as defined below) for the applicable
Restricted Period (as defined below) as provided herein:
(a) Non-Compete Restriction:
(i) Executive agrees that, throughout the applicable
"Non-Compete Restricted Period" (as defined below),
Executive shall not in any way, directly or
indirectly, as an agent, employee, officer, director,
shareholder, partner or otherwise of any corporation,
partnership, entity or other enterprise or venture
compete with LCI or its Affiliates in the sale or
provisioning of local (subject to Section 12(d) of the
Agreement if Executive is actively employed with ACN)
or long distance telecommunications services or any
services related thereto, regardless of the facilities
used, within the applicable Restricted Territory (such
activity defined as "Compete").
(ii) "Non-Compete Restricted Period" is defined as
follows:
(a) If Representative Is Actively Employed
with ACN: During the Term of the Agreement
for a period of eighteen (18) months from
termination of the Agreement by LCI for
cause, or ACN without cause (if no Change in
Control or Change in Management has
occurred), Executive shall not Compete in
the Restricted Territory (as defined below);
provided, however, in the event of a Change
in Control or Change in Management,
Executive may Compete two (2) years from the
legally completed Change in Control date or
immediately after the Change in Management
Date, as long as Executive is actively
employed with ACN at the time of such
legally completed Change in Control or
Change in Management.
34
CONFIDENTIAL
35
(b) If Representative Is Not Actively
Employed with ACN: For a period of two (2)
years from the last date of Executive's
employment with ACN or any ACN Affiliate,
irrespective of the reason for such
termination or cessation of employment,
Executive shall not Compete in the
Restricted Territory, regardless of the
occurrence of a Change in Control or Change
in Management after such termination or
cessation of employment.
(b) Non-Solicit Restriction:
(i) Executive further agrees that, throughout the
applicable "Non-Solicit Restricted Period" (as defined
below), Executive shall not, directly or indirectly,
divert, solicit, entice or take away any Existing
Customers or ACN-Sold Customers in the Restricted
Territory during the Non-Solicit Restricted Period
(such activity defined as "Solicit).
(ii) "Non-Solicit Restricted Period" is defined as
follows:
(a) If Representative Is Actively Employed
with ACN: During the Term of the Agreement
and for a period of eighteen (18) months
from the expiration of the Term or
termination of the Agreement, with or
without cause (if no Change in Control or
Change in Management has occurred) by LCI or
ACN, Executive shall not Solicit in the
Restricted Territory (as defined below);
provided, however, in the event of a Change
in Control or Change in Management,
Executive shall not Solicit for eighteen
(18) months from the legally completed
Change in Control date or immediately after
the Change in Management Date.
(b) If Representative Is Not Actively
Employed with ACN: For a period of two (2)
years from the last date of Executive's
employment with ACN or any ACN Affiliate,
irrespective of the reason for such
termination or cessation of employment,
Executive shall not Solicit in the
Restricted Territory, regardless of the
occurrence of a Change in Control or Change
in Management after such termination or
cessation of employment.
2. Restricted Territory. Executive hereby acknowledges the
global nature of the telecommunications industry and the global
market for the telecommunications services provided by LCI.
Accordingly, this Non-Compete Agreement shall be applicable
everywhere within the United States and every other state,
territory and possession of the United States of America.
3. Remedies. Executive agrees that ACN will not have an
adequate remedy at law in the event of any breach or
threatened breach by Executive hereunder and that ACN will
suffer irreparable damage and injury if Executive breaches or
threatens to breach any of the provisions of this Non-Compete
Agreement. Therefore, Executive agrees that ACN shall be
entitled to obtain a temporary or permanent injunction or
other equitable relief without the necessity of proving
damages or that such damages would not constitute an adequate
remedy. Such equitable relief shall be in addition to, not in
lieu of, any rights or remedies to which ACN may otherwise be
entitled.
4. Acknowledgment of Existence of Third Party Beneficiary of
this Non-Compete Agreement. LCI, ACN and Executive
acknowledge and agree that each contemplates and intends that
(a) this Non-Compete Agreement and its specific provisions are
intended directly and primarily to benefit LCI and LCI is
intended to be, and shall be the third party beneficiary of
this Non-Compete Agreement; (b) Executive, in executing this
Non-Compete Agreement, shall assume a direct obligation to LCI,
as such third party beneficiary, to perform Executive's
obligations hereunder; and (c) LCI, as such third party
beneficiary, shall be conferred with the rights in its sole
discretion, to take any action or pursue any remedy that it
deems necessary in order to enforce the provisions hereof and
to which it would be entitled as a party executing this
Non-Compete Agreement.
