CONSULTING SERVICES AGREEMENT
Exhibit
99.1
THIS
AGREEMENT
made this 2nd day of July 2007 (the “Effective Date”),
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BETWEEN:
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XXXX
XXXXXX XXXXXXXX
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of
00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0
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(the
“Consultant”)
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AND:
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WIRELESS
AGE COMMUNICATIONS, INC.
(as defined below)
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having
place of business at 0000 Xxxxxxxxx Xx, Xxxx 0, Xxxxxxxxxxx,
Xxxxxxx;
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(the
“Company”).
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RECITALS:
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A.
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The
company has agreed to engage the Consultant to perform the Consulting
Services and the Consultant has agreed to perform such Services,
in
accordance with the terms and conditions contained
herein;
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B.
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The
Company has also requested that the Consultant enter into confidentiality
provisions, and the Consultant has agreed to do so, to specify the
obligations of confidentiality which the Consultant has agreed to
accept
as a condition of the Consultant being engaged to perform the Services;
and
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WITNESS
THAT in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties agree as follow:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In
this
Agreement, including the recitals and any schedules, the following words and
expressions have the following meanings unless the context otherwise
requires:
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(a)
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“Confidential
Information” means all information or data which may before or after the
date of this Agreement be delivered to the Consultant by the Company
or by
any affiliate of the Company or which may otherwise come within the
knowledge of the Consultant or which may be developed by the Consultant
or
any subsidiary or affiliate of the Consultant or any employee of
any of
them in connection with the Services or from any of the other Confidential
Information including, without limiting the generality of the foregoing,
all information or data regarding manufacturing processes, programs,
plants, products, costs, equipment, operations, distribution, marketing
or
customers relating to the products; all technical information, procedures,
processes, diagrams, specifications, improvements, formulations,
plans and
data relating to the products and services and all documents delivered
by
the Company or any affiliate of the Company which are marked as
confidential or as proprietary information.
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1
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(b)
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“Intellectual
Property Rights” means all rights in respect of intellectual property
including, without limitation, all patent, industrial design, integrated
circuit topography, know-how, trade secret, privacy and trade-xxxx
rights
and copyright, to the extent those rights may subsist anywhere in
the
universe.
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(c)
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“Service”
means all service that Consultant may provide from time to time for
the
Company including, without limitation, those provided in Schedule
“A”
hereto.
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1.2
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Entire
Agreement
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This
Agreement supersedes all previous invitations, proposals, letter,
correspondence, negotiations, promises, agreement, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition
affecting this Agreement for which any party can be held responsible in any
way,
other than as expressed in writing in the Agreement.
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1.3
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Amendments
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No
change
or modification of this Agreement will be valid unless it is in writing and
signed by each party to this Agreement.
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1.4
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Invalidity
of Particular
Provision
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It
is
intended that all of the provisions of this Agreement will be fully binding
and
effective between the parties. In the event that any particular provision or
provisions or a part of one or more is found to be void, voidable or
unenforceable for any reason whatsoever, then the particular provision or
provisions or part of the provision will be deemed severed from the remainder
of
this Agreement. The other provisions of the Agreement will not be affected
by
the severance and will remain in full force and effect.
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1.5
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Governing
Law
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This
Agreement will be governed by and construed in accordance with the laws of
the
Province of Ontario.
ARTICLE
2
DUTIES
OF THE CONSULTANT
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2.1
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Engagement
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The
Company hereby engages the Consultant to provide the Services to the Company
as
described in Schedule “A” hereto and the Consultant hereby covenants and agrees
to provide such Services to the Company subject to the terms and conditions
of
the Agreement.
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2.2
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Scope
of Duties
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The
Consultant will devote adequate time, attention, abilities and sufficient hours
to its duties hereunder and the Consultant will give the Company the benefit
of
its knowledge, expertise and ingenuity.
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2.3
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Duty
to the Company
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During
the term of this Agreement the Consultant will well and faithfully serve the
Company and use all reasonable endeavours to promote the interest of the
Company. The Consultant will act honestly, in good faith and in the best
interests of the Company. The Consultant will adhere to all applicable policies
of the Company.
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2.4
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Business
of the Company
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The
Consultant will not, during the term of this Agreement, engage in any business,
enterprise or activity that is contrary to or detracts from the due performance
of the business of the Company.
ARTICLE
3
REMUNERATION
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3.1
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Remuneration
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The
remuneration of the Consultant will be at the rate and on the terms specified
in
Schedule “B” hereto, or on any replacement thereof initialled by all
parties.
