CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into on January 12, 2005,
by and between CALYPSO WIRELESS, INC., a Delaware corporation having it's
principal offices at 0000 XX 000 Xxxxxx, Xxxxx Xxxxx, XX. 00000 ("Calypso" or
"Company"), and Bierman, Shohat, Xxxxx & Xxxxx, P.A. a Florida corporation
having its principal offices at 000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
(Consultant").
RECITALS
A. Calypso is in the process of suing Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx,
Xxxx xx Xxxxxx and Xxxxx Xxxxx in Case Number 03-04342 in Miami Dade Circuit
Court to recoup and return to the Company 10 million (10,000,000) shares of
stock that was fraudulently stolen, and desires to retain the services of
Consultant to assist Calypso in prosecuting claim related to Case number
03-04342.
B. Consultant represents to Calypso that he has the expertise and
experience to render the consulting services related to the business of Calypso.
AGREEMENT
Therefore, in consideration of the mutual promises, covenants and
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Consulting Services. During the term of this Agreement, Consultant
shall provide Company with the following consulting services (the "Services"):
(a) Assist Company in connection with pursuing and preserving a
final judgment recouping the shares of stock that were stolen
from Calypso, Inc, including handling all litigation involved
in Miami Dade Circuit Court case number 03-4342.
(b) Consultant shall not negotiate or enter into any contract,
agreement or understanding with any third-parties on behalf of
Company without Company's knowledge or consent. Consultant
shall not be required to perform a minimum number of hours of
services under this Agreement, yet Consultant shall provide
her/his good faith best efforts to provide the requisite time
and effort to help Company. Calypso recognizes and agrees that
Consultant is engaged in several business activities
independent of the Services.
2. Consulting Fee
In consideration of the Services to be rendered by Consultant as agreed
between Consultant and Calypso on "Contract of Employment" signed on
January, 12, 2005, Calypso shall remunerate Consultant by granting
Consultant Four Hundred and Twenty Five Thousand Shares (425,000) free
trading S-8 shares of Calypso Wireless, Inc., common stock (the "Common
Stock"), subject to the terms and conditions of this Agreement. The
shares will be forwarded to Consultant as requested from Consultant on
one certificate as follows: (425,000) shares to Xxxxxxx X. Xxxxx, Xx.
due and payable immediately.
3. Securities Representations. Consultant hereby represents that:
3.1 Consultant is an "Accredited Investor," as such term is defined
under Rule 501 of Regulation D of the Securities Act of 1933, as amended;
3.2 Consultant has discussed with Company's management the business
plans for the Company;
3.3 Consultant has had the opportunity to question the principals of
Company as to all matters which he deems material and relevant to his decision,
if applicable, to purchase the Company's Common Stock, and has had the
opportunity to obtain any and all additional information necessary to verify the
accuracy of the information received or any other supplemental information which
he deems relevant to make an informed investment decision; and
3.4 Consultant understands the risks of an investment in the
Company's Common Stock, and has consulted with an attorney and/or accountant to
the extent he deemed it necessary in reviewing his acquisition of the Company's
Common Stock.
4. Representations and Warranties of Consultant. In connection with this
Consulting Agreement, Consultant hereby represents, warrants and confirms the
following understandings to the Corporation as follows:
4.1 Review and Evaluation of Information. Consultant (i) has been
provided with information b. concerning the formation and organization of
Company and the development of its business prospects to date, (ii) has had the
opportunity to inspect the assets of the Company and its business, corporate and
financial records, (iii) has had the opportunity to ask the Company's officers
and directors questions about the Company's business, operations, financial
records and proposed operations as well as the Company's current growth and
market strategy, (iv) has had the opportunity to review and evaluate all
information provided by the Company's business development and acquisition
prospects, (v) has had the opportunity to interview and independently evaluate
the management and operations personnel of the Company, and (vi) has had the
opportunity to obtain, and has obtained, all information required to form an
informed independent evaluation of the likelihood of the success or failure of
the Company and its proposed new business initiatives. Consultant has also had
the opportunity to ask questions about the Consulting Agreement and has obtained
such additional information as requested to the extent deemed necessary to
permit full evaluation of the merits and risks of an investment in the Shares.
In addition, Consultant has consulted with its investment, accounting, legal and
tax advisors as it deemed necessary and appropriate in making his decision to
acquire the Shares.
