EX-10.3
CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is to be begin effective as
of the May 30, 2006, by and between 5G Wireless Communications, Inc.
with offices located 0000 Xxx Xxx Xxx. Xxxxxx xxx Xxx, Xxxxxxxxxx,
00000 and Xxxxx Xxxxxx ("Consultant"), located at 000 X. Xxxxxxx
Xxxxxx Xxxx., Xxxxx Xxxxxxx 00000.
For the purposes of this Agreement, either of the above shall be
referred to as a "Party" and collectively as the "Parties".
The Parties hereby agree as follows:
1. Appointment of Consultant. - Company hereby appoints Consultant
and Consultant hereby agrees to render services to Company as an
independent contractor.
2. Duties - Consultant shall provide the Company with the service
of professional consulting in the area of:
(a) Help identify potential opportunities in multi tenant
dwellings and the real estate market for our wireless products.
(b) Assist in identify potential strategic partners to
strengthen that can enhance our exposure to key executives in
this industry.
3. Limitations on Consultant
(a) The consultant shall not in any way represent the company
in any negotiations.
(b) The consultant confirms that this agreement is not in any
way to be construed as an agreement to raise capital or to
provide IR services.
(c) The services to be provided by Consultant will not be in
connection with the offer or sale of securities in a capital-
raising transaction, and will not directly or indirectly promote
or maintain a market for Client's securities.
4. Term - The term ("Term") of this Consulting Agreement shall be
for 4 month.
5. Compensation - WHEREAS the company agrees to compensate the
consultant in the form of $50,000 in restricted shares of common
shares in advance at a share price value of $0.40 per share.
6. Confidential Information - "Confidential Information" means all
confidential and/or proprietary information disclosed or made
available by one party to the other, including but not limited to,
(a) business plans, financial reports, financial data, employee data,
customer lists, forecasts, strategies, and all other business
information; and (b) software or firmware code, semiconductor or
printed circuit board layout diagrams, product designs and/or
specifications, algorithms, computer programs, mask works,
inventions, unpublished patent applications, manufacturing or other
technical or scientific know-how, specifications, technical
drawings, diagrams, schematics, technology, processes, and any other
trade secrets, discoveries, ideas, concepts, know-how, techniques,
materials, formulae, compositions, information, data, results, plans,
surveys and/or reports of a technical nature or concerning research
and development and/or engineering activity. Confidential
Information may be that of the disclosing party or of third parties
to whom the disclosing party has an obligation to treat the disclosed
information as confidential. Confidential Information also includes
copies, notes, abstracts and other tangible embodiments made by the
receiving party that are based on or contain any of such information,
as well as the existence and progress of the Purpose.
(a) Identification of Confidential Information. Information
will be considered to be Confidential Information and protected
under this Agreement if it is identified as "confidential" or
"proprietary" at the time of disclosure or if the information
should reasonably be considered to be confidential or
proprietary due to its nature or the context of its disclosure.
(b) Protection of Confidential Information. The consultant
acknowledges that the other party claims that its Confidential
Information is a valuable and unique asset and agrees to the
following:
(A) For a period of 2 years from first disclosure of or
access to Confidential Information, the receiving party:
(i) will not disclose the Confidential Information to any
third party; (ii) will not disclose the Confidential
Information to its employees unless the employees have a
need to know the Confidential Information for the Purpose;
and (iii) will use the Confidential Information only for
the Purpose and will not use it for any third party's
benefit. The receiving party will use the same degree of
care to protect the Confidential Information from
unauthorized use or disclosure as it would use to protect
its own information of a similar nature, but in no event
with less than reasonable care.
(B) The receiving party's obligations under this Agreement
with respect to particular information do not apply to the
extent that: (i) the disclosing party authorizes the
receiving party in writing to disclose such information;
(ii) the receiving party knows such information at the time
of disclosure by the disclosing party, free of any
obligation to keep it confidential, as evidenced by written
records; (iii) such information is or becomes generally
known in the relevant industry without fault of the
receiving party; (iv) the receiving party independently
develops such information without access to or use of the
Confidential Information, as evidenced by written records;
or (v) the receiving party rightfully obtains such
information from a third party who has the right to
disclose it without violation of any confidentiality
obligations. However, even if certain information is
already known, the disclosing party's use of it (including
the fact of the party's use and the manner and results of
use) may not be and thus would be considered to be
Confidential Information.
(C) Notwithstanding anything herein to the contrary and
except as reasonably necessary to comply with any
applicable federal and state securities laws, the receiving
party (and each employee, representative, or other agent of
the receiving party) may disclose to any and all persons,
without limitation of any kind, the U.S. federal and state
tax treatment and tax structure of the transaction and all
materials of any kind (including opinions or other tax
analyses) that are provided to the receiving party relating
to such U.S. federal or state tax treatment and tax
structure ("Tax Information"). For this purpose, "tax
structure" is any fact that may be relevant to
understanding the U.S. federal or state tax treatment of
the transaction. However, the foregoing shall not be
construed to permit disclosure by the receiving party of
any information of a technical nature concerning research
and development and engineering activity disclosed by the
disclosing party, including without limitation, software or
firmware code, semiconductor or printed circuit board
layout diagrams, product designs or specifications,
manufacturing know-how, and patent applications.
(D) If the receiving party is subject to judicial or
governmental proceedings requiring disclosure of particular
Confidential Information, or if the receiving party intends
to disclose any Tax Information to a third party, then,
prior to any such disclosure, the receiving party will
provide the disclosing party with reasonable prior notice
and will obtain, or provide the disclosing party with an
opportunity to obtain, a protective order or confidential
treatment of the Confidential Information or Tax Information.
