EXHIBIT 10.2
CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into as of the 4th day of November, 2003
by and between Koala International Wireless, Inc. hereinafter referred to as
"Client", with its principal place of business at 00 Xxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX, X0X 0X0 and Xxx Xxxx hereinafter referred to as "Consultant",
with its principal place of Business at 0000 Xxx Xxxx Xxxxx, Xxxxxxx Xxxxx ,
Xxxxxxx 00000.
RECITALS
A. WHEREAS, Client is a developed stage company; and
B. WHEREAS, the Consultant is generally knowledgeable in the areas of
identifying acquisition targets consistent with the business
operations of the Company and possesses experience in merger
structure, corporate image advertising, business development and
business strategy and Production and process support; and
C. WHEREAS, the Company wishes to engage the Consultant on a nonexclusive
basis as an independent contractor to utilize Consultant's general
acquisition experience and specific merger structure experience for
this type of Company, corporate image advertising, and business
development and strategy expertise; and
D. WHEREAS, the Consultant is willing to be so retained on the terms and
conditions as set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to
perform the following consulting services (the "Consulting Services");
1.1 Duties of Consultant. The Consultant will provide such services and
advice to the Company so as to assist the Company in identifying
acquisition targets for the Company and advise the Company in
structuring mergers or other acquisitions. Without limiting the
generality of the foregoing. Consultant will also assist the Company
in developing, studying and evaluating acquisition proposals, prepare
reports and studies thereon when advisable, and assist in negotiations
and discussions pertaining thereof. Nothing contained herein
constitutes a commitment on the part of the Consultant to find an
acquisition target for the Company or, if such target is found, that
any transaction will be completed. Consultant will assist the Company
in creating its corporate image advertising, business development and
business strategy.
This Agreement is not a contract for listing services, and nothing in this
Agreement will require the Consultant to negotiate on behalf of the Company with
corporations that are involved with listings or making a market in corporate
securities in the OTC markets.
2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/of public
relation services to the Company inclusive of but not limited to (i)
direct or indirect promotion of the Company's securities; (ii)
assistance in making of a market in the Company's securities; and
(iii) assistance in obtaining debt and/or equity financing. The
Consultant shall not have the power of authority to bind the Company
to any transaction without the Company's prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive
from the Client an initial payment of FOUR MILLION (4,000,000) shares
of Clients common stock, in advance, as consideration for the services
rendered or to be rendered pursuant to this Agreement.
4. Term. This Agreement shall be effective for a term of one year (1)
year starting from the date first written above unless sooner
terminated upon mutual written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of
reimbursement from the Company unless such expenses are pre-approved
by the Company.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of
any terms of this Agreement, the Consultant shall not be liable to the
Company or to any officer, director, employee, stockholder or creditor
of the Company, for any act or omission in the course of or in
connection with the rendering or providing of services hereunder.
Except in those cases where the gross negligence or willful misconduct
of the Consultant or the breach by the Consultant of any terms of this
Agreement is alleged and proven, the Company agrees to defend,
indemnify, and hold the Consultant harmless from and against any and
all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of the Consultant) which may is
any way a result from services rendered by the Consultant pursuant to
or in any connections with the Agreement. This indemnification
expressly excludes any and all damages as a result of any actions or
statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify, and
hold the Company harmless from and against any and all reasonable
costs, expenses and liability (including reasonable attorney's fees
paid in defense of the Company) which may in any way result pursuant
to its gross negligence or willful misconduct or in any connection
with any actions taken or statements made, on behalf of the Company,
without the prior approval or authorization of the Company or which
are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representation:
a. Consultant has no prior or existing legally binding obligation
that are in conflict with its entering into this Agreement;
b. Consultant shall not offer or make payment of any consideration
to brokers, dealers, or others for purposes of inducing the
purchase, making of a market or recommendation for the purchase
of the Company's securities;
c. Consultant is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or
any state securities commission;
d. Consultant's activities and operations fully comply with now and
will comply with in the future all applicable state and federal
securities law and regulation;
e. Consultant understands that, as a result of its services, it may
come to possess material non-public information about the
Company, and that is has implemented internal control procedures
designed to reasonably insure that it and none of its employees,
agents, Consultant or affiliates, trade in the securities of
client companies while in possession of material non-public
information;
f. During the Term of this Agreement and for a period of two years
thereafter, the Consultant shall treat as the Company's
confidential trade secrets all date, information, ideas,
knowledge and papers pertaining to the affairs of the Company.
Without limiting the generality of the foregoing, such trade
secrets shall include; the identity of the Company's customers,
suppliers and prospective customers and suppliers; the identity
of the Company's creditors and other sources of financing; the
Company's estimating and costing procedures and the cost and
gross prices charged by the Company for its products; the prices
or other consideration charged to or required or the Company by
any of its suppliers of potential suppliers; the Company's sales
and promotional policies; and all information relating to
entertainment programs or properties being produced or otherwise
developed by the Company. The Consultant shall not reveal said
trade secrets to others except in the proper exercise of its
duties for the Company, or use their knowledge thereof in any way
that would be detrimental to the interest of the Company, unless
compelled to disclose such information by judicial or
administrative process; provided, however, that the divulging of
information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to
which it is divulged, (ii) already in the public domain, all
through no fault of the Consultant, or (iii) required to be
disclosed by Consultant pursuant to judicial or governmental
order. The Consultant shall also treat all information pertaining
to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets
of such customers and suppliers and prospective customers and
suppliers, and
g. Consultant agrees to notify the Company immediately if, at any
time, any of the representations and warranties made by the
Consultant herein are no longer true and correct or it a breach
of any of the representations and warranties made by the
Consultant herein occurs,
9. The Company makes the following representations:
The Company is not currently the subject of an investigation or inquiry by
the Securities and Exchange Commission the NASD, or the state securities
commission;
The Company is in good standing in its state of incorporation;
The Company and its senior management are not aware of any materially
adverse events not previously disclosed in the Company's annual and
quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes
any and all negotiations, prior discussions and preliminary and prior
agreements and understandings related to the primary subject matter
hereof. This Agreement shall not be modified except by written
instrument duly executed by each of the parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor
shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights hereunder
may not be assigned by the parties (except by operation of law or
merger and shall be binding upon and inure to the benefit of the
parties and their respective successors, assigns and legal
representative.
13. Notices. Any notice or other communication between the parties hereto
shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
Company: 00 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX, X0X 0X0
Consultant: 0000 Xxx Xxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000
Or at such other locations as the addressee may have specified in a notice
duly given to the sender as provided herein. Such notice or other
communication shall be deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term of provision hereof is deemed unlawful or
invalid for nay reason whatsoever, such unlawfulness or invalidity
shall not affect the validity of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of Nevada, without giving effect to conflict
of laws.
16. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision
hereof.
17. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably
necessary to carry out the provisions and intent of this Agreement.
18. Acknowledgement Concerning Counsel. Each party acknowledges that if
had the opportunity to employ separate and independent counsel of its
own choosing in connections with this Agreement.
19. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties.
The parties have no authority to bind the other or incur any
obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first written above.
BY: /s/Xxxxxxx Xxxxxx The "Client"
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KOALA INTERNATIONAL WIRELESS INC.
BY: /s/Xxx Xxxx The "Consultant
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Xxx Xxxx
