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CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT ("Agreement") is made
effective this 1st day of January 1996 by and between IntelCom
Group Inc., a Federal Canadian corporation, whose address is #11-
1155 North Service Road West, Oakville, Ontario L6M 3E3, Canada
(together with its subsidiaries and affiliates "IntelCom") and
International Communications Consulting Inc., a Cayman
corporation, whose address is Box 268, Georgetown, Cayman
Islands, BWI ("Consultant").
A. IntelCom desires to engage Consultant to provide
consulting services to IntelCom and Consultant is desirous of
providing such services to IntelCom all upon the various terms
and conditions as hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants of
the parties contained herein, IT IS AGREED AS FOLLOWS:
1. Consulting.
1.1 Consultant shall provide consulting services to
IntelCom as may be directed, in writing, by the board of
directors or the president of IntelCom.
1.2 IntelCom shall refrain from requesting Consultant
to render services within the United States during the term of
the consulting agreement and shall limit the hours of
consultation requested in any given month to a period not to
exceed 75, including travel time.
1.3 Consultant represents and warrants that William W.
Becker will remain the president and chief executive officer of
Consultant as long as William W. Becker is alive.
2. Consulting Fee.
2.1 IntelCom will compensate Consultant, free of
withholding or offset of any kind or amount, for Consultant's
services in a net amount equal to $4,204,219.75 ("Consulting
Fee"). Such amount shall be paid in accordance with Schedule A,
attached hereto, unless the death of the president and chief
executive officer of Consultant occurs first.
2.2 IntelCom will make the first payment of the
Consulting Fee to the trust account of Kutak Rock, Suite 2900,
717 Seventeenth Street, Denver, CO 80202 ("Escrow Agent") on or
before June 27, 1996. The Escrow Agent will release the first
payment of the Consulting Fee to Consultant on July 31, 1996,
upon the occurrence of certain conditions and delivery by
IntelCom of instructions to the Escrow Agent to release the first
payment to Consultant.
2.3 In the event that IntelCom fails to make a payment
when due, Consultant shall notify IntelCom and IntelCom shall
have three (3) business days from date of receipt of notice to
cure the non-payment. In the event that IntelCom fails to cure
the non-payment within the cure period specified, IntelCom shall
pay interest in the amount of 1.5% per month on the amount past
due. Provided, however, that if such default continues beyond
thirty (30) days
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IntelCom shall pay the greater of the above amount and the amount
required, if any, to reinstate and bring the Insurance Policy to
the same cash value as if all payments had been timely made.
2.4 In the event that IntelCom is required to pay any
amounts for withholding taxes with respect to actual or
constructive payments to Consultant, including interest and
penalties, to any taxing authority ("Tax Authority"), IntelCom
will not seek, nor will IntelCom be entitled to any form of,
reimbursement from Consultant. In the event that Consultant is
required to pay any amounts to a Tax Authority, including
interest, fines or penalties, Consultant will not seek, nor will
Consultant be entitled to any form of, reimbursement from
IntelCom. In addition, neither party shall enter into any
arrangement with a Tax Authority to provide information about, or
seek reimbursement from, the other party, unless ordered to do so
by a court or other regulatory body having jurisdiction.
2.5 No other amounts will be due to Consultant, other
than those amounts set forth in this Section 2.
2.6 IntelCom will not have a right of set-off against
any amounts owed to Consultant pursuant to the consulting
agreement.
3. Expenses. IntelCom shall further reimburse Consultant
for reasonable expenses incurred in the travel of Consultant's
employees for the purposes of providing consultation services,
all as specifically requested and pre-approved in writing by
IntelCom and upon receipt of an itemized expense report.
4. Insurance Policy. Consultant represents and warrants
that Consultant will use a portion of the Consulting Fee to
maintain the current life insurance policy (Ultra Advantage
policy number 1535158 issued by Security Life of Denver, or any
successor or replacement policies) covering Consultant's
president and chief executive officer for the Term of this
Agreement ("Insurance Policy").
5. Term. The term of this Agreement ("Term") shall
commence on January 1, 1996 and continue through December 31,
1999. This Agreement shall not be cancelable by IntelCom prior
to the earlier of (i) December 31, 1999; or (ii) the death of the
president and chief executive officer of Consultant.
6. Effect of Termination. All payments of any unaccrued
installments of Consulting Fees will cease upon the earlier of
(i) the death of the president and chief executive officer of
Consultant, and (ii) the end of the Term.