4.2 Forward-Looking Information. Consultant understands and agrees
that all statements contained in the business plans for the Company's new
business initiatives, other than statements of historical fact, such as
statements regarding the Company's financial projections, estimated future
revenues, net income, business strategy and plans and objectives for future
operations, are Aforward-looking statements@. These forward-looking statements
are commonly identified by the use of phrases as Aintends,@ Aestimates,@
Aexpects,@ Aprojects,@ Aanticipates,@ Aforeseeable future,@ Aseeks,@ Abelieves,@
and Ascheduled@. The Company's financial projections were based upon assumptions
which the Company and/or its vendors believe to be reasonable but which have not
been reviewed by any independent professional on behalf of the Company.
Consultant acknowledges and agrees that there can be no assurance that such
assumptions will be correct and that actual results will not be materially
different from those set forth in the business plans for its new business
initiatives.
4.3 Consultant 's Financial Experience. Consultant is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of his investment in the Shares.
4.4 Independent Evaluation. Consultant acknowledges that its
investment is being made based upon his independent analysis, together with
assistance from his investment, accounting, legal and tax advisors as he deemed
necessary and appropriate in making an investment decision with respect to the
Shares, and that Consultant and its advisors are not relying upon any statement,
opinion, conclusion, projection or other analysis of the Company or any Company
representative.
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4.5 Suitability of Investment. Consultant has been advised that the
Company has a limited operating history and that its new business initiatives
are undeveloped, and there can be no assurance that the Company will ever be
profitable. Consultant has evaluated the merits and risks of Consultant's
proposed acquisition of the Shares, including those risks particular to
Consultant's circumstances, and has determined that the investment is suitable
for Consultant. Consultant has adequate financial resources for an investment of
this character, and could bear a complete loss of his investment. Further,
Consultant will continue to have, after making his investment in the Company,
adequate means of providing for its current operations, the needs of those
dependent on Consultant, and its possible contingencies.
4.6 Unregistered Offering. Consultant and its Consultant
Representative, if any, understands that the Shares not being registered under
the Act because the sale is exempt from registration under the Securities Act,
and rules and regulations promulgated there under, as a "transaction by an
issuer not involving any public offering," and pursuant to certain other
exemptions, and that the availability of such exemptions is predicated, in part,
on Consultant's representations and warranties contained in this Consulting
Agreement. In the view of the Securities and Exchange Commission, the statutory
basis for the exemption claimed by the Company in connection with the sale of
Shares would not be present if, notwithstanding Consultant's representations and
warranties, Consultant has the intention of acquiring any such securities for
resale upon the occurrence or nonoccurrence of some predetermined event.
4.7 Limited Market for the Shares. Consultant understands that there
is a limited public market for the Shares, and that, as a result, an investment
in the Company's Common Stock may be highly illiquid. Consultant may not be able
to sell its Shares readily or at all when it needs or desires to sell. Trading
in the Company's Common Stock has recently been reported in the National
Quotation Bureau's Pink Sheets. Consultant has been advised, however, that a
public trading market having the characteristics of depth, liquidity and
orderliness depends upon the existence of market makers as well as the presence
of willing buyers and sellers, which are circumstances over which the Company
does not have control. There can be no assurance that the market will provide
significant liquidity for Consultant's sale of the Shares. Consultant can afford
to hold the Shares for an indefinite period of time.
4.8 Absence of Official Evaluation. Consultant understands that no
federal or state agency has made any finding or determination as to the fairness
of the terms of an investment in the Company, nor any recommendation or
endorsement of an acquisition of the Shares.
4.9 Residency. Consultant's residence or principal place of business,
as applicable, is the country and state or other jurisdiction indicated below,
and Consultant's citizenship or jurisdiction of incorporation, as applicable, is
as indicated opposite his or its signature to this Consulting Agreement.
Consultant has no intent of changing his residency, citizenship, or principal
office to any other country or state or jurisdiction.
4.10 Consultant Information. Consultant understands that acceptance of
his Consulting Agreement is based, in part, on the information provided by
Consultant to the Company. Consultant represents that the information provided
by Consultant is true, correct, and complete at the date hereof, and Consultant
agrees to notify the Company immediately of any change in such information.
Consultant understands that the information furnished is intended to enable the
Company to discharge its responsibilities and that the Company will rely upon
such information.
Consultant understands and agrees that, although the Company will use its best
efforts to keep the information provided by purchaser strictly confidential, it
may present the information provided to it to such parties as it may deem
advisable if called upon to establish the availability under any federal or
state securities laws, or if the contents hereof are relevant to any issue in
any action, suit or proceeding to which the Company is a party, or by which the
Company is or may be bound.
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4.11 Nonreliance. Consultant is not relying on the Company or any legal
opinion with respect to the tax and economic effect of his investment in the
Company.