5. Confirmation. Executive hereby expressly
confirms and acknowledges to ACN that the foregoing obligations
will not impede Executive's ability to earn a livelihood given
Executive's skills and abilities, and that Executive has
received and will receive sufficient consideration and other
benefits pursuant to its employment with ACN, such benefits and
consideration clearly justify such obligations that Executive
is agreeing to in this Non-Compete Agreement.
35
CONFIDENTIAL
36
II . MISCELLANEOUS
1. Entire Agreement; Amendment. This Non-Compete Agreement
contains the entire agreement between the parties with respect
to the subject matter hereof. This Non-Compete Agreement may
not be amended, waived, changed, modified or discharged except
by explicit reference hereto in an instrument in writing
executed by the parties hereto. No waiver of any provision of
this Non-Compete Agreement, including any action or inaction on
the part of LCI, shall be deemed or shall constitute a waiver
of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver.
2. Governing Law; Consent to Jurisdiction;. This Non-Compete
Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Michigan applicable
to contracts made and to be entirely performed therein.
3. Notices. All notices and demands of any kind which either
party hereto may be required or desire to serve upon the other
party under the terms of this Non-Compete Agreement shall be in
writing and shall be served upon such other party: (a) by
personal service upon such other party at such other party's
address set forth on the signature page of this Non-Compete
Agreement; or (b) by mailing a copy thereof by certified or
registered mail, postage prepaid, with return receipt
requested, addressed to such other party at the address of such
other party set forth on the signature pages of this
Non-Compete Agreement; or (c) by sending a copy thereof by
overnight courier service, addressed to such party at the
address of such other party set forth on the signature pages of
this Non-Compete Agreement. In case of service by overnight
courier service or by personal service, such service shall be
deemed complete upon receipt. In the case of service by mail,
such service shall be deemed complete upon reasonable proof of
receipt. The addresses and persons to whose attention notices
and demands shall be delivered or sent may be changed from time
to time by written notice served, as hereinabove provided, by
any party upon the other party.
4. Headings. The headings of the several sections of this
Non-Compete Agreement are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this
Non-Compete Agreement.
5. Counterparts. This Non-Compete Agreement may be executed in
several counterparts and by the different parties hereto on
separate counterparts, and when so executed, each such
counterpart shall be deemed to be an original and all of said
counterparts together shall constitute one and the same
instrument.
6. Binding Nature. This Non-Compete Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs, personal
representatives, and respective legatees.
7. Severability. Any term or provision of this Non-Compete
Agreement that is invalid or unenforceable in any situation in
any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making
the determination of invalidity or unenforceability shall have
the power to, and is hereby directed to, reduce the scope,
duration or area of the term or provision, to delete specific
words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention
of the invalid and unenforceable term or provision, and this
Non-Compete Agreement shall be enforceable as so modified after
the expiration of the time within which the judgment may be
appealed.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Non-Compete Agreement to be effective as of the day and year first above
written.
AMERICAN COMMUNICATIONS NETWORK, INC. EXECUTIVE
By: By:
--------------------------------------- ----------------- ---------------------------------- -------
Name: Greg Provenzano Date Signature Date
Title:
--------------------------------------------- ------------------------------------------
American Communications Network, Inc. Print Name
100 West Big Beaver, Suite 400
Troy, Michigan 48084 ------------------------------------------
Print Street Address
------------------------------------------
Print City, State and Zip Code
36
CONFIDENTIAL
37
EXHIBIT "F"
"NON-EXCLUSIVE SERVICES"
Internet Content
Paging
Mobile Cellular or Mobile Cellular-equivalent services
(excluding Personal Communication Services-based services
that fall within the scope of the Forbidden Activities
described in Section 12(a))
Operator Services at telephones that charge a Property
Imposed Fee (PIF)
Fax Broadcast
37
CONFIDENTIAL
38
EXHIBIT "G" - ACN COMMISSION RATES UNTIL DECEMBER 31, 1996
[******]
- --------
- - All American Plan (AAP) ($.19 Day/$.14 Evening/$.12 Night/Weekend
per minute rates)
- - MLM Month to Month (Domestic)
