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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report: November 9, 1998
AM COMMUNICATIONS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-9856 23-1922958
- -------- ------ ----------
(State or other (Commission File No.) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
100 Commerce Boulevard
Quakertown, Pennsylvania 18951
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(Address of Principal Executive Offices)
Registrant's Telephone Number, Including Area Code: 215-538-8700
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Item 1: Changes in Control of Registrant
On November 2, 1998, the Alvin Hoffman Revocable Trust UAD 2/28/86
entered into the Voting Trust and Share Price Participation Agreement dated
November 2, 1998 (the "Voting Trust"), with Javad (Jay) K. Hassan as voting
trustee (the "Voting Trustee"), and pursuant thereto deposited with the Voting
Trustee 14,391,837 shares of the common stock of the Registrant, constituting
46.3% of the issued and outstanding shares of the Registrant's common stock.
Pursuant to the terms of the Voting Trust, the Voting Trustee is entitled, for
the term of the Voting Trust, to exercise all voting rights with respect to such
shares. Accordingly, management believes that, while Alvin Hoffman, the settlor
of the Alvin Hoffman Revocable Trust UAD 2/28/86, remains a beneficial owner of
such shares, the transfer of voting rights with respect to such shares has
resulted in a change in control of the Registrant from Mr. Hoffman to Mr.
Hassan.
Neither Mr. Hoffman nor the Alvin Hoffman Revocable Trust UAD 2/28/86
received any consideration for the above-described transfer of voting rights.
Mr. Hassan, on the same date, entered into a Services Agreement with
the Registrant pursuant to which Mr. Hassan (i) was appointed to the
Registrant's Board of Directors and elected to serve as its Chairman of the
Board, (ii) agreed to assume the duties and responsibilities described therein,
and (iii) was granted, subject to approval of the Registrant's 1998 Stock Option
Plan by the Registrant's shareholders, an option to acquire 5,000,000 shares of
the Registrant's Common Stock, at a per share exercise price equal to the fair
market value of the stock on the date of grant.
On the same date, Network Systems and Technologies (P) Ltd. ("NeST"),
an affiliate of Mr. Hassan which is located in Trivandrum, India, entered into a
Consulting Services Agreement with the Registrant. Pursuant to this Agreement,
NeST will provide technical engineering services to the Registrant, including
without limitation hardware and software design. The Registrant has the option
of paying for such services either in cash or in warrants to purchase shares of
the Registrant's Common Stock.
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Item 7: Financial Statements and Exhibits.
Exhibit 9.1: Voting Trust and Share Price Participation
Agreement
Exhibit 10.1: Services Agreement between the Registrant
and Jay Hassan
Exhibit 10.2: Consulting Services Agreement between the
Registrant and NeST
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
DATED: November 9, 1998
AM COMMUNICATIONS, INC.
By: /s/ Keith D. Schneck
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Keith D. Schneck
President
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Exhibit 9.1
VOTING TRUST AND SHARE PRICE PARTICIPATION AGREEMENT
THIS VOTING TRUST AGREEMENT is made and entered into this 2nd day of
November, 1998, by and among ALVIN HOFFMAN, REVOCABLE TRUST UAD 2/28/86,
(hereinafter referred to as the "Stockholder"), as stockholder of AM
COMMUNICATIONS, INC., a Delaware corporation (the "Corporation" herein) and JAY
HASSAN, as Voting Trustee (hereinafter referred to as the "Trustee"). This
Agreement is made with reference to the following facts:
A. The undersigned Stockholder is the holder of record of
14,391,837 shares of the issued and outstanding shares of the
common stock of the Corporation.
B. The undersigned Stockholder desires to enter into this
Agreement in order to assure continuity and stability in the
policies of the Corporation and the good management of the
affairs of the Corporation.
C. The Trustee above named has consented to act under this
Agreement for the purposes herein provided.
D. The parties hereto acknowledge that the Trustee, in his
respective individual capacity, for the foreseeable future
intends to be Chairman of the Board of Directors of the
Corporation.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
1. THE TRUSTEE. JAY HASSAN is hereby appointed as Trustee for the
purposes set forth in and with the powers granted to him by this Agreement, and
he accepts such appointment and agrees to act as a Trustee hereunder. It is
expressly agreed that the Trustee has an interest in the common stock of the
Corporation, and the Trustee intends to be Chairman of the Board of Directors of
the Corporation.
2. ASSIGNMENT OF STOCK TO THE TRUSTEE. The Stockholder hereby
transfers, assigns and delivers to and deposits with the Trustee that number of
the shares of the common stock (the "Stock") of the Corporation now owned or
held by him which is specified on Exhibit "A", attached hereto and incorporated
herein by this reference. The Stockholder agrees to deliver to the Trustee
immediately upon the execution hereof the certificates evidencing such shares of
the Stock as are set forth opposite the name of the Stockholder in Exhibit "A"
hereto. All of the certificates evidencing such shares of the Stock shall be
properly endorsed for transfer to the Trustee. The Stockholder agrees to execute
and deliver to the Trustee such additional assignments or other instruments as
may be necessary or required by the Trustee to confirm and make effective such
transfer, assignment, delivery and deposit. All of such shares shall be held
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by the Trustee in trust for the uses and purposes herein set forth, and such
shares hereinafter sometime will be referred to as the "Trust Shares".
3. ISSUANCE OF STOCK CERTIFICATES TO THE TRUSTEE. All certificates of
stock transferred to the Trustee shall be surrendered and canceled and new
certificates therefor shall be issued to the Trustee, and the registration upon
the certificates so issued shall state, and an entry and registration shall be
made in the proper books of the Corporation, as follows: "JAY HASSAN, AS VOTING
TRUSTEE UNDER THAT CERTAIN VOTING TRUST AGREEMENT AND SHARE PRICE PARTICIPATION
AGREEMENT DATED NOVEMBER 2, 1998, BY AND BETWEEN ALVIN HOFFMAN, REVOCABLE
TRUSTEE UAD 2/28/86 AND JAY HASSAN".
4. ISSUANCE OF TRUST CERTIFICATES TO STOCKHOLDER. The Trustee shall
issue and deliver to the Stockholder a trust certificate for the number of
shares of the Stock transferred, assigned and delivered to and deposited with
the Trustee as herein provided. The trust certificates to be issued hereunder
shall be substantially in the form of the trust certificate attached hereto as
Exhibit "B", which is incorporated herein by reference.