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3.2
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Expenses
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The
Consultant will be reimbursed for all reasonable out-of-pocket expenses actually
and properly incurred by it in connection with its duties hereunder provided
that the Consultant first furnishes statements and vouchers for all such
expenses to the Company. Unless otherwise specifically provided in Schedule
“B”,
the Consultant will be reimbursed by the Company for all reasonable expenses
necessarily and actually incurred by the Consultant in the performance of the
Services, provided that the Consultant submits to the Company detailed invoices
and supporting documentation acceptable to the Company, acting reasonably.
The
Consultant will invoice the Company for such expenses monthly in arrears. All
such Company approved invoices will be payable by the Company reasonably upon
receipt of each such invoice. Expenses shall include the reimbursement of annual
professional fees of the Consultant, cellular air time and data charges, family
health and dental benefits.
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3.3
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Automobile
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The
Company shall provide a vehicle at no expense to the Consultant and shall
reimburse the Consultant for toll charges, gas and repairs. The Company shall
be
responsible for insuring the vehicle. The Company agrees to provide 2004
Infiniti FX45 to the Consultant to the term of the existing lease agreement
and
thereafter a replacement vehicle of similar value as chosen by the
Consultant.
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3.4
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Office
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The
Company agrees to provide a secure office space to the Consultant including
appropriate computer hardware and software throughout the term and any Renewal
Term of this Agreement. The Company acknowledges that the Services are
non-exclusive and the Consultant may keep non Company records and files at
the
office location.
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3.5
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Vacation
Periods
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The
Company and the Consultant agree that periods of paid vacation will be carried
out in a manner not to affect the performance of the duties and responsibilities
of the Consultant to the Company.
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3.6
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Statutory
Withholdings
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The
Company agrees to make and remit all statutory withholdings as may be
required.
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3.7
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No
Partnership
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This
Agreement will not be construed as creating a partnership, joint venture or
agency relationship between the parties or any other form of legal association,
which would impose liability upon one party for any act or failure to act by
the
other party.
ARTICLE
4
CONFIDENTIALITY
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4.1
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General
Obligation of
Confidentiality
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The
Consultant acknowledges that the Confidential Information consists entirely
of
information and knowledge, which is the exclusive property of the Company or
its
subsidiaries and affiliates or persons from whom the Company has obtained its
rights. The Consultant will treat the Confidential Information obtained by
it in
strict confidence and will not disclose the Confidential Information made
available to it unless otherwise required by law, except as previously approved
in writing by the Company. The Consultant will protect such Confidential
Information from disclosure by exercising a standard of care as may reasonably
be expected to preserve its secret and confidential nature. All documents
containing Confidential Information are the property of the Company. Without
limiting the generality of the foregoing, the Consultant hereby transfers to
the
Company the property rights in all documents which now or hereafter may contain
the Confidential Information.
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4.2
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Use
of Confidential Information
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The
Consultant will not use Confidential Information for any purpose other than
as
may reasonably be required in order to perform the Services.
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4.3
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Exceptions
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Any
obligations specified in the Article will not apply to the
following:
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(a)
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any
information, which is presently in the public domain;
and
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(b)
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any
information which subsequently becomes part of the public domain
through
no fault of the Consultant or any officer, director, employee or
agent of
the Consultant; or
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(c)
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any
information, which is required to be disclosed by a court of competent
jurisdiction.
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ARTICLE
5
OWNERSHIP
OF RIGHTS
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5.1
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The
Company’s Ownership of
Rights
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(a)
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The
Consultant acknowledges and agrees as follows with respect to the
ownership of rights by the Company and the limitation of the Consultant’s
rights:
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4
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(b)
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Nothing
contained in this Agreement will be construed as an assignment to
the
Consultant of any right, title or interest in the Confidential
Information. All right, title and interest relating to the Confidential
Information is expressly reserved by the Company.
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(c)
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The
Consultant will not to at any time apply for any Intellectual Property
Rights that would affect the ownership by the Company of any Intellectual
Property Rights associated with the Confidential Information or file
any
document with any government authority anywhere in the world or take
any
other action which could affect such ownership of Intellectual Property
Rights associated with the Confidential Information or aid or abet
anyone
else in doing so. To the extent that copyright may subsist in the
Confidential Information the Consultant hereby waives all past, present
and future moral rights the Consultant may
have.