- - MLM Term - (Domestic)
- - WorldCard
- - WorldCard Plus
- - Extend Your Reach Europe
- - Standard Business Products
- Alternative
- Simply Business
- Simply Guaranteed
- Integrity
- Campus Talk
[******]
- --------
- - Home 800
- - Extend Your Reach
- - MLM Month to Month (International)
- - MLM Term (International)
[******]
- --------
- - Lightcall
- - Lightcall Plus
- - Cellular Lightcall
- - Personal Option 800
- - Personal Perks
- - Simple, Fair & Inexpensive
- - Simple, Fair & Inexpensive IDDD Extend Your Reach
- - LDS Plan
- - Unicom WAL
- - Calls in NECA territories
- - Calls in USINTELCO territories
38
CONFIDENTIAL
39
EXHIBIT "H"
A. ACN PERFORMANCE REQUIREMENTS
1) LOA download file error rate
- __% or less of error rate for LOAs submitted (monthly measure)
[********]
2) Percentage of returned mail
- __% or less of mail returned for incorrect data (monthly
measure)[********]
3) CARE rejects
- __% or less of LOAs rejected due to improper name and address
(monthly measure) [*******]
4) PIC dispute resolution
- Procedures:
- ACN sends actual LOA within 3 days of
notification by LCI
- LCI will contact customer
- ACN will be notified of all alleged slams
- ACN has 30 days to investigate and notify
of remedy
- Independent Contractor terminated on first
offense - unless LCI and ACN mutually
agree on an alternative course of action
- Independent Contractor terminated on
second offense - irrespective of
circumstances
5) Spot verification
- Procedures:
- __% (Goal of 20%) of all new Independent
Contractors' first __ (Goal of 50) orders
verified by ACN. Verification will be
done by telephone. Records of all
verification call results will be retained
for two years.
- If an Independent Contractor sends in more
than __ (Goal of 10) orders in a 7 day
period, __% (Goal of 20%) of all such
orders shall be verified
6) Sales materials review - Covers all material with any mention of LCI name
or logo including video tapes, printed material, voice mails, internet websites,
LOAs, enrollment forms, etc.
- Procedures:
- All material sent to [****************]
(or person(s) designated by LCI)
- Within 10 business days, LCI will respond
with necessary changes (if any)
- Continue review process until no changes
are necessary
- LCI will supply ACN will signed approval
- Any materials used in the field that have
not been approved shall be considered
unauthorized and promptly withdrawn upon
LCI's request
- Disciplinary action taken against agent(s)
using unapproved material
7) ACN's training materials and Policies and Procedures shall be revised to
include LCI's Policies and Procedures Regarding Slamming Prevention (as may be
amended).
8) ACN reps shall not sign any customer names to any LOAs, service orders, or
enrollment forms (i.e. customer must sign themselves). Immediate termination
of any ACN Independent Contractor or agent who signs a customer's name to any
document.
39
CONFIDENTIAL
40
B. LCI RESIDENTIAL PERFORMANCE GOALS
1) The goal is to provide timely reports to Representative (as described
in Section 21) within fifteen (15) days after the close of each month and
weekly reports within seven (7) days after LCI receives the necessary
information from the Local Exchange Carrier ("LEC").
2) The goal is to provide some additional sales support to assist
Representative in closing ACN-Sold Customer accounts for prospective
business customers.
3) The goal is to improve the timeliness of the investigation of new orders
rejected by LCI by having all rejected orders investigated and either
resolved or communicated to Representative within two (2) weeks of the
download of the new ACN-Sold Customer orders by Representative.
4) The goal is to improve the timeliness of the investigation by LCI of
ACN-Sold Customer orders rejected by the LEC by having all rejected orders
investigated and resolved by LCI, if possible, within two (2) weeks of
notification that such order was rejected by the LEC.
5) The goal is to ensure the Collected Revenue is properly credited to
Representative when an area code is split by attempting to achieve revenue
reporting errors of less than two percent (2%) of the total Collected
Revenue for the ACN-Sold Customers in the respective area codes, and all
corrections made and Collected Revenue retroactively credited to
Representative within thirty (30) days of the awareness of such error.
6) The goal is for LCI and Representative to develop efficient procedures to
ensure that ACN-Sold Customers are installed in a timely manner on the
requested service and to ensure that Representative is properly credited for
the Collected Revenue resulting from the installation of such ACN-Sold
Customers.
40
CONFIDENTIAL
41
EXHIBIT "I"
NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered into as of
this 1st day of May 1996 (the "Effective Date"), by and between American
Communications Network, Inc. ("ACN"), with offices located at 100 West Big
Beaver, Suite 400, Troy, Michigan 48084 and LCI International Telecom Corp.
