CONSULTING AGREEMENT
EXHIBIT 10.181 |
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This Consulting Agreement is made as of the 29th day of August, 2002, by and between Xxxxx Capital Fund ("Consultant"), and USURF America, Inc., a Nevada corporation (the "Company").
WHEREAS, Consultant possesses experience in the field of financial and business consulting services and investment community relations; and
WHEREAS, the Company is a publicly-held company and files periodic reports pursuant to the requirements of the Securities Exchange Act of 1934, with its common stock listed on the American Stock Exchange under the symbol “UAX”; and
WHEREAS, the Company desires to hire Consultant and Consultant is willing to accept the Company as a client.
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is agreed:
1. The Company hereby engages Consultant, on a non-exclusive basis, to render consulting services with respect to financial and business consulting services and investment community relations, on behalf of the Company. Consultant hereby accepts such engagement and agrees to render such consulting services as are listed on Exhibit “A” attached hereto and incorporated herein by this reference, throughout the term of this Agreement. Consultant agrees that it shall be responsible for ordinary, day-to-day expenses incurred in its performance hereunder.
It is further agreed that Consultant shall have no authority to bind the Company to any contract or obligation or to transact any business in the Company’s name or on behalf of the Company, in any manner. The parties intend that Consultant shall perform its services required hereunder as an independent contractor.
2. The term of this Agreement shall commence upon the mutual execution of this Agreement and shall continue from September 1, 2002, through February 28, 2003.
3. In consideration of the services to be performed by Consultant, the Company agrees to pay to Consultant the compensation set forth on Exhibit “B” attached hereto and incorporated herein by this reference.
4. The Company represents and warrants to Consultant that:
A. The Company will cooperate fully and timely with Consultant to enable Consultant to perform its obligations hereunder.
B. The execution and performance of this Agreement by the Company has been duly authorized by the Board of Directors of the Company.
C. The performance by the Company of this Agreement will not violate any applicable court decree, law or regulation, nor will it violate any provisions of the organizational documents of the Company or any contractual obligation by which the Company may be bound.
5. Until such time as the same may become publicly known, the parties agree that any information provided to either of them by the other of a confidential nature will not be revealed or disclosed to any person or entity, except in the performance of this Agreement, and upon completion of Consultant's services and upon the written request of the Company, any original documentation provided by the Company will be returned to it. Consultant, including each of its affiliates, will not directly or indirectly buy or sell the securities of the Company at any time when it or they are privy to non-public information.
Consultant agrees that he will not disseminate any printed matter relating to the Company, including, without limitation, press releases, without prior written approval of the Company’s legal counsel.
Consultant acknowledges that, in light of the fact that Consultant is in a special relationship with the Company due to the entrusting by the Company to Consultant of non-public, material “inside” information concerning the Company, the relationship between the Company and Consultant shall be that of a special relationship.
Consultant agrees that he will comply with all applicable securities laws, in performing on behalf of the Company hereunder.
6. All notices hereunder shall be in writing and addressed to the party at the address herein set forth, or at such other address as to which notice pursuant to this section may be given, and shall be given by personal delivery, by certified mail (return receipt requested), Express Mail or by national or international overnight courier. Notices will be deemed given upon the earlier of actual receipt of three (3) business days after being mailed or delivered to such courier service.
Notices shall be addressed to Consultant at:
Xxxxx Capital Fund
000 Xxxxxxx Xxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
and to the Company at:
USURF America, Inc.
Attention: Xxxxxxx X. XxXxxxxx
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx & Xxxxxx, Attorneys at Law
000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
7. Miscellaneous.
A. In the event of a dispute between the parties arising out of this Agreement, both Consultant and the Company agree to submit such dispute to arbitration before the American Arbitration Association (the "Association") at its Dallas, Texas, offices, in accordance with the then-current rules of the Association; the award given by the arbitrators shall be binding and a judgment can be obtained on any such award in any court of competent jurisdiction. It is expressly agreed that the arbitrators, as part of their award, can award attorneys fees to the prevailing party.
B. This Agreement is not assignable in whole or in any part, and shall be binding upon the parties, their heirs, representatives, successors or assigns.
C. This Agreement may be executed in multiple counterparts which shall be deemed an original. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, if each party executes at least one counterpart.
D. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Colorado.
USURF AMERICA, INC.
By: Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
President and CEO
XXXXX CAPITAL FUND
By: /s/
Its authorized agent
Exhibit “A”
Xxxxx Capital Fund
SERVICES TO BE PERFORMED BY CONSULTANT ON BEHALF OF THE COMPANY
The consulting services to be provided by Consultant under the Consulting Agreement to which this Exhibit “A” is attached include, but shall not be limited to:
identify suitable non-U.S. markets for the Company’s Quick-CellTM Broadband Wireless Internet access services.
develop business relationships in the non-U.S. markets necessary to ease the Company’s entry into any such markets.
advise the Company and providing assistance to bring the Company to the favorable attention of the investment community, in general.
promote meetings and communications in which the public and securities industry professionals shall be introduced to the Company, as circumstances may require.
coordinate with other outside consultants engaged by the Company during the term of the Consulting Agreement to which this Exhibit “A” is attached.
assist the Company in identifying and contracting with required professionals, as needed.
assist in financial planning for the Company, as requested by the Company.
Exhibit “B”
Xxxxx Capital Fund
COMPENSATION TO BE PAID BY THE COMPANY TO CONSULTANT
As full payment for Consultant’s services under the Consulting Agreement (the “Agreement”) to which this Exhibit “B” relates, Consultant shall receive, upon execution of, the following:
A total of 2,400,000 warrants to purchase a like number of shares of the Company’s common stock, as follows:
(1) 400,000 of such warrants shall have an exercise price of $.15 per share;
(2) 400,000 of such warrants shall have an exercise price of $.20 per share;
(3) 400,000 of such warrants shall have an exercise price of $.25 per share;
(4) 400,000 of such warrants shall have an exercise price of $.30 per share;
(5) 400,000 of such warrants shall have an exercise price of $.35 per share; and
(6) 400,000 of such warrants shall have an exercise price of $.40 per share.
The Company shall cause all 2,400,000 shares underlying the warrants to be issued to Consultant hereunder to be registered, at the Company’s expense, pursuant to the currently pending Registration Statement on Form S-1 of the Company. Consultant shall be named as a selling shareholder in such Registration Statement.
Consultant represents and warrants to the Company that the securities of the Company being acquired pursuant to the Agreement are being acquired for its own account and for investment and not with a view to the public resale or distribution of such shares and further acknowledges that the shares being issued have not been registered under the Securities Act or any state securities law and are “restricted securities”, as that term is defined in Rule 144 promulgated by the SEC, and must be held indefinitely, unless they are subsequently registered or an exemption from such registration is available.
Consultant represents and warrants that it has investigated the Company, its financial condition, business and prospects, and has had the opportunity to ask questions of, and to receive answers from, the Company with respect thereto. Consultant acknowledges that it is aware that the Company currently lacks adequate capital to pursue its full plan of business, specifically, that the Company currently lacks capital with which to exploit its proprietary Wireless Internet access technology.
Consultant acknowledges that the share certificate or certificates and the warrant certificate or certificates of the Company issued to it pursuant to this Agreement will bear a legend restricting future transfer in the following , or similar, form:
“THESE SECURITIES, AND THE SECURITIES INTO WHICH THEY MAY BE CONVERTED, HAVE BEEN ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY REGULATION S PROMULGATED UNDER SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT ANY SUCH PROPOSED TRANSFER IS IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.”
