CONSULTING AGREEMENT
EXHIBIT
10.13
Northern Equity, Inc.
Agreement
AGREEMENT (the
“Agreement”) is made and entered into as of December 17, 2009,
by and between China Wi–Max Communications, Inc., a Nevada corporation (the
“Company”), and Northern Equity, Inc. Northern Equity is collectively referred
to as the “Consultant.”
RECITALS:
WHEREAS, the Company desires to obtain
Consultant’s services as set forth in the Agreement; and
WHEREAS, Consultant desires to provide
such services to the Company for a fee that will compensate Consultant for time
spent for services rendered and costs advanced by Consultant as contemplated in
the Agreement.
NOW, THEREFORE, in consideration of the
foregoing and of the mutual promises and condition hereinafter set forth, the
parties agree as follows:
1.
Retention of Consultant. The Company hereby engages and retains Consultant and
Consultant hereby agrees to use Consultants best efforts to render to the
Company the consulting services for a period commencing on the date of this
Agreement and terminating on December 31, 2010, provided that the Company may
terminate this Agreement, in its sole discretion, at any time after December 21,
2009.
2.
Consultant’s Services. Consultant shall provide the following
services under this Agreement:
2.1
Advise the Company in strategic planning for corporate growth.
2.2
Introduce the Company to potential individuals or companies that will assist the
Company in its corporate growth efforts.
2.3
Advise the Company regarding means of accessing potential financing sources
directly or through the assistance of third parties;
2.42
Introduce the Company to members of the broker-dealer and financial
community;
2.3
Advise the Company in its dealings with members of the business and financial
community including travel at request of the Company; and
2.4
Advise the Company on investor relations and public relations.
3. Payment for Services.
3.1
The Company shall honor and promptly pay all monthly invoices rendered by the
Consultant for services rendered under this Agreement. Charges for service shall
be in reasonable amounts pursuant to a budget periodically reviewed and agreed
between the President of the Company and the Consultant.
3.2
The Company shall also issue Consultant options exercisable to purchase 600,000
shares of its Common Stock (each an “Option,” collectively, the “Options”) at a
price of $0.50 per share. The exercise price of the Options will be reduced to
the lowest price at which the Company sells any of its equity securities, or
agrees to sell any of its equity securities though an option, warrant or
convertible security, during the term of the Options. Each Option will have a
term of five years from the date of grant. Each Option shall be deemed to have a
value of $.0001. The Options shall be in a form acceptable to the parties, shall
be fully transferable by Northern Equity and shall include the terms set forth
below.
3.3
The Options shall vest as follows: (i) 50,000 Options shall vest and be
exercisable upon execution of the Agreement and (ii) 550,000 Options shall vest
and be exercisable upon the Company’s closing one or more Financing Transactions
totaling at least $1,000,000. A “Financing Transaction” is one in which the
Company obtains cash, securities, assets, credit enhancement or other source of
capital to assist in its operation or expansion.
3.4
The Options may be exercised in whole or in part from time to time by delivering
written notice, via facsimile, with original by next day delivery, along with
full payment of the exercise price for any exercise, to the Company. Consultant
may pay the exercise price in cash or by cashless exercise. In the case of a
cashless exercise, Consultant will surrender the Options to be exercised to the
Company together with a notice of cashless exercise, in which event the Company
will issue to Consultant the number of shares of Common Stock underlying the
Options to be exercised less the number of shares of Common Stock required to
pay the aggregate exercise price of the Options to be exercised.
3.5
For purposes of Rule 144 (“Rule 144”) promulgated under the Securities Act of
1933, as amended, the Common Stock issued in any cashless exercise transaction
shall be deemed to have been acquired by Consultant, and the holding period for
such Common Stock shall be deemed to have been commenced, on the issue date of
the Options.
3.6
The payments and issuance of the Options under this Paragraph 3, “Payment for
Services,” shall be deemed full and complete consideration for the services to
be rendered by Consultant under this Agreement.
3.7
The Company will promptly reimburse Consultant for all direct expenses incurred
by Consultant in performing such services. Consultant shall obtain the approval
of the Company prior to incurring any expenses. Consultant will tender requests
for reimbursement to the Company and the Company will make the reimbursement to
Consultant within ten (10) days after its receipt of written
notification.
4. Consultant’s Time Commitment.
Consultant shall devote such time as reasonable requested by the Company for
consultation, advice and assistance on matters described in this Agreement and
provides the same in such form as the Company requests. The Company agrees that
Consultant shall not be prevented or barred from rendering services similar or
dissimilar in nature for and on behalf of any person, form or corporation other
than the Company.
5. Nature of Relation. The relationship
created under this Agreement is that of an independent contractor. The parties
acknowledge and agree that Consultant shall have no authority to, and shall not,
bind the Company to any agreement or obligation with any third party, or assist
in or conduct any negotiations between the Company and any financing sources,
communicate the terms of any offers or sales between the Company and any
financing sources, communicate the terms of any offers or sales between the
Company and financing sources respecting a possible Financing Transaction,
effect a Financing Transaction or provide services as a broker/dealer.
Consultant is not a lender, investor, broker/dealer, investment banker,
underwriter or securities sales agent, or investment advisor. Consultant will
not provide legal, accounting or other licensed service.
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6.
Nondisclosure of Confidential Information. Consultant shall maintain as secret
and confidential all valuable information heretofore or hereafter acquired,
developed or used by the Company in relation to its business, operations,
employees and customers that may give the Company a competitive advantage in its
industry (all such information is hereinafter referred to as “Confidential under
this Agreement, Consultant may acquire Confidential Information. Consultant
recognizes that all such Confidential Information is the property of the
Company. During the term of Consultant’s engagement by the Company, Consultant
shall exercise all due and diligent precautions to protect the integrity of any
or all of the Company’s documents containing Confidential Information. In
consideration of the Company entering into this Agreement, Consultant shall not,
directly or indirectly, use, publish, disseminate or otherwise disclose any
Confidential Information obtained during Consultant’s engagement by the Company
without the prior written consent of the Company. The parties agree that this
Paragraph 6 shall survive the termination of the Agreement.