("LCI"), with offices located at 8180 Greensboro Drive, Suite 800, McLean,
Virginia 22102. For purposes of this Agreement ACN and LCI are sometimes
collectively referred to as "the Parties" and individually referred to as "a
Party". As used herein, "Receiving Party" shall mean the party which has been
given "Confidential Information" (as hereinafter defined) or "Trade Secrets" (as
hereinafter defined) by and of the other Party.
A. The Parties are discussing and from time to time, following the
Effective Date hereof, will have discussions in connection with potential
arrangements for the provision of networking and other related services,
including, without limitation, the disclosure of certain Confidential
Information and/or Trade Secrets (each such discussion is hereinafter referred
to individually as a "Discussion").
B. In order to protect the Parties' substantial investment in their
Confidential Information and Trade Secrets and to protect the goodwill
associated with their customer, client and contractor relationships, the Parties
have agreed to abide by the terms and conditions of this Agreement.
For and in consideration of the above premises and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. Definitions. The following terms shall have the following meanings
when used in this Agreement:
(a) "Confidential Information" shall mean the proprietary and confidential
data or information of a Party, other than "Trade Secrets" (as defined below),
which is of tangible or intangible value to that Party and is not public
information or is not generally known or available to that Party's competitors
but is known only to that Party and those of its employees, independent
contractors, consultants, customers or agents to whom it must be confided in
order to apply it to the uses intended, including, without limitation,
information regarding that Party's customers or prospective customers; marketing
methods; existing, new, or envisioned products and services and their
development; business and technical plans; product information; pricing; and
costs gained by the other Party as a result of the other Party's participation
in a Discussion. In addition, the definition of "Confidential Information"
shall include those items specifically identified as "Trade Secrets" in
Paragraph 1(c), if it is judicially determined that any such items are not trade
secrets, as defined by applicable law, and such items otherwise meet the
definition of "Confidential Information" as contained in this Section 1(a).
Confidential Information shall not include information which: (i) at the time of
disclosure to Receiving Party is in the public domain through no act or omission
of Receiving Party; (ii) as shown by written records, is already known by
Receiving Party; or (iii) is revealed to Receiving Party by a third party who
does not thereby breach any obligation of confidentiality and who discloses such
information in good faith.
(b) "Entity" shall mean any person, partnership, joint venture, agency,
governmental subdivision, association, firm, corporation or entity.
(c) "Trade Secrets" shall mean that portion of Confidential Information
which constitutes trade secrets, as defined by applicable law and including,
without limitation, confidential computer programs, software, designs,
processes, procedures, formulas, improvements, on-line terminal designs and
software applications, whether copyrightable or not.
2. Consideration. The consideration for the covenants and agreements of
each Party contained in this Agreement shall be that Party's right to
participate in a Discussion, which the Parties acknowledge and agree shall
constitute sufficient and adequate consideration.
3. Nondisclosure; Ownership of Proprietary Property.
(a) Each Party hereby acknowledges that it is in the best business
interests of the other Party to insist on the strict confidentiality of any of
its Trade Secrets and Confidential Information that may be disclosed as a result
of a Discussion.
(b) In recognition of the Parties' need to protect their legitimate
business interests, each Party hereby covenants and agrees that it shall regard
and treat each item of information or data constituting a Trade Secret or
Confidential Information of the other Party as strictly confidential and wholly
owned by the other Party and that it will not, for any reason or in any manner,
either directly or indirectly, use, sell, lend, lease, distribute, license,
give, transfer, assign, show, disclose, disseminate, reproduce, copy,
appropriate or otherwise communicate any such item of information or data to any
person or Entity for any purpose other than strictly in accordance with the
express terms of this Agreement or any other written agreement between the
Parties. With regard to each item of information or data constituting a Trade
Secret, the covenant in the immediately preceding sentence shall apply at all
times during a Discussion and for as long after the cessation of a Discussion as
such item continues to constitute a trade secret under applicable law; and with
regard to any Confidential Information, the covenant in the immediately
preceding sentence shall apply at all times during a Discussion and for three
(3) years after the termination of a Discussion.
41
CONFIDENTIAL
42
(c) Each Party shall exercise its best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information known by,
disclosed or made available to that party or that Party's employees or personnel
during a Discussion. Each Party shall immediately notify the other Party of any
intended or unintended, unauthorized disclosure or use of any Trade Secrets or
Confidential Information by that Party or any other person of which that party
becomes aware. Each Party shall assist the other Party, to the extent
necessary, in the procurement or any protection of the other Party's rights to
or in any of the Trade Secrets or Confidential Information.