4.12 Prohibitions on Cancellation, Termination, Revocation,
Transferability, and Assignment. Consultant hereby acknowledges and agrees that,
except as may be specifically provided herein or by applicable law, it is not
entitled to cancel, terminate, or revoke this Consulting Agreement, and this
Consulting Agreement shall survive the death, dissolution or other termination
of Consultant, as applicable, and any transfer of the Shares.
4.13 Indemnification of The Company and The Seller. Consultant agrees
to indemnify and hold harmless the Company against any and all loss, liability,
claim, damage, and expense whatsoever (including, but not limited to, any and
all expenses whatsoever, including attorneys' fees, reasonably incurred in
investigating, preparing, or defending against any litigation commenced or
threatened or any claim whatsoever through all appeals) arising out of or based
upon any false representation or warranty or breach or failure by Consultant to
comply with any covenant or agreement made by Consultant herein or in any other
document furnished by Consultant in connection with this Consulting Agreement.
4.14 State Securities Laws. Consultant received this Agreement and
first learned of the Consulting Agreement offer hereby in Miami. Consultant
executed and will execute all documents contemplated hereby in Miami, and
intends that the laws of Florida govern this Consulting Agreement.
4.15 Authority. Consultant has the capacity, power and authority to
execute this Consulting Agreement and perform it obligations hereunder. This
Agreement has been duly executed and delivered by Consultant and (assuming the
due execution and delivery hereof by the Corporation) constitutes a valid and
binding obligation of Consultant enforceable against Consultant in accordance
with its terms.
5. Representations of the Corporation. The Corporation hereby represents
and warrants to Consultant that, upon the services rendered the Corporation will
issuance and delivery the Stock to Consultant in accordance with the terms and
conditions of this Agreement, the Stock will be duly authorized, validly issued,
fully paid and nonassessable; and Consultant will be the true and lawful owner
of the Stock, and will hold such Stock free and clear of any and all security
interests, liens, claims, options, charges or other legal or equitable
restrictions.
7. Term. The term of this Agreement (the "Initial Term") shall commence
(the "Commencement Date") on the date the "Contract of Employment" was executed
on January 12, 2005.
8. Certain Restrictive Covenants: Confidentiality; Noncompetition; Non
Solicitation.
8.1. Confidentiality. Consultant recognizes, acknowledges and agrees
with Company that he will not at any time, except in performance of her
obligations to Company hereunder or with the prior written consent of Company,
directly or indirectly, reveal to any person, entity or other organization
(other than Company, or its employees, officers, directors, shareholders or
agents) or use for her own benefit any information deemed to be confidential by
Company or any of its subsidiaries or affiliates (such subsidiaries and
affiliates, collectively "Affiliates") ("Proprietary Information") relating to
the assets, liabilities, employees, goodwill, business or affairs of Company or
any of its Affiliates including, without limitation, any information concerning
past, present or prospective customers, technology, commercial and strategic
relationships, marketing data, or other Proprietary Information used by, or
useful to, Company or any of its Affiliates and known (whether or not known with
the knowledge and permission of Company or any of its Affiliates and whether or
not at any time prior to the date of this Agreement developed, devised, or
otherwise created in whole or in part by the efforts of Consultant) to
Consultant by reason of performance of the Services, shareholdings in or other
association with Company or any of its Affiliates. Consultant further agrees
that he will retain all copies and extracts of any written Proprietary
Information acquired or developed by her during any such service, shareholding
or association in trust for the sole benefit of Company, its Affiliates and
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their successors and assigns. Consultant further agrees that he will not,
without the prior written consent of Company, remove or take from Company's or
any of its Affiliate's premises (or if previously removed or taken, he will, at
Company's request, promptly return) any written Proprietary Information or any
copies or extracts thereof. Upon the request and at the expense of Company,
Consultant shall promptly make all disclosures, execute all instruments and
papers and perform all acts reasonably necessary to vest and confirm in Company
and its Affiliates, fully and completely, all rights created or contemplated by
this Section 8.1. The term "Proprietary Information" shall not include
information that is or becomes generally available to the public other than as a
result of a disclosure by, or at the direction of, Consultant.
