EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into this 27th
day of January, 1998, by and between MEGA HOLDING CORP., 000X Xxx Xxxx Xxxx,
Xxxxxx Xxxxxx, Xxx Xxxx 00000 ("Mega"), and EAGLE WIRELESS INTERNATIONAL, INC.,
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company"). The Parties to this
Agreement are hereinafter referred to as the "Parties" and a party to this
Agreement as a "Party."
WHEREAS, Mega provides business and financial consulting services
(the "Services"); and
WHEREAS, the Company is publicly held with its common stock ("Shares of
Common Stock") trading under the symbol "EGLW" on the OTC Bulletin Board, and
WHEREAS, the Company desires to retain Mega's Services; and
WHEREAS, Mega is willing accept the Company as a client.
NOW THEREFORE, in consideration of the premises and covenants set forth
herein, it is hereby agreed:
1. ENGAGEMENT
The Company hereby engages Mega to provide the Company with
Mega's business and financial consulting Services, including but not limited to,
advising and consulting with the Company on strategic opportunities, mergers and
acquisitions.
2. TERM
The Services to be rendered under this Agreement shall
commence upon execution of this Agreement and shall continue for a period of
three (3) years unless terminated earlier by mutual agreement. Upon termination
neither Party shall have any continuing duty or obligation, whether financial or
otherwise, to the other Party except that the obligations contained in paragraph
8 below shall survive the termination of this Agreement.
3. COMPENSATION AND EXPENSES
In consideration of the Services to be performed by Mega and
any and all expenses incurred by Mega in rendering the Services, the Company
will within five business days of execution of this Agreement, provide to Mega
certificates representing five hundred thousand (500,000). At a later date and
as appropriate the Company will provide to Mega certificates representing eight
hundred thousand (800,000) non-redeemable warrants as further described in
Section 4.
4. WARRANTS
Each Warrant shall give the holder thereof the right to
purchase one share of the Company's common stock. Each Warrant certificate will
be legended to restrict transfer in the absence of a registration statement
filed with the Securities and Exchange Commission ("Commission") or an exemption
therefrom. It is understood, however, that Mega intends to transfer some of the
Warrants on one occasion only to its officers, directors and/or consultants.
The Warrants shall be comprised of seven classes with the
following exercise prices and exercise period:
SHARES UNDERLYING *EXERCISE AVERAGE **STOCK
CLASS EXERCISE PRICE WARRANTS PERIOD (YEARS) STOCK PRICE DAYS TRADED
o A $ 1.50 150,000 1 $ 4.00 61
o B $ 2.00 150,000 1 $ 5.50 61
o C $ 3.00 200,000 2 $ 7.50 61
o D $ 5.00 200,000 3 $10.00 31
o E $ 7.00 200,000 3 $12.00 31
o F $ 9.00 200,000 5 $14.00 31
o G $11.00 200,000 5 $16.00 31
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* From date of effective registration of the underlying shares of Common
Stock
** In order for warrants to be exercisable, average stock price must be
achieved for consecutive days traded as noted above.
*** All warrants shall be cashless.
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o Issued within 10 business days of the initiation of this Agreement.
o Issued within 10 business days of the attainment of the conditions for
exercise of the Class C Warrants (i.e. Average stock price of $7.50 for
62 consecutive trading days).
Each Warrant not exercised during the term of its exercise
shall become void and all rights thereunder shall cease. The exercise price and
the number of shares of Common Stock are subject to adjustment in the event of
any split or reverse split of the Company's common stock.
The Company shall, as soon as practicable after the date of
this Agreement, file a registration statement (the "Registration Statement")
with the Commission relating to all the shares of Common Stock underlying the
Warrants and shall use its best efforts to cause the Registration Statement to
become effective on or before one hundred twenty (120) days after the date of
this Agreement. In the event the Registration Statement is not so declared
effective or does not include all the shares of Common Stock underlying the
Warrants, a Warrantholder (which may be Mega or a distributee or transferee of
Mega) shall have right to required by notice in writing that the Company
register all or any part of the shares of Common Stock underlying the Warrants
held by such Warrantholder (a "Demand Registration"); and the Company shall
thereupon effect such registration in accordance herewith (which may include
adding such shares to an existing shelf registration).
