SERVICE AGREEMENT
THIS SERVICE AGREEMENT ("Agreement") is made and entered into this 30st day
of August, 1999, effective as of August 30, 1999, between TELECOM WIRELESS
CORPORATION, a Utah corporation (the "Company"), and XXXX X. XXXXXX ("JHS").
For and in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. TERM AND TERMINATION. Agreement shall commence on the effective date
set forth above and shall continue for a period of 48 months thereafter
unless earlier terminated by either party for any reason upon not less than
ten days' notice given to the other party. Notwithstanding any such
termination, accrued compensation and expenses payable to JHS by the Company
shall be paid promptly in accordance with this Agreement.
2. SERVICES AND RECORDS. The Company hereby engages JHS to provide
assistance in acquisitions, strategic business development analysis,
financial review, and other services (the "Services"). JHS accepts such
engagement and agrees to timely perform the Services fully, faithfully and in
a professional manner. The scope of the Services shall be defined by the
Company and shall be performed within the time frame agreed upon between the
Company and JHS. Electronic mail shall serve as an acceptable form to
authorize specific tasks. JHS agrees to be available to perform the Services
for up to 1000 hours per year as required by the Company. JHS shall maintain
records and status reports in such form as may be agreed upon between JHS and
the Company and she provide such time records and reports to the Company
periodically as required by it.
3. COMPENSATION. Compensation to JHS from the Company will include
items 3.1 through 3.4 as .follows:
3.1. An immediate grant to JHS of 250,000 shares of Telecom Wireless.
3.2. A grant to JHS of 7,500 shares of Telecom Wireless each month
for 48 months.
The Company and JHS agree that the considerations 3.1, and 3.2 above
should be structured in detail to accommodate good financial and tax planning
for all parties. If Options or other instruments are more appropriate
vehicles for items 3.1 and 3.2 above the Company recognizes that the numbers
of shares must be increased to reflect equivalent value.
4. REPRESENTATIONS AND WARRANTIES OF JHS. JHS represents and warrants
to the Company as follows:
4.1. The Shares and the shares of common stock issued upon exercise
of any Options (the "Option Shares") (collectively, the "Securities") will be
acquired as an investment for JHS's own account, not as a nominee or agent,
and not with a view to the sale or distribution of any part thereof, and JHS
has no present intention of selling, granting participation in, or otherwise
distributing the same,
4.2. JHS has such knowledge and experience in business and financial
matters as to be capable of evaluating the merits and risks of the investment
in the Securities; that JHS has sufficient financial strength to hold the
Securities as an investment and to bear the economic risks of such investment
(including possible complete loss of such investment) for an indefinite
period of time; and that during the
negotiations of the transactions contemplated herein, JHS and JHS's legal
counsel and investment advisers, if any, have been afforded full and free
access to corporate books, financial statements, records, contracts,
documents, and other information concerning the Company to the extent such
items exist, and to the Company's office and facilities, and have been
afforded an opportunity to ask such questions of the Company's officers,
employees, agents, accountants, and representatives concerning the Company's
business, operations, financial condition, assets, liabilities, and other
relevant matters as they have deemed necessary or desirable, and have been
given all such information as has been requested, in order to evaluate the
merits and risks of the prospective investment contemplated herein.
5. REIMBURSEMENT FOR EXPENSES. The Company shall reimburse JHS for all
preapproved reasonable out of pocket expenses incurred by JHS in the
performance of JHS's duties. Expenses shall not include JHS's overhead such
as rent, telephone, salaries and other operating expenses. JHS will maintain
such records and written receipts as may be required by the Company to
substantiate such expenses.
6. CORPORATE OPPORTUNITY. JHS acknowledges and agrees that any actual
or potential opportunity within the area of interest of the Company which
comes to its attention at any time during the term of this Agreement shall be
made available to the Company.
7. NONCOMPETITION AND NONSOLICITATION. JHS agrees that it will not,
directly or indirectly, (i) engage in or become financially interested in any
business which competes with the business of the Company or any subsidiary or
affiliate of the Company, or (ii) induce or attempt to induce any employee of
the Company or of any subsidiary or affiliate of the Company to terminate
such employment, in all cases during the term of this Agreement and for a
period of two years thereafter. JHS acknowledges and agrees that the terms
of this Section 7 are fair and equitable in all respects and are reasonably
necessary to protect the business and goodwill of the Company.
