EXHIBIT 10.12
CONSULTING ENGAGEMENT AGREEMENT
THIS ENGAGEMENT AGREEMENT made as of the November 2, 2001, by and
between; WORLD WIDE WIRELESS COMMUNICATIONS INC , whos principal place of
business is ; suite 6K 407, Lincoln Road, Miami Beach, Florida 33139_(hereafter
referred to as the "company")
And
OVERSEAS DEVELOPMENT HOLDINGS LIMITED, of Suite 16, 6th floor, 00 Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxx, a BVI corporation, represented by Xxxxxxx X Xxxxxxx
(the "Consultant")
W I T N E S S E T H :
WHEREAS, the Company wishes to assure itself of the services of the
Consultant, and the Consultant wishes to serve the Company, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Engagement Term.
1.1 The Company agrees to engage the Consultant, and the Consultant agrees to
serve the Company, for the term set forth in Section 1.2, in the position and
with the responsibilities, duties and authority set forth in Section 2 and on
the other terms and conditions set forth in this Agreement.
1.2 The term of the Consultant's engagement under this Agreement shall be for a
period of 3 (three) years, the period commencing on the date hereof and
continuing through the end of October 31st 2004, unless sooner terminated in
accordance with this Agreement.
2. Position, Duties.
The Consultant shall serve as International Consulting Executive of
the Company. The Consultant shall have such duties and
responsibilities as the Chief Executive Officer of the Company, or
his or her designee or successor shall assign to the Consultant.
The Consultant shall perform her duties and responsibilities
hereunder, faithfully and diligently. The Consultant shall report
to the Board of Directors of the Company. The Consultant shall
devote sufficient business time and attention to the performance of
his duties and responsibilities hereunder. The Consultant hereby
represents that he is not bound by any confidentiality agreements or
restrictive covenants which restrict or may restrict his ability to
perform his duties hereunder, and agrees that he will not enter into
any such agreements or covenants during the term of his contract
hereunder, except such restrictive covenants or confidentiality
agreements which are required by the Company.
2.1 Business Plan / Project
The consultant shall produce an outline "business plan" for the company,
outlining in detail his plans for execution, and this plan shall be presented to
the board of directors for approval. Post approval, the consultant shall
commence the program for implementation. The plan shall be detailed enough to
include recommendations for the restructuring of the corporation, new directors,
management staff, new business opportunities, the identification of potential
merger and or acquisition candidates both US and Overseas, etc.
2.2 Finance
The Consultant shall work with the company and shall use his best efforts to
seek corporate financing from funding entities, at generally acceptable
commercial terms. The company will act in its best efforts and co-operate to
close such financing arrangements.
2.3 Travel requirements
The Consultant shall be expected in the normal course of the execution of his
responsibilities, to travel to places and locations as shall be designated or
required by the company, and the company shall reimburse the Consultant with all
costs and expenses appertaining thereto.
3. Compensation.
3.1 Remuneration - Payment.
During the term of this Agreement, in consideration of the performance by the
Consultant of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Consultant (via his
corporation), and the Consultant shall accept, a consulting fee at the rate of
Twenty thousand US dollars per month ($ 20,000) per month, payable in accordance
with the standard payment terms and practices of the Company. Save for the first
month, (November 2001) which shall be paid for in cash, for the balance of the
term, the company may make payment by way of cash and or by S8 issued Stock,
such stock to be issued in accordance with the applicable SEC regulations
pertaining such issuances. In addition to the consulting fee payable hereunder,
the Consultant may be entitled to receive merit increases in payment during the
term hereof in amounts and at such times as shall be mutually determined by the
Chief Executive Officer of the Company and the consultant.
3.2 Bonus.
In addition to the consulting fee payable pursuant to Section 3.1 above, the
Consultant will be eligible to receive a bonus in the form of stock options or
shares. These shall be granted on a case by case basis. Such options and or
shares shall be of publicly traded corporations in or with which the company has
business relationships. Such bonuses are to be based upon the achievement of
objectives mutually agreed upon in writing by the Company and the Consultant.
4. Expense Reimbursement.
During the term of this Agreement, consistent with the Company's policies and
procedures as may be in effect from time to time, the Company shall reimburse
the Consultant for all reasonable and necessary out-of-pocket expenses incurred
by him in connection with the performance of her duties hereunder upon the
presentation of proper accounts therefor in accordance with the Company's
policies. In all cases, such expenses shall have been incurred by the Consultant
on a pre-approved basis.