5. POWERS OF THE TRUSTEE.
5.01. Acts. During the existence of the voting trust created hereby,
the Trustee shall possess and in his discretion shall be entitled to exercise
all rights and powers of the absolute owner of the Stock, including without
limiting the generality of the foregoing, the rights and powers to vote the
Trust Shares and to assent to or dissent from any corporate or shareholder
action of any kind whatsoever, whenever such vote, assent or dissent is required
or permitted by law or otherwise, including the election of directors, amendment
or repeal of the Articles of Incorporation and Bylaws of the Corporation, or any
proposed increase, decrease or change in the classification of the capital stock
of the Corporation or any proposed dissolution and liquidation or merger or
consolidation of the Corporation into or with another corporation or
corporations, or any sale, lease, transfer, conveyance, mortgage or encumbrance
of all or any substantial part of the property of the Corporation; and no such
right or power shall be vested in or be exercised by any other person as a
stockholder beneficially owning any of the Trust Shares or holding or owning any
trust certificate issued hereunder by virtue of the issuance or ownership of any
such trust certificate. The above notwithstanding, except as provided in
paragraph 11 hereof, the Trustee shall not at any time sell, transfer, pledge,
hypothecate or in any other manner dispose of all or any part of the Trust
Shares.
5.02. Authority. In voting shares of stock or in otherwise assenting
or dissenting to any matter pursuant to his authority hereunder, or in
performing any act in respect of the control or management of the Corporation or
its affairs, as a holder(s) of stock deposited hereunder, the Trustee shall
exercise his best judgment in the interests of the Corporation to the end that
its affairs shall be properly managed. Except as otherwise expressly provided
herein, the Trustee may and shall act without the vote, assent or dissent, or
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opinion of the holders of the trust certificates hereunder. The Trustee may vote
or act by a nominee, agent, attorney in fact or proxy who may be appointed in
writing or by telegram, radiogram, or cable, and the vote or act of such
nominee, agent, attorney in fact or proxy shall be as effective as the vote or
act of the Trustee appointing such person. The Trustee shall have the same
liability for the acts and defaults of any nominee, agent, attorney in fact or
proxy representing him to the same extent as if the acts or defaults were the
personal acts of the Trustee.
6. THE TRUSTEE MAY BE INTERESTED PERSONALLY. The Trustee may serve as
director, officer and employee of the Corporation, and may vote or cause votes
to be cast in favor of his own election, appointment or employment as such
director, officer or employee.
7. COMPENSATION OF THE TRUSTEE. The Trustee shall not be entitled to
any compensation for his services as Trustee hereunder.
8. RESIGNATION, DEATH OR INCAPACITY OF THE TRUSTEE. The Trustee may
resign and discharge himself from all further duties hereunder at any time by
written notice and upon each of the then record owners of trust certificates at
least thirty (30) day prior to the date on which such resignation is intended to
become effective, which date shall be specified in such notice, unless such
resignation is accepted by all such record owners of trust certificates as of an
earlier date.
The legal incapacity of the Trustee shall constitute the resignation
and discharge of such Trustee from all further duties and obligations hereunder.
Upon the resignation and discharge of the Trustee as provided in this
paragraph, this Agreement and the voting trust created hereby shall terminate.
9. LIABILITY OF THE TRUSTEES. The Trustee shall not be liable for any
error of judgment nor for any act of commission or omission, nor for any mistake
of law or fact, nor for anything which he may do or refrain from doing in good
faith, nor generally shall he have any accountability hereunder, except for his
own willful misconduct or gross negligence.
10. TRANSACTIONS BY TRUST CERTIFICATE OWNERS. Except as provided in
paragraph 11, no holder of any trust certificate or of any beneficial interest
hereunder shall have the right nor shall he attempt to sell, transfer, pledge,
hypothecate or in any manner dispose of any of the Trust Shares except in
connection with the sale, transfer, pledge or hypothecation of an interest in
trust certificates, and any attempted or purported sale, transfer,
hypothecation, foreclosure, or other disposition of any Trust Shares, except as
aforesaid, shall be null and void.
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11. TRANSACTIONS BY HOFFMAN. Subject to the Trustee's 30 day right to
purchase described in this paragraph, Hoffman shall have the absolute right to
cause the sale, transfer, pledge or hypothecation ("Sale") of all or any portion
of the Trust Shares by giving 30 days written notice to the Trustee, which
notice shall contain the purchase price and other terms of the Sale of said
Trust Shares, at the sole discretion of Hoffman, with full rights conveyed to
him under that certain Agreement to Restructure Indebtedness dated March 31,
1994, by and between Hoffman and the Corporation, and subject only to any
restrictions imposed by the Securities Act of 1933, as amended, or any similar
Federal statute, and the rules and regulations of the Securities and Exchange
Commission issued under such Act, as they each may, from time to time, be in
effect. Within 30 days of receipt of said notice, the Trustee shall either:
a) purchase the Trust Shares from Hoffman at the price set forth
by Hoffman in such notice, less fifty percent (50%) of the
price per share in excess of ten cents ($.10) per share for
each Trust Share offered for sale; or
b) effect the Sale of said Trust Shares in accordance with and
upon the terms of the notice, and the Trustee shall execute all
such documents and papers, and do all such things, as is
necessary to effect the Sale of said Trust Shares as provided
in the notice and to effect the termination of the voting trust
provided for herein as to such Trust Shares.
12. DISTRIBUTION OF PROCEEDS OF SALE. The Trustee shall direct that all
proceeds of any Sale effected pursuant to paragraph 11 hereof shall be paid by
the purchaser of said Trust Shares directly to Hoffman or the holder of any
trust certificate relating thereto, and, to the extent that any such proceeds
shall come into the possession of the Trustee, the Trustee shall immediately
turn over all such proceeds to Hoffman or the holder of any trust certificate
relating thereto. During the term of this Agreement, in the event that the
proceeds of any such Sale represent a purchase price for the Trust Shares which
exceeds Ten Cents ($.10) per Trust Share, Hoffman or the holder of any trust
certificate relating thereto shall pay to the Trustee, for each Trust Share so
sold, fifty percent (50%) of the difference between the amount of Ten Cents
($.10) per Trust Share and the amount actually paid for each Trust Share which
exceeds Ten Cents ($.10).
