Steve Heins Agreement
EXHIBIT 10.14
Xxxxx Xxxxx
Agreement
January
15, 2010
Xx. Xxxxx
Xxxxx
000
Xxxxxx Xxxxxx, #0 Xxxxxxxxx, XX 00000.
Subject:
Consulting Letter Agreement – Terms of Engagement and Conditions
Dear
Xxxxx:
This
letter agreement ("Letter Agreement"), is effective as of the date hereof,
except for payments which shall be deferred until a mutually agreed to date in
the future, and shall serve as the basis of an independent contractor consulting
relationship between you, Xxxxx Xxxxx ("Consultant") and China Wi-Max
Communications, Inc. ("CHWM")
CHWM
envisions approximately twelve (12) primary areas where you may be engaged with
the expectation of compensation as a Consultant, including:
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Focus
communications, public relations and investor relations in the U.S.
market, with an initial emphasis on the IR component of the "CHVVM
story";
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Establish
"Thought Leadership" role for CHWM;
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Establish
CHWM's officers and employees' areas of expertise to be used for quotes in
new releases and potential news
stories;
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Produce
Monthly Newsletters for current investors, analysts, financial media and
other interested parties;
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Produce
an internal newsletter to make certain that every member of CHWM is well
informed on all things "CHWM"
related;
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Produce
a series of up-dated press releases that recap where CHWM currently is in
development;
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Produce
a news release for every milestone reached by CHWM going
forward;
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Tell
much of CHWM's story through its customers, which makes every new customer
a local news story;
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Identify
all media outlets, editorial boards and reporters who cover international
technology/broadband stories and
issues;
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Create
an ongoing database or, in some cases, databases for media outlets,
reporters and editors for pertinent stories and news
releases;
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Write
Op-Ed articles on broadband issues for national and international
consumption, which should include contributions of CHWM officers and
employees with appropriate attribution of articles;
and
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Look
for speaking engagements and conference opportunities for senior CHWM
personnel.
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CHWM
reserves the right to expand or contract the scope of services set forth above
at any time without penalty. All work will be performed to mutually agreed
output. It is possible that over time, and based upon success in the
above-referenced matters, in the sole judgment of CHWM, that CHWM may decide to
hire you as a full or part-time employee fulfilling a similar (or expanded)
role. However, that decision has not yet been made and this Letter Agreement
should not be construed as an "offer" to be employed at CHWM. Neither the making
of this Letter Agreement nor the performance of its provisions shall be
construed to constitute either of the parties as an agent, employee, partner,
joint venturer or legal representative of the other. Each party acknowledges
that it has no right or authority to obligate or represent the other, nor to
bind the other in any manner whatsoever. Consultant shall at all times be deemed
to be an independent contractor, shall bear all tax consequences associated with
entering into this Letter Agreement, and shall perform its obligations under
this Letter Agreement in his own name and for his own account and risk, and
Consultant shall have no right or authority to assume or create any obligation
or responsibility, whether expressed or implied, on behalf of or in the name of
CHWM without written, or electronic authorization. CHWM agrees to review the
terms of this Letter Agreement at least quarterly upon your
request.
As an
independent contractor pursuant to this Letter Agreement, CHWM agrees to the
following fee structure:
An hourly
fee structure of $75 USD per hour with a cap of forty (40) hours per month (even
if you provide services in excess of 40 hours in any single one month period),
exclusive of reasonable, agreed to, company-permitted , out-of-pocket expenses
approved in advance; and
An
immediate stock option grant of 50,000 CHWM common shares (as generally made
available to similarly situated consultants from time to time, on then available
terms).
Consultant
shall submit monthly invoices to CHWM in a mutually acceptable format with
itemization that lists hours billed and a description of the work performed, as
well as any and all such other information mutually agreed by CHWM and
Consultant as they may deem necessary. Copies of associated receipts for all
fees and expenses shall accompany such monthly invoices sent to CHWM. Consultant
shall coordinate the services to be performed with a CHWM-designated employee or
representative, who shall be Consultant's principal contact with regard to any
and all services requested of Consultant, and to whom Consultant should direct
all reports, findings, services, xxxxxxxx and the like, relating to its
provision of Services to CHWM.
The term
of this Letter Agreement shall be month-to-month. Either party may terminate
this Letter Agreement at any time without cause upon thirty (30) days written
notice. All notices given under this Letter Agreement shall be in writing and
shall be addressed to the parties at their respective addresses set forth
herein.
If this
Letter Agreement is terminated by either party, CHWM shall only be liable for
payment of consulting fees earned as a result of services actually performed
prior to the date of termination. Consultant acknowledges that since this Letter
Agreement is temporary in nature. Consultant is not entitled to any additional
advance notice of termination as may be required, in the absence of this
provision, by any federal or state law.
During
the term of this Letter Agreement and for a period of one (1) year you agree (i)
to not engage in any activity that competes directly with CHWM's business in
China; and (ii) to not solicit for employment or engagement of any kind any
current or former employee, officer or director of CHWM.
You also
agree, without CHWM's prior written consent, to not reveal to anyone who is not
a current director, officer, employee of CHWM, any "Confidential Information".