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ARTICLE
6
NON-COMPETITION
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6.1
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Non-Competition
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The
Consultant will not, without the prior written consent of the Company during
the
term of the Agreement and during the one year period immediately following
the
termination of the Agreement, within North America (the “Prohibited
Area”):
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(a)
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undertake
to perform on behalf of any other entity any service that would conflict
directly or indirectly with the performance of the Services under
this
Agreement; and
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(b)
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divert
or attempt to divert any business of, or any customers of the Company
or
of any of its subsidiaries, to any other competitive establishment,
by
direct or indirect inducement or otherwise; and
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(c)
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directly
or indirectly impair or seek to impair the reputation of the Company,
nor
any relationships that the Company has with its employees, customers,
suppliers, agents or other parties with which the Company does business
or
has contractual relations; or
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(d)
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directly
or indirectly, in any way, solicit, hire or engage the services of
any
employee of the Company, or persuade or attempt to persuade any such
individual to terminate his or her employment with the
Company.
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ARTICLE
7
INDEMNITY
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7.1
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Indemnity
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The
Consultant will defend, indemnify and save harmless the Company from and against
all actions, proceedings, demands, claims, liabilities, losses, damages,
judgments, cost and expenses including, without limiting the generality of
the
foregoing, legal fees and disbursements on a solicitor and his own Company
basis
(together with all applicable taxes) which the Company may be liable to pay
or
may incur by reason of a breach of the terms of this Agreement or any liability
that Company may incur to any authority for source deductions and any other
remittance obligations arising with respect to payment to the Consultant
pursuant to this Agreement.
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7.2
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Indemnification
Agreement
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The
Company agrees to enter into an Indemnification Agreement with the Consultant
in
the form specified in Schedule “C” hereto.
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ARTICLE
8
TERM
8.1 This
Agreement will take effect on the Effective Date and will continue in full
force
and effect until June 30, 2009, unless terminated by the Company in accordance
with this Agreement. Thereafter, the Company and the Consultant shall have
the
option of renewing this Agreement for further successive terms of two years
on
renewal terms and conditions negotiated in good faith by the parties (the
“Renewal Term”). The Company will notify the Consultant of its decision
regarding renewal of this Agreement for a further term of two years at least
90
days prior to the expiry of the term or the Renewal Term of this
Agreement.
8.2 The
Consultant agrees not to terminate the Agreement, for any reason other than
non
payment of remuneration, except with at least 90 days advance written notice
prior to expiration of the term or Renewal Term of this agreement.
8.3 The
Company may, at any time, give 90 days advance written notice to the Consultant
of its intention to terminate this Agreement and on the expiration of such
period this Agreement will be terminated. In such event, the Company will be
obligated to pay the remaining unpaid remuneration to the expiry of the term
or
the Renewal Term of this Agreement, in a lump sum on the expiration of the
written ninety day notice period.
8.4 The
Company may terminate this Agreement without advance written notice to the
Consultant and without further remuneration past the date of termination, upon
the occurrence of any of the following events:
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(a)
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the
Consultant’s commission of a crime which relates directly to the
performance of this Agreement, or any act by the Consultant involving
money or other property involving the Company or an affiliate of
the
Company that would constitute a crime in the jurisdiction involved;
or
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(b)
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any
act by the Consultant of fraud, misappropriation, dishonesty, embezzlement
or similar conduct against the Company or an affiliate or customer
of the
Company; or
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(c)
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any
material breach by the Consultant of any of the terms of this Agreement
which remains uncured after the expiration of 30 days following the
delivery of written notice of such breach to the Consultant by the
Company; or
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(d)
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the
Consultant’s failure to devote adequate time to the Company’s business, or
conduct by the Consultant amounting to insubordination or inattention
to,
or substandard performance of the Consultant’s duties and responsibilities
under this Agreement, which remains uncured after the expiration
of thirty
days following the delivery of written notice of such failure or
conduct
to the Consultant by the Company.
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8.5 Upon
termination of this Agreement the Consultant will return to the Company all
Company property including all written information, tapes, discs or memory
devices and copies thereof, and any other material on any medium in the
Consultant’s possession or control pertaining to the business of the Company,
without retaining any copies or records of any Confidential Information
whatsoever.
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ARTICLE
9
GENERAL
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9.1
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Arbitration
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All
disputes arising out of or in connection with this contract, or in respect
of
any defined legal relationship associated therewith or derived there from,
will
be referred to and finally resolved by arbitration under the rules and statutes
of the Province of Ontario.