5. Other Benefits.
During the term of this Agreement, the Consultant shall be entitled to receive
25 days of paid vacation time per annum, such paid personal time, paid sick
leave and such other benefits and customary medical and life insurance as are
from time to time made available to other similarly situated executives of the
Company on the same terms as are available to such similarly situated
executives, it being understood that the Consultant shall be required to make
the same contributions and payments in order to receive any of such benefits.
6. Termination of Engagement.
6.1 Death. In the event of the death of the Consultant during the term of this
Agreement, the Company shall pay to the estate or other legal representative of
the Consultant the consulting fee provided for in Section 3.1 (at the annual
rate then in effect) accrued to the Consultants date of death and not
theretofore paid, and the estate or other legal representative of the Consultant
shall have no further rights under this Agreement. Rights and benefits of the
Consultant, his estate or other legal representative under the Consultant
benefit plans and programs of the Company, if any, will be determined in
accordance with the terms and provisions of such plans and programs.
6.2 Disability. If the Consultant shall become incapacitated by reason of
sickness, accident or other physical or mental disability and shall for a period
of ninety (90) consecutive days be unable to perform his normal duties
hereunder, the contract of the Consultant hereunder may be terminated by the
Company upon thirty (30) days' prior written notice to the Consultant / his
Corporation. Within thirty (30) days after such termination, the Company shall
pay to the Consultant the consulting fee provided for in Section 3.1 (at the
annual rate then in effect) accrued to the date of such termination and not
theretofore paid. Rights and benefits of the Consultant, his estate or other
legal representative under the Consultant benefit plans and programs of the
Company, if any, will be determined in accordance with the terms and provisions
of such plans and programs. Neither the Consultant nor the Company shall have
any further rights or obligations under this Agreement, except as provided in
Sections 7, 8 and 9.
6.3 Due Cause.
The engagement of the Consultant hereunder may be terminated by the Company at
any time during the term of this Agreement for Due Cause (as hereinafter
defined). In the event of such termination, the Company shall pay to the
Consultant the consulting fee provided for in Section 3.1 (at the annual rate
then in effect) accrued to the date of such termination and not theretofore paid
to the Consultant, and, after the satisfaction of any claim of the Company
against the Consultant arising as a direct and proximate result of such Due
Cause, neither the Consultant nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8 and 9.
Rights and benefits of the Consultant, his estate or other legal representative
under the Consultant benefit plans and programs of the Company, if any, will be
determined in accordance with the terms and provisions of such plans and
programs. For purposes hereof, "Due Cause" shall mean (a) a material breach of
any of the Consultants obligations hereunder (it being understood that any
breach of the provisions of Sections 2 or 7 hereof shall be considered
material); or (b) that the Consultant, in carrying out his duties hereunder, has
been guilty of (i) willful or gross neglect or (ii) willful or gross misconduct,
which has or is expected to have a materially adverse effect on any member of
the Company Group (as hereinafter defined);
or (c) that the Consultant is determined to be intoxicated by drugs or alcohol
during the performance of his duties for the Company; or (d) that the Consultant
has been convicted of or formally charged with (provided such charge, in the
reasonable judgment of the Company, has or is expected to have a material
detrimental effect on the business of any member of the Company Group) any
felony or any crime or offense involving moral turpitude. In the event of an
occurrence under this Section 6.3, the Consultant shall be given written notice
by the Company that it intends to terminate the Consultants engagement for Due
Cause under this Section, which written notice shall specify the act or acts
upon the basis of which the Company intends so to terminate the Consultants
engagement.
If the basis for such written notice is an act or acts described in clause (a)
above and not involving moral turpitude, the Consultant shall be given ten (10)
days to cease or correct the performance (or nonperformance) giving rise to such
written notice (or give 10 days payment in lieu of notice) and, upon failure of
the Consultant within such ten (10) days to cease or correct such performance
(or nonperformance), the Consultants engagement by the Company shall
automatically be terminated hereunder for Due Cause.
6.4 Other Termination by the Company. The Company may terminate the Consultants
engagement prior to the expiration of the term of this Agreement for whatever
reason it deems appropriate; provided, however, that in the event that such
termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall (a)
continue to pay to the Consultant (or his estate or other legal representative
in the case of the death of the Consultant subsequent to such termination), in
the same periodic installments as his annual compensation was paid, the
compensation provided for in Section 3.1 (at the annual rate then in effect)
until the then scheduled expiration of the term hereof. Neither the Consultant
nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8 and 9.
7. Confidential Information.
7.1 (a) The Consultant shall, during the Consultant employment with the Company
and at all times thereafter, treat all confidential material (as hereinafter
defined) of the Company or any of the Company's subsidiaries, affiliates or
parent entities (the Company and the Company's subsidiaries, affiliates and
parent entities being hereinafter collectively referred to as the "Company
Group") confidentially.
