Exhibit 4.9
CONSULTING AGREEMENT
Agreement made this 19th day of April 2004 between China Wireless
Communications, Inc. (hereinafter referred to as "Company"), and Xxxxxxx Xxxxxx
(hereinafter referred to as "Consultant"):
Company desires to engage Consultant to perform certain consulting
services for Company and Consultant desires to perform such services on the
terms and conditions set forth below.
NOW THEREFORE, in consideration of the premises hereof and of the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Engagement; Scope of Services.
Company hereby engages Consultant to perform the duties set forth in
this Agreement. The engagement by Company of Consultant under this Agreement is
non-exclusive and shall not limit Company's right to engage other persons
(including but not limited to consultants and analysts) to conduct activities on
behalf of Company. During the term of this Agreement Consultant may not perform
comparable services for any person or entity involved in similar businesses in
which Company (or any of its subsidiaries or affiliates) is engaged.
2. Duties and Responsibilities of Consultant.
2.1. Consistent with Consultant's experience and expertise in
dealing with all areas regarding financial research and financial analysis of
the telecommunications opportunities in South Pacific Region and Malaysia,
Consultant shall advise and consult with Company's representatives or affiliated
representatives on such subjects, meeting with them from time to time at the
request of Company. At such meetings, Consultant shall advise, make
recommendations, introduce marketing opportunities, prepare research and
competitive financial analysis, present financial plans devised by Consultant,
offer ideas to promote the products and services of the Company and generally
advise the Company on similarly related matters.
2.2 Consultant's duties hereunder shall include, but not be
limited to, (as such pertains to the South Pacific/Malaysia markets):
2.2.1 Recommendation and Preparation of corporate financial
strategies and business development costs;
2.2.2 Prepare and present value add partnerships;
2.2.3 Provide cost analysis and recommendations of new
wireless technologies;
2.2.4 Provide senior level contacts and introductions for
financial strategies.
2.2.5 Provide sales contacts to multinational and other
telecom companies.
59
2.3. Consultant shall submit and identify to Company all contacts
for possible business relationships; however, Consultant shall inform such
contacts that no obligation is created on the part of Company by virtue of such
submission.
2.4 Consultant shall devote such time as, in the sole discretion
of the Consultant, to the performance of his duties, is needed to fulfill his
duties under all of the terms and conditions of this Agreement.
2.5. Both parties intend this Agreement to be a personal contract
and Consultant shall not assign or delegate any rights, duties or obligations
arising under this Agreement without the prior written consent of Company, which
consent may be withheld in Company's sole discretion.
3. Representations, Warranties, Covenants, and Agreements of Consultant.
3.1. Representations and Warranties. Consultant hereby represents
and warrants to Company as follows:
(a) Consultant is familiar with all aspects of the
telecommunications markets. Consultant also acknowledges that it is the policy
of Company to comply fully with all applicable laws and regulations of the
United States and all jurisdictions in which it does business, and Consultant
warrants that he will not take any action which would constitute a violation of
any law of any jurisdiction in which he performs services or of the United
States.
(b) The execution and performance of this Agreement by Consultant
will not violate, or result in a default under, any agreement, law, statute,
regulation, or other authoritative rule of any governmental body to which
Consultant is a party or by which Consultant is bound.
(c) There is no restriction upon Company disclosing to any person
or entity (i) that Company has the relationship with Consultant provided for in
this Agreement, (ii) that Consultant is to receive from Company compensation in
connection with the performance of services hereunder, (iii) the amount of that
compensation, or (iv) the terms upon which payment has been or will be made.
(d) This Agreement, when executed, will constitute the valid and
legally binding obligation of Consultant, fully enforceable against him in
accordance with its terms. The execution and performance of this Agreement by
Consultant will not violate any constitutional provisions, statutes, ordinances,
regulations, tax codes, or other laws of the United States or the Laws of any
other Country.
(e) The services of the Consultant to be performed for the Company
as set forth herein (i) are not in connection with the offer or sale of the
Company's securities in a capital raising transaction and (ii) do not directly
or indirectly promote or maintain a market for the Company's securities.
(f) Consultant acknowledges that he is waiving his right to cash
compensation and accepting the remuneration set forth herein in lieu thereof,
and is aware of the risks related thereto.
60
(g) 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
Company, and any additional information which the Consultant has requested.
(h) Consultant's investment in securities is reasonable in
relation to the Consultant's net worth. Consultant has had experience in
investments in restricted and publicly traded securities, and 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 Company is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire investment in the Company.
Consultant is either (i) a sophisticated investor with such knowledge as is
necessary to make an informed investment decision or (ii) an accredited
investor, as that term is defined in Regulation D promulgated under the
Securities Act of 1933.
(i) 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.
(j) Consultant has consulted with his own attorney regarding this
Agreement and legal matters concerning the Company and with his tax advisor
regarding the tax consequences of acquiring the Shares.
