EXHIBIT 4
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 6th day of January,
2003, between Reality Wireless Networks, Inc., a bulletin board public company
("RWNT"), having a principal place of business located at 000 X. Xxxxxxxx, Xxxxx
X, Xxxxxxxx, Xxxxxxxxxx 00000, and Xxxxxxxx Xxxxx ("XXXXX"), having a principal
residence at 00000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 (collectively the
"Parties" and each individually a "Party").
RECITALS:
XXXXX is a businessman whose principal place of business is located in
Alpharette, Georgia; and
RWNT desires to retain XXXXX as a business development and marketing consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged
by each Party, the Parties, intending to be legally bound, hereby agree as
follows:
I. Recitals. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement. RWNT hereby engages XXXXX and XXXXX hereby accepts such
engagement upon the terms and conditions set forth in this Agreement.
A. Duties: XXXXX is engaged by RWNT as a business development and marketing
consultant, to represent RWNT and its business in the United States; to
assist RWNT in expanding its business operations in "business consulting"
services and trade. XXXXX will report directly to the Chief Executive
Officer ("CEO") of RWNT. The term of this Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating to termination, this
Agreement shall continue in full force and effect for a term of twelve (12)
months from the date hereof, and may be renewed for successive periods of
twelve (12) months thereafter by the mutual written agreement of the
Parties hereto made at least one (1) month prior to the expiration of such
term.
C. Fee Structure:
1. Time is of the Essence: Time is of the essence with respect to
the Parties' respective obligations under this Agreement.
2. Amount of Fee: RWNT hereby agrees to issue to XXXXX, and XXXXX
agrees to accept from RWNT, one million four hundred thirty
thousand (1,430,000) shares of common stock of RWNT, which will
be registered by RWNT on a Registration Statement Form S-8 with
the Securities and Exchange Commission.
3. Timing of Payment of Fee: Any and all fees due to XXXXX under
this Agreement shall be paid upon execution of this Agreement.
D. Expense Reimbursement: RWNT shall reimburse XXXXX for all reasonable
expenses incurred. Expenses and materials reimbursements shall be made
promptly upon submission of an expense report to RWNT.
E. Independent Contractors: In all matters relating to this Agreement and
otherwise, the Parties hereto shall be and act as independent
contractors, neither shall be the employee or agent of the other, and
each shall assume any and all liabilities for its own acts. As a
result of his independent contractor status, XXXXX, and not RWNT,
shall be responsible for any and all income taxes and any and all
other employment related taxes or assessments which may be required of
XXXXX in his jurisdiction. Neither Party shall have any authority to
create any obligations, express or implied, on behalf of the other
Party and neither Party shall have any authority to represent the
other Party as an employee or in any capacity other than as herein
provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement shall be
binding on the Parties hereto for the Term provided herein, unless terminated as
provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or effectiveness,
and which is not settled between the Parties themselves, shall be settled by
binding arbitration in New York and judgment upon the award may be entered in
any court having jurisdiction thereof. Nothing, however, contained herein shall
limit RWNT's rights to injunctive relief as set out in Paragraph V of this
Agreement. The prevailing Party in any litigation, arbitration or mediation
relating to collection of fees, or any other matter under this Agreement, shall
be entitled to recover all its costs, if any, including without limitation,
reasonable attorney's fees, from the other Party for all matters, including, but
no limited to, appeals.
V. Injunctive Relief: XXXXX agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate and
irreparable harm to RWNT and, in such event, an injunction restraining XXXXX
from such violation may be entered against XXXXX in addition to any other relief
available to RWNT.
VI. Representations and Warranties: XXXXX represents, warrants,
covenants and agrees that XXXXX has a right to enter into this Agreement; that
XXXXX is not a Party to any agreement or understanding, whether written or oral,
which would prohibit XXXXX'x performance of his obligations hereunder; and XXXXX
is not in possession of any proprietary information belonging to another Party
which XXXXX is legally prohibited from using. A breach of this Paragraph VI
shall be ground for immediate termination of this Agreement.
VII. Indemnification and Hold Harmless Clause: XXXXX agrees to indemnify
and hold RWNT and its affiliates, control persons, directors, officers,
employees and agents (each an "Indemnified Person") harmless from and against
all losses, claims, damages, liabilities, costs or expenses, including those
resulting from any threatened or pending investigation, action, proceeding or
dispute whether or not RWNT or any such other Indemnified Person is a party to
such investigation, action, proceeding or dispute, arising out of RWNT's
entering into or performing services under this Agreement, or arising out of any
matter referred to in this Agreement. This indemnity shall also include RWNT's
and/or any such other Indemnified Person's reasonable attorneys' and
accountants' fees and out-of-pocket expenses incurred in, and the cost of RWNT's
personnel whose time is spent in connection with, such investigations, actions,
proceedings or disputes which fees, expenses and costs shall be periodically
reimbursed to RWNT and/or to any such other Indemnified Person by XXXXX as they
are incurred; provided, however, that the indemnity herein set forth shall not
apply to an Indemnified Person where a court of competent jurisdiction has made
a final determination that such Indemnified Person acted in a grossly negligent
manner or engaged in willful misconduct in the performance of the services
hereunder which gave rise to the loss, claim, damage, liability, cost or expense
sought to be recovered hereunder (but pending any such final determination the
indemnification and reimbursement provisions hereinabove set forth shall apply
and XXXXX shall perform its obligations hereunder to reimburse RWNT and/or each
such other Indemnified Person periodically for its, his or their fees, expenses
and costs as they are incurred). XXXXX also agrees that no Indemnified Person
shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to XXXXX for or in connection with any act or omission to act as a
result of its engagement under this Agreement except for any such liability for
losses, claims, damages, liabilities or expenses incurred by XXXXX that is found
in a final determination by a court of competent jurisdiction to have resulted
from such Indemnified Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to RWNT or any
such other Indemnified Person or insufficient to hold it harmless, then XXXXX
shall contribute to the amount paid or payable by RWNT or any such other
Indemnified Person as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by XXXXX and its shareholders on the one hand and RWNT or any such other
Indemnified Person on the other hand, but also the relative fault of XXXXX and
RWNT or any such other Indemnified Person, as well as any relevant equitable
considerations; provided that in no event will the aggregate contribution by
RWNT and any such other Indemnified Person hereunder exceed the amount of fees
actually received by RWNT pursuant to this Agreement. The reimbursement,
indemnity and contribution obligations of XXXXX hereinabove set forth shall be
in addition to any liability which XXXXX may otherwise have and these
obligations and the other provisions hereinabove set forth shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of XXXXX, RWNT and any other Indemnified Person.
The terms and conditions hereinabove set forth shall survive the termination and
expiration of this Agreement and shall continue indefinitely thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be hand or
by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the Parties' respective addresses
herein above set forth. Each Party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be binding on the
Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, consultants and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either Party without the prior consent of
the other Party.
XII. Choice of Law: This Agreement is made in New York, and all questions
related to the execution, construction, validity, interpretation and performance
of this Agreement and to all other issues or claims arising hereunder, shall be
governed and controlled by the laws of New York.
XIII. Venue: The state of New York shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of this
Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to Parties or circumstances
other than those as to which it is held invalid or non enforceable, shall not be
affected thereby; and each term, covenant, or condition of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by the
Parties hereto, which writing specifically refers to this Agreement and states
that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter, and any and
all prior representations and agreements with respect to such subject matter, if
any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this
Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
Reality Wireless Networks, Inc.
Date: January 29, 2003 By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, CEO & Chairman
Date: January 29, 2003 By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