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9.2
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Notices
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Any
notice, direction, request or other communication required or contemplated
by
any provision of the Agreement will be given in writing and will be given by
delivering or faxing same to the Company or the Consultant, as the case may
be,
as follows:
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(a)
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To
the Consultant at:
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00
Xxxxxx Xxxx
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Xxxxxxxxx,
Xxxxxxx, X0X 0X0
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(b)
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To
the Company at:
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0000
Xxxxxxxxx Xx., Xxxx 0
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Xxxxxxxxxxx,
Xxxxxxx, X0X 0X0
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Attention: Chief
Executive Officer
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Fax
No.: 000-000-0000
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Any
such
notice, direction, request or other communication will be deemed to have been
given or made on the date on which it was delivered or, in the case of fax,
on
the next business day after receipt of transmission. Either party may change
its
fax number or address for service from time to time by notice in accordance
with
the foregoing.
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9.3
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Assignment
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This
Agreement is not assignable in whole or in part by the Consultant or the Company
without the prior written consent of the other party. Any attempt to assign
any
of the rights, or to delegate any of the duties or obligations of this Agreement
without such written consent is void. Any such change, which might occur without
such consent, or any assignment occurring by reason of operation of law such
as
upon a bankruptcy or amalgamation will be deemed an event of default under
this
Agreement.
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9.4
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Waiver
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No
failure or delay on the party of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right, nor will
any single or partial exercise of any such right or power preclude any further
or other exercise of such right or power under this Agreement. No modification
or waiver of any provision of this Agreement and no consent to any departure
by
any party from any provision of the Agreement will be effective unless it is
in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to
or
demand on any party in any circumstances will entitle such party to any other
or
further notice or demand in similar or other circumstances.
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9.5
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Enurement
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Subject
to the restrictions on transfer contained in this Agreement, this Agreement
will
enure to the benefit of and be binding on the parties and their respective
heirs, executors, administrators, successors and assigns.
IN
WITNESS WHEREOF
the
Parties have executed this Agreement on the day and year first written
above:
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Wireless
Age Communications, Inc.
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The
Consultant
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Per:
/s/ Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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Title:
CEO
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8
SCHEDULE
“A”
Services
The
Consultant covenants and agrees with the Company to provide its non-exclusive
services to the Company, for the purposes of assisting the Company in monthly
financial reporting and regulatory filings of the Company. The Company agrees
that the Consultant will continue as Chief Financial Officer of the Company
and
will continue to serve as an officer of the Company throughout the term or
Renewal Term of this Agreement. Subject to the completion of the terms of
Article 7.2 of the Agreement the Consultant will certify applicable regulatory
filings.
The
Consultant agrees to carry out other financial accounting responsibilities
as
may be defined by the Company from time to time.
The
Company agrees that the upkeep of books and records of the Company and its
subsidiaries will be the responsibility of the Company and will employ
appropriate accounting personnel to ensure continuity of records.
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SCHEDULE
“B”
Remuneration
The
remuneration of the Consultant will be an annual salary of CAD$100,000 paid
monthly, one-half in arrears on the 15th
and the
last business day of the month.
The
Consultant shall have the right to cease providing Services in the event the
Company fails to pay salary as described herein. Interruption of Services
arising from non-payment of monthly fees or expenses shall not release the
Company from its obligations hereunder.
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SCHEDULE
“C”
INDEMNIFICATION AGREEMENT
INDEMNIFICATION
AGREEMENT, dated as of July 2, 2007, by and between WIRELESS AGE COMMUNICATIONS,
INC., a Nevada corporation (the "Company"), and the director and/or officer
whose name appears on the signature page of this Agreement ("Indemnitee").
RECITALS
A. Highly
competent persons are becoming more reluctant to serve as directors or officers
or in other capacities unless they are provided with reasonable protection
through insurance or indemnification against risks of claims and actions against
them arising out of their service to and activities on behalf of the
corporations.
B. The
Board
of Directors of the Company (the "Board" or the "Board of Directors") has
determined that the Company should act to assure its directors and officers
that
there will be increased certainty of such protection in the future.
C. It
is
reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify such persons to the fullest extent permitted by applicable
law so that they will serve or continue to serve the Company free from undue
concern that they will not be so indemnified.
D. Indemnitee
is willing to serve, to continue to serve and to take on additional service
for
or on behalf of the Company on the condition that Indemnitee be so
indemnified.