13. TRUSTEE TO RECEIVE AND DISTRIBUTE DIVIDENDS. During the continuance
of this voting trust, the Trustee shall receive all cash dividends paid upon the
Trust Shares, and within a reasonable time after the receipt thereof shall pay
such dividends to the record owners of trust certificates then outstanding in
accordance with their several interests hereunder as represented by the trust
certificates held by them respectively. Any and all shares of the Stock received
by the Trustee during the continuance of this trust as a dividend or
distribution payable in the Stock of the Corporation or upon any split-up or
subdivision of the Stock shall be held by the Trustee as part of the principal
or corpus of the trust estate and not as income. Upon receipt by the Trustee of
any such common stock they shall issue to the then record owners of trust
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certificates additional trust certificates representing such additional shares
of common stock in accordance with their several interests hereunder as
represented by trust certificates held by them respectively. During the
continuance of this voting trust the Trustee shall receive all dividends payable
in property or payable in any manner whatsoever other than in cash or in common
stock of the Corporation and shall distribute such dividends in the same manner
as hereinabove provided in this paragraph with respect to cash dividends.
14. SUBSCRIPTION RIGHTS. If at any time while the Trustee (as Trustee)
is holder(s) of the legal title to any of the Stock pursuant to this Agreement,
the Stockholder becomes entitled to subscribe for new or additional shares of
the Stock, or to purchase shares of the Stock, the Trustee shall not be
obligated to exercise such right except in the following manner and to the
following extent. The record owner of any trust certificate who is a party to
this Agreement may request the Trustee in writing to exercise such right to the
extent to which the owner of such certificate would have been entitled to
subscribe or purchase as the holder of the shares of stock represented by such
trust certificate, and concurrently shall pay to the Trustee the full amount of
money necessary to be paid at such time for the shares to be subscribed for or
purchased as aforesaid. If any deferred payments are to be made at a later date,
the record owner of such certificate shall also make the required payments, as
and when so required, to the Trustee. Upon receiving such request and payment or
down payment, as applicable, the Trustee shall subscribe and pay for such
Shares, the certificates for which shall be issued to him as Trustee hereunder,
and thereupon said Shares shall be added to and shall become a part of the Trust
Shares, and the Trustee shall issue to the trust certificate owner upon whose
request such Shares have been subscribed for a trust certificate representing
such Shares.
15. EVIDENCE OF OWNERSHIP OF CERTIFICATES. The Trustee, at any time and
for all purposes whatsoever, may deem and treat the then registered or record
owner of any trust certificate as the absolute owner thereof and of the entire
right, title and interest represented thereby, and the Trustee shall not be
affected by any notice to the contrary.
16. LOST OR DESTROYED TRUST CERTIFICATES. In case any trust
certificates should become mutilated or defaced or should become lost, stolen or
destroyed, the Trustee, in his discretion, may execute in exchange for and upon
cancellation of the mutilated or defaced certificate, or in lieu or and in
substitution therefor if lost, stolen or destroyed, a new certificate of like
tenor and representing the same number of shares as the mutilated, defaced,
lost, stolen or destroyed trust certificate. The applicant for such replacement
or substitution shall furnish to the Trustee evidence satisfactory to him of the
ownership of such original trust certificate and of the loss, theft, defacement,
mutilation or destruction thereof and shall pay all charges and expenses,
including counsel fees, of the Trustee in connection with the investigation and
with the replacement thereof. The applicant also shall furnish to the Trustee
such indemnity as in the Trustee' sole discretion they may require.
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17. FILING OF COPY OF AGREEMENT WITH THE CORPORATION. Prior to
effecting the provisions of paragraph 3 hereof, an executed copy of this
Agreement shall be filed in the registered office of the Corporation in the
State of Delaware, which copy shall be open to the inspection of any stockholder
of the Corporation or any beneficiary of the trust provided for in this
Agreement daily during business hours.
18. DISSOLUTION OF THE CORPORATION. In the event of the total or
partial liquidation or dissolution of the Corporation, whether voluntary or
involuntary, the monies, securities, proceeds, rights or property received by
the Trustee in respect of the Shares deposited under this Agreement shall be
distributed among the record owners of the trust certificates issued in respect
of such Shares in proportion to their interests, less the deductions as
hereinbefore provided.
19. TERMINATION AND IRREVOCABILITY OF TRUST. This Agreement and the
voting trust hereby created shall terminate upon the first to occur of (i) the
death or legal incapacity of the Trustee; (ii) the resignation of the Trustee as
Chairman of the Board of Directors of the Corporation; (iii) the removal by the
Corporation of the Trustee as Chairman of the Board of Directors of the
Corporation; or (iv) a termination for cause of the Services Agreement between
Trustee and the Corporation. Subject to the foregoing and the provisions of
paragraphs 11 and 21 hereof, this voting trust is expressly declared to be
irrevocable.
20. EFFECT OF TERMINATION. Upon the termination of this Agreement and
the voting trust created hereby, in any manner provided for herein, the Trustee,
upon the surrender to him of the outstanding trust certificates, shall
immediately deliver the Trust Shares to the then record owners of the trust
certificates at the time issued and outstanding hereunder in proportion to their
respective interests by causing new share certificates to be issued and
delivered to said record owners.
21. AMENDMENT OF AGREEMENT. This Agreement may be amended in any part
at any time only by the unanimous consent, in writing, of the Trustee and the
owners of all of the trust certificates then outstanding. Such written consent
shall be filed with the Corporation and with each record owner of trust
certificates issued pursuant to the provisions hereof. Unless the written
consent specifies a definite date as of which it is to take effect, it shall
take effect when filed with the Corporation.
22. EFFECT OF PARTIAL INVALIDITY. If any one or more provisions of this
Agreement should be or become contrary to law, then such provisions only shall
be null and void and shall be deemed separable from the remaining provisions
hereof; and its or their invalidity shall not in any way affect the validity of
this Agreement as a whole or of any other provision or portion thereof; provided
however, that the Agreement as thereby modified continues to provide the parties
with the essential benefits bargained for. In the event the Agreement as so
modified does not provide such benefits, the Agreement shall be deemed rescinded
or terminated upon such grounds as a court of competent jurisdiction may deem
equitable.
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23. MISCELLANEOUS.
23.01. Effect of Testamentary Disposition of Inheritance. Any person
acquiring any Trust Share or trust certificate by testamentary disposition,
inheritance, order of court or otherwise, shall take such Trust Share or trust
certificate subject to each and all of the provisions of this Agreement, and
each such provision shall be applicable to each Trust Share or trust certificate
to the same effect as though the person so receiving it had been a party to this
Agreement and had signed the same.
23.02. Service of Notice Upon Trust Certificate Holders. Any notice
or demand of any kind hereunder which any person may be required or may desire
to serve upon the owner of any trust certificate may be served by personal
service or by mailing the same addressed to such owner of a trust certificate at
the address last registered to him with the Trustee, or if no such address has
been registered, then addressed to such owner of a trust certificate at the
principal office of the Corporation.
