CONSULTING AGREEMENT
EXHIBIT 10.16
Capital Group
Communications, Inc. Agreement
This
Consulting Agreement (the “Agreement”), effective as of March 8, 2010 is entered
into by and between, China Wi-Max Communications, Inc (herein referred to as the
“Company”) and Capital Group Communications, Inc., a California corporation with
principal address at 00 Xxxxxxx Xxxx Xxx Xxxxx 0, Xxxxxxxxx XX 00000 (herein
referred to as the “Consultant”). As used in this Agreement, the
term, “Parties,” shall refer to the Company and Consultant jointly.
WHEREAS:
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A.
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The
Company seeks to engage the services of Consultant to assist the Company
in its efforts to gain greater recognition and awareness among relevant
investors in the public capital
markets.
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B.
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The
Company is familiar with Consultant and Consultant’s skills and
expertise.
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C.
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The
Parties acknowledge and agree that Consultant has completed a preliminary
review and evaluation of the Company and the challenges facing the Company
in the investor relations marketplace and the Company and Consultant have
had discussions regarding these and other matters relating to the
Company’s investor relations
objectives.
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D.
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Consultant
is willing to assist the Company to better develop investor recognition
and awareness in the public capital
markets.
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E.
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Subject
to the terms and conditions of this Agreement, the Company hereby engages
the services of Consultant to represent the Company in investors'
communications and public relations with existing shareholders, brokers,
dealers and other investment professionals and to consult with management
concerning such Company activities.
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NOW
THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.00 Commencement
and Term of Consulting Services from Consultant.
The
Company hereby agrees to retain the Consultant to act in a consulting capacity
to the Company, and Consultant hereby agrees to provide certain consulting
services to the Company as described in Section 2.00 of this Agreement for a
period of Twelve (12) months from the date at which a copy of this Agreement is
executed and delivered to Consultant with the Fees (defined in Section 4.00 of
this Agreement) (the “Term”).
2.00 Duties
of Consultant.
Including
amendment A of this Agreement, Consultant agrees that it shall provide the
following specified consulting services on a best efforts basis:
2.01 Present
the company to Consultant’s online network of Brokers, Analyst and
Institutions.
2.02 Assist
the Company in further reviewing the preliminary evaluation and assessment
prepared by Consultant in evaluating and assessing the challenges facing the
Company in communicating with the investor marketplace.
2.03 Consult
and assist the Company, as appropriate, in: (1) developing and implementing
plans and means for presenting the Company and its business plans, strategy and
personnel to the financial community (using Consultant’s database of licensed
brokers, analyst, institutions and fund managers); and (2) establishing an image
for the Company in the financial community through an extensive grass roots
marketing program.
2.04 With
the cooperation of the Company and during the Term, maintain target investor
awareness of the Company's plans, strategy and personnel, as they may evolve
during the Term, and consult and assist the Company in communicating appropriate
information regarding such plans, strategy and personnel to Consultant’s
designated subscribers.
2.05 Provide
assistance to the Company with respect to its shareholder
relations.
2.06 At
the Company’s request and subject to the Company’s securing its own rights to
the use of its names, marks, and logos, Consultant shall assist the Company in
the use of its corporate symbols, logos, and names to enhance the presentation
of said symbols, logos and names, and other matters relating to the Company’s
corporate image.
2.07 Upon
the Company's direction and approval, Consultant shall disseminate information
regarding the Company to Consultant’s online newsgroups and its members and
provide re-direction from xxxxx.xxx finance, investment community professionals
and the general investing public.
2.08 At
the Company's request, review business plans, strategies, mission statements
budgets, proposed transactions and other plans for the purpose of advising the
Company of the public relations implications thereof.
3.00 Allocation
of Time and Energies.
The
Consultant hereby agrees to use its best efforts to perform and discharge
faithfully the responsibilities which may be assigned to the Consultant from
time to time by the officers and duly authorized representatives of the Company
in connection with the conduct of the Company’s financial, public relations and
communications activities, subject to compliance with applicable state and
federal securities laws and regulations.
3.01 The
Parties acknowledge and agree that the services provided by Consultant and staff
shall diligently and thoroughly provide the consulting services required
hereunder. The services to be provided by Consultant shall not be
measured by the number of hours devoted by Consultant’s staff on a per day basis
and Consultant and the Company agree that Consultant shall perform the duties
set forth in Section 2.00 of this Agreement in a diligent and professional
manner. The Parties acknowledge and agree that a disproportionately
large amount of the effort to be expended and the costs to be incurred by the
Consultant and the benefits to be received by the Company are expected to occur
within or shortly after the first two (2) months from the commencement of the
Term of this Agreement. It is expressly understood that Consultant's
performance of its duties hereunder will in no way be measured by the price of
the Company's common stock, nor the trading volume of the Company's common
stock.