AGREEMENT
In
consideration of the premises and the covenants contained herein, the Company
and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
For
purposes of this Agreement:
(a) "Affiliate"
shall mean any corporation, partnership, joint venture, trust or other
enterprise in respect of which the Indemnitee is or was or will be serving
as a
director, officer, advisory director or Board Committee member at the request
of
the Company, and including, but not limited to, any employee benefit plan of
the
Company or any of the foregoing.
(b) "Disinterested
Director" shall mean a director of the Company who is not or was not a party
to
the Proceeding in respect of which indemnification is being sought by
Indemnitee.
(c) "Expenses"
shall include all attorneys' fees and costs, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees
and all other disbursements or expenses incurred in connection with asserting
or
defending claims.
(d) "Independent
Counsel" shall mean a law firm or lawyer that neither is presently nor in the
past five years has been retained to represent: (i) the Company or Indemnitee
in
any matter material to any such party or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any firm or person
who, under the applicable standards of professional conduct then prevailing,
would have a conflict of interest in representing any of the Company or
Indemnitee in an action to determine Indemnitee's right to indemnification
under
this Agreement. All Expenses of the Independent Counsel incurred in connection
with acting pursuant to this Agreement shall be borne by the
Company.
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(e) "Losses"
shall mean all losses, claims, liabilities, judgments, fines, penalties and
amounts paid in settlement in connection with any Proceeding.
(f) "Proceeding"
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative; provided,
however,
that
the term "Proceeding" shall include any action instituted by an Indemnitee
(other than an action to enforce indemnification rights under this Agreement)
only if such action is authorized by the Board of Directors.
2. Service by Indemnitee.
Indemnitee agrees to begin or continue to serve the Company or an Affiliate
as a
director and/or officer. Notwithstanding anything contained herein, this
Agreement shall not create a contract of employment between the Company and
Indemnitee, and the termination of Indemnitee's relationship with the Company
or
an Affiliate by either party hereto shall not be restricted by this
Agreement.
3. Indemnification.
The
Company agrees to indemnify Indemnitee for, and hold Indemnitee harmless from
and against, any Losses or Expenses at any time incurred by or assessed against
Indemnitee arising out of or in connection with the service of Indemnitee as
a
director, advisory director, Board Committee member, officer, employee or agent
of the Company or of an Affiliate (collectively referred to as an "Officer
or
Director of the Company or of an Affiliate"), whether the basis of such
proceeding is alleged action in an official capacity or in any other capacity
while serving as an Officer or Director of the Company or of an Affiliate,
to
the fullest extent permitted by the laws of the State of Nevada in effect on
the
date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification. Without diminishing the
scope of the indemnification provided by this Section 3, the rights of
indemnification of Indemnitee provided hereunder shall include but shall not
be
limited to those rights set forth hereinafter.
4. Action or Proceeding Other Than an Action by or in the Right of the
Company.
Indemnitee shall be entitled to the indemnification rights provided herein
if
Indemnitee is a person who was or is made a party or is threatened to be made
a
party to any pending, completed or threatened Proceeding, other than an action
by or in the right of the Company, by reason of (a) the fact that Indemnitee
is
or was an Officer or Director of the Company or of an Affiliate or (b) anything
done or not done by Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against Losses or Expenses incurred by
Indemnitee or on Indemnitee's behalf in connection with any Proceeding, if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to
be in or not opposed to the best interests of the Company and, with respect
to
any criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
5. Actions by or in the Right of the Company.
Indemnitee shall be entitled to the indemnification rights provided
herein if Indemnitee is a person who was or is made a party or is threatened
to
be made a party to any pending, completed or threatened Proceeding brought
by or
in the right of the Company to procure a judgment in its favor by reason of
(a)
the fact that Indemnitee is or was an Officer or Director of the Company or
of
an Affiliate or (b) anything done or not done by Indemnitee in any such
capacity. Pursuant to this Section, Indemnitee shall be indemnified against
Losses or Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with any Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company. Notwithstanding the foregoing
provisions of this Section, no such indemnification shall be made in respect
of
any claim, issue or matter as to which Nevada law expressly prohibits such
indemnification by reason of an adjudication of liability of Indemnitee to
the
Company; provided,
however,
that in
such event such indemnification shall nevertheless be made by the Company to
the
extent that the courts of the State of Nevada or the court in which such action
or suit was brought shall determine equitable under the
circumstances.
12
6. Indemnification for Losses and Expenses of Party Who is Wholly
or Partly Successful.