23.03. Service of Notice Upon Trustee. Any notice or demand of any
kind hereunder which any person may be required or may desire to serve upon the
Trustee may be served by personal service on the Trustee or by mailing the same
addressed to the Trustee at the principal office of the Corporation.
23.04. Method of Service. All such notices or demands may be
delivered by courier or other means of personal service, by registered or
certified mail or by telecopy. Any such notice or demand so delivered by
registered or certified mail or courier shall be deposited in the United States
mail, or in the case of courier, deposited with the courier, with postage
thereon fully prepaid. Service of any such notice or demand so made shall be
deemed complete on the day of actual delivery thereof as shown by the
addressee's registry, certification receipt or other evidence of receipt. The
Trustee may, from time to time by notice in writing served upon the other
parties hereto, designate a different mailing address or a different or
additional person to which all such notices or demands thereafter are to be
addressed.
23.05. Agreement May Be Executed in Counterparts. This Agreement may
be signed in any number of counterparts with the same force and effect as though
all of the parties hereto had signed one instrument. However, it shall not be
deemed to have been fully executed and shall have no effect whatsoever until the
Trustee and the Stockholder whose stock is listed upon Exhibit "A" hereto shall
have each signed one or more counterparts.
23.06. Persons Bound. This Agreement shall inure to the benefit of
and bind, as the case may require, the parties hereto and their respective
heirs, executors, administrator, successors and assigns, and each person to whom
any trust certificate is issued, transferred, assigned or hypothecated shall
take the same subject to each and all of the terms and conditions hereof and of
such trust certificate, and by his acceptance of such trust certificate shall be
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bound by this Agreement and by the provisions of such trust certificate in the
same manner and to the same extent as though he had signed this Agreement as one
of the parties hereto.
23.07. Entire Agreement. This Agreement, in conjunction with those
additional references made herein, is intended to embody the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes any and all negotiations, prior discussions, or prior
agreements and understandings.
23.08. Paragraph Headings. The headings of the several paragraphs of
this Agreement are inserted solely for convenience of reference, and are not a
part of any are not intended to govern or aid in the construction of any of the
terms or provisions thereof.
23.09. Attorneys' Fees. If any party hereto shall bring an action
against any other by reason of the breach of any covenant, provision or
condition hereof, or otherwise arising out of this Agreement, the unsuccessful
party shall pay to the prevailing party all attorneys' fees and costs actually
incurred by the prevailing party, in addition to any other relief to which it
may be entitled.
23.10. Applicable Law and Venue. This Agreement is to be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania.
Any suit brought hereon shall be brought in the state or federal courts of the
Commonwealth of Pennsylvania, the parties hereto hereby waiving any claim or
defense that such forum is not convenient or proper. Each party agrees that any
such court shall have in personam jurisdiction over it and consents to service
of process in any manner authorized by Pennsylvania law.
EXECUTED at by the parties hereto on the day and year first above
written.
"Stockholder"
ALVIN HOFFMAN REVOCABLE TRUST
/s/ Alvin Hoffman
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ALVIN HOFFMAN, TRUSTEE
"Trustee"
/s/ Jay Hassan
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JAY HASSAN
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EXHIBIT A
LIST OF SHARES TRANSFERRED TO VOTING TRUST
LIST SETTING FORTH THE TOTAL NUMBER OF SHARES OF COMMON STOCK OF THE
CORPORATION TO BE TRANSFERRED, ASSIGNED, DELIVERED AND DEPOSITED BY THE
STOCKHOLDER TO AND WITH THE TRUSTEE
----------------------
Stockholder Number of Shares
- ----------- ----------------
ALVIN HOFFMAN,
REVOCABLE TRUST UAD 2/28/86 14,391,837
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EXHIBIT B
TRUST CERTIFICATE
14,391,837 SHARES OF THE COMMON STOCK OF AM COMMUNICATIONS, INC.
THIS CERTIFIES that there have been deposited with the undersigned, Jay
Hassan, as "Trustee" under that certain "Voting Trust Agreement" with respect to
the common stock of AM Communications, Inc., a Delaware corporation (hereinafter
called the "Corporation"), dated November 2, 1998 by and between the Trustee and
the certain stockholder of the Corporation named therein, certificates for the
number of shares of the common stock of the Corporation set forth on this Trust
Certificate, and that Alvin Hoffman, Revocable Trust UAD 2/28/86 or its
registered assigns, upon the termination of the Voting Trust Agreement, and
subject always to the terms, provisions and conditions thereof and of this Trust
Certificate, will be entitled to receive from the Trustee such shares of common
stock of the Corporation. Such shares of common stock are held by the Trustee
subject to and upon the terms, conditions, restrictions and trusts set forth in
the Voting Trust Agreement, and this Trust Certificate is issued pursuant
thereto.
The holder of this Trust Certificate takes the same subject to each of
the terms, conditions, restrictions and trusts of the Voting Trust Agreement,
and by acceptance of this Trust Certificate agrees to be bound thereby, with
like effect as if the Voting Trust Agreement had been signed by him in person,
and he is entitled to all of the benefits specified therein arising from the
ownership of said shares deposited with the Trustee as provided therein. A copy
of the Voting Trust Agreement is on file in the office of the Corporation,
reference to which is hereby made for further particulars.
All rights to vote and otherwise represent said shares of stock are
vested in and shall be exercised by the Trustee in accordance with the
provisions of the Voting Trust Agreement and no right to vote or otherwise
represent any of said shares of stock shall pass to the holder hereof by virtue
of the issuance or ownership of this Trust Certificate.
The provisions of this Trust Certificate are intended to be and shall
be given the effect of a contract among all present and future owners of trust
certificates issued under the Voting Trust Agreement, and with the Trustee and
the stockholders who are parties to the Voting Trust Agreement.
The Trustee shall receive all dividends and distributions with respect
to the shares of stock evidenced by this Trust Certificate and shall hold or pay
the same as provided in the Voting Trust Agreement.
This Trust Certificate is transferable only by the registered holder
hereof, in person or by attorney duly authorized, as set forth in the register
which shall be kept for that purpose by the Trustee, and then only upon
compliance with the provisions of the Voting Trust Agreement and of this Trust
Certificate and upon the surrender to the Trustee of this Trust Certificate
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properly endorsed; and until so transferred the Trustee may treat the then
registered holder hereof as the owner hereof for all purposes whatsoever.