8.2. Covenant Not to Compete; Nonsolicitation. (a) Consultant
recognizes, acknowledges and agrees with Company that, for so long as Consultant
renders the Services to Company and continuing for a period (the "Restricted
Period") equal to the greater of (i) one year following the termination of this
Agreement for any reason and (ii) the remainder of the Initial Term and any
Renewal Term, as the case may be, he will not, without the prior written consent
of Company, directly or indirectly, and whether as principal or investor or as
an employee, officer, director, manager, partner, consultant, agent or
otherwise, alone or in association with any other person, firm, company,
corporation or other business organization, carry on a Competing Business (as
hereinafter defined) in any country in which Company or any of its Affiliates
has engaged, presently engages, or will engage during such period, in a
Competing Business (including, without limitation, any area in which any
customer of Company or any of its Affiliates may be located).
(b) As a separate and independent covenant, Consultant agrees
with Company that, for so long as Consultant renders the Services to Company and
continuing for the Restricted Period, he will not in any way, directly or
indirectly (except in the course of her performance of the Services), for the
purpose of conducting or engaging in any Competing Business, call upon, solicit,
advise or otherwise do, or attempt to do, business with any person who is, or
was, during the then most recent 12-month period, a customer of Company or any
of its Affiliates, or take away or interfere or attempt to take away or
interfere with any custom, trade, business, patronage or affairs of Company or
any of its Affiliates, or interfere with or attempt to interfere with any person
who is, or was during the then most recent 12-month period, an employee,
officer, representative or agent of Company or any of its Affiliates, or
solicit, induce, hire or attempt to solicit, induce or hire any of them to leave
the employ of Company or any of its Affiliates or violate the terms of their
contracts, or any employment arrangements, with it.
(c) For purposes of this Section 8.2, carrying on a "Competing
Business" means operating a business that competes with the Business of the
Company or providing information pursuant thereto in a manner that competes with
Company or any of its Affiliates as of the date hereof or at any time thereafter
during the Restricted Period, and any business that, in the judgment of the
Board, competes with or is reasonably expected to compete with Company or any of
its Affiliates; provided, however, that nothing herein shall limit the right of
Consultant to own not more than 1% of any of the debt or equity securities of
any business organization that is then filing reports with the Securities and
Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934.
8.3. Exclusive Property. Consultant confirms that all Proprietary
Information is and shall remain the exclusive property of Company and its
Affiliates. All business records, papers and documents kept or made by
Consultant relating to the Business of Company shall be and remain the property
of Company and its Affiliates.
8.4. Assignment of Inventions. (a) If at any time or times prior to,
during the term of this Agreement or during the two-year period following the
termination of this Agreement (either alone or with others) makes, conceives,
creates, discovers, invents or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software program, work of
authorship, documentation, formula, data, technique, know-how, trade secret, or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes or
subject to analogous protection (each, an "Invention") that (i) relates to the
Business of Company or any of its Affiliates or any customer of or supplier to
Company or any of its Affiliates or any of the products or services being
developed, manufactured or sold by Company or any of its Affiliates or which may
be used in relation therewith; or (ii) results from tasks assigned to Consultant
by Company or any of its Affiliates; or (iii) results from the use of premises
or personal property (whether tangible or intangible) owned, leased or
contracted for by Company or any of its Affiliates, then all such Inventions and
the benefits thereof are and shall immediately become the sole and absolute
property of Company and its assigns, as works made for hire or otherwise.
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Consultant hereby agrees that he shall promptly disclose to Company (or any
persons designated by it) each such Invention. Consultant hereby assigns all
rights (including, but not limited to, rights to any inventions, patentable
subject matter, copyrights and trademarks) he may have or may acquire in the
Inventions and all benefits and/or rights resulting therefore to Company and its
assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to Company.
(b) Consultant hereby agrees to, during the term of this
Agreement and at any time thereafter, at the request and cost of Company,
promptly sign, execute, make and do all such deeds, documents, acts and things
as Company and its duly authorized officers may reasonably require:
(i) to apply for, obtain, register and vest in the name of
Company alone (unless the Company otherwise directs) patents, copyrights,
trademarks or other analogous protection in any country throughout the world
relating to an Invention and when so obtained or vested to renew and restore the
same; and
(ii) to defend any judicial, opposition or other
proceedings in respect of such applications and any judicial, opposition or
other proceedings, petitions or applications for revocation of any such patent,
copyright, trademark or other analogous protection.
(c) If Company is unable, after reasonable effort, to secure
Consultant's signature on any application for patent, copyright, trademark or
other analogous registration or other documents regarding any legal protection
relating to an Invention, whether because of Consultant's physical or mental
incapacity or by any other reason whatsoever, Consultant hereby irrevocably
designates and appoints Company and its duly authorized officers and agents as
her agent and attorney-in-fact, to act for and in her behalf and stead to
execute and file any such application or applications or other documents and to
do all other lawfully permitted acts to further the prosecution and issuance of
patent, copyright or trademark registrations or any other legal protection
thereon with the same legal force and effect as if executed by Consultant.