Notwithstanding any provision of this Agreement, to the extent that Indemnitee
has been wholly successful on the merits or otherwise absolved in any Proceeding
on any claim, issue or matter, Indemnitee shall be indemnified against all
Losses or Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise,
as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company agrees to indemnify Indemnitee, to the maximum extent permitted
by
law, against all Losses and Expenses incurred by Indemnitee in connection with
each successfully resolved claim, issue or matter. In any review or Proceeding
to determine the extent of indemnification, the Company shall bear the burden
of
proving any lack of success and which amounts sought in indemnity are allocable
to claims, issues or matters which were not successfully resolved. For purposes
of this Section and without limitation, the termination of any such claim,
issue
or matter by dismissal with or without prejudice shall be deemed to be a
successful resolution as to such claim, issue or matter.
7. Payment for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of the fact that Indemnitee is or was an Officer or Director of the
Company or of an Affiliate, a witness in any Proceeding, the Company agrees
to
pay to Indemnitee all Expenses actually and reasonably incurred by Indemnitee
or
on Indemnitee's behalf in connection therewith.
8. Advancement of Expenses and Costs.
All
Expenses incurred by or on behalf of Indemnitee (or reasonably expected by
Indemnitee to be incurred by Indemnitee within three months) in connection
with
any Proceeding shall be paid promptly by the Company, and in any event in
advance of the final disposition of such Proceeding within sixty days after
the
receipt by the Company of a statement or statements from Indemnitee requesting
from time to time such advance or advances, whether or not a determination
to
indemnify has been made under Section 9. Such statement or statements shall
evidence such Expenses incurred (or reasonably expected to be incurred) by
Indemnitee in connection therewith and shall include or be accompanied by a
written undertaking by or on behalf of Indemnitee to repay such amount if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Agreement. The
right
to indemnification of advances as granted by this Section 8 shall be
enforceable by the director or officer in any court of competent jurisdiction,
if the Company denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his/her right to indemnification,
in
whole or in part, in any such action shall also be indemnified by the Company.
It shall be a defense to any such action seeking an adjudication or award in
arbitration pursuant to this Agreement (other than an action brought to enforce
a claim for the advance of costs, charges and expenses under this Section 8
where the required undertaking, if any, has been received by the Company) that
the claimant has not met the standard of conduct set forth in the laws of
Nevada, as the same exists or hereafter may be amended (but, in the case of
any
such amendment, only to the extent that such amendment permits the Company
to
provide broader indemnification rights than said law permitted the Company
to
provide prior to such amendment), but the burden of proving such defense shall
be on the Company. Neither the failure of the Company (including its Board
of
Directors, its independent legal counsel and its stockholders) to have made
a
determination prior to the commencement of such action that indemnification
of
the claimant is proper in the circumstances because he/she has met the
applicable standard of conduct set forth in the laws of Nevada, as the same
exists or hereafter may be amended (but, in the case of any such amendment,
only
to the extent that such amendment permits the Company to provide broader
indemnification rights that said law permitted the Company to provide prior
to
such amendment), nor the fact that there has been an actual determination by
the
Company (including its Board of Directors, its independent legal counsel and
its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant
has
not met the applicable standard of conduct.
13
9. Procedure for Determination of Entitlement to Indemnification. (a) When
seeking indemnification under this Agreement (which shall not include in any
case the right of Indemnitee to receive payments pursuant to Section 7 and
Section 8 hereof, which shall not be subject to this Section 9), Indemnitee
shall submit a written request for indemnification to the Company. Such request
shall include documentation or information which is reasonably necessary for
the
Company to make a determination of Indemnitee's entitlement to indemnification
hereunder and which is reasonably available to Indemnitee. Determination of
Indemnitee's entitlement to indemnification shall be made promptly, but in
no
event later than 60 days after receipt by the Company of Indemnitee's written
request for indemnification. The Secretary of the Company shall, promptly upon
receipt of Indemnitee's request for indemnification, advise the Board that
Indemnitee has made such request for indemnification.
(b) The
entitlement of Indemnitee to indemnification under this Agreement in respect
of
any pending, contemplated or threatened Proceeding shall be determined in the
specific case by (a) the Board of Directors by a majority vote of those
directors who were not party to such Proceeding, whether or not they constitute
a quorum of the Board of Directors, or (b) if such a quorum is not obtainable,
or if a quorum of disinterested directors so directs, by Independent Counsel
in
a written opinion, or (c) by the stockholders.