Upon the termination of the voting trust, the Trustee will, upon
endorsement and surrender of this Trust Certificate to them, assign and deliver
to the registered holder hereof a share certificate representing a like number
of said shares, less said holder's proportionate share of all costs, expenses
and charges as provided by the Voting Trust Agreement.
DATED:
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Trustee
ASSIGNMENT OF RIGHTS AND INTERESTS OF HOLDER UNDER VOTING TRUST
FOR VALUE RECEIVED Alvin Hoffman, Revocable Trust UAD 2/28/86 hereby
sells, assigns and transfers the attached Trust Certificate and all rights and
interests represented thereby and subject to each and all of the terms and
conditions of the Voting Trust Agreement mentioned herein to
____________________________ and hereby constitutes and appoints
_________________________ attorney to transfer this certificate on the books of
the Trustee mentioned therein with full power of substitution in the premises.
DATED:
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In the presence of:
- -----------------------------------------
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Exhibit 10.1
SERVICES AGREEMENT
AGREEMENT dated as of November 2, 1998 between AM COMMUNICATIONS, INC.,
a Delaware corporation (the "Company"), and JAY HASSAN (the "Executive").
WHEREAS, the Company and the Executive desire that the Executive serve
as Chairman of the Board of Directors of the Company, on the terms hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
Definitions
The following terms, when utilized herein, shall have the meanings
indicated:
Board: The term "Board" means the Company's Board of Directors.
Permanent Disability: The term "Permanent Disability" refers to the
Executive being unable, for a period of 120 continuous days, to perform his
customary duties hereunder due to his physical or mental incapacity. A
determination of Permanent Disability by a physician designated by the Company
will be conclusive and binding on the parties.
ARTICLE II
Retention; Services
2.1 Engagement. The Board will promptly take all necessary action to
cause the Executive to be appointed to the Board and to be elected to serve as
the Chairman of the Board. While the Executive will not be employed by the
Company, but will instead be a non-employee member of the Board, he will be
actively and extensively involved in the business, management and affairs of the
Company. Executive hereby accepts such engagement and agrees to devote
substantial working time and his best efforts to the Company's business and
affairs. During the term hereof, the Executive shall not engage in or be
connected with any other business pursuits which are directly competitive with
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the Company, unless authorized in writing by the Board. The Company confirms
that the Executive's position as a director of C-Cor is not deemed competitive.
2.2 Responsibilities. The Executive's duties and responsibilities
hereunder shall include the following:
(a) Active involvement in the management of the Company's business
and affairs.
(b) Development and execution (after approval by the Board) of
growth strategies for the Company's existing business and new business
opportunities, it being the aim and expectation of the parties that the new
business opportunities will ultimately constitute a majority of the Company's
business activities.
(c) Identification of new products and acquisition opportunities.
(d) Utilization of the Company's corporate structure to market
technologies, products and services offered by India Nest, Inc. ("Nest").
(e) Such other executive duties and responsibilities as may be from
time to time assigned to the Executive by the Board.
2.3 Annual Performance Review. The Board will institute a formal
process pursuant to which the Board will annually review and evaluate the
Executive's performance hereunder. The results of such performance review will
be shared with the Executive.
ARTICLE III
Compensation
3.1 Stock Options. The Board will adopt, subject to stockholder
approval, the AM Communications, Inc. 1998 Stock Option Plan (the "Plan"). The
Plan will be submitted by the Board, with its recommendation, to the
stockholders for approval at the Company's 1998 Annual Meeting. The Executive
acknowledges having received and reviewed the Plan.
Subject to approval of the Plan by the stockholders, the Company hereby
grants to the Executive, as compensation for the services to be provided
hereunder, an option to acquire 5,000,000 shares of the Company's Common Stock,
at a per share exercise price equal to the fair market value of the stock on the
date of grant. Such option shall be issued pursuant to and shall be subject to
the terms, conditions and provisions of the Plan, and will have the following
terms:
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(a) The option will have a term of ten years, subject to early
termination upon any termination of this Agreement or as otherwise provided in
the Plan.
(b) The option will become first exercisable in three equal annual
installments, with the first such installment becoming exercisable on the first
anniversary of the date of grant.
3.2 Business Expenses. The Executive will be reimbursed for business
expenses incurred by him in connection with his services hereunder, in
conformance with the Company's normal policies and procedures.
3.3 No Other Salary or Benefits. As a non-employee, the Executive will
receive no salary for his services hereunder, nor will he be eligible for any
employee benefits, except as specified above or as otherwise designated by the
Board in its discretion.
ARTICLE IV
Term
This Agreement shall become effective, and the engagement hereunder
shall commence, on the date the Executive is elected to the Board and shall
thereafter continue for three years unless earlier terminated pursuant to
Article V hereto. After the initial three-year term, this Agreement shall
continue indefinitely until terminated by either party by written notice to the
other.
ARTICLE V
Termination of Agreement
5.1 Death or Permanent Disability. This Agreement shall automatically
terminate, without act by any party, upon the death or Permanent Disability of
the Executive.
5.2 Termination for Cause. This Agreement may at any time be terminated
by the Company for cause, which for the purposes of this Agreement shall mean
one or more of the following:
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(a) dishonesty, in any material respect, which the Board reasonably
determines to be materially detrimental to the Company;
(b) Executive being convicted of a felony; or
(c) material deficiency in the performance of duties or gross
insubordination hereunder, or breach of the Executive's commitments referenced
in Article VI hereto; provided, that in order to terminate this Agreement
pursuant to this subparagraph (c), the Company shall give ninety days prior
written notice to the Executive, and such notice of termination shall not be
effective if, at the end of such ninety day period, all such deficiencies and
breaches shall theretofore have been fully cured.
ARTICLE VI
Other Matters
6.1 Engineering Services. The Company and Nest, which is an affiliate
of the Executive, have or are about to enter into an agreement pursuant to which
Nest will provide certain designated engineering and other services to the
Company. The Executive will use his best efforts to insure that Nest performs
all of its duties and obligations under such agreement.
6.2 Capital Infusion. As part of the Executive's responsibilities
hereunder, the Executive will study the advisability of the Company divesting
its CATV business, and will make a recommendation to the Board with respect
thereto. In the event that the Company determines to retain this business, the
Executive, or an investor group designated by Executive, will purchase common
stock from the Company for an aggregate cash purchase price of $500,000. Such
stock will be issued and sold to the Executive at a per share price equal to the
stock's then market price.
ARTICLE VII
Miscellaneous
7.1 Notices. All notices or other communications to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered at, or three days after mailing with adequate postage by certified
mail, return receipt requested, to the following addresses:
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If to the Company:
AM Communications, Inc.