8.5. Certain Remedies. Without intending to limit the remedies
available to Company and its Affiliates, Consultant agrees that a breach of any
of the covenants contained in this Section 8 may result in material and
irreparable injury to Company or its Affiliates for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, Company and
its Affiliates shall be entitled to seek a temporary restraining order or a
preliminary or permanent injunction, or both, without bond or other security,
restraining Consultant from engaging in activities prohibited by this Section 8
or such other relief as may be required specifically to enforce any of the
covenants in this Section 8. Such injunctive relief in any court shall be
available to Company and its Affiliates in lieu of, or prior to or pending
determination in, any arbitration proceeding.
9. Representations of Consultant. Consultant hereby represents and
warrants to Company that (i) he has the full, complete and entire right and
authority to enter into this Agreement, (ii) the execution of this Agreement by
Consultant and the performance of Consultant's Services hereunder will not
violate, or be a breach of, any agreement, law or commitment or responsibility
of any kind with a former employer, client, or any other person or entity
(whether government-owned or otherwise).
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Consultant has and will continue to truthfully disclose to Company the
following matters, whether occurring, at any time preceding the date of this
Agreement or at any time during the term of this Agreement:
9.1. any criminal complaint, indictment or criminal proceeding in
which Consultant is named as a defendant;
9.2. any allegation, investigation, or proceeding, whether
administrative, civil or criminal, against Employee by any licensing authority
or industry association; and
9.3. any allegation, investigation or proceeding, whether
administrative, civil, or criminal, against Consultant for violating
professional ethics or standards, or engaging in illegal, immoral or other
misconduct (of any nature or degree), relating to the Business of Company.
10. Independent Contractor. Neither party is hereby constituted an
employee, agent or legal representative of the other party, except as expressly
set forth in this Agreement, and neither is granted any right or authority
hereunder to assume or create any obligation, expressed or implied, or to make
any representation, covenant, warranty or guaranty, except as expressly granted
or made in this Agreement. Nothing contained in this Agreement shall be
construed as to constitute Consultant or any of her employees, agents or
representatives as employees, agents or legal representatives of Company, it
being intended that the Consultant is an independent contractor of Calypso.
11. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by binding arbitration
in Miami-Dade County, Florida, USA, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be conducted in the English language before and
by a single arbitrator selected by the parties. If the parties have not selected
an arbitrator within ten (10) days of written demand for arbitration, the
arbitrator shall be selected by the American Arbitration Association pursuant to
the then current rules of that Association. The expenses of arbitration shall be
divided equally between the parties. The duty to arbitrate shall survive the
cancellation or termination of this Agreement.
12. Termination; Effect of Termination.
12.1 Termination. Either party may terminate this Agreement by written
notification to the other party pursuant to the terms and conditions contained
in the contract of employment dated January 12, 2005.
12.2 Other Compensation or Benefits. Consultant shall have a further
right to receive other compensation and/or benefits pursuant to the terms and
conditions contained in the contract of employment dated January 12, 2005.
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13. Miscellaneous Provisions.
13.1 This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Florida.
13.2 This Agreement will be binding upon and will operate solely
for the benefit of the parties to this Agreement. This Agreement may not be
assigned by any party without the prior written consent of all of the parties
hereto, provided however, that notwithstanding the foregoing, Calypso shall be
entitled to assign this Agreement to its potential successor interest including
any non-U.S. entity without the consent of Consultant.
13.3 This Agreement contains the entire agreement of the parties as to
the matters set forth herein. This Agreement cannot be altered, amended,
supplemented or modified except by an instrument in writing signed by all of the
parties to this Agreement.
13.4 The invalidity or unenforceability of any particular provision of
this Agreement will not affect the other provisions of this Agreement, and the
Agreement will be construed in all respects as if such invalid or unenforceable
provisions were omitted.
13.5 This Agreement may be executed in one or more counterparts, each
of which will be deemed an original and all of which together shall constitute
one agreement.
13.6 This Agreement may be executed by facsimile signature and any
such signature shall be of the same force and effect as an original signature.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date set forth above.
Bierman, Shohat, Xxxxx & Xxxxx
By:
-----------------------------------------
Xxxxxxx X. Xxxxx, Xx.
Consultant
CALYPSO WIRELESS, INC., a Delaware
corporation.
By:
-----------------------------------------
Xxxxxx Xxxxxxxxx, President & CEO
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