(c) In
the
event the determination of entitlement is to be made by Independent Counsel,
such Independent Counsel shall be selected by the Board and approved by
Indemnitee. Upon failure of the Board and the Board of Directors to so select
such Independent Counsel or upon failure of Indemnitee to so approve, such
Independent Counsel shall be selected by the President of the Association of
the
Bar of the City of New York.
(d) If
the
determination made pursuant to Section 9(b) is that Indemnitee is not
entitled to indemnification to the full extent of Indemnitee's request,
Indemnitee shall have the right to seek entitlement to indemnification in
accordance with the procedures set forth in Section 10 hereof.
(e) If
the
person or persons empowered pursuant to Section 9(b) hereof to make a
determination with respect to entitlement to indemnification shall have failed
to make the requested determination within 60 days after receipt by the Company
of such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be absolutely entitled
to
such indemnification, absent (i) misrepresentation by Indemnitee of a material
fact in the request for indemnification or (ii) a final judicial determination
that all or any part of such indemnification is expressly prohibited by law.
(f) The
termination of any Proceeding by judgment, order, settlement or conviction,
or
upon a plea of nolo
contendere
or its
equivalent, shall not, of itself, adversely affect the rights of Indemnitee
to
indemnification hereunder, except as may be specifically provided herein, or
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or create a presumption that (with respect to any
criminal action or Proceeding) Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
14
(g) For
purposes of any determination of good faith hereunder, Indemnitee shall be
deemed to have acted in good faith if in taking an action Indemnitee relied
on
the records or books of account of the Company or an Affiliate, including
financial statements, or on information supplied to Indemnitee by the officers
of the Company or an Affiliate in the course of their duties, or on the advice
of legal counsel for the Company or an Affiliate or on information or records
given or reports made to the Company or an Affiliate by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Company or an Affiliate. The Company shall have the burden of
establishing the absence of good faith. The provisions of this Section 9(g)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(h) The
knowledge and/or actions, or failure to act, of any director, officer, agent
or
employee of the Company or an Affiliate shall not be imputed to Indemnitee
for
purposes of determining the right to indemnification under this
Agreement.
10. Remedies in Cases of Determination Not to Indemnify or to Advance
Expenses. (a) In
the event that (i) a determination is made that Indemnitee is not entitled
to
indemnification hereunder, (ii) advances are not made pursuant to Section 8
hereof or (iii) payment has not been timely made following a determination
of
entitlement to indemnification pursuant to Section 9 hereof, Indemnitee shall
be
entitled to seek an adjudication in an appropriate court of the State of Nevada
or any other court of competent jurisdiction as to Indemnitee's entitlement
to
such indemnification or advance.
(b) In
the
event a determination has been made in accordance with the procedures set forth
in Section 9 hereof, in whole or in part, that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration referred to in
paragraph (a) of this Section 10 shall be de novo
and
Indemnitee shall not be prejudiced by reason of any such prior determination
that Indemnitee is not entitled to indemnification, and the Company shall bear
the burdens of proof specified in paragraphs 6 and 9 hereof in such
proceeding.
(c) If
a
determination is made or deemed to have been made pursuant to the terms of
Section 9 or 10 hereof that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding or
arbitration in the absence of (i) a misrepresentation of a material fact by
Indemnitee or (ii) a final judicial determination that all or any part of such
indemnification is expressly prohibited by law.
(d) The
Company and Indemnitee agree that they shall be precluded from asserting that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Company and Indemnitee further agree to stipulate in any such
court that the Company and Indemnitee are bound by all of the provisions of
this
Agreement and are precluded from making any assertion to the
contrary.
(e) To
the
extent deemed appropriate by the court, interest shall be paid by the Company
to
Indemnitee at a reasonable interest rate for amounts which the Company
indemnifies or is obliged to indemnify the Indemnitee for the period commencing
with the date on which Indemnitee requested indemnification (or reimbursement
or
advance of an Expense) and ending with the date on which such payment is made
to
Indemnitee by the Company.
11. Expenses Incurred by Indemnitee to Enforce this Agreement. All
Expenses incurred by Indemnitee in connection with the preparation and
submission of Indemnitee's request for indemnification hereunder shall be borne
by the Company. In the event that Indemnitee is a party to or intervenes in
any
proceeding in which the validity or enforceability of this Agreement is at
issue
or seeks an adjudication to enforce Indemnitee's rights under, or to recover
damages for breach of, this Agreement, Indemnitee, if Indemnitee prevails in
whole in such action, shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any Expenses incurred by Indemnitee.