3.02 Additionally,
CGC agrees to the following specific IR duties:
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a) Create
a 2 page fact sheet
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b) Create Comparable List |
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c) Create Facebook
(fan page)
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d) Make
200 Calls per week to CGC Database
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e) Create Corporate
Video
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f) Publish Video on YouTube |
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g) Target Comparable
Company Institutions, Funds and
Shareholders
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4.00 Compensation
to Consultant for Consulting Services.
In
consideration for the consulting services rendered to the Company as described
in Section 2.00 of this Agreement, together with other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company hereby agrees to pay Consultant the following consulting fees (the
“Fees”):
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4.01
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Payment
of Commencement Fee to Consultant by the Company. In consideration for
Consultant’s undertaking a preliminary evaluation of the Company and
Consultant’s preliminary assessment of the challenges and difficulties
facing the Company, the Company shall pay and deliver to Consultant (at
Consultant’s address stated on the first page of this
Agreement).
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4.01.01 Issue
and deliver to Consultant, at Consultant’s address stated on this Agreement, one
(1) or more stock certificates (the “Certificates”) representing 1,300,000
shares of the companies common stock. Each Certificate shall bear a
restricted securities legend in accordance with the Securities Act of
1933. These Fees shall be for all purposes non-refundable in every
respect. In the event that the Company later elects to terminate this
Agreement at any time following the commencement of the Term, the Fee shall not
be refunded and no amount or portion of either shall be due or returned to the
Company. In addition, the Company’s Corporate Secretary shall execute
and deliver the Certificate of Corporate Secretary (attached hereto as Exhibit
B) with a manually executed copy of this Agreement.
4.01.02 Deliver
a true and accurate photocopy of the Board of Directors’ resolution duly adopted
by the Company’s Board of Directors authorizing the issuance of the Shares and
approving this Agreement.
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4.02
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The
Parties hereto acknowledge and agree that Consultant has foregone
significant alternative opportunities in entering into this Agreement and
assuming the obligations set forth in Section 2.00 of this
Agreement. The Company further acknowledges and agrees that it
derives substantial benefit from the execution of this Agreement and the
ability to announce its relationship with
Consultant.
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4.03 The
shares of the Common Stock issued as a Fee shall constitute payment for
Consultant’s agreement to consult to the Company and are a non-refundable,
non-apportion able, and non-ratable retainer and the Fee are not and shall not
be construed as a prepayment for future services. In the event that
the Company terminates this Agreement prior to the completion of the Term of
this Agreement, for any reason whatsoever, it is agreed and understood that the
Fee shall not be refundable or returned to the Company.
5.00 Representations
of Each of the Parties.
5.01 Representations
of Consultant. Consultant acknowledges that the shares of Common Stock to be
issued to Consultant as the Stock Fee pursuant to this Agreement have not been
registered under the Securities Act of 1933 (the “1933 Act”), and accordingly
are “restricted securities” within the meaning of Rule 144 of the 1933
Act. As such, the Shares may not be resold or transferred unless the
Company has received an opinion of counsel reasonably satisfactory to the
Company that such resale or transfer is exempt from the registration
requirements of the 1933 Act. Further, Consultant agrees that in
connection with the acquisition of Shares hereunder, the Consultant represents
and warrants to the Company, to the best of its/his knowledge, as follows: (1)
Consultant acknowledges that the Consultant has been afforded the opportunity to
ask questions of and receive answers from duly authorized officers or other
representatives of the Company concerning an investment in the Shares, and any
additional information which the Consultant has requested; (2) Consultant has
had experience in investments in restricted and publicly traded securities; and
(3) Consultant has had experience in investments in speculative securities and
other investments which involve the risk of loss of
investment. Consultant acknowledges that an investment in the Shares
is speculative and involves the risk of loss. Consultant has the requisite
knowledge to assess the relative merits and of the investment without the
necessity of relying upon other advisors, and Consultant can afford the risk of
loss of his entire investment in the Shares. Consultant is (i) an
accredited investor, as that term is defined in Regulation D promulgated under
the Securities Act of 1933, and (ii) a purchaser described in Section 25102 (f)
(2) of the California Corporate Securities Law of 1968, as amended. In addition,
Consultant is acquiring the Shares for the Consultant’s own account for
long-term investment and not with a view toward resale or distribution thereof
except in accordance with applicable securities laws.