The Consultant shall not, without the prior written consent of the Chief
Executive Officer of the Company, disclose such material, directly or
indirectly, to any party, who at the time of such disclosure is not an
Consultant or agent of any member of the Company Group, or, except in order to
carry out her duties under this Agreement, remove from the Company's premises
any notes or records relating thereto, copies or facsimiles thereof (whether
made by electronic, electrical, magnetic, optical, laser, acoustic or other
means), or any other property of any member of the Company Group.
The Consultant agrees that all material, together with all notes and records of
the Consultant relating thereto, and all copies or facsimiles thereof in the
possession of the Consultant (whether made by the foregoing or other means) are
the exclusive property of the Company.
Except in order to carry out his duties under this Agreement, the Consultant
shall not in any manner use any material of the Company Group, or any other
property of any member of the Company Group, in any manner not specifically
directed by the Company or in any way which is detrimental to any member of the
Company Group, as determined by the Chief Executive Officer of the Company in
his or her sole discretion.
(b) For the purposes hereof, the term "material" shall mean all information in
any way concerning the activities, business or affairs of any member of the
Company Group or any of the customers of any member of the Company Group,
including, without limitation, information concerning trade secrets, together
with all sales and financial information concerning any member of the Company
Group and any and all information concerning projects in research and
development or marketing plans for any products or projects of the Company
Group, and all information concerning the practices and customers of any member
of the Company Group, and all information in any way concerning the activities,
business or affairs of any of such customers, as such, which is furnished to the
Consultant by any member of the Company Group or any of its agents or customers,
as such, or otherwise acquired by the Consultant in the course of the Consultant
engagement with the Company; provided, however, that the term "material" shall
not include information which (i) becomes generally available to the public
other than as a result of an approved disclosure by the Consultant (ii) was
available to the Consultant on a non-confidential basis prior to her employment
with any member of the Company Group, or (iii) becomes available to the
Consultant on a non-confidential basis from a source other than any member of
the Company Group or any of its agents or customers, as such, provided that such
source is not bound by a confidentiality agreement with any member of the
Company Group or any of such agents or customers.
7.2 Promptly upon the request of the Company, the Consultant shall deliver to
the Company all material relating to any member of the Company Group in the
possession of the Consultant without retaining a copy thereof, unless, in the
opinion of counsel for the Consultant either returning such material or failing
to retain a copy thereof would violate any applicable Federal, state, local or
foreign law, in which event such confidential material shall be returned without
retaining any copies thereof as soon as practicable after such counsel advises
that the same may be lawfully done.
7.3 In the event that the Consultant is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any material relating to
any member of the Company Group, the Consultant shall provide the Company with
prompt notice thereof so that the Company may seek an appropriate protective
order and/or waive compliance by the Consultant with the provisions hereof;
provided, however, that if in the absence of a protective order or the receipt
of such a waiver, the Consultant is, in the opinion of counsel for the
Consultant compelled to disclose material not otherwise disclosable hereunder to
any legislative, judicial or regulatory body, agency or authority, or else be
exposed to liability for contempt, fine or penalty or to other censure, such
material may be so disclosed.
8. Non-Competition.
8.1 The Consultant acknowledges that the services to be rendered by his to the
Company are of a special and unique character. The Consultant agrees that, in
consideration of his engagement hereunder, the Consultant will not (a) during
the term of this Agreement and (b) prior to one year from the date of
termination of the Consultant engagement by the Company or any other member of
the Company Group, directly or indirectly, (w) engage, whether as principal,
agent, investor, distributor, representative, stockholder, Consultant, volunteer
or otherwise, with or without pay, in any activity or business venture, anywhere
within a 3 -mile radius of any business owned or operated by the Company which
is competitive with the businesses of the Company or any of the other members of
the Company Group, (x) solicit or entice or endeavor to solicit or entice away
from any member of the Company Group any person who was or is at the time of
solicitation or enticement a director, officer, Consultant, agent or consultant
of such member of the Company Group, either on the Consultant own account or for
any person, firm, corporation or other organization, whether or not such person
would commit any breach of such person's contract of employment by reason of
leaving the service of such member of the Company Group,
(y) solicit or entice or endeavor to solicit or entice away any person who was
or is at the time of solicitation or enticement a customer of any member of the
Company Group, either on the Consultant own account or for any other person,
firm, corporation or organization, or (z) employ any person who was a director,
officer or Consultant of any member of the Company Group or any person who is or
may be likely to be in possession of any confidential information or trade
secrets relating to the business of any member of the Company Group, or (b) at
any time take any action or make any statement the intended effect of which
would be, directly or indirectly, to impair in any material respect the good
will of any member of the Company Group or the business reputation or good name
of any member of the Company Group, or be otherwise materially detrimental to
the Company, including any action or statement intended, directly or indirectly,
to benefit a competitor of any member of the Company Group.
