EX-10.28
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated June 20,
2002, is made by and between Xxxxx Family Trust, an individual
("Consultant"), whose address is 0000 Xxxxxxx Xx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, and 5G Wireless Communications, Inc., a Nevada
corporation ("Client"), having its principal place of business at 0000
Xxx Xxx Xxxxxx, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant has extensive background and contacts in the
area of telecommunications;
WHEREAS, Consultant desires to be engaged by Client to provide
information, evaluation and consulting services to the Client in her
area of knowledge and expertise on the terms and subject to the
conditions set forth herein;
WHEREAS, Client is a publicly held corporation with its common
stock shares trading on the Over the Counter Bulletin Board under the
ticker symbol "FGWC," and desires to further develop its business and
increase its common stock share's value; and
WHEREAS, Client desires to engage Consultant to provide
information, evaluation and consulting services to the Client in her
area of knowledge and expertise on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Consultant agrees to assist Client in identifying prospective
rooftop, making introductions, in identified geographic areas, and
marketing to these areas through ISP's, retailers, and direct
distributors. As such Consultant will provide bona fide services to
Client. The services to be provided by Consultant will not be in
connection with the offer or sale of securities in a capital-raising
transaction, and will not directly or indirectly promote or maintain a
market for Client's securities.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration
for services provided, 476,652 shares of the Client's restricted
common stock, subject to any adjustments on account of stock splits,
and warrants to purchase 1,000,000 shares of FGWC common stock
(500,000 shares at $0.25 and 500,000 shares at $0.50), with no
adjustments on account of stock splits. The shares underlying the
warrants have been registered in the Client's Form S-8 and shall be
free trading common stock.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be
disclosed to the other party, including, but not limited to, product
and business plans, software, technical processes and formulas, source
codes, product designs, sales, costs and other unpublished financial
information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a
source other than the receiving party, (b) was known to the receiving
party as of the time of its disclosure, (c) is independently developed
by the receiving party , or (d) is subsequently learned from a third
party not under a confidentiality obligation to the providing party.
4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15) days
of the due date. Failure of Client to finally pay any fees within
fifteen (15) days after the applicable due date shall be deemed a
material breach of this Agreement, justifying suspension of the
performance of the "Services" provided by Consultant, will be
sufficient cause for immediate termination of this Agreement by
Consultant. Any such suspension will in no way relieve Client from
payment of fees, and, in the event of collection enforcement, Client
shall be liable for any costs associated with such collection,
including, but not limited to, legal costs, attorneys' fees, courts
costs, and collection agency fees.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought
against said parties with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees to the
extent that such action is based upon a claim that: (i) is true, (ii)
would constitute a breach of any of Client's representations,
warranties, or agreements hereunder, or (iii) arises out of the
negligence or willful misconduct of Client, or any Client Content to
be provided by Client and does not violate any rights of third
parties, including, without limitation, rights of publicity, privacy,
patents, copyrights, trademarks, trade secrets, and/or licenses.
(b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to
the extent that such an action arises out of the gross negligence or
willful misconduct of Consultant.
(c) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of
any claim, which the indemnified party believes falls within the scope
of the foregoing paragraphs. The indemnified party may, at its
expense, assist in the defense if it so chooses, provided that the
indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended
to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Consultant
has been advised of the possibility of such damages. In any event, the
liability of Consultant to Client for any reason and upon any cause of
action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the fee paid by Client
to Consultant for the specific service provided that is in question.
7. Termination and Renewal.
(a) Term.
This Agreement shall become effective on the date appearing next
to the signatures below and terminate one (1) year thereafter. Unless
otherwise agreed upon in writing by Consultant and Client, this
Agreement shall not automatically be renewed beyond its Term.
(b) Termination.
Either party may terminate this Agreement on thirty (30) calendar
day's written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or
obligations under this Agreement. Except as may be otherwise provided
in this Agreement, such breach by either party will result in the
other party being responsible to reimburse the non-defaulting party
for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by
law including all attorneys' fees and costs of enforcing this Agreement.
(c) Termination and Payment.
Upon any termination or expiration of this Agreement, Client
shall pay all unpaid and outstanding fees through the effective date
of termination or expiration of this Agreement. And upon such
termination, Consultant shall provide and deliver to Client any and
all outstanding services due through the effective date of this Agreement.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor"
relationship between Consultant and Client.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e) Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
(f) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
(h) Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(i) Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
(j) Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out
the terms of this Agreement and the transactions contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by
mail (either a. United States mail, postage prepaid, or b. Federal
Express or similar generally recognized overnight carrier), addressed
as follows (subject to the right to designate a different address by
notice similarly given):
To Client:
5G Wireless Communications, Inc.
0000 Xxx Xxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxx
To Consultant:
Xxxxx Family Trust
0000 Xxxxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance
with the laws of the State of Nevada without reference to its
conflicts of laws rules or principles. Each of the parties consents
to the exclusive jurisdiction of the federal courts of the State of
California in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non coveniens, to
the bringing of any such proceeding in such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this
Agreement shall survive the termination of this Agreement.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date
written above.
5G Wireless Communications, Inc.
By : /s/ Xxxxx Xxx
Xxxxx Xxx, President
Xxxxx Family Trust
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
ADDENDUM TO CONSULTING SERVICES AGREEMENT
This Addendum to Consulting Services Agreement ("Agreement"),
dated June 24, 2002, is made by and between Xxxxx Family Trust, an
individual ("Consultant"), whose address is 0000 Xxxxxxx Xx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, and 5G Wireless Communications, Inc., a
Nevada corporation ("Client"), having its principal place of business
at 0000 Xxx Xxx Xxxxxx, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000.
All terms and conditions of the Agreement not otherwise amended
by this Addendum shall remain in full force and effect.
Section 2 of the Agreement (Consideration) shall be amended to read as
follows:
"Client agrees to pay Consultant, as its fee and as consideration
for services provided, a warrant to purchase 500,000 shares of FGWC
common stock at $0.25 per share and a warrant to purchase 500,000
shares of FGWC common stock at $0.50 per share, with no adjustments on
account of stock splits for either warrant. These warrants shall be
exercisable upon issuance and for a period of two (2) years
thereafter. The shares underlying the warrants shall be registered in
an upcoming Form S-8."
IN WITNESS WHEREOF, the parties have caused this Addendum to be
executed and have agreed to and accepted the terms herein on the date
written above.
5G Wireless Communications, Inc.
By : /s/ Xxxxx Xxx
Xxxxx Xxx, President
Xxxxx Family Trust
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