5.02 Representations
of the Company RE: General. The Company represents that: (1) it has
the requisite authority and power to enter into this Agreement; (2) this
Agreement and the obligations recited hereunder have been approved by the
Company’s Board of Directors; (3) the shares of the Company’s Common Stock
issued to Consultant are free from the claims and interests of any third party;
and (4) the Stock Fee are non-refundable and any termination or attempted
cancellation of this Agreement shall not give the Company or any other person
the right to receive the refund or return of either or both of said
fees.
5.03 Representations
of the Company RE: Valuation of the Shares. The Company represents
that: (1) the shares issued to Consultant in payment of the Stock Fee are
restricted securities; (2) the Stock Fee has been and for all purposes will be
valued at no more than the amount set forth in Exhibit B attached to and
incorporated by reference herein; (3) the value accorded the shares issued to
Consultant in payment of the Stock Fee is not inconsistent with any values
accorded shares of the Company’s Common Stock issued in similar amounts within a
reasonable time period prior to or contemporaneous with the payment of the Stock
Fee to Consultant; and (4) the value accorded the Stock Fee takes
into account the lack of liquidity of the Stock Fee and the lack of
marketability of the block of stock represented by the Stock Fee.
6.00 Additional
Representations of the Company.
In
addition, the Company represents that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender, equity
purchaser or acquisition candidate introduced to it by Consultant under this
Agreement, prior to Company receiving funds or closing on any
acquisition. However, Consultant shall undertake its best efforts to
avoid the introduction of any third party which is known to Consultant to have
had a prior reputation or history of questionable, unethical, or illicit
activities.
7.00 Assignment
of Agreement & Assignment of Rights and Obligations.
Consultant’s
services under this contract are offered to Company only and may not be assigned
by the Company to any other person or entity with which Company merges or which
acquires the Company or substantially all of its assets. In the event of said
merger or acquisition, all compensation to Consultant herein under the schedules
set forth herein shall remain due and payable, and any compensation received by
the Consultant may be retained in the entirety by Consultant, all without any
reduction or pro-rating and shall be considered and remain fully paid and
non-assessable. Company shall assure that in the event of any merger,
acquisition, or similar change of form of entity that its successor entity shall
agree to complete all obligations to Consultant, including the provision and
transfer of all compensation herein, and the preservation of the value thereof
consistent with the rights granted to Consultant by the Company herein, and to
Shareholders.
8.00 Obligation
for Expenses.
Consultant
agrees to pay for all its expenses (phone, mailing, labor, etc.), other than
extraordinary items (travel required by/or specifically requested by the
Company, luncheons or dinners to large groups of investment professionals, mass
faxing to a sizable percentage of the Company's constituents, investor
conference calls, print advertisements in publications, etc.) approved by the
Company prior to its incurring an obligation for reimbursement.
9.00 Indemnification
of Consultant and Consultant’s Employees and Agents by the Company.
The
Company hereby agrees to indemnify and hold Consultant and Consultant’s
employees and agents (the “Indemnified Parties”) harmless against (i) any and
all liabilities, obligations, losses, damages, claims, actions, asserted against
any one or more of the Indemnified Parties, based upon, resulting from or
arising out of any misstatement or omission of material fact contained in one or
more of the statements, representations, press releases, announcements, reports,
or filings made or prepared by the Company or its agents and (ii) any cost or
expense (including reasonable attorneys' fees and court costs) incurred by the
Indemnified Parties or any of them in connection with the foregoing (including,
without limitation, any cost or expense incurred by the Indemnified Parties in
enforcing their rights pursuant to this Section 9.00). No demand or
claim for indemnification under this Section 9.00 may be made after 11:59 p.m.,
California time, on the date six (6) years following the last date at which
services were rendered to the Company under this Agreement or any extension
thereof.
9.01 Obligation
for Compliance with Securities Laws. The Parties agree that the
Company shall assume and remain at all times responsible for all information,
statements, and documents released or provided to Consultant and for
compliance with Regulation FD or any other provisions of the Securities Exchange
Act of 1934 (the “1934 Act Obligations”).
10.00 Agree
To Opinion Shares:
Company
agrees to immediately cause an opinion on shares within 7 business days of
request.
11.00 Further
Assurance.
Each of
the parties shall hereafter execute all documents and do all acts reasonably
necessary to effect the provisions of this Agreement.
12.00 Successors.
The
provisions of this Agreement shall be deemed to obligate, extend to and inure to
the benefit of the successors, assigns, transferees, grantees, and indemnities
of each of the Parties to this Agreement.
13.00 Independent
Counsel.