For purposes hereof, the "Company Group" shall mean, collectively, the Company
and the Company's subsidiaries operating in the same lines of business.
8.2 The Consultant and the Company agree that if, in any proceeding, the court
or other authority shall refuse to enforce the covenants herein set forth
because such covenants cover too extensive a geographic area or too long a
period of time, any such covenant shall be deemed appropriately amended and
modified in keeping with the intention of the parties to the maximum extent
permitted by law.
8.3 The Consultant expressly acknowledges and agrees that the
covenants and agreements set forth in this Section 8 are reasonable
in all respects, and necessary in order to protect, maintain and
preserve the value and goodwill of the Company Group, as well as the
proprietary and other legitimate business interests of the members
of the Company Group. The Consultant acknowledges and agrees that
the covenants and agreements of the Consultant set forth in this
Section 8 constitute a significant part of the consideration given
by the Consultant to the Company in exchange for the compensation
and benefits provided for in this Agreement, and are a material
reason for such payment.
9. Equitable Relief. In the event of a breach or threatened breach by the
Consultant of any of the provisions of Sections 7 or 8 of this Agreement, the
Consultant hereby consents and agrees that the Company shall be entitled to
pre-judgment injunctive relief or similar equitable relief restraining the
Consultant from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by the
Consultant under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. The parties hereto
hereby consent to the jurisdiction of the Courts of the state of Florida.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies at law or in equity which it may have.
10. Successors and Assigns.
Assignment by the Company. The Company shall require any successors (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken place.
As used in this Section, the "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law and this Agreement shall be binding upon, and inure to the
benefit of, the Company, as so defined.
10.1 Assignment by the Consultant. The Consultant may assign this Agreement or
any part hereof without the prior written consent of the Chief Executive Officer
of the Company; provided, however, that nothing herein shall preclude one or
more beneficiaries of the Consultant from receiving any amount that may be
payable following the occurrence of the Consultant legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under her will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate.
11. Governing Law. This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of
Florida USA, whether applicable to contracts to be performed entirely within
such State or elsewhere.
12. Entire Agreement. This Agreement contains all the understandings and
representations between the parties hereto pertaining to the subject matter
hereof and supersedes all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto.
No modification of this Agreement shall be effective unless in writing and
signed by the party against which enforcement is sought to be enforced.
13. Modification and Amendment; Waiver. The provisions of this Agreement may be
modified, amended or waived, but only upon the written consent of the party
against whom enforcement of such modification, amendment or waiver is sought and
then such modification, amendment or waiver shall be effective only to the
extent set forth in such writing. No delay or failure on the part of any party
hereto in exercising any right, power or remedy hereunder shall effect or
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
14. Notices. All notices, requests or instructions hereunder shall be in writing
and delivered personally, sent by telecopier or sent by registered or certified
mail, postage prepaid, as follows:
If to the Company: to the address as above
If to the Consultant: to the address as stated above, or any other address of
the Consultant as shall be notified from time to time.
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and two business days after the date of
mailing, if mailed.
15. Severability. Should any provision of this Agreement be held by a court of
competent jurisdiction to be enforceable only if modified, such holding shall
not affect the validity of the remainder of this Agreement, the balance of which
shall continue to be binding upon the parties hereto with any such modification
to become a part hereof and treated as though originally set forth in this
Agreement. The parties further agree that any such court is expressly authorized
to modify any such unenforceable provision of this Agreement in lieu of severing
such unenforceable provision from this Agreement in its entirety, whether by
rewriting the offending provision, deleting any or all of the offending
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the
parties as embodied herein to the maximum extent permitted by law. The parties
expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been set forth herein.
16. Withholding. Anything to the contrary notwithstanding, all payments required
to be made by the Company hereunder to the Consultant or his beneficiaries,
including his estate, shall not be subject to withholding of such amounts
relating to taxes or other reason.
17. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
18. Expenses. Each of the parties hereto shall bear his or its own costs and
expenses, including attorneys' fees and disbursements, incurred in connection
with this Agreement and the transactions contemplated hereby.
19. Titles. Titles of the sections of this Agreement are intended solely for
convenience and no provision of this Agreement is to be construed by reference
to the title of any section.
20. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
WORLD WIDE WIRELESS COMMUNICATIONS INC
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Director Authorized Signature
OVERSEAS DEVELOPMENT HOLDINGS LIMITED
By
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Xxxxxxx X Xxxxxxx
Title: Director
