EXHIBIT 10
ADVISORY SERVICES AGREEMENT
This Advisory Services Agreement (the "Agreement") is entered into this 21st day
of March, 2005 by and between Xxxx Xxxxxxxxxx (hereinafter referred to as
"Consultant") and Next Phase Wireless, Inc. (hereinafter referred to as "Client"
or "Company"), collectively referred to as the "Parties," with reference to the
following terms:
Preliminary Statement: The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate strategic
and financial development, and to advise the Client in business and financial
matters, and is therefore willing to engage Consultant upon the terms and
conditions set forth herein. Consultant desires to be assured, and Client
desires to assure Consultant, that Consultant will be paid the consideration
described herein and said consideration will be nonrefundable, regardless of the
circumstances.
Consultant agrees to be engaged and retained by Client upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive
basis, and Consultant hereby accept the engagement to become
Consultant to Client and, as requested and applicable, to render
such assistance, advice, consultation, information, and services
to the Officers and/or Directors of Client regarding general
strategic and business matters.
1.1. Additional Duties. Client and Consultant shall mutually agree, in
writing, for any additional duties that Consultant may provide to
Client for compensation paid or payable by Client under this
Agreement. Although there is no requirement to do so, such
additional agreement(s) may be attached hereto and made a part
hereof by written amendments to be listed as "Exhibits" beginning
with "Exhibit A" and initialed by both parties.
1.2. Standard of Performance. Consultant shall devote such time and
efforts to the affairs of the Client as is reasonably necessary
to render the services contemplated by this Agreement. Any work
or task of Consultant provided for herein which requires Client
to provide certain information to assist Consultant in completion
of the work shall be excused (without effect upon any obligation
of Client) until such time as Client has fully provided all
information and cooperation necessary for Consultant to complete
the work. The services of Consultant shall not include the
rendering of any legal opinions or the performance of any work
that is in the ordinary purview of a certified public accountant,
or other licensed professional. Consultant cannot
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guarantee results on behalf of Client, but shall use commercially
reasonable efforts in providing the services listed above.
1.3. Limitation on Services. Client and Consultant agree that under no
circumstances shall the services contemplated by this agreement
include any work in connection with the offer or sale of
securities in a capital raising transaction, nor shall the
services directly or indirectly promote or maintain a market for
the Company's securities within the meaning of General
Instruction A(1)(a)(1)(ii) and (iii) of Form S-8 respectively.
2. Compensation to Consultant. The engagement compensation to
Consultant shall be 250,000 shares of Client's unrestricted
common stock, par value $.001, to be issued to Consultant, Xxxx
Xxxxxxxxxx, pursuant to Client's Form S-8 Registration Statement
or other registration. Said shares shall be delivered to
Consultant within five (5) business days of the signing of this
Agreement. Note: Consultant shall have no obligation to perform
any duties provided for herein if full payment is not received
within the time described herein this Section 2. Furthermore,
once paid, said engagement fee is nonrefundable regardless of the
circumstances.
2.1. Expenses. If the Client requests that Consultant travel outside
of Southern California to perform the services described herein,
Client shall reimburse Consultant for travel-related expenses and
payment shall be made within seven (7) days of invoice.
Notwithstanding the foregoing, all such expenses over $500 shall
be pre-approved by the Client prior to being incurred.
2.2. Additional Fees. Client and Consultant shall mutually agree upon
any additional fees that Client may pay in the future for
services rendered by Consultant under this Agreement. Such
additional agreement(s) may, although there is no requirement to
do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
2.3. Term/Termination. This Agreement shall be in effect for six (6)
months from the date of the Agreement. Additional extensions may
be negotiated as necessary at the mutual written consent of the
Client and Consultant.
3. Mutual Indemnification. Either Party agrees to indemnify and hold
harmless the other against any and all liability, loss and costs,
expenses or damages, including but not limited to, any and all
expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason
of any injury (whether to body, property, personal or business
character or reputation) sustained by any person or to any person
or property, arising out of any act, failure to act, neglect, any
untrue or alleged untrue statement of a material fact or failure
to state a material fact which thereby makes a statement false or
misleading, or any breach of any material representation,
warranty or covenant by either Party or any of its agents,
employees, or other representatives. Nothing herein is intended
to nor shall it relieve either party from liability for its own
willful act, omission or negligence. All remedies provided by
law, or in equity shall be cumulative and not in the alternative.
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4. Mutual Confidentiality. Consultant and Client each agree to keep
confidential and provide reasonable security measures to keep
confidential information where release may be detrimental to
their respective business interests. Consultant and Client shall
each require their employees, agents, affiliates, other
licensees, and others who will have access to the information
through Consultant and Client respectively, to first enter
appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
Consultant will not, either during its engagement by the Client
pursuant to this Agreement or at any time thereafter, disclose,
use or make known for its or another's benefit any confidential
information, knowledge, or data of the Client or any of its
affiliates in any way acquired or used by Consultant during its
engagement by the Client. Confidential information, knowledge or
data of the Client and its affiliates shall not include any
information that is, or becomes generally available to the public
other than as a result of a disclosure by Consultant or their
representatives.
5. Amendments and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of Consultant
and Client.
5.1 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. The
obligations of either party hereunder cannot be assigned without
the express written consent of the other party.