7. Confidential Information.
7.1 Consultant agrees that any confidential
information received by Consultant or any of its employees,
agents or representatives during any furtherance of Consultant's
obligations in accordance with this Agreement, which concerns the
personal, financial, marketing, developmental or other affairs of
IntelCom will be treated by Consultant in full confidence and
will not be disclosed to any other persons, firms, or
organizations, without the express written consent of IntelCom.
Consultant shall take reasonable steps necessary, and all
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steps reasonable requested by IntelCom, to insure that all such
confidential and secret information is kept secret and
confidential for the sole use and benefit of IntelCom.
Consultant shall take effective precautions, contractual and
otherwise, reasonably calculated to prevent unauthorized
disclosure or misuse of such information.
7.2 Consultant understands that this Agreement creates
a relationship of confidence and trust with respect to any
information of a confidential or proprietary nature that may be
disclosed to Consultant by IntelCom. Consultant agrees that it
shall not use such information, during the Term of this Agreement
and for a period of six (6) months following the termination of
this Agreement.
7.3 The provisions of this Section 7 shall remain in
full force and effect for six (6) months beyond the Term of this
Agreement as stated above.
8. Non-Contravention. During the Term of this Agreement,
and for a period of twelve (12) months thereafter, Consultant,
and Consultant's president and chief executive officer shall not
(i) cause or attempt to cause any employee of IntelCom or any of
its affiliates to leave the employ of IntelCom or any affiliate,
(ii) interfere with the relationship between IntelCom and any
employee or between an affiliate and any employee of the
affiliate, or (iii) interfere or attempt to interfere with any
transaction in which IntelCom or any of its affiliates is
involved.
9. Relationships of Parties.
9.1 Both IntelCom and Consultant agree that Consultant
will act as an independent contractor in the performance of his
duties under this Agreement. Consultant is not a legal
representative of IntelCom for any purpose other than acting as a
Consultant hereunder, and is not granted, by the terms or
execution of this Agreement, or otherwise, any right or authority
to assume or create any responsibility on behalf of, or in the
name of, IntelCom, or to bind IntelCom in any manner whatsoever.
9.2 Consultant retains the right to exercise full
control of and supervision over the performance of Consultant's
obligations, and full control over the employment, direction,
compensation and discharge of all of its employees assisting in
the performance of such obligations. Consultant shall be
responsible for Consultant's own acts and those of Consultant's
employees, representative, agents and assigns during the
performance of Consultant's obligations under this Agreement.
10. Notices. Any notice or other communication required or
permitted hereunder shall be sent by courier or certified mail,
return receipt requested, airmail postage prepaid, addressed to
the parties at their respective addresses as set forth herein (or
at such other address as either party shall designate to the
other in writing for such purpose), and shall be effective upon
the date of mailing.
11. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that this
Agreement may not be assigned by either party without the prior
express written consent of the other party.
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12. Governing Law and Venue. This Agreement shall be
governed by, and shall be construed and regulated in accordance
with, the federal Canadian laws. Any action to enforce this
Agreement shall be brought in the federal courts of Canada.
13. Enforceability. If any provision of this Agreement is
found to be prohibited, unenforceable or invalid under the laws
of any jurisdiction, such provision or part thereof shall be
ineffective to the extent of such prohibition, unenforceability
or invalidity under the applicable law without affecting the
enforceability or validity of such provision in any other
jurisdiction, and without invalidating the remainder of such
provision or other provision of this Agreement.
14. Waivers. No waiver or modification of the terms hereof
shall be valid unless in writing and signed by the party to be
charged, and only to the extent therein set forth.
15. Paragraph Headings. The paragraph headings used in
this Agreement are solely for the convenience of the parties and
in no way restrict or limit the provisions contained therein.
16. Prior Agreements. All prior agreements, contracts,
promises, representations and statements, if any, between the
parties hereto, or their representatives, with respect to the
matters covered hereby are merged into this Agreement, and this
Agreement represents the entire agreement between the parties
hereto with respect to the matters covered hereby.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its duly authorized officer on
the day and year first above written.
INTELCOM GROUP INC. INTERNATIONAL COMMUNICATIONS
CONSULTING INC.
By /s/John D. Field By /s/S.V. Weom
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Its Executive Vice President Its Director
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Schedule A
Consulting Fees
Date Amount
August 5, 1996 $1,051,359.91
September 15, 1996 266,759.97
December 15, 1996 266,759.97
March 15, 1997 266,759.97
June 15, 1997 266,759.97
September 15, 1997 266,759.97
December 15, 1997 261,933.99
March 15, 1998 259,521.00
June 15, 1998 259,521.00
September 15, 1998 259,521.00
December 15, 1998 259,521.00
March 14, 1999 259,521.00
June 15, 1999 259,521.00
Total $4,204,219.75