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Mega, with each
such representation and warranty being deemed to be material, that:
a. The Company is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization;
b. The Company has all requisite power and authority to
enter into this Agreement and to perform its
obligations hereunder;
c. The execution and performance of this Agreement by
the Company has been duly authorized by the Board of
Directors of the Company in accordance with
applicable law, and to the extent required, by the
requisite number of shareholders;
d. 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; and
e. The Company shall at all times reserve and keep
available a number of authorized shares of Common
Stock sufficient to permit the exercise in full of
all outstanding Warrants and will cause to be
available a sufficient number of certificates
therefor.
6. REPRESENTATIONS AND WARRANTIES OF MEGA
Mega represents and warrants to the Company each such
representation and warranty being deemed to be material that:
a. Mega is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization;
b. Mega has all the requisite corporate power and
authority to enter into this Agreement and to render
the Services contemplated hereby;
c. The execution and delivery of this Agreement and the
Services to be performed hereunder have been duly
authorized by all necessary corporate action on the
part of Mega; and
d. The performance by Mega of this Agreement will not
violate any applicable court decree, law or
regulation, nor will it violate any contractual
obligation by which Mega may be bound.
7. DISCLAIMER BY MEGA
Mega makes no guarantees that its Services will result in (a)
the acquisition of a business or interest in a business; (b) the enhancement of
the Company's product line, manufacturing or the marketing of its products; or
(c) the investment or loan of money to the Company.
8. CONFIDENTIALITY
Until such time as the same may become publicly known, Mega
will not reveal or disclose any confidential information to any person or
entity, except in the performance of this Agreement, and upon termination of
this Agreement, Mega shall return to the Company all materials and original
documents provided to it by the Company. Mega will require Confidentiality
Agreements from its own employees and from contractors Mega reasonably believes
will come into contact with confidential material.
9. NOTICES
All notices hereunder shall be in writing and addressed to the
Party at the address set forth herein, or at such other address as to which
notice pursuant to this paragraph may be given, and may be given by personal
delivery, by certified mail, express mail, national overnight courier, or by
facsimile. Notices shall be deemed given upon the earlier of actual receipt or
two (2) business days after being mailed or delivered to such courier service.
Notices shall be addressed to Mega at:
000X Xxx Xxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Notices shall be addressed to the Company at:
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Any notices to be given hereunder will be effective if executed by and sent by
the attorneys for the Party giving such notice, and in connection therewith the
Parties and their respective counsel agree that in giving such notice such
counsel may communicate directly in writing with such Party receiving the notice
to the extent necessary to give such notice.
10. SEVERABILITY
If one or more of the provisions of this Agreement shall be
held invalid, illegal, or unenforceable in any respect, such provision, to the
extent held invalid, illegal or unenforceable, and provided that such provision
is not essential to the transaction provided for by this Agreement, shall not
affect any other provision contained herein, and this Agreement shall be
construed as if such provision had never been contained herein.
11. ARBITRATION
Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association,
and judgment upon the award rendered by arbitrator(s) shall be final and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The arbitration will be held in the city of
the Party not requesting arbitration.
12. MISCELLANEOUS
a. GOVERNING LAW: This Agreement shall be governed by
and interpreted under the laws of the State of New
York.
b. MULTIPLE COUNTERPARTS: This Agreement may be executed
in multiple counterparts, each of which shall be
deemed an original.
c. TELEFAX COPIES: You and the Company agree that a
telefax copy of this Agreement may be signed by each
signatory Party at different places and at different
times. All duly executed facsimile documents shall be
considered original documents and shall constitute
binding and enforceable instruments.
d. ENTIRE AGREEMENT: This Agreement constitutes the
final, exclusive and complete understanding of the
Parties with respect to the subject matter hereof and
supersedes any and all prior agreements,
understandings and discussions with respect thereto.
Any modifications of this Agreement must in writing
and signed by both Parties.
E. CAPTIONS: The captions of this Agreement are for
convenience only and shall not be considered a part
of or affect the construction or interpretation of
any provision of this Agreement.
IN WITNESS WHEREOF, the Parties hereto, intending to be
legally bound, have executed or caused the execution of this Agreement as of the
date first above written above.
MEGA HOLDING CORP.
By: // XXXXXX XXXXX //
Xxxxxx Xxxxx, President
EAGLE WIRELESS INTERNATIONAL, INC.
By: // H. XXXX XXXXXX //
H. Xxxx Xxxxxx, Chief Executive Officer