5.2 Governing Law; Venue. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the State of California, without
regard to its conflict of law doctrine. Client and Consultant
agree that if any action is instituted to enforce or interpret
any provision of this Agreement, the jurisdiction and venue shall
be Orange County, California.
5.3 Attorneys' Fees and Costs. If any action is necessary to enforce
and collect upon the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees and costs,
in addition to any other relief to which that party may be
entitled. This provision shall be construed as applicable to the
entire Agreement.
5.4 Survivability. If any part of this Agreement is found, or deemed
by a court of competent jurisdiction, to be invalid or
unenforceable, that part shall be severable from the remainder of
the Agreement.
5.5 Facsimile Signatures. The Parties hereto agree that facsimile
signatures may execute this Agreement and such signature shall be
deemed originals.
6. Arbitration. All disputes, controversies, or differences between
client, consultant, or any of their officers, directors, legal
representatives, attorneys, accountants, agents or employees, or
any customer or other person or entity, arising out of, in
connection with or as a result of this
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agreement, shall be resolved through arbitration rather than
through litigation. With respect to the arbitration of any
dispute, the undersigned hereby acknowledge and agree that:
A. Arbitration is final and binding on the parties;
B. The parties waive their right to seek remedy in court, including
their right to jury trial;
C. Pre-arbitration discovery is generally more limited and different
from court proceeding;
D. The arbitrator's award is not required to include factual
findings or legal reasoning and any party's right of appeal or to
seek modification of ruling by the arbitrators is strictly
limited;
E. This arbitration provision is specifically intended to include
any and all statutory claims which might be asserted by any
party;
F. Each party hereby agrees to submit the dispute for resolution to
the American Arbitration Association in Orange County, California
within five (5) days after receiving a written request to do so
from the other party;
G. If either party fails to submit the dispute to arbitration on
request, then the requesting party may commence an arbitration
proceeding, but is under no obligation to do so;
H. Any hearing scheduled after an arbitration is initialed shall
take place in Orange County, California;
I. If either party shall institute a court proceeding in an effort
to resist arbitration and be unsuccessful in resisting
arbitration or shall unsuccessfully contest the jurisdiction of
any arbitration forum located in Orange County, California, over
any matter which is the subject of this agreement, the prevailing
party shall be entitled to recover from the losing party its
legal fees and any out-of-pocket expenses incurred in connection
with the defense of such legal proceeding or its efforts to
enforce its rights to arbitration as provided for herein;
J. The parties shall accept the decision of any award as being final
and conclusive and agree to abide thereby;
K. Any decision may be filed with any court as a basis for judgment
and execution for collection.
7. Representations, Warrants and Covenants. The Client represents,
warrants and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of this
Agreement by the Client and its delivery to the Consultant, and
the consummation by it of the transactions which are contemplated
herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further
authorization shall be necessary on the part of the Client for
the performance and consummation by the Client of the
transactions which are contemplated by this Agreement.
The business and operations of the Client have been and are being
conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Client or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Client or cause acceleration
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under any arrangement, agreement or other instrument to which the Client is a
party or by which any of its assets are bound. The Client has performed in all
respects all of its obligations which are, as of the date of this Agreement,
required to be performed by it pursuant to the terms of any such agreement,
contract or commitment.
Consultant, on behalf of itself, and its affiliates, hereby covenants and agrees
not to directly or indirectly, offer to "short sell", contract to "short sell",
or otherwise "short sell" the Securities of the Client.
Consultant hereby represents, warrants and covenants that (a) Xxxx Xxxxxxxxxx
("Xxxxxxxxxx") shall be the individual who shall actually perform the services
under this Agreement, (b) Xxxxxxxxxx is eligible to be issued, and/or to sell
the shares issued to him hereunder, which are registered by the Company on a
registration statement on Form S-8, and (c) during the term of this Agreement
the Consultant shall provide bona fide services to the Company under this
Agreement, and such services shall not be in connection with the offer or sale
of securities in a capital raising transaction and shall not directly or
indirectly promote or maintain a market for the Company's securities within the
meaning of General Instruction A(1)(a)(1)(ii) and (iii) of Form S-8
respectively.
8. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail; or (ii) overnight
delivery with confirmation of delivery; or (iii) facsimile transmission
with an original mailed by first class mail, postage prepaid, or in each
case to such other address and facsimile number as shall have last been
furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise
available, notice shall be hand-delivered to the aforesaid addresses. Each
notice or communication shall be deemed to have been given as of the date
so mailed or delivered, as the case may be; provided, however, that any
notice sent by facsimile shall be deemed to have been given as of the date
sent by facsimile if a copy of such notice is also mailed by first class
mail on the date sent by facsimile; if the date of mailing is not the same
as the date of sending by facsimile, then the date of mailing by first
class mail shall be deemed to be the date upon which notice given.
9. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10. Preliminary Statement. The Preliminary Statement is incorporated herein by
this reference and made a material part of this Agreement.
11. Entire Agreement. With respect to the services specific to this Agreement,
this Agreement supersedes any and all other agreements, either oral or
written, between the parties hereto. Each party to this Agreement
acknowledges that no representation, inducements, promises or
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agreement, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement with respect to the
services identified shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by all parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, all as of the day and year indicated above.
CONSULTANT:
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
CLIENT:
NextPhase Wireless, Inc.
/s/ Xxxxxx X. Xxxx
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By:
Its:
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