3.2 Covenants and Agreements. Consultant hereby covenants with
Company and agrees as follows:
(a) Consultant shall not make use of any agent or consultant
connection with the performing of any of his duties hereunder without the prior
written approval of an authorized executive officer of Company. Notwithstanding
anything to the contrary in this Agreement, Consultant may delegate
administrative duties (including data processing and other ministerial
functions) to third parties, so long as such third parties are informed of, and
agree to be bound by, the provisions of Section 13 hereof.
(b) Consultant shall not hold himself out, directly or by
implication, as being an employee or contracting agent of Company.
(c) Consultant shall not make any representation, directly or by
implication that the Company has any obligation to any third party with respect
to the payment of any of the payments to be made to Consultant hereunder.
61
(d) In the performance of this Agreement, neither Consultant nor
any employee or agent of Consultant shall, except as approved in writing in
advance by Company, offer to pay, pay, promise to pay, or authorize the payment
of, any money, or offer to give, give, promise to give, or authorize the giving
of, anything of value, directly or indirectly, to any third person or entity.
(e) Consultant hereby authorizes Company to disclose to any
governmental authority that properly requests such disclosure, (i) this
Agreement, (ii) the amount of any compensation paid to Consultant hereunder, and
the terms and manner of such payment, and (iii) such other information as may be
required by law or regulation. Consultant agrees to provide to Company in a
timely manner, any information necessary for Company to make such disclosure.
(f) In performance of this Agreement, Consultant shall fully
comply with all applicable laws governing the transactions undertaken, including
without limitation all United States Federal and State securities laws.
(g) Consultant shall inform Company immediately if any
representation, warranty, covenant, or agreement contained in Section 3 hereof
is no longer accurate. (h) The Consultant agrees to the inclusion of this
Agreement and the contents hereof (including but not limited to the name of the
Consultant) in a Form S-8 to be filed by the Company including the Shares.
4. Compensation.
Except as expressly provided herein, neither Company nor any parent,
subsidiary, or affiliate of Company or joint venture in which Company may have
an interest, shall be liable for any payment to Consultant.
4.1. Company shall pay to Consultant, during the term of this
Agreement, the sum of 100,000 shares of common stock @ $0.60 per share as
follows: distributed on equal monthly allocation up until Expiration Date (as
defined below). Consultant shall be paid in three equal installments for each
two month period for the six month term of the contract (day 1, day 60 and day
120, etc). These payments may be in stock or cash (such stock to be free-trading
shares of the company) and will be due upon signing the contract, delivered to
the Company or its assignee within 10 calendar days.
4.2 Upon Successful completion of meeting business objectives, the
Company shall arrange to pay a success fee or commission.
5. Apportionment of Expenses: Right To Audit.
5.1. Consultant shall be reimbursed by the Company for all
reasonable pre-approved expenses incurred by Consultant in the performance of
his duties, as set forth in Paragraph 2.2, above.
5.2. Requests by Consultant for reimbursement of expenses must be
accompanied by an itemization of such expenses.
62
5.3. All compensation and expense reimbursements are subject to
audit by Company upon request by Company and Consultant agrees to cooperate
fully with Company in the event of such a request.
6. Term and Termination.
6.1. Term. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue for a period of six (6) months, terminable
as set forth in Section 6.2 below. If Consultant is actively engaged in
promotion with respect to any business relationship at the date of termination
of the Agreement, Company may, at its sole discretion, extend the term of this
Agreement on a month-to-month basis. This Agreement may be extended for one
additional twenty four-month period upon the mutual written agreement of the
parties hereto.
6.2. Termination Rights.
(a) Anything herein to the contrary notwithstanding, in the event
that Company determines in good faith that its relationship with Consultant
subjects Company or any of its employees to potential violations of any
applicable law, regulation, or order, then this Agreement, and all obligations
of Company hereunder, shall expire immediately upon Company giving notice to
Consultant of such determination.
(b) This Agreement may be terminated at any time without notice by
Company (i) for illegal acts or willful neglect on the part of Consultant or
Consultant's agents or employees, or (ii) in the event any representation,
warranty, covenant, or agreement of Consultant contained in this Agreement shall
prove to be inaccurate in whole or in part. No severance pay shall be payable,
nor payments set forth herein but not yet paid, by Company to Consultant upon
Consultant's termination, regardless of the reason of such termination. In the
event the Consultant terminates this Agreement without cause the Consultant
shall not be entitled to any payments which may or may not come due after such
date.
7. Indemnification.
Consultant shall defend, indemnify and hold harmless Company and its
officers, directors, employees, agents, parent, subsidiaries and other
affiliates, from and against any and all damage, cost, liability, and expense
whatsoever (including attorney's fees and related disbursements) incurred by
reason of (a) any failure by Consultant to perform any covenant or agreement of
Consultant set forth herein, or (b) any breach by Consultant of any
representation, warranty, covenant or agreement contained herein. Company shall
have the right to offset against any fees or commissions due Consultant for any
damage, cost, liability, expense, fee or other disbursement incurred by Company
pursuant to this Section 7.