8. CONFIDENTIAL INFORMATION. JHS agrees that during the entire term of
this Agreement and at all times thereafter, any confidential information or
trade secrets ("Confidential Information") owned or used by the Company or
any subsidiary or affiliate of the Company of which JHS shall acquire
knowledge shall be considered and kept by JHS as the private, privileged and
proprietary records of the Company and will not be divulged to or used by any
person except on the direct authority of the Company. JHS agrees that the
Company shall be entitled, with or without notice, to temporary restraining
orders and preliminary and permanent injunctions restraining and enjoining
JHS, any persons acting in concert with JHS and any other persons having or
proposed to have the use or benefit of Confidential Information or for any
other breach of either Section 7 or Section 8. Confidential Information
includes, without limitation, all documentation and other tangible or
intangible discoveries, ideas, concepts, software, designs, drawings,
specifications, techniques, models, information, source code, object code,
diagrams, flow charts, procedures, know-how, financial statements and other
financial information, customer and supplier lists, tax records, personnel
records, accounting procedures and other business records and information,
whether similar or dissimilar to the foregoing. Confidential information
also includes any information described above which the Company obtains from
another person which the Company treats or designates as proprietary or
confidential, whether or not owned or developed by the Company.
9. ARBITRATION. Except as provided in Section 8 above, in the event of
any differences, claims or disputed matters between the parties hereto
arising out of this Agreement or connected herewith, the parties agree to
submit such matters to arbitration by the American Arbitration Association or
its successor. Either party can invoke arbitration upon ten days notice to
the other party. The determination of the arbitrator shall be final and
absolute. The arbitrator shall be governed by the duly Promulgated
rules and regulations of the American Arbitration Association or its
successor, and the pertinent provisions of the laws of the State of Colorado
relating to arbitration. The decision of the arbitrator may be entered in a
judgment in any court of the State of Colorado or elsewhere. The arbitrator
shall not have the power to award consequential or exemplary damages.
10. MISCELLANEOUS. (i) This Agreement sets forth the understanding of the
parties and supercedes all prior written or oral understandings and
agreements and may be modified only by a writing signed by all parties; (ii)
No party shall have the right to assign all or any portion of its rights,
duties or obligations under this Agreement to any other person. Subject to
the foregoing, all terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto; (iii) This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado without regard
to the conflict of laws provisions thereof, (iv) The failure of any party to
insist in any one or more instances upon performance of any terms or
conditions of this Agreement shall not be construed as a waiver of future
performance of such or any other term, covenant or condition; (v) In the
event any party takes legal action against any other party in order to
enforce the terms of this Agreement, the party in whose favor a final
judgment or order is rendered shall be entitled to recover from the other
party its reasonable attorneys fees and costs to be fixed by the court or
arbitrator which renders such judgment or order. Such fees and costs shall
include those incurred in connection with any appeal or appeals; (vi) Should
any term or condition of this Agreement be determined by a court of competent
jurisdiction to be void or unenforceable, all other provisions of this
Agreement shall remain in full force and effect; and (vii) All notices
required hereunder shall be deemed to have been given when in writing upon
the earlier of personal delivery by courier, facsimile or other receipted
delivery or three days following deposit in the United States mails by
certified or registered mail, postage prepaid, to the party at the addresses
set forth below. Any party hereto, by notice duly given, may change the
address for the giving of notice.
11. REMEDIES NOT EXCLUSIVE. The remedies provided herein are not and
shall not be, exclusive but shall be cumulative with and in addition to any
other remedy which may be available to any party hereto at law or in equity,
including, but not by way of limitations damages for any breach hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
TELECOM WIRELESS CORPORATION,
a Utah corporation
By: /s/ Xxxxx X. Xxxxxxx
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Title: Chief Executive Officer
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Address: 0000 XXX Xxxx., Xxxxx 0000
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Xxxxxxxxx, XX 00000
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By: /s/ Xxxx X. Xxxxxx
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Title: President
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Address: 00 Xxxxxxx Xxxxx
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Xxxxx, XX 00000
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