7.
Communications with Consultant. Consultant will not independently conduct a due
diligence review of the Company and will, to a great extent, by relying upon
information provided by the Company in rendering services under this
Agreement.
8.
Exculpation of Liability and Indemnification. All decisions with respect to
consultations or services rendered by Consultant for transactions negotiated for
and presented to the Company by Consultant shall be those of the Company, and
Consultant shall have no liability with respect to such decisions. In connection
with the services Consultant renders under this Agreement, the Company
indemnifies and holds Consultant harmless against any and all losses, claims,
damages and liabilities and the expense, joint and several, to which Consultant
may become subject and will reimburse Consultant for any legal and other
expenses including attorney’s fees and disbursements incurred by Consultant in
connection with investigating, preparing or defending any actions commenced or
threatened or claim whatsoever, whether or not resulting in the liability,
insofar as such are based upon the information the Company has supplied to
Consultant under this Agreement. In connection with the services Consultant
renders under this Agreement, Consultant indemnifies and holds the Company
harmless against any and all losses, claims, damages and liabilities and the
expense, joint and several, to which Company may become subject and will
reimburse Company for any legal and other expenses, including attorney’s fees
and disbursements incurred by the Company in connection with investigating,
preparing or defending any actions commenced or threatened or claim whatsoever,
whether or not resulting in the liability, insofar as such are based upon or in
connection with the services Consultant has rendered under this
Agreement.
9.
Piggyback Registration. If at any time during the period the Options are
outstanding the Company determines to file a registration statement with the
Securities and Exchange Commission in the United States relating to an offering
for its own account or the account of others under the Securities Act of 1933,
as amended, of any of its equity securities, then the Company shall send to
Consultant a written notice of such offering. If within fifteen (15) days after
receipt of such notice, Consultant shall so request in writing, the Company will
include in such registration statement any or all of the shares of Common Stock
issuable on exercise of the Options that Consultant requested to be registered.
The Company shall not, however, be required to register any such shares of
Common Stock that are eligible for resale pursuant to Rule 144 promulgated under
the Securities Act. Consultant will, upon written request of any third party,
which also has registration rights, reduce the number of its shares to be
registered under the registration in the proportion that the shares of
Consultant and such third party bear to each other.
10.
Entire Agreement. This Agreement sets forth the entire agreements and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements, and understandings, written or
oral, relating to the subject matter hereof. No representation, promise, or
inducement has been made by any party that is not embodied in this Agreement,
and no party shall be bound by or liable for any alleged representation, promise
or inducement not so set forth. If any provision of the Agreement shall be
declared void or against public policy, such provision shall be deemed severed
from this Agreement and the remaining provisions shall remain in full force and
effect and unmodified.
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11.
Assignment. The Consultant may not assign or transfer this Agreement without
written authorization from the Company, which consent shall not be unreasonably
withheld. The Company may assign its rights, together with its obligations,
hereunder in connection with any sale, transfer or other disposition of all or
substantially all of its business or assets. In such event, the rights and
obligations of the Company under this Agreement shall be binding on its
successors or assigns, whether by merger, consolidation or acquisition of all or
substantially all of the business or assets.
12.
Amendment. This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived only by a
written instrument executed by all of the parties hereto who are thereby
affected, or in the case of a waiver, by the party waiving compliance. No waiver
by either party of the breach of any terms or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver or any such
breach, or a waiver of the breach of any other term of covenant contained in
this Agreement.
13.
Notices. All notices, consents, requests, demands and offers required or
permitted to be given under this Agreement will be in writing and will be
considered properly given or made when personally delivered to the party
entitled thereto, or when mailed by certified United States mail, postage
prepaid, return receipt requested, addressed to the addresses appearing in this
Agreement. A party may change his address by giving notice to the other party to
this Agreement.
14.
Counterparts. This Agreement may be signed in any number of counterparts, each
of which shall be an original, but all of which, taken together, shall
constitute one agreement. It shall not be required that any single counterpart
hereof be signed by the parties, so long as each party signs any counterpart of
this Agreement.
15.
Governing Law. This Agreement shall be governed in all respects and for all
purposes by the laws of the State of Wisconsin and the Courts of such State
shall have exclusive jurisdiction to enforce any order or award obtained in
arbitration.
16.Arbitration.
Any controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Agreement or the breach hereof, or the subject matter hereof,
including questions concerning the scope and applicability of this arbitration
clause, shall be finally settled by arbitration in Wisconsin pursuant to the
rules then applying of the American Arbitration Association.
17.
Attorneys’ Fees. In case of any action or proceeding to compel compliance with,
or for a breach of, any of the terms and conditions of this Agreement, the
prevailing party shall be entitled to recover from the losing party all costs of
such action or proceeding, including, but not limited to, reasonable attorneys’
fees.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as
of the day and year first above written.
| China Wi-Max Communications, Inc. | |||
|
By:
|
|
||
| Xxxxxx X. Xxxxxx | |||
| President and Chief Executive Officer | |||
|
Address:
|
Denver Tower | ||
| 0000 Xxxxxxx Xxxxxx, Xxxxx 000 | |||
| Xxxxxx, XX 00000 | |||
| Northern Equity Inc. | |||
|
By:
|
|
||
| Xxxxx Xxxxxx | |||
| President and Chief Executive Officer | |||
|
Address:
|
X.X. Xxx 000 | ||
| Xxxxxxxxx, XX 00000 | |||