Consultant agrees to use CHWM's Confidential Information (defined below) he
receives or otherwise obtains solely for purposes of benefiting the business
relationship between Consultant and CHWM. Consultant shall maintain and protect
all Confidential Information he receives or otherwise obtains in
confidence.
Confidential
Information" means information in its broadest sense, including but not limited
to computer programs, databases, trade secrets, know-how, inventions,
improvements, discoveries, techniques, business and marketing records,
merchandising and marketing techniques, plans and data, strategies, new
products, financial data, budgets, projections, work papers, files, contracts,
and client and supplier information and lists, though, excluding
information:
(i) was
previously known to Consultant free of any obligation to keep it
confidential;
(ii) is
disclosed to third parties by the disclosing party without restriction;
or
(iii) becomes
publicly available by lawful means and by other than unauthorized
disclosure;or
(iv) is
required to be disclosed under applicable law or by a valid subpoena or other
court or governmental order, decree, regulation or rule; provided, however, that
if disclosure is required under this provision, receiving party shall advise
disclosing party of the requirement to disclose Confidential Information prior
to such disclosure and as soon as reasonably practicable after receiving party
becomes aware of such required disclosure; and further provided that upon the
request of the disclosing party, the receiving party agrees to cooperate in good
faith and at the expense of the disclosing party in anyreasonable and lawful
actions which the disclosing party takes to resist such disclosure, limit the
Confidential Information to be disclosed or limit the extent to which the
Confidential Information so disclosed may be used or made available to third
parties.
Consultant
agrees that such unauthorized disclosure(s) would result in material harm to
CHWM, and allow CHWM to immediately terminate this Letter Agreement without
notice to Consultant, seek injunctive relief and compensation, including lost
profits and attorneys fees. This provision on Confidential Information shall
survive the termination of the Letter Agreement for a period of five (5) years
from the date of termination. Also, you agree prior to becoming formally engaged
in any other assignment(s) or project(s), whether as an independent contractor,
employee, owner, etc., that competes directly with CHWM's business in China,
that you receive prior written approval to do so by CHWM.
In the
event of termination of this Letter Agreement, you agree to return within three
(3) business days to CHWM, and in an orderly and business like fashion, any and
all materials, documents, and/or work-product developed pursuant to this
arrangement.
This
Letter Agreement shall be governed by and construed in accordance with the laws
of the State of Wisconsin, without regard to the conflict of laws provisions
thereof, and the laws of that state shall govern all of the rights, remedies,
liabilities, powers and duties of the parties under this Letter Agreement and of
any arbitrator or mediator to whom any matter hereunder may be submitted for
resolution by the parties hereto.
Each
party shall indemnify and hold harmless the other for its own negligence or
intentional misconduct, including claims for bodily injury, death or damage to
property. Consultant hereby certifies that he does not advocate, support, assist
or engage in, and has not advocated, supported, assisted or engaged in, any
illegal or terrorist activity. Consultant further certifies that he does not
employ, support, assist or otherwise associate with any entities, organizations
or individuals that Consultant knows, or has reason to know, support terrorism,
or that appear on any official terrorist lists published by the U.S. Government,
the United Nations, the European Union, or the Consultant's
government.
In
conformity with the United States Foreign Corrupt Practices Act ("FCPA"),
Consultant shall not directly or indirectly make an offer, payment, promise to
pay, or authorize payment, or offer a gift, promise to give, or authorize the
giving of anything of value for the purpose of influencing an act or decision of
an official of any government of any country where the products or services of
CWMC are used or the United States Government (including a decision not to act)
or inducing such a person to use his influence to affect any such governmental
act or decision in order to assist Consultant in obtaining, retaining or
directing any such business.
This
Letter Agreement is being entered into in reliance upon and in consideration of
the qualifications of Consultant. CHWM specifically contracts for the
professional services of Consultant, and Consultant may not assign or delegate
the performance of services hereunder without the express written consent of
CHWM, which may be withheld by CHWM in its sole discretion.
This
Letter Agreement is the entire agreement between the parties on the subject
matter herein and supersedes all prior agreements and understandings, written or
oral. This Letter Agreement may not be amended or modified in any way except in
writing signed by an authorized person of the other party against whom the
amendment, modification or waiver is sought to be enforced. Nothing in this
Letter Agreement shall be construed so as to require the commission of any act
contrary to law, and wherever there is any conflict between any provision of
this Letter Agreement and any applicable and enforceable law, such law shall
prevail, provided, however, that in the event of any such conflict, the
provisions of this Letter Agreement so affected shall be curtailed and limited
only to the extent necessary to permit compliance with the minimum legal
requirement, and no other provisions of this Letter Agreement shall be affected,
and all such other provisions shall continue in full force and effect. No
provision of this Letter Agreement will be interpreted against any party solely
because the party (or its legal representative) drafted the
provision.
Xxxxx, on
behalf of China Wi-Max Communications, I welcome you to our team. Please execute
by signing below and returning to me one original of this Letter
Agreement.
Sincerely
yours,
Xxxxxx X.
Xxxxxx
President
and CEO
China
VVi-Max Communications, Inc.
Agreed to
and Accepted: Xxxxx Xxxxx, Consultant
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