If
it is determined that Indemnitee is entitled to indemnification for part (but
not all) of the indemnification so requested, Expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably prorated among
the claims, issues or matters for which the Indemnitee is entitled to
indemnification and for claims, issues or matters for which the Indemnitee
is
not so entitled.
15
12. Non-Exclusivity. The
rights of indemnification and to receive advances as provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at
any
time be entitled under or by reason of applicable law, any certificate of
incorporation or by-laws, any agreement, any vote of stockholders or any
resolution of directors or otherwise. To the extent Indemnitee would be
prejudiced thereby, no amendment, alteration, rescission or replacement of
this
Agreement or any provision hereof shall be effective as to Indemnitee with
respect to any action taken or omitted by such Indemnitee in Indemnitee's
position with the Company or an Affiliate or any other entity which Indemnitee
is or was serving at the request of the Company prior to such amendment,
alteration, rescission or replacement.
13. Duration of Agreement.
This
Agreement shall apply to any claim asserted and any Losses and Expenses incurred
in connection with any claim asserted on or after the effective date of
appointment of the Indemnitee as an officer or director of the Company and
shall
continue until and terminate upon the later of: (a) 10 years after Indemnitee
has ceased to occupy any of the positions or have any of the relationships
described in Sections 3, 4 or 5 of this Agreement; or (b) one year after
the final termination of all pending or threatened Proceedings of the kind
described herein with respect to Indemnitee. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and Indemnitee's spouse, assigns, heirs, devisee, executors,
administrators or other legal representatives.
14. Severability.
Should
any part, term or condition hereof be declared illegal or unenforceable or
in
conflict with any other law, the validity of the remaining portions or
provisions of this Agreement shall not be affected thereby, and the illegal
or
unenforceable portions of the Agreement shall be and hereby are redrafted to
conform with applicable law, while leaving the remaining portions of this
Agreement intact.
15. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
document.
16. Headings.
Section
headings are for convenience only and do not control or affect meaning or
interpretation of any terms or provisions of this Agreement.
17. Modification and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by each of the parties hereto.
18. No Duplicative Payment.
The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment (net of Expenses incurred in collecting
such payment) under this Agreement, any insurance policy, contract, agreement
or
otherwise.
19. Notices.
All
notices, requests, demands and other communications provided for by this
Agreement shall be in writing (including telecopier or similar writing) and
shall be deemed to have been given at the time when mailed in a registered
or
certified postpaid envelope in any general or branch office of the United States
Postal Service, or sent by Federal Express or other similar overnight courier
service, addressed to the address of the parties stated below or to such changed
address as such party may have fixed by notice or, if given by telecopier,
when
such telecopy is transmitted and the appropriate answer back is
received.
16
|
(a)
|
If
to Indemnitee to:
|
|
00
Xxxxxx Xxxx
|
|
|
Xxxxxxxxx,
Xxxxxxx, X0X 0X0
|
|
|
(b)
|
If
to the Company to:
|
|
WIRELESS
AGE COMMUNICATIONS, INC.
|
|
|
0000
Xxxxxxxxx Xx. Xxxx 0, Xxxxxxx, X0X 0X0
|
|
|
Attention:
Board of Directors
|
|
with
a copy to:
|
|
|
Wuersch
& Xxxxxx LLP
|
|
|
00
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention:
Xxxxxx X. Xxxxxx, Esq.
|
|
|
Phone:
(000) 000-0000
|
|
|
Fax:
(000) 000-0000
|
|
20. GOVERNING LAW.
THE
PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEVADA WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
21. Entire Agreement.
Subject
to the provisions of Section 12 hereof, this Agreement constitutes the
entire understanding between the parties and supersedes all proposals,
commitments, writings, negotiations and understandings, oral and written, and
all other communications between the parties relating to the subject matter
of
this Agreement. This Agreement may not be amended or otherwise modified except
in writing duly executed by all of the parties. A waiver by any party of any
breach or violation of this Agreement shall not be deemed or construed as a
waiver of any subsequent breach or violation thereof.
[Signature
Page to follow]
17
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
as of the date first above written.
|
WIRELESS
AGE COMMUNICATIONS, INC.
|
||
|
By
|
/s/ Xxxx Xxxxxxxx | |
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title:
CEO
|
||
|
INDEMNITEE:
|
||
| /s/ Xxxx Xxxxxxxx | ||
|
Name:
|
Xxxx Xxxxxxxx | |
|
Title:
|
||
18