8. Independent Status of Consultant.
This Agreement establishes the rights, duties, and obligations of
Company and Consultant, and does not create an employer-employee or agency
relationship between Company, or any entity affiliated with Company, and
63
Consultant, or any of Consultant's employees or agents. Consultant acknowledges
and agrees that Consultant is an independent contractor to Company and
Consultant shall not act as an agent of Company. As an independent contractor,
Consultant shall be responsible for any social security taxes, insurance, and
any other taxes or fees that are applicable to him and his employees and agents
pursuant to the tax laws of the United States, or any state, thereof.
9. Promotional Materials.
From time to time, Company may furnish Consultant with such promotional
data, materials and technical information as Company deems necessary for
Consultant to have in the performance of her duties hereunder. Consultant shall
use such materials in furtherance of the objectives of this Agreement and shall
not disseminate the same except as set forth in Section 13.
10. Governing Law.
This Agreement shall be governed by, and its terms and conditions shall
be construed and enforced in accordance with the domestic laws of the State of
Colorado of the United States of America excluding its principle of conflicts of
laws and the parties hereto and hereby irrevocably submit to the jurisdiction
and venue of the courts of the State of Colorado to resolve any disputes arising
hereunder or related hereto.
11. Assignment.
Neither this Agreement nor any money due or to become due hereunder may
be assigned, in whole or in part, by Consultant without the prior written
consent of Company, which consent may be withheld in Company sole discretion.
12. Notices.
All notices or other communications required or permitted to be given
hereunder shall be (as elected by the person giving such notice) (a) personally
delivered, (b) transmitted by postage prepaid registered mail (airmail if
international), or (c) transmitted by telex, with postage prepaid mail
information (airmail if international), to the parties as follows:
12.1 If to Company: China Wireless Communications, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Telephone: 000.000.0000
Facsimile: 303.278.0092
12.2 If to Consultant: Xxxxxxx Xxxxxx
One Xxxxxxx Street $04-01
Xxxxxxxxx 000000
64
Except as otherwise specified herein, all notices and other
communications shall be deemed to have been given on the date of receipt if
delivered personally, three (3) business days after posting if transmitted by
mail, or the date of transmission with confirmed answer back if transmitted by
telex, whichever shall first occur. Any party hereto may change its address for
purposes hereof by written notice to the other party.
13. Use of Information and Non-Solicitation.
Any information including, but not limited to, data, business
information, technical information, specifications, drawings, sketches, models,
samples, tools, promotional material, computer programs and documentation,
written, oral or otherwise together with analyses, compilations, comparisons,
studies or other documents prepared by Consultant or his partners or employees
which contain or reflect such information (all hereinafter designated
"Information") furnish to Consultant hereunder or in contemplation hereof shall
remain Company property or the property of the Company subsidiary or affiliate
which furnished the Information to Consultant. All copies of such Information in
written, graphic or other tangible form shall be returned to Company or such
Company subsidiary or affiliate upon request. Unless such information was
previously known to Consultant free of any obligation to keep it confidential or
has been or is subsequently made public by Company or a third party without
violation of this Agreement, it shall be kept confidential by "Consultant and
his partners and employees: and shall be disclosed only upon the prior written
consent of Company or upon such terms as may be agreed upon in writing by the
parties. Any findings, reports, questionnaires, or other results of this
Agreement shall be the exclusive property of Company including title to
copyright in all copyrightable material and shall be considered a "work made for
hire" in accordance with the copyright statute.
Consultant covenants and agrees that during this Agreement and the three (3)
year period immediately following the termination of this Agreement (including
any extensions hereof), Consultant shall not (1) directly or indirectly induce
or attempt to induce any employee of Company which Consultant served during the
term of this Agreement; provided, however, that Consultant may offer, take or
receive any employment or services (on behalf of herself or on behalf of
another) to any customer, partner or joint venturer of which, without any
solicitation, inducement or direction by Consultant, has terminated contractual
or other business relationships with Company.
14. Miscellaneous.
This Agreement constitutes the entire understanding of the parties
concerning the subject matter hereof, and supersedes all prior agreements and
understandings, whether written, oral or otherwise, between the parties, and may
be altered or amended only in a writing signed by both parties. Except as
otherwise expressly provided herein, no purported waiver by any party of any
breach by the other party of its obligations, representations, warranties,
agreements or covenants hereunder shall be effective unless made in a writing,
and no failure to pursue or elect any remedy with respect to any default under
or breach of any provisions of this Agreement shall be deemed to be a waiver of
any subsequent, similar or different default or breach. Consultant hereby
consents and agrees that the Courts in the State of Colorado are the exclusive
forum for litigation of any claim by Consultant arising under this Agreement.
Consultant hereby irrevocably waives and relinquishes any right to bring or
cause to be brought a claim in any judicial or administrative forum located
outside of the State of Colorado of the United States of America.
65
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ATTEST: /s/ XXXXXXX XXXXXX
--------------------------
Xxxxxxx Xxxxxx
China Wireless Communications
By: /s/ XXXX XXXXX
---------------------------------
Xxxx Xxxxx, Interim President
66