(d) Upon termination of a Discussion, or anytime at the specific request of
the other Party, or upon the execution of any agreement resulting from a
Discussion containing provisions that expressly supersede the provisions of this
Agreement, each Party shall return to the other Party all written or descriptive
materials of any kind that contain or discuss any Confidential Information or
Trade Secrets, and the confidentiality obligations of this Agreement shall
continue until their expiration under the terms of this Agreement.
4. Remedies: Damages, Injunctions and Specific Performance. The Parties
expressly understand and agree that the covenants and agreements to be rendered
and performed by the Parties pursuant to Paragraph 3 are special, unique, and of
an extraordinary character, and in the event of any default, breach or
threatened breach by either Party of Paragraph 3, the other Party shall be
entitled to such relief as may be available to it pursuant hereto, at law or in
equity, including, without limiting the generality of the foregoing, any
proceedings to: (i) obtain damages for any breach of this Agreement; (ii) order
the specific performance thereof; or (iii) enjoin the breach of such provisions.
5. Binding Effect and Assignability. The rights and obligations of each
Party under this Agreement shall inure to the benefit of and shall be binding
upon any subsidiary, affiliate, successor or permitted assign of or to the
business of such Party, to the extent provided below. Neither this Agreement
nor any rights or obligations of either Party under this Agreement shall be
transferable or assignable by that Party without the prior written consent of
the other Party, and any attempted transfer or assignment of this Agreement by
either Party not in accordance herewith shall be null and void.
6. Severability. All paragraphs and subparagraphs of this Agreement are
severable, and the unenforceability or invalidity of any of the paragraphs or
subparagraphs of this Agreement shall not affect the validity or enforceability
of the remaining paragraphs or subparagraphs of this Agreement, but such
remaining paragraphs or subparagraphs shall be interpreted and construed in such
a manner as to carry out fully the intention of the parties.
7. Waiver. The waiver by either Party of a default or breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent default or breach of the same or of a different provision by that
Party. No waiver or modification of this Agreement or of any covenant,
condition, or limitation contained in this Agreement shall be valid unless in
writing and duly executed by the Party or Parties to be charged therewith.
8. Miscellaneous. This Agreement contains the complete agreement
concerning the arrangement between ACN and LCI regarding its subject matter, as
of the date hereof, and supersedes all other similar agreements or
understandings between the parties, whether oral or written, consistent or
inconsistent, with this Agreement. This Agreement may not be amended by the
Parties except by a writing executed by both Parties. Any Exhibit to this
Agreement is to be deemed a part of this Agreement and the contents of any such
Exhibit are hereby incorporated by this reference into this Agreement.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement,
as of the Effective Date.
AMERICAN COMMUNICATIONS NETWORK, INC. LCI INTERNATIONAL TELECOM CORP.
By: /s/ GREG PROVENZANO By: /s/ THOMAS J. WYNNE
------------------------------- -------------------------------
Name: Greg Provenzano Name: T. J. Wynne
----------------------------- -----------------------------
Title: President Title: President
---------------------------- ----------------------------
Date: 6-7-96 Date: 6-7-96
----------------------------- -----------------------------
42
CONFIDENTIAL
43
EXHIBIT "J" - ACN COMMISSION RATES AFTER JANUARY 1, 1997 (PROVIDED NO CHANGE
IN CONTROL OCCURS PRIOR TO OR ON DECEMBER 31, 1996)
[****]
- - All American Plan (AAP) ($.19 Day/$.14 Evening/$.12 Night/Weekend
per minute rates)
- - MLM Month to Month (Domestic)
- - MLM Term - (Domestic)
- - WorldCard
- - WorldCard Plus
- - Extend Your Reach Europe
- - Standard Business Products
- Alternative
- Simply Business
- Simply Guaranteed
- Integrity
- Campus Talk
- - Home 800
- - Extend Your Reach
- - MLM Month to Month (International)
- - MLM Term (International)
- - Lightcall
- - Lightcall Plus
- - Cellular Lightcall
- - Personal Option 800
- - Personal Perks
- - Simple, Fair & Inexpensive
- - Simple, Fair & Inexpensive IDDD Extend Your Reach
- - LDS Plan
- - Unicom WAL
- - Calls in NECA territories
- - Calls in USINTELCO territories
43
CONFIDENTIAL