7. Registration - If the Company contemplates making an offering of
its common stock (or other equity securities convertible into or
exchangeable for common stock) registered for sale under the
Securities Act of 1933 or proposes to file a registration statement
covering any of its securities other than (i) a registration on Form
S-8 or S-4, or any successor or similar forms; and (ii) a shelf
registration under Rule 415 for the sole purpose of registering
shares, the Company shall use its best efforts to effect the
registration of all Registrable Securities which the consultant has
requested to register, to the extent requisite to permit the
disposition (in accordance with the intended methods of disposition)
of the Registrable Securities, by inclusion of such Registrable
Securities in the registration statement which covers the securities
which the Consultant proposes to register; provided, that if, at any
time after giving written notice of its intention to register any
Registrable Securities and prior to the effective date of the
registration statement filed in connection with such registration,
the Company shall determine for any reason either not to register or
to delay registration of such Registrable Securities, the Company
may, at its election, give written notice of such determination to
the Consultant and, thereupon, (i) in the case of a determination not
to register, the Company shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the expenses of
registration in connection therewith), and (ii) in the case of a
determination to delay registering such Registrable Securities, shall
be permitted to delay registering any Registrable Securities, for the
same period as the delay in registering such other securities.
8. Indemnification - Company, its agents or assigns hereby agree
to indemnify and hold Consultant harmless from and against all
losses, claims, damages, liabilities, costs or expenses (including
reasonable attorney's fees, collectively the "Liabilities"), joint
and several, arising from the performance of this Consulting
Agreement, whether or not Consultant is party to such dispute. This
indemnity shall not apply, however, and Consultant shall indemnify
and hold company, its affiliates, indemnity shall not apply, however,
and Consultant shall indemnify and hold Company, its affiliates,
control persons, officers, employees and agents harmless from and
against all liabilities, where a court of competent jurisdiction has
made a final determination that Consultant engaged in gross
recklessness and willful misconduct in the performance of its
services hereunder, which have rise to the loss, claim, damage,
liability, cost or expense sought to be recovered hereunder (but
pending any such final determinations, the indemnification and
reimbursement provision of this Consulting Agreement shall apply and
Company shall perform its obligation hereunder to reimburse
Consultant for its expenses).
9. Independent Contractor - Consultant and Company hereby
acknowledges that Consultant is an independent contractor.
Consultant shall not hold itself out, as, nor shall it take any
action from which others might infer that it is an agent of or a
joint venture of Company.
10. Expense Allowance - Company is not responsible to reimburse
Consultant for all business related expenses incurred by Consultant
during the course of his consulting on behalf of the Company.
11. Termination for Cause The Company reserves the right to
terminate this agreement, if Consultant willfully breaches or
habitually neglects his consulting duties which he is asked to
perform under the terms or this agreement, or commits such acts of
dishonesty, fraud, misrepresentation or other acts of moral turpitude
as would prevent the effective performance of his consulting.
(a) In the event of termination for cause then any balance due
under this agreement, other than documented company expenses
advanced by consultant, shall become null and void.
(b) Termination by Consultant: Consultant may terminate his
obligations under this agreement by giving the Company at least
30 days (30) notice in advance. In the event the consultant
terminates this agreement then any balance due under this
agreement, other than documented company expenses advanced by
consultant, shall become null and void.
(c) Mediation: Any controversy between the parties involving
the construction or application of any terms, provisions, or
conditions of this agreement, shall on the written request of
either party served on the other, be submitted to mediation
before a neutral third party. The parties shall share the cost
of mediation jointly.
12. Partial Invalidity - If any part of this agreement shall be
determined by a court or mediator to be invalid, the remainder hereof
shall be construed as if the invalid portion has been omitted.
13. Waiver - No waiver of any of the provisions of this agreement
shall be deemed or shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
party making the waiver,
14. Law Governing Agreement - This agreement shall be governed by
and construed in accordance with the laws of the State of California
county of Los Angeles.
15. Miscellaneous - This Consulting Agreement sets forth the entire
understanding of the Parties relating to the subject matter hereof
and supercedes and cancels any prior communications, understandings
and agreements between the Parties. This Consulting Agreement is
non-exclusive and cannot be modified or changed, nor can any of its
provisions be waived, except by written agreement signed by all
Parties. This consulting agreement shall be governed by the laws of
the State of California, county of Los Angeles without reference to
the conflict of law principles thereof. In the event of any dispute
as to the Terms of this Consulting Agreement, the prevailing Party in
any litigation shall be entitled to reasonable attorney's fees.
16. Notices - Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be
deemed effectively given upon personal delivery or seven business
days after deposit in the United States Postal Service, by (a)
advance copy by fax, (b) mailing by express courier or registered or
certified mail with postage and fees prepaid, addressed to each of
the other Parties thereunto entitled at the following addresses, or
at such other addresses as a Party may designate by ten days advance
written to each of the other Parties hereto:
Company: 5G Wireless Communications, Inc.
0000 Xxx Xxx Xxx.
Xxxxxx Xxx Xxx, Xxxxxxxxxx, 00000
Consultant: Xxxxx Xxxxxx
000 X. Xxxxxxx Xxxxxx Xxxx.
Xxxxx Xxxxxxx 00000.
17. Entire Agreement - This agreement supersedes any and all other
agreements, either written or oral, between the parties hereto with
respect to the services of the Consultant to the Company as it
relates to sales and marketing and in no way supersede any other
agreements that consultant may have with company pertaining to other
matters. All parties to this agreement must sign any modifications to
this agreement.
5G Wireless Communications, Inc. Xxxxx Xxxxxx
By: /s/ Xxxxx Xxx /s/ Xxxxx Xxxxxx
Xxxxx Xxx, Chief Executive Officer