100 Commerce Drive
Quakertown, Pennsylvania 18951
Attn: President
If to the Executive:
or to such other address as the person to be notified shall have specified in
the manner indicated in this Paragraph 7.1.
7.2 Binding Arbitration. In the event of any dispute in connection with
this Agreement, the Company and the Executive agree to resolve such disputes
solely by binding arbitration under the rules of the American Arbitration
Association in Philadelphia, Pennsylvania. Each party consents to the entry of
judgment confirming the results of the arbitration in the courts of the
Commonwealth of Pennsylvania.
7.3 Binding Effect; Etc. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective heirs, personal
representatives, successors and assigns; except that it shall not be assignable
by the Executive. This Agreement and the terms and provisions hereof shall be
construed in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and date first above written.
AM COMMUNICATIONS, INC..
By: /s/ Keith D. Schneck
-------------------------------
Keith D. Schneck, President
/s/ Jay Hassan
-----------------------------------
JAY HASSAN
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Exhibit 10.2
Page 1 of 11
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT entered into as of the 2nd day of November, 1998, by and between
AM Communications, Inc., a Delaware corporation, having its principal address at
100 Commerce Boulevard, Quakertown, PA 18951-2237 ("AM" or "Company") and
Network Systems and Technologies (P) Ltd. ("NeST"), having its principal address
in Trivandrum, India.
WHEREAS, NeST desires to provide and AM desires to obtain from time to time
certain technical services; and
WHEREAS, the parties intend that this Agreement shall constitute a basic
agreement the terms and conditions of which shall apply to each Task Order
issued by Company and accepted by NeST.
NOW THEREFORE, in consideration of the mutual covenants and premises contained
herein and the compensation to be paid by AM to NeST hereunder, the parties
hereto convenant and agree as follows:
1. DEFINITIONS
As used in this Agreement and all Task Orders, the terms set forth in this
Section 1 shall have those meanings indicated below or in the referenced
Section.
Consultant-An individual employee (or independent contractor) of NeST who
performs services for Company pursuant to this Agreement and any related
Task Order.
Disclosed Information - Section 5.1
Discloser - Section 5.1
Key Consultant - Section 2.4
NeST Materials - Section 5.2
Task Order - Section 2.2
Work Product - Section 5.2
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2. SERVICES
2.1 Services Provided. NeST agrees to provide to AM under the terms and
conditions of this Agreement technical engineering services including
hardware and software design. Said services shall be provided in
accordance with Task Orders which reference this Agreement, are issued
from time to time by Company to NeST, and are accepted by NeST. The
parties anticipate that certain Task Orders will be issued as set out in
Schedule A. NeST agrees to have sufficient resources available to perform
the anticipated Task Orders set out in Schedule A.
2.2 Task Orders.
(a) Each Task Order shall be governed by the terms and conditions of this
Agreement and the terms and conditions of the Task Order. In the event of
a conflict between the terms and conditions of this Agreement and the
terms and conditions of any Task Order, the terms and conditions of the
Task Order shall govern and Supersede those of this Agreement with
respect to that Task order only.
(b) NeST acknowledges AM's right to make Task Orders subject to (i) NeST's
right to refuse to accept (in writing within five (5) business days
following its receipt of Company's proposed changes) material changes,
and (ii) the parties agreeing on appropriate increases or decreases to
the charges under the applicable Task Order for material changes.
(c) Company may terminate any Task Order for convenience at any time by
giving NeST prior written notice. Upon its receipt of such notice of
termination, NeST will immediately discontinue all further services on
behalf of Company under the applicable Task Order and will use reasonable
efforts to mitigate all costs to Company from that date forward. In no
event shall Company be required to pay for any consulting fees incurred
beyond a date which is (5) business days following NeST's receipt of such
notice.
2.3 Time and Place. The parties hereto will perform their respective
obligations hereunder in accordance with the time schedule set out in
each Task Order. TIME IS OF THE ESSENCE. Notwithstanding the foregoing
two sentences, neither party shall be deemed to have breached the
provisions of this Section 2.3 for any reasonable delay due to the
prolonged incapacitation of a Key Consultant or delays which are caused
solely by Company.
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2.4 Key Consultants. The Key Consultants of NeST who will provide programme
management services will be designated as "Key Consultants" in each Task
Order. Unless they cease to be directly or indirectly employed or
retained by NeST, these Key Consultants shall not be replaced by NeST for
services designated under the applicable Task Order without Company's
prior approval, not to be unreasonably withheld. In the event of
prolonged illness, resignation, discharge for cause or other causes
beyond NeST's control, a Key Consultant may be replaced by another person
of equal expertise, competence and level, and said replacement by NeST
shall be made within a reasonably feasible time following reasonable
knowledge by NeST of the necessity for such replacement.
2.5 Termination of Consultants by Company NeST shall immediately reassign any
Consultant with whom Company, in its sole opinion, is dissatisfied for
any reason.
2.6 Tools NeST shall provide at its expense all working space, tools and
other items as it considers appropriate for the services to be performed
at its location in India. AM will provide the same for any work done at
its facility in Quakertown.
2.7 Relationship Manager. Each party shall assign one individual as
relationship manager who shall be the primary liaison between the parties
during the terms of this Agreement. The NeST relationship manager shall
be located at the AM facility.
2.8 Progess Reports. NeST shall prepare reports on the first and fifteenth
day of each calendar month (or such times as may be mutually agreed upon
by the parties) during the Term of any Task Order. The progress reports
shall address the following primary areas: (i) work accomplished during
the period covered by the report, (ii) new problems encountered during
the period covered by the report and solutions effected or recommended,
(iii) work schedule for the period to be covered by the next report, (iv)
old problems that have been resolved and old problems that have not been
resolved and the anticipated date of resolution, (v) status of the
project relative to the Time Schedule, and (vi) the amount of permissible
expenses for reimbursement for the preceding period and the aggregate
total of the reimbursable expenses to the date of the report.
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2.9 Consultant Standards.
(a) NeST represents and warrants that its consultants will be of a high
caliber and will meet the highest professional standards for the type of
work assigned to such Consultant hereunder. NeST further represents,
warrants and covenants that the services performed by each Consultant
will be reasonably acceptable to Company.
(b) Any services performed by Consultants under proper technical direction by
NeST which are determined by Company to be of a caliber below that
warranted by NeST pursuant to Section 2.9 (a) above, shall be corrected
by NeST without charge to Company provided that Company informs NeST
thereof within three (3) months of the time it knew of such below
warranted caliber services.