Each of
the Parties to this Agreement acknowledges and agrees that it has been
represented by independent counsel of its own choice throughout all negotiations
which preceded the execution of this Agreement and the transactions referred to
in this Agreement, and each has executed this Agreement with the consent and
upon the advice of said independent counsel. Each party represents
that he or it fully understands the provisions of this Agreement, has consulted
with counsel concerning its terms and executes this Agreement of his or its own
free choice without reference to any representations, promises or expectations
not set forth herein.
14.00 Integration.
This
Agreement, after full execution, acknowledgment and delivery, memorializes and
constitutes the entire agreement and understanding between the parties and
supersedes and replaces all prior negotiations and agreements of the parties,
whether written or unwritten. Each of the Parties to this Agreement
acknowledges that no other party, nor any agent or attorney of any other party
has made any promises, representations, or warranty whatsoever, express or
implied, which is not expressly contained in this Agreement; and each party
further acknowledges that he or it has not executed this Agreement in reliance
upon any belief as to any fact not expressly recited hereinabove.
15.00 Attorneys
Fees.
In the
event of a dispute between the parties concerning the enforcement or
interpretation of this Agreement, the prevailing party in such dispute, whether
by legal proceedings or otherwise, shall be reimbursed immediately for the
reasonably incurred attorneys' fees and other costs and expenses by the other
Parties to the dispute.
16.00 Interpretation
& Right to Specific Performance.
Wherever
the context so requires: the singular number shall include the plural; the
plural shall include the singular; and the masculine gender shall include the
feminine and neuter genders. In the event that either party to this
Agreement commits a breach of its obligations under this Agreement, the other
party shall be entitled to specific performance in addition to any other
remedies to which they may be entitled.
17.00 Captions
& Exhibits.
The
captions by which the sections and subsections of this Agreement are identified
are for convenience only, and shall have no effect whatsoever upon its
interpretation.
18.00 MISC
19.00 Counterparts.
This
Agreement may be executed in any number of counterparts.
20.00 Expenses
Associated With This Agreement.
Each of
the parties hereto agrees to bear its own costs, attorney’s fees and related
expenses associated with this Agreement.
21.00 Arbitration.
Any
dispute or claim arising to or in any way related to this Agreement shall be
settled by arbitration in Sausalito, California. All arbitration shall be
conducted in accordance with the rules and regulations of the American
Arbitration Association ("AAA"). AAA shall designate an arbitrator
from an approved list of arbitrators following both parties' review and deletion
of those arbitrators on the approved list having a conflict of interest with
either party. Each party shall pay its own expenses associated with such
arbitration (except as set forth in Section 11.05 Above). A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter has arisen and in no event shall such demand be made after the
date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statutes
of limitations. The decision of the arbitrators shall be rendered
within 60 days of submission of any claim or dispute, shall be in writing and
mailed to all the parties included in the arbitration. The decision of the
arbitrator shall be binding upon the parties and judgment in accordance with
that decision may be entered in any court having jurisdiction
thereof.
22.00 Power
to Bind.
A
responsible officer of the Company has read and understands the contents of this
Agreement and is empowered and duly authorized on behalf of the Company to
execute it.
23.00 Confidentiality.
The
parties hereto agree that the terms of this Agreement and all documents
constituting parts of this transaction shall be kept strictly confidential
except to the extent necessary to protect the rights of the parties hereto or to
satisfy the Company’s obligations under the Securities Exchange Act of 1934 and
the rules adopted by the Securities and Exchange Commission
hereunder.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date set forth
above.
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China
Wi Max Inc:
By: _________________________________
Name
(print): __________________________
Title:
________________________________
Address:
_____________________________
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Capital
Group Communications:
By: _____________________________
Xxxxx
Xxxxx
CEO
Capital
Group Communications, Inc
00
Xxxxxxx Xxxx Xxx, Xxxxx 0 Xxxxxxxxx, XX
00000
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EXHIBIT
B
CERTIFICATE
OF CORPORATE SECRETARY
I,
_______________________ do hereby certify that I am the duly elected Corporate
Secretary of _____________________________________, a
_____________________corporation (the “Company”).
I also
warrant and represent that the Consulting Agreement between the Company and
Consultant has been duly approved by the Company’s Board of Directors and the
shares of the Company’s Common Stock issued to Consultant as described in the
Agreement as a Stock Fee have been duly issued and earned by Consultant under
the terms of the Agreement and that all of the Stock Fee are fully earned and
paid for by Consultant. For all intensive purposes the fee shall be valued at
$00.001 per share.
THIS
CERTIFICATE IS DELIVERED TO CONSULTANT FOR THE PURPOSE OF SUPPORTING THE
OBLIGATIONS OF THE COMPANY AS RECITED IN THE AGREEMENT.
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