3. COMPENSATION
3.1 Payments by AM for the NeST engineering services shall be based on the
rate of $20.00 per hour based on the number of hours incurred on each
specific Task Order. NeST shall be responsible for paying all expenses
related to consultants. NeST shall invoice AM monthly for services
performed. NeST is responsible for any and all taxes applicable to this
Agreement or which are measured by payments made under it.
3.2 AM shall pay invoices within thirty (30) days of receipt. Upon
termination of this Agreement for any reason, any compensation accrued
but unpaid at the time of termination shall be paid in accordance with
this Section.
3.3 In lieu of making cash payments on invoices, AM shall have the right to
make payment against invoices by issuing warrants to purchase AM common
stock under the following terms:
(a) The purchase price of warrants to be issued shall be $.01 per share.
(b) The number of the shares of AM Common Stock which warrants shall be
entitled to purchase shall be based on the invoice value of the services
performed divided by AM per share price based on the 30 days average
(based on average of bid and ask price) of the AM stock during the
respective month in which the services were performed.
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Page 5 of 11
(c) warrants shall be exercisable for a period of five (5) years after
issuance.
(d) The maximum number of shares represented by warrants shall not exceed 10
million shares.
3.4 The terms of the warrants shall be outlined in a separate warrant
agreement to be negotiated between the parties.
4. TERM
4.1 Term of Agreement. The term of this Agreement shall commence on the date
of execution of this Agreement and shall continue until all Task Orders
issued by Company prior to termination as provided in the immediately
following sentence have expired by their terms. This Agreement may be
terminated by either party upon ninety (90) days prior written notice to
the other.
4.2 Termination for Default. Company shall have the right to immediately
terminate this Agreement and / or any Task Order in the event the
occurrence of any one of the following is not remedied within thirty (30)
days of receipt of written notice; (I) NeST neglects or fails to perform
or observe any of its obligations hereunder orb pursuant to any other
Agreement with Company, or (ii) if any assignment is made of NeST's
business for the benefit of creditors, or if a petition in bankruptcy is
filed by or against NeST, or if a receiver, trustee in bankruptcy or
similar officer is appointed to take charge of all part of its property
or if NeST is adjudicated as bankrupt.
5. CONFIDENTIALITY AND PROPRIETARY RIGHTS
5.1 The parties agree to abide by the Mutual Confidentiality Agreement
attached as Schedule C.
5.2 Assignment of Work Product.
(a) NeST agrees that all inventions, improvement, discoveries, or
developments including, but not limited to, computer software authored by
NeST ("Work Product") which NeST may make or conceive during the term
hereof and for one (1) year thereafter, either solely or jointly with
others, whether arising from NeST's own efforts or suggestions received
from any other source, which arise out of the services provided pursuant
<PAGE>
Page 6 of 11
to this Agreement or exposure to Disclosed Information, are a work make
for hire and are the exclusive property of Company free from any claim or
retention of rights thereto on the part of NeST (including for the
purposes of copyright). In addition to the immediately preceding sentence
and other than where the Work Product is considered a work made for hire.
NeST farther agrees to (and, as appropriate, will in the future), and
here does, grant, convey and assign to Company absolutely and exclusively
all such Work Product and all intellectual property rights therein.
(b) NeST agrees to fully disclose all Work Product to Company.
(c) NeST agrees that at the request and expense of Company and without charge
or compensation beyond the charges provided pursuant to this Agreement,
to execute all instruments and documents and to do all things which may
be reasonably necessary to protect the rights of Company and vest in it
and its assigns all such Work Product and all intellectual property
rights therein.
(d) NeST may identify portions of the Work Product as proprietary to NeST at
the time of delivery of the Work Product to Company, if those portions
pre-existed this agreement ("NeST Materials"). The parties agree that the
NeST Materials will remain the property of NeST, but Company is hereby
granted a permanent, non-revocable, non-exclusive, royalty free license
with the right to sublicense to make, have made, use, sell, reproduce,
distribute, perform, display and prepare derivative works of NeST
Materials.
5.3 Consultant Confidentiality Agreements. NeST represents and warrants that
NeST has appropriate agreements with its employees and / or any
Consultant to whom Disclosed Information may be disclosed, or others
whose services it may require, sufficient to enable it to comply with all
of the terms of this Agreement.
5.4 Standard of Care. In connection with NeST's obligations hereunder, NeST
agrees to use the standard of care, which is consistent with the highest
industry standards in continuously controlling the use and disclosure of
Disclosed Information in a manner that fully protects Company's rights
therein.
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5.5 Representations, Warranties, Covenants and Indemnities.
(a) NeST represents, warrants and covenants that all Work Product is original
to NeST, that NeST is the sole creator of the Work Products, that no Work
Product has been published; that NeST has not made any commitment for the
use or publication of the Work Product; and that no such Work Product nor
the use thereof does or will violate or infringe upon any patent,
copyright, trademark, trade secret or other property right of any other
person, whether or not similar to any of the foregoing, nor entitle any
third party to make a claim against Company for the unlawful use of
confidential information or trade secrets. NeST further represents and
warrants that the Work Product contains no matter which is libelous or
otherwise contrary to law. NeST agrees that NeST will indemnify and hold
Company harmless from any and all losses, costs, claims, demands,
expenses (including attorney's fees), and liabilities whatsoever arising
from its breach of any warranty or any misrepresentation with respect to
the provisions of this Section 5.5, and at NeST's own expense will defend
with legal counsel acceptable to Company, or, Company, at its option, may
defend with its legal counsel at its cost and NeST will assist in such
defense, providing, however, that NeST has received reasonably prompt
notice of any matter of which Company has knowledge which gives rise to a
right of indemnity hereunder. During the pendency of any claim against
NeST with respect to infringement, Company may withhold payment of any
sums otherwise required to be paid hereunder.
(b) If, in any suit such work or any portion thereof is held to constitute
any infringement and its use enjoined, NeST will, at its sole cost,
undertake one of the following courses of action; (i) procure the right
to continue to use such work or such infringing portion, (ii) upon the
consent of Company, modify such work or such infringing portion to render
it non-infringing, or (iii) upon the consent of Company replace such work
or such infringing portion with a non-infringing replacement.
5.6 Survival. The provisions of this Section 5 and all subsections thereunder
shall survive the completion and any termination or expiration of any
Task Order or this Agreement.
<PAGE>
Page 8 of 11
6. EMPLOYEES
6.1 Non-Solicitation of Employees. NeST agrees that without the prior written
content of Company, it will not hire or cause to be hired or induce any
of Company's employees who are assigned full or part time to any endeavor
related to a Task Order to leave his / her employment from the expiration
of said Task Order through a date two (2) years thereafter.
7. INSURANCE AND INDEMNITIES
7.1 Insurance for NeST and Consultants. NeST represents, warrants and
covenants that during the term of this Agreement, NeST will maintain at
NeST's expense all the necessary insurance for NeST and Consultants,
including but not limited to workmen's, compensation, disability, and
unemployment insurance, and to provide Company with certification thereof
upon request. NeST agrees to indemnify and hold harmless Company and its
employees from any and all loss, costs, damages, expenses and liabilities
(including attorney's fees), arising as a result of the breach by NeST of
the provisions of this Section 7.1
7.2 Injury or Damages to Persons or Property. NeST agrees to indemnify and
hold harmless Company and its employees from any and all loss, costs,
damages, expenses and liabilities (including attorney's fees) by reason
of personal injury or property damage of whatsoever nature or kind
arising, in whole or in part, out of, as a result of, or in connection
with the acts or omissions of NeST or Consultants. Furthermore, NeST
agrees to maintain public liability insurance covering NeST's obligations
contained herein.
7.3 Company Regulations.
(a) NeST agrees that it and its employees will at all times comply with all
reasonable regulations regarding security, usage of Company equipment,
facilities and personnel and safety generally applicable to Company's
employees and invitees, in effect from time to time at company's
premises, and externally for material belonging to Company. Further NeST
agrees that it and its employees will be subject to reasonable
restrictions imposed by Company in connection with areas of their
premises at which Consultants may be present during the course of the
performance of this Agreement.
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(b) NeST will indemnify and hold harmless Company and its employees, from any
and all loss, costs, damages, expenses and liabilities (including
attorney's fees) with respect to: (i) any injury to, or death of any
employee of NeST while such person is present on the premises of Company,
and (ii) any damage to NeST property or that of any of its employees
which may occur while at the premises of Company, unless and except to
the extent that such injury, death, loss, or damage is caused by the
gross negligence or willful misconduct of Company, its employees or
agents.
8. GENERAL
8.1 Compliance with Laws. Each party agrees to perform its obligations
hereunder in accordance with all applicable laws, rules, and regulations
now or hereafter in effect.
8.2 Modification. This Agreement can only be modified by a written agreement
duly signed by the persons authorised to sign agreements on behalf of
Company and NeST, and variance from the terms or conditions of this
Agreement or any order or other written notification from the Company
will be of no effect.
8.3 Severability of Provisions. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or be impaired thereby.
8.4 Choice of Law; Choice of Forum. This Agreement shall be construed
according to the laws (other than the laws on conflicts of laws) of the
Commonwealth of Pennsylvania. The parties hereto agree to accept the
exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania,
and those of the United States of America situated in Pennsylvania, for
the adjudication of any dispute arising here from. The parties hereby
waive their right, if any, to have any dispute arising under this
Agreement determined by a jury proceeding.
8.5 Entire Agreement. This Agreement is the complete and exclusive statement
of the agreement between the parties as to the subject matter hereof
which supersedes all proposals or agreements, oral or written, and all
other communications between the parties related to the subject matter of
this Agreement.
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8.6 Waivers. A waiver of a breach or default under this Agreement shall not
be a waiver of any other or subsequent breach or default. The failure or
delay by either party in enforcing compliance with any term or condition
of this Agreement shall not constitute a waiver of such term or condition
unless such term or condition is expressly waived in writing.
8.7 Captions. Captions contained in this Agreement are for reference purposes
only and do not constitute part of this Agreement.
8.8 Equity. In the event of a breach or threatened breach by NeST or any
Consultant of any of the provisions of this Agreement, Company, in
addition to any other remedies available to it under law, shall be
entitled to an injunction restraining NeST from the performance of acts
which constitute a breach of this Agreement, and NeST agrees not to raise
adequacy of legal remedies as a defense thereof.
8.9 Assignments. This Agreement and NeST's rights, duties, and obligations
under this Agreement are not transferable, delegable, or assignable by
NeST without the prior written consent of Company. Any attempt by NeST to
transfer, delegate or assign this Agreement or any of its rights, duties,
or obligations under this Agreement with such prior consent is void.
Company may assign this Agreement or any of its rights or
responsibilities hereunder.
8.10 Notices. All notices which are required to be given or submitted pursuant
to this Agreement shall be in writing and shall be hand delivered or sent
by certified mail or reputable overnight carrier (e.g. - Federal Express)
return receipt requested, to the address set forth herein or to such
other address as Company or NeST may from time to time designate and
shall be deemed given upon receipt.
8.11 Compliance With Other Agreements. NeST represents and warrants to Company
that in entering into this Agreement and carrying out its provisions,
neither NeST nor any Consultant will be violating any Agreement or
obligation it may have with any other party.
8.12 Non-use of Names and Marks. NeST agrees that it will not directly or
indirectly, without the prior written consent of Company, use for the
purposes of advertising, promotion, or publicity, or otherwise, the name
of Company or any of its divisions, subsidiaries, affiliates, vendors or
customers, or any trademarks of Company or of any of its divisions,
subsidiaries, affiliates, vendors or customers.
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8.13 Independent Contractors. NeST agrees that NeST and its consultant
employees shall be considered an independent contractor and that neither
NeST nor the consultants shall be deemed to be employees of Company.
Consultants shall not be entitled to any employee benefits of Company.
NeST wi11 be solely responsible for the payment of all compensation owed
to Consultants including payment, if any, of employment related taxes,
all benefits and workmen's compensation insurance. NeST warrants and
represents that it has complied, is in compliance with, and covenants
that during the term of this Agreement or any Task Order hereunder, NeST
will comply with all laws, rules, and regulations required by appropriate
government authorities of independent contractors, including the
appropriate withholding, reporting and payment of all required taxes.
NeST agrees to indemnify and hold harmless Company and its employees from
any and all loss, costs, damages, expenses or liabilities (including
attorney's fees) arising as a result of the breach by NeST of the
provisions of this Section 8.13.
8.14 Schedules. All Schedules to this Agreement referred to herein are
incorporated herein by reference.
8.15 Authority. Each party represents that it has full power and authority to
enter into and perform this Agreement, and the person signing this
Agreement on behalf of it has been properly authorised and empowered to
enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
the day and year first above written,
AM COMMUNCIATIONS, INC. NETWORK SYSTEMS &
TECHNOLOGIES (P) LTD.
Name /s/ /s/